Volume 205 — Federal Reporter

Van Fleet, Judge. Action by Ernest E. Evans and others, doing business as Evans, Coieman & Evans, against the Standard Portland Cement Corporation. Judgment for plaintiffs, and defendant brings error. The defendants in error brought an action to recover upon four promissory notes, aggregating $39,000, executed by the plaintiff in error and indorsed by W. J. Dingee and Irving -A. Bachman. The notes were dated May 1, 1908, and were due one year from date.

Suit in equity by George W. Norton, as executor and trustee of the estate of George W. Norton, deceased, against Robert W. Whiteside, E. P. Alexander, and Andrew J. Tallas. Decree for complainant against defendant Whiteside, and he appeals. Reversed. Decree for defendant Tallas, from which complainant appeals.

Sessions, Judge. Suit in equity by the American Brake Shoe & Foundry Company against the Pere Marquette Railroad Company, with the Bankers’ Trust Company, the Central Trust Company of New York, W. W. Crapo, trustee, and the Farmers’ Loan & Trust Company, trustee, as interveners. From an order obtained by Frank W. Blair, Dudley F. Waters, and Samuel M. Felton, receivers, authorizing the issuance of receivers’ certificates, the Farmers’ Uoan & Trust Company appeals.

Bean, Judge. Action by the Alaska-Portland Packers’ Association against the Globe & Rutgers Fire Insurance Company. Judgment for plaintiff, and defendant brings error.

This cause comes here upon writ of error to review a final decree of the District Court, Southern District of New York, entered upon the verdict of a jury directed by the court dismissing a libel of information. The libel was filed against two baskets or hampers and their contents of merchandise, which the collector had seized upon their being landed from the Kaiser Wilhelm der Grosse at the port of New York.

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge.</p> <p>Habeas corpus proceedings by Lee Tung Jung and Louie Ning and by Mock Ben Ying and Dung Foo against G. Oliver Frick, Immigration Inspector. From an order of conditional discharge, respondent brings error.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action by the United States against the Central Vermont Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents (§ 83*) — Validity—Delay and Laches.</p> <p>A patentee, as shown by an affidavit filed by Mm In the Patent Office, conceived Ms invention, which related to a system of electric distribution, in 1879. In 1885 he applied for a patent, which, after rejections, was finally granted in 1902. In 1903 a suit for its infringement was commenced, but was not brought to a hearing for 10 years thereafter. During the preceding 33 years many others had independently made and perfected devices along the same lines, which were in extensive use. Held, that there was such lack of diligence and laches on the part of the patentee and his assignees as rendered the patent invalid.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 108, 109; Dee. Dig. § 83.*]</p> <p>2. Patents (§ 328*) — System of Electric Distribution.</p> <p>The Thomson patent, No. 698,156, for a system of electric distribution, held invalid for lack of patentability, novelty, or invention, and also by reason of the patentee’s delay and laches.</p> <p>3. Words and Phrases — “Ordinarily Termed.”</p> <p>What is “ordinarily termed” is termed “by established rules and settled methods.”</p>

<p>In Equity. Suit by Otto Bernz against Frederick J. Schaefer and Emil Beyer. On final hearing.</p>

<p>Petition of Pedro Garcia for a writ of habeas corpus. On demurrer to petition.</p>

<p>In Equity. Suits by Wells Fargo & Co. and by James C. Fargo, individually and as president of the American Express Company, against George G. Johnson, as Treasurer of the State of South Dakota. On final hearing,</p>

In Equity. Suits by the Detroit, Grand Haven & Milwaukee Railway Company and by the Grand Trunk Railway Company of Canada against Oramel B. Fuller, Auditor General, and Franz C. Kuhn, Attorney General, to restrain the enforcement of Pub. Acts Mich. 1911, No. 95, imposing a tax on the stock, bonds, and other evidences of indebtedness of specially chartered railway companies. Demurrers to the bills overruled, and defendants allowed time to answer.

In Equity. Suit by the Title'Guaranty & Surety Company of Scranton, Pa., against W. F. Guernsey and others. On motions by defendants to withdraw pleadings and to dismiss bill, etc.

<p>Suit by the Title Guaranty & Surety Company, of Scranton, Pa., a corporation, against W. F. Guernsey and others, in which the State of Washington and others filed an answer and cross-bill in the nature of a bill of interpleader, and defendants Guernsey & Co. filed a cross-bill against the State, denying the amount alleged to be due by the State, and claiming against the State several thousand dollars in addition, for which judgment was prayed, to which cross-bill the State demurred.</p>

At Law. Action by Peter Schweig, as administrator of the estate of Walter Schweig, deceased, against the Chicago, Milwaukee & St. Paul Railway Company. On motion to direct verdict for defendant.

<p>1. Quieting Title (§ 34*) — Removal of Cloud — Bill.</p> <p>Where a bill to remove a cloud on title alleged that complainant contracted to sell land to A., who executed a declaration of trust to defendant, a Pennsylvania corporation, and that complainant was induced to consent to the transfer of the land contract to defendant, an allegation that such consent was obtained by complainant being shown such declaration of trust, and the assurance of defendant’s representative that it would be recorded, when in fact a declaration of trust to a West Virginia corporation bearing the same name as defendant was recorded instead of the declaration of trust to defendant, was demurrable as an allegation of fraud, since, even if the facts were true, they did not constitute a fraud on his rights.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Gent. Dig. §§ 69, 71, 72, -76, 77; Dec. Dig. § 34.*]</p> <p>i. Quieting Title (§ 34*) — Cloud on Title.</p> <p>A bill alleging the execution and record of a contract for sale of land assigned to defendant, and that same had been forfeited by reason of defendant’s failure to make the payments required, and asking for removal thereof, stated grounds for equitable relief to remove a cloud on title.</p> <p>LEd. Note. — Dor other cases, see Quieting Title, Cent. Dig. §§ 69, 71, 72, 76, 77; Dee. Dig. § 34.*]</p> <p>3. Quieting Title (§ 37*) — Cloud on Title — Plea—Issues.</p> <p>In a suit to set aside a contract for the sale of land as a cloud on title for defendant’s failure to make the required payments thereunder, allegations in a plea that complainant did not have title in fee simple, free and clear of all liens and incumbrances, was demurrable, as evasive, in failing to allege in what respect the title was defective, and was insufficient to raise an issue as to the validity of complainant’s title.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 78; Dec. Dig. § 37.*]</p>

<p>Commerce (§ 40*) — Corporations (§ 042*) — “Interstate Commerce” — Sale of Machinery Located Within the State — Foreign Corporations — “Carrying on Business” in State.</p> <p>Plaintiff, a foreign corporation, having no office, factory, or warehouse in Michigan, leased a steam shovel to a resident of that state, and, on forfeiture of the lease, plaintiff’s sales manager showed the shovel to defendant, a prospective purchaser, and thereafter a contract of sale therefor was made by correspondence between defendant and plaintiff’s office in Ohio. One of the provisions thereof required that plaintiff move the shovel to another point in Michigan and furnish an agent to install and test it there, and replace any defective parts, which was done. The plaintiff has never complied with Act No. 310, Pub. Acts Mich. 1907, regulating the doing of business in Michigan by foreign corporations. Held, that the transaction constituted “interstate commerce,” and was valid, without plaintiff’s compliance with the terms of said Act No. 310.</p> <p>'Held, further, that the sale of the shovel in this state, and its subsequent installation and test, constituted a single transaction, and evidenced no purpose on the part of plaintiff to “carry on business” in Michigan, contrary to the provisions of Act No. 310, Pub. Acts Mich. 1907.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dee. Dig. § 40 ;* Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 3724r-3731; vol. 1, pp. 979-982; vol. 8, pp. 7596-7597.]</p>

In Equity. Action by the American Automotoneer Company and another against Joseph Y. Porter, doing business under the name and style of the Porter Manufacturing Company and the Porter Railway Switch Company. On motion to expunge complainants’ rebuttal evidence and on final hearing.

In Bankruptcy. In the matter of bankruptcy proceedings of L. H. Kemmerer & Co. On claim of the National Silk Dyeing Company for a lien on certain silk raw material for general balance of account. On certificate of a referee for review of his order denying a lien.

<p>Action by the United States against Thirty-Six Bottles of Loudon Dry Gin. On motion for new trial.</p>

In the matter of bankruptcy proceedings of James M. Shoemaker. From a decree requiring a delivery of certain attached property to the trustee on condition that he deposit with the clerk $300, pending determination of an appeal from an order directing certain payments to Paul A. Queen for counsel fees and costs in the attachment proceeding, the trustee appeals.

’vVolverton, Judge. Action by Alonzo E. Monical against the Pacific Hardware & Steel Company. Judgment for plaintiff, and defendant brings error. The injuries complained of occurred on the 25th day of March, 1911, and were caused by the plaintiff being struck by bars of iron or steel, known as angle iron, which protruded from the rear end of an auto truck owned and operated by the defendant.

Lewis, Judge. Suit in equity by the Cascade Town Company against the Empire Water & Power Company and others. Decree for complainant, and defendants appeal. This is an appeal from a decree in favor of the Cascade Town Company perpetually enjoining the Empire Water & Power Company and its officers from interfering with the normal flow of the waters of a stream in Cascade Canyon, near Colorado Springs, Colo.

<p>Appeal from the Circuit Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by Leander A. Bigger against the Empire Water, & Power Company and others. Decree for defendants (181 Eed. 1011), and complainant appeals.</p>

Platt, Judge. Action by the United States against Grace K. Ford, as executrix of the estate of Paul Leicester Ford, deceased, to recover a legacy tax imposed under War Revenue Act 1898, § 29, on the personal estate of decedent which passed to his posthumous child not provided for or mentioned in his will. From a judgment for plaintiff, defendant brings error.

F. W. Fickett was indicted for unlawfully interrupting and preventing a United States surveyor from making a survey of certain unpatented mining claims, in violation of Rev. St. § 2412, within the territory of Arizona. A demurrer to the indictment was sustained, and defendant discharged, and, on the territory being made a state, an appeal by the United States was transferred to the Circuit Court of Appeals.

<p>In Error to the Circuit Court of the United States for the Eastern District of Kentucky; A. M. J. Cochran, Judge.</p> <p>Action by D. B. Redwine against the Continental Realty Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Executors and Administbatobs (§ 315*) — Obdeb fob Distribution — Oollatjeba l Attack — Jtjb rs bicti ox.</p> <p>Orders of the probate court, under which the assets of a decedent’s estate are distributed; cannot be collaterally attacked.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 3298-1314; Dec. Dig. § 315_;* Judgment, Cent. Dig. § 1067.]</p> <p>2. Wills (§ 832*) — Legacies—Liability of Legatee fob Debt.</p> <p>A legatee, taking assets of a testator’s estate, does not thereby become personally charged with the payment of debts under an implied contract, unless the implication of an assumpsit fairly arises from the circumstances, and the duty to pay is created either by express words in the will or a plain implication of personal liability.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 2139-2155; Dec. Dig. § 832.*]</p> <p>3. Wills (§ 830*) — Legacies-Liability of Legatee fob Debt.</p> <p>Where testator’s will made his widow substantially a residuary legatee, but did not charge her personally with the payment of his debts, and did not make their payment a condition of the legacy, no charge of debts being made on the property given her, other than that which follows from the law, irrespective of the terms of the will, the only departure from the ordinary course being a special reference to certain life insurance as a fund for debts, she did not, by accepting the terms of the will, incur a personal obligation to pay testator’s debts.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 2139, 2150; Dec Dig. § 830.*] , ¡</p>

Van Valkenburgh, Judge. Action :by Ell Holland, trustee in bankruptcy of William Francis, against the Lathrop Bank of Lathrop, Mo., to annul a voidable preference. Judgment for plaintiff, and defendant appeals.

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge. In the matter of bankruptcy proceedings of Adelbert H. Alden and others. On petition to revise an order referring the case to the referee in Norfolk county, and denying a petition to refer to the referee in Suffolk county.

Burns, Judge. Suit by Charles Dillingham, as receiver of the Houston Oil Company of Texas, against T. B. Allen & Co. and others. From an order sustaining exceptions to a master’s report advising judgment for plaintiff, he appeals.

<p>1. Appeal and Error (§ 977*) — New Trial (§ 6*) — Review.</p> <p>An order oí a federal court granting a new trial is an exercise of discretion,, and not reviewable on writ oí error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3800-38(55; Dec. Dig. § 977 ;* Now Trial, Cent. Dig. £§ 9, 10; Dec. Dig. § G.*j</p> <p>2. Appeal and Error (§ 219*) — Action at Law — Trial by Court — Requests eob Findings — Necessity.</p> <p>Where the parties to an action at law waive a jury and submit the issues of fact to the court, the court’s general finding thereon cannot be reviewed; but questions sought to be reviewed must be presented to the trial court by requests for findings or declarations of law applicable to the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317-1320, 1322, 1323; Dee. Dig. § 219.*]</p> <p>3. Appeal and Error (§ 859*) — Scope op Review — Questions op Daw.</p> <p>On a writ of error in an action at law, the appellate court, is confined to questions of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3441-3445; Dec. Dig. § 859.*]</p> <p>4. Trial (§ 392*) — Tria!, by Court — Special Findings.</p> <p>Where an action at law is tried to the court without a jury, the conclusion to be drawn from special findings of fact is one of law, and a request by a party for a finding in his favor, like a motion for a directed verdict in a trial to a jury, is an assertion that, taking all the evidence most strongly against him, the judgment should still be in his favor as a matter of law.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dee. Dig. § 392.*]</p>

<p>In Equity. Suit by the Lagonda Manufacturing Company against the Elliott Company. On final hearing.</p>

<p>1. Patents (§ 310*) — Suit fob Infringement — Multifariousness of Bill.</p> <p>A bill for infringement of a number of patents, the charge of infringement being based on the alleged breach of a license contract affecting all, is not multifarious.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*]</p> <p>2. Contracts (§ 127*) — Validity—Agreement Made to Settle Litigation.</p> <p>A written agreement, made to settle litigation, will be enforced, unless impeached for fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 608-615; Dec. Dig. § 127.*]</p> <p>3. Patents (§§ 129, 209, 211*) — “License”—Construction—Limitations.</p> <p>By a written agreement, made between complainant and defendant to settle litigation involving patents relating to boiler-tube cleaners, defendant was licensed to manufacture, use, “and sell to others for use throughout the United States” the combination of a patent, followed immediately by the words: “But such license shall not be held to authorize the manufacture, sale, or use * * * after July 1, 1908, of any form of cleaner-head or motor that infringes letters patent on cleaner-heads or motors now or hereafter owned by” complainant. Held, that such contract limited defendant to a sale of the devices for use in the United States, and also estopped it to contest the validity of any patents owned by complainant after July 1, 1908, relating to cleaner-heads or motors, and that such limitations were valid.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182%-186, 300, 303, 304-311; Dec. Dig. §§ 129, 209, 211.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4133-4141; vol. 8, p. 7706.]</p>

_ In Equity. Suit by the Zenith Carbureter Company and the Société du Carburateur Zenith against the Stromberg Motor Devices Company. On motion to dismiss bill under new equity rule 25 (198 Fed. xxv, 115 C. C. A. xxv).

In Equity. Suit by W. G. Sawyer and Frances Sawyer, his wife, and Alfred C. Tuxbury and Luna B. Tuxbury, his wife, against Raymond S. Gray and Sena Gray, his wife, W. A. Gray and Lois Gray, his wife, Charles S. Forbes and Adelaide F. Forbes, his wife, Frank L. Huston, John H. Patten and Dora W. Patten, his wife, W. W. Barr and Gertrude G. Barr, his wife, and the Milwaukee Land Company. On demurrer to second amended bill for want of equity.

<p>At Law. Actio-n by J. L. Stoll against the Pacific Coast Steamship Company. On demurrer to affirmative defense.</p>

In Admiralty. In the matter 'of the petition of the Mills Transportation Company for limitation of liability, as owner of the steamer Newaygo. On claim of Great Lakes Towing Company.

In the matter of the Gallacher Coal Company, bankrupt. On petition of the Southern Iron & Steel Company to review an order of the referee disallowing its claim in part.

<p>In Admiralty. Suit by the Star Steamship Company for salvage against the scow D. L. Co. No. XX and cargo; the Seaton Barge Company, claimant.</p>

<p>Salvage (§ 30*) — Compensation—Rescue oe Disabled Steamer.</p> <p>A steamer, worth with her cargo of lumber nearly $50,000, after being salved, which struck on the bar at the entrance to Grays Harbor, disabling her rudder and causing her to leak so as to put out her fires, held, on the evidence, to have been in a situation of great peril, with serious danger of loss of life, owing to the tide and high wind, when she was rescued by libelant’s tug and towed to a port, which was reached three days later, and libelant and the officers and crew of the tug given a salvage award of $8,000.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 72-74; Dec. Dig. § 30.*]</p>

<p>1. Fish (§ 6*) — Pollution qi<- Stream — Remedy—Indictment—'Injunction.</p> <p>Where the owner of certain forest land, leased to complainant’s predecessor for fishing and hunting, proceeded to conduct certain lumbering operations thereon, and polluted a trout stream on the land, the remedy by indictment was not exclusive, but injunction might be granted to stay further pollution and desí ruction.</p> <p>‘(Kd. Note. — For other cases, see Fish, Cent. Dig. § 14; Dee. Dig. § 6.*]</p> <p>2. Injunction (§ 47*) — Destruction or Roads — Leases.</p> <p>Where a lease of forest lands for hunting and fishing provided (hat none of the rights and privileges granted by the lease should interfere with, limit, or hinder the owners in their operations as lumbermen, farmers, or grazers thereon, an injunction would not lie to restrain the owners from destroying roads on the property, built under the lease, whore the acts were done by the owners, not maliciously, but in their legitimate lumbering operations.</p> <p>[Kd. Note. — For other cases, see Injunction, Cent. Dig. § 100: Dee. Dig. § 47.*]</p> <p>8. Landlord and Tenant (§ 123*) — Game Pbesebve — Taking Timber — Repair on Buildings — “Lodge.”</p> <p>Where a lease' of 50,000 acres of forest land for fishing and hunting to an'incorporated club, which spent $25,000 in building a clubhouse anil other buildings, roads, etc., provided that it should continue for 50 years, with the right to the lessees to cut timber on the land and use the same to build one or more camps or lodges, and the lessees fenced and cleared 10 acres of ground, to be used in connection with the clubhouse. the owners of the land, after the expiration of 25 years without objection, were not entitled to prohibit the lessees’ further use of the clubhouse and 10-acre tract, nor the taking of timber for the repair of the clubhouse; the term “lodge,” as used in .the lease, being sufficiently broad to include such house.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 435, 436; Dec. Dig. § 123.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4226.]</p>

<p>Bankruptcy (§ 140*) — Rights and Powers of Trustee — Chattel Mortgages.</p> <p>Panin'. Act July 1, 1898, c. 541, § 47a (2), 30 Stat. 557 (U. S. Comp. St. 1901,. p. 3438), as amended by Act June 25, 1910, e. 412, § 8, 36 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), which vests a trustee with the rights and powers of a creditor holding a lien by legal or equitable proceedings as to property in the custody of the court, was intended to preserve, but not to enlarge, the rights of creditors; and where under the state law a chattel mortgage, although unrecorded, is valid, except as against subsequent creditors without notice and prior creditors who have secured liens by attachment or levy, a trustee cannot hold property as against the holder of an unrecorded mortgage for the benefit of prior simple contract creditors.</p> <p>[Ed. Note — Eor other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p>

<p>At Raw. Action by Walter Thomson and Martha Thomson, his wife, against the Columbia & Puget Sound Railroad Company. On demurrer to amended complaint.</p>

<p>1. Bankruptcy (§ 81*) — Invoi.untary Petition — Acts ok Bankruptcy — Language ok Statute.</p> <p>It is not sufficient, in an involuntary bankruptcy petition, to charge tbe acts of bankruptcy in tbe language of tbe statute.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, 125; Dee. Dig.‘§ 81.*]</p> <p>2. Bankruptcy (§ 59*) — Petition—Acts ok Bankruptcy.</p> <p>Mere sufferance by a creditor of a bankrupt to enforce by execution a mortgage lien antedating more than four months the filing of tbe bankruptcy petition, on which judgment bad been recovered, does not constitute an act of bankruptcy.</p> <p>[Ed. Note.. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. 59.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of' the La France Copper Company. On review of referee's orders in the matter of a sale of the bankrupt’s real and personal property, made at public auction in a county other than that in which the property was located and without four weeks’ published notice.

Day, Judge. Action by Manuel Elera against the Canton-Hughes Pump Company. Judgment for plaintiff, and defendant brings error. In an action brought by Llera, as plaintiff, and founded upon a judgment which had been rendered for him and against the Pump Company, by the Municipal Court, of New York City, the District Judge directed a verdict in plaintiff’s favor, leaving to the jury only the computation of interest; and verdict and judgment were rendered for $4,317.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, District Judge.</p> <p>Action at lavs' by Ellsworth C. Irvine, receiver, against Julius H. Blackburn. Judgment for plaintiff, and defendant brings error.</p>

Safer, Judge. Suit by Charles R. Bauer against George W. Biser to reform a written contract for the purchase and sale of corporate stock. Judgment for complainant, and defendant appeals. Biser, the appellant, had acquired and was developing a coal mining property near his residence, Berkeley Springs, in West Virginia.

Bean, Judge. Suit in equity by A. D. Daniels against Jessie E. Wagner, heard with 1.5 other cases brought by the same complainant. Decrees for defendants, and complainant appeals. The decision in this case involves the merits of 16 suits pending in this court on appeal, in all of which A. D. Daniels, the appellant, was the complainant in the court below.

<p>1. Bankruptcy (§ 140*) — Trusts—Trust Property — Rights op Trustee. •</p> <p>Wliere a bankrupt beld the legal title to certain real estate as trustee for his mother, pursuant to a parol agreement to transfer the same to her, she having bought and paid for it, but no conveyance having been made, the property being such as the bankrupt could have transferred to a bona fide purchaser, the title thereto passed to his trustee in 'bankruptcy, as provided by Banlcr. Act July 1, 1898, c. 541, § 70a (5), 30 Stat. 565, 566 (U. S. Comp. St. 1901, p. 3451)„; but the trustee, by such section alone, acquired no better title than the bankrupt had.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p> <p>2.. Bankruptcy (§ 140*) — Rights op Trustee — Trust Property.</p> <p>Whether the beneficiary under a constructive trust of property held by a bankrupt was entitled to enforce the same against the bankrupt’s trustee depended on the statutes and decisions of the particular state, construed in connection with Bankr. Act 'July 1, 1898, c. 541,, 30 Stat. 544, 545 (ü. S.- Comp. St. 1901, p. 3418).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dee. Dig. § 140.*]</p> <p>3. Bankruptcy (§ 140*) — Property op Bankrupt — Bankruptcy Court — Ju- ■ risdiction — Custody.</p> <p>A bankrupt, at the time of adjudication, held the legal title to certain real property, which he had sold to petitioner, his mother, and for Which she had fully paid, but which had not been conveyed to- her. Petitioner entered on the premises 10 years before the bankruptcy, and had since occupied them as hers, made improvements thereon, paid taxes, claiming ownership, and on the intervention of bankruptcy proceedings petitioned the bankruptcy court for an order directing the trustee to convey the land to her, on the ground that the title had inadvertently been left in the bankrupt. Held, that such property was not in the custody of the bankrupt, and that, by petitioner’s appearance and petition in the bankruptcy court, she could not be regarded as having admitted any further jurisdiction in that-court to deal with the property, nor any custody over the premises themselves, than was involved in the hearing and granting of her petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 O. C. A. 313.]</p> <p>4. Bankruptcy (§ 140*) — Trust Property — Bights op Trustee — State Statutes.</p> <p>in Massachusetts, a judgment creditor has no lien on the debtor’s real estate, unless he has attached the land before judgment, which he is authorized to do by Bev. Laws Mass. c. 147, § 3, or has levied an execution thereon and deposited for record a copy of the execution with a memorandum, etc., as provided by chanter 178, § 4. Bankr. Act July 1, 1898, e. 541, § 47a, 30 Stat. 557 (U.1S. Comp. St. 1901, p. 3488), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat 840 (U. S. Comp. St. Supp. 1911, p. 1500), as to property not in the court’s custody, provides that the trustee shall he deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied. IIeld, that where a bankrupt held the naked legal title to certain real property located in Massachusetts as trustee for his mother, who had occupied and claimed the property as her own for 10 years before the bankruptcy, section 47a, as amended, did not give to his trustee the further rights which such a judgment creditor could, under the state law, have obtained only by attachment before judgment or by a completed levy; and hence the trustee was not entitled to the land as against the claim of the bankrupt’s mother to enforce the trust.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of California, in Bankruptcy; John J. De Haven, Judge. Petition by W. M. Richardson for an order directing M. N. Williamson, trustee in bankruptcy of the estate of George M. Ikeda, to deliver petitioner certain hops, claimed to belong to petitioner under a contract of sale.

<p>1. Parties (g 27*) — Joint Tort-Feasors — Election to Sue.</p> <p>Where plaintiff, a pedestrian, was injured by tbe violent breaking, by . some passenger cars negligently managed by defendant railroad company, of an electric light wire carelessly permitted by tbe electric light company to bang low across tbe railroad track, it was optional with plaintiff to sue either or both companies, jointly or severally; they having no voice in determining such question.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 35; Dec. Dig. § 27.*]</p> <p>2. Removal op Causes (§ 107*) — Separable Controversy — Jurisdiction.</p> <p>Plaintiff, a pedestrian, was injured by the separate negligence of defendants railroad company and electric light company. The plaintiff and the light company were citizens of Iowa, but the railroad company was a citizen of Illinois. Defendant railroad company, claiming there was a separable controversy between it and plaintiff, removed the cause to the federal court, where plaintiff’s motion to remand was sustained as to the electric light company, but denied as to the railroad company, whereupon the trial proceeded to judgment as against the railroad company in tbe federal court without objection as to its jurisdiction. Reid, that since the latter had no right to have the cause against it tried with that against the light company, but the choice belonging exclusively to plaintiff, the court had jurisdiction of the railroad company and properly proceeded with the trial.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 178, 225-232, 234; Dec. Dig. § 107.*</p> <p>Removal of causes, separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valley town Mineral Co., 35 C. C. A. 155: Pollitz v. Wabash R. Co., 100 C. C. A. 4.]</p> <p>3. Receivers (§ 174*) — Appointment by Federal Court — Leave to Sue.</p> <p>Under Judiciary Act Aug. 13,1888, e. 866, § 3, 25 Stat. 436 (U. S. Comp. St. 1901, p. 582), authorizing suit against receivers appointed by federal courts without leave, a plaintiff having a claim against receivers of a railroad company appointed by a federal court is not required to apply to the court appointing the receivers for leave to sue nor for the designation of a tribunal for the establishment of his elaizzz against them.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-34.3; Dec. Dig. § 174.*]</p> <p>4. Courts (§ 522*) — Different United States Courts — Scope or Prior Proceeding.</p> <p>Plaintiff was injured by the negligence of receivers, appoizzted by a federal court, in operating a railroad, but before the action was begun the receivers had been discharged and the railroad sold to a purchaser under a decree making it responsible for costs and expenses of the suit and receivership and liabilities of the receivers incurred in the operation of the property, which were established or unquestioned, and any disputed claims when allowed by the master without objection or by the court. Held that, though plaintiff's claim was questioned, it was not denied that it belonged to a class assumed, and he was not required to establish tlze same izi the court having jurisdiction of the receivership case or before its master in chancery, but was entitled to sue the purchaser at law in a forum of plaintiff’s own selection.</p> <p>[Ed. Note. — E’or other cases, see Cozirts, Cent. Dig. § 1444; Dec. Dig. § 522.*]</p> <p>5, Electricity (§ 17*) — Injuries to Persons — Obstruction Over Track— Electric Light Wnuo.</p> <p>An electric light company, having previously permitted a wire over defendant’s railroad track to sag so that it might come in contact with cars, the railroad company’s employes negligently shoved soizie ears across the public street against the wire which, by the exercise of ordinary care, they should have known was in dangerous proximity to the track and likely to catch on the cars. They allowed the -cars to continue after collision with the wire until it was broken and violently thrown against plaliztiff, who was in the street azzd was injured thereby. Held, that since the negligence of the electric light company did not first occur at the happenizzg of the accident, but had caused the cozidition which was dangerous only in connection with the operation of the railroad, it was the duty of the railroad company to exercise reasonable eare to observe and guard agaiizst the obstruction over its track, collision with which might naturally cause injury to persons on the highway, and it was therefore chargeable with actionable negligence.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 17.*]</p>

<p>1. Infants (§ 74*) — Actions for Injuries — Guardian Ad Litem — Form of Action.</p> <p>An action for injuries to an infant, in the absence of statute, should be brought in the name of the infant by his guardian ad litem, and not in the name of the guardian for the infant.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 188-190; Dee. Dig. § 74.*]</p> <p>2. Parties (§ 75*) — Person Entitled to Sue — Demurrer.</p> <p>That an action for injuries to an infant was erroneously brought in the name of the infant’s guardian ad litem for the infant, instead of in the name of the infant by his guardian ad litem, could have been raised by demurrer.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 115, 116, 167; Dec. Dig. § 75;* Pleading, Cent. Dig. § 494.]</p> <p>3. Appeal and Error (§ 233*) — Designation of Plaintiff — Review—Question Not Raised at Trial.</p> <p>An action for injuries to an infant having been erroneously brought in the name of his guardian, instead of in the name of the infant by his guardian, the objection was not raised by demurrer; but it was stipulated that plaintiff was the duly appointed, qualified, and acting guardian ad litem of the person injured, who was a minor. At the close of plaintiff’s evidence defendant moved to dismiss the complaint, on the ground that no cause of action had been established against defendant, and, this motion being denied, defendant introduced evidence, and then, at the close of all the evidence, moved for a directed verdict on the ground that no cause of action had been established by the evidence “against the defendant,” but not that no cause of action had been established in favor of the plaintiff. Held, that the defect was not raised by any of such proceedings at the trial, and could not be taken advantage of on writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 233.*]</p> <p>4. Trial (§ 419*) — Motion to Dismiss — Denial—Waiver.</p> <p>Introduction of evidence by defendant in his own behalf after the denial of a motion to dismiss is a waiver of error, if any, in the ruling.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. § 982; Dec. Dig. § 419.*]</p> <p>5. Negligence (§ 23*) — Dangerous Instrumentalities — Children—Explosive Caps.</p> <p>Defendant railroad contractor, in the construction of a piece of new railroad, being required to do certain blasting, procured certain caps of about 300 pounds capacity with which to explode the dynamite. The blasting having been completed, defendant’s foreman left a tin can containing the caps on the bank near some railroad ties, and later plaintiff, a boy of 11, wandered along the grade, found the caps, and took some of them. He attempted to remove the inside of one with a safety pin, when it exploded, tearing away a part of his hand. It was also shown that children were in the habit of congregating along the work, and that defendant made no objection thereto, except when they attempted to board cars or otherwise interfere with the work. Held, that the foreman’s act in leaving the caps so exposed would he actionable negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 33, 34, 129; Dec. Dig. § 23.*]</p>

Petition to Review from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In the matter of bankruptcy proceedings against H. P. Pears. On petition by the bankrupt to revise an order of the District Court rejecting a claim by the bankrupt to be allowed $7,490.97 under the exemption laws as wages or salary.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Action by William H. White against the American Locomotive Company. Judgment for plaintiff, and defendant brings error.</p>

Anderson, Judge. In the matter of bankruptcy proceedings of the Quality Shop. From a judgment disallowing a claim of the Traders’ National Bank against Romney L. Willson, as trustee of the bankrupt, the bank appeals. Appeal from a judgment disallowing a claim of Traders’ National Bank against the bankrupc.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Thomas Milburn and another against the Northern Central Coal Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Master and Servant (§ 264*) — Injuries to Servant — Defective Building — Petition—Variance.</p> <p>Where, in an action for injuries to a servant by the collapse of a part of a building he was assisting to repair, the petition alleged that the building at the time of the accident and for a long time prior thereto had been an unsafe place in which to work, and a recovery was sought on that theory, it was error for the court to permit plaintiff to prove a different case, and authorize a recovery on the ground that, even though the place was safe, defendant’s foreman, acting as a vice principal, was negligent in adopting an unsafe method of work; such evidence constituting a fatal variance.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. $§ 861-876; Dec. Dig. § 264.*]</p> <p>2. Pleading (§ 237*) — Amendment—Conformity to Proof.</p> <p>Where, in an action for injuries to a servant by the collapse of a part of a building, plaintiff pleaded negligence in defendant’s failure to provide a safe place to work, and introduced evidence of negligence of defendant’s foreman in adopting an unsafe method of work, the petition could have been amended at the trial on terms to conform to the proof.</p> <p>I Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 003-619; Dec. Dig. § 237.*]</p>

Youmans, Judge. - Proceeding by the Rhode Island Hospital Trust Company, as trustee, for the foreclosure of a mortgage. From an order vacating a sale of the property to Walter E. Layton for inadequacy of price, coupled with improper conduct affecting the bidding, he appeals.

<p>1. Post Office (§ 36*) — Embezzlement by Postmaster — Indictment—Possession of Money.</p> <p>Pen. Code (Act March 4, 1909, c. 321) § 225, 35 Stat. 1133 (U. S. Comp. St. Supp. 1911, p. 1657), provides that whoever, being a postmaster, shall convert to his own use any money or property coming into his hands or under his control in any manner whatever in the execution of his office, shall be guilty of embezzlement. Held, that an indictment charging that while accused was a postmaster he unlawfully and feloniously converted to his own use money of the United States which came into his hands by virtue of his office would be held to mean money in his official possession at the time of the conversion, and it was therefore not fatally defective because it failed to charge that he had lawful possession of the money “in a fiduciary capacity” at that time.</p> <p>■ [Ed. Note. — Eor other cases, see Post Office, Cent. Dig. § 56; Dec. Dig. § 36.*]</p> <p>2. Criminal Law (§ 878*) — Indictment—Counts—Inconsistent Disposition.</p> <p>Accused, a postmaster, was charged in one count with feloniously converting to his own use money of the United States which came into his office, and in the second count with embezzling the same amount of money which he had in his official possession or custody, by failing to remit or deposit it as required by law. Held, that the direction of a verdict of not guilty on the second count did not preclude a conviction on the first count for inconsistency.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent.- Dig. §§ 209S-2101; Dee. Dig. § 878.*]</p>

Petition to Review and Revise an Order of the District Court of .the United States for the Eastern Division of the Northern District of Illinois. In the matter of the Streator Metal Stamping Company, bankrupt.

Dietrich, Judge. - Action by the Corey Bros. Construction Company to foreclose a mechanic’s lien on an irrigation system, the property of the defendant Big Dost River Irrigation Company, in which the Union Portland Cement Company intervened to foreclose a lien for material, against the Continental & Commercial Trust & Savings Bank and Frank H. Jones, trustees under a mortgage to secure bonds, and others.

<p>Evidence (§ 354*) — Books or Account — Original Entby.</p> <p>In making repairs on a steamboat, the foremen of the different gangs of workmen each day entered on a blackboard or slate the items of the day’s material and labor, or kept them by written memoranda which they submitted to the contractor’s bookkeepers, who testified that at the close of each day they transcribed the items from the blackboard, slate, or memoranda into the books, when the blackboard and slate were cleaned for the next day’s entries, and the memoranda returned to the foreman or discarded. Generally the items of materials were put' on the blackboard or slate, and the time of the workmen in time books which were not preserved. The foremen testified that their daily entries and reports were correct, and the bookkeepers that they were correctly transcribed into the books. The account as originally kept contained some false items, but these were fully purged before the proceeding was begun. Held that, the entries in the books having been substantially contemporaneous with the facts to which they related and the facts having been established by oral proof, the books were admissible, and not subject to an objection that they were not books of original entry.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 1432-1483; Dee. Dig. § 354.*]</p>

• Appeal from the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge. Suit in equity for infringement by Samuel Price Stevenson against Jesse Shalcross and others. Decree for defendants as to one patent, and complainant appeals. Affirmed. Decree for complainant as to second patent, and defendants appeal.

In the matter of bankruptcy proceedings of the Myers-Wolf Manufacturing Company. Proceeding by Frederick F. Guild, trustee, to compel Isadore Kuhn to comply with his contract to purchase certain machinery and other chattels of the bankrupt, including several patents and applications therefor. From an order in favor of the trustee, the purchaser appeals.

Criminal prosecution under the Sherman Anti-Trust Act by the United States against John H. Patterson and 29 others, officers and agents of the National Cash Register Company. On objection by the government to certain evidence offered by defendants.

In Equity. Suit by Henry I/. Hughes and Henry L. Hughes, a corporation, against the Alfred H. Smith Company, with a cross-bill. The suit was to restrain alleged infringement of complainant’s registered trade-mark “Ideal,” applied to hair brushes, and for an accounting.

In Equity. Suit by the United States against Vicy M. Cowart and others. Decree dismissing the bill as against defendant Lewis I. Bran-nan, and for the United States against the other defendants.

At Law. Action by C. L. Farmer against the Atlantic Coast Line Railroad Company. On motion to amend the complaint. Objections overruled, and case continued for further proof.

In Bankruptcy. In the matter of bankruptcy proceedings of C. J. Venstrom. Petition for review of a referee’s order allowing a claim filed more than a year after adjudication.

<p>In Equity.' Suit by John Bannse and wife against the Northern Pacific Railway Company. Case transferred for trial to a jury.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of .Abram Hockman. On motion to dismiss specifications of objections to the bankrupt’s discharge. Denied.

<p>In Admiralty. Suit by John Miller against the steamer Pawnee; Pawnee Boat Company, claimant. Decree dismissing libel.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Wright-Dana Hardware Company. On petition to review an order of a referee allowing the claim of the Warren Paint Company at Íp3,529.82.

<p>1. Carriers (§ 37*) — Transportation of Animals — 28-Hour Daw — “Knowingly and Willfully” — “Willfully.”</p> <p>The words "knowingly and willfully,” as employed in the 28-hour law (Act June 29, 1906, 34 Stat. 607, c. 3594 [U. S. Comp. St. Supp. 1911, p. 1341)), prohibiting carriers from confining animals in cars without unloading for food, water, and rest for a period longer than 28 hours, or 36 hours in case of release, means with a knowledge of the facts which, taken together, constitute a failure to comply with the statute purposely or obstinately; the word “willfully” being designed to describe the attitude of a carrier who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 3939; vol. 8, pp. 7468-7481J</p> <p>2. Carriers (§ 37*) — Transportation of Animals- — 28-IIour Daw — Violation —Question for Jury.</p> <p>In an action against ¡m Interstate carrier to recover a penalty for violation of the 28-hour law (Act June 29, 1906, 34 Stat. 607, c. 3594 [U. S. Comp. St. Supp. 1911. p. 1341'J) by holding animals in cars longer than 36 hours, whether the carrier knowingly and willfully confined the animals in the car in excess of the time limit, and whether sucli withholding was due to accident or unavoidable mistake of the carrier, under the belief that the caretaker in charge would attend to the unloading, held for the jury.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. § 37.*]</p> <p>3. Carriers (§ 37*) — Transportation of Animals — 28-Hour Daw — Stock in Charge of Caretaker — Duty of Carriers.</p> <p>Since the 28-hour law (Act June 29, 1906, 34 Stat. 607, c. 3594 [U. S. Comp. Supp. 1911, p. 1341]) imposes on an interstate carrier, transporting live stock, the primary duty of -seeing that the stock is not confined) in the cars longer than the prescribed period, the carrier cannot shift the burden and responsibility for unloading in time on the shipper by agreement with it; and hence, where animals were transported in charge of a caretaker' the' fact that he notified the carrier’s conductor that he would notify the consignee, who would care for the stock, did not relieve the carrier of the duty of exercising reasonable diligence and foresight, after the car liad been spotted at the stockyards, to see that the animals were unloaded within that time.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dee. Dig. § 37.*</p> <p>Diability of carrier for failure to feed, water, and rest live stock, and for violation of 28-hour law (Act June 29, 1906, 34 Stat. 607, c. 3591 [U. S. Comp. St. Supp. 1911, p. 1341]), see note to St. Joseph Stock Yards Co. v. United States, 110 C. C. A. 435.]</p>

for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge. Action by the United States against the Oregon-Washington Railroad & Navigation Company. Judgment for the United States, and defendant brings error.

<p>1. Master and Servant (§ 13*)' — Railroads—Operation—Hours op Service Law — “Orders.”</p> <p>Hours of Service Law (Act Cong. March 4, 1907, C.-2939) § 2 (34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. '1321]), provides that no interstate railroad company shall permit an operator, train dispatcher, or other employé, who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers “orders” pertaining to or affecting train movements, to remain on duty longer than 9 hours in any 24-hour period, in towers, offices, places, or stations continuously operated night and day. Held, that the word “orders,” so used, was not limited to train orders emanating from the train dispatcher’s office, which are required to be reduced to writing and handed to the conductor and engineer of a train, but included telephone communications between towermen by which switches were aligned to facilitate the movement of trains according to the information so transmitted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec.. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5017-5023; vol. 8, p. 7739.]</p> <p>Z. Master and Servant (§ 17*) — Hours oe Service — Railroads—Action rob Penalty — Negativing Exceptions.</p> <p>The Hours of Service Law (Act Cong. March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]) restricts the hours of service of telegraph and telephone operators, dispatchers,- etc., on interstate railroads transmitting train orders, except in case of emergency, when.such employés may be permitted to remain on duty for 4 additional hours in a 24-hour period not exceeding 3 days in any week. Meld, in an action to recover a penalty for violating such act, plaintiff was not bound to negative the exception, but the burden was on the defendant to prove that the case was within the exception as matter of defense.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. § 17.*]</p>

Libel in personam by Albert W. Sanbern against the Panama Railroad Company and others. Decree for libelant against the Metropolitan Steamship Company of New Jersey and against George L- Hammond & Co., and the Steamship Company and Hammond & Co. appeal.

Anderson, Judge. Action by Benjamin H. Goodman against the Haynes Automobile Company. Judgment for defendant, and plaintiff brings error. Plaintiff in error, termed plaintiff herein, entered into an agreement in writing with defendant in error, herein called defendant, on September 1, 1909, at Kokomo, Ind.

Hollister, Judge. Action at law by Anna Scherer, administratrix of the estate of John J. Scherer, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Eouis Railway Company. Judgment for plaintiff, and defendant brings error.

Sanford, Judge. Action at law by Malinda Smith, administratrix of the estate of J. P. Smith, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Action by the Assets Collecting Company against the Barnes-King Development Company. Judgment for plaintiff, and defendant brings error. The plaintiff sues as assignee of Arthur P. .Heinze to recover damages claimed to have been sustained by him - in the purchase from defendant of capital stock of the defendant, by reason of fraudulent representations claimed to have been made by defendant to induce such purchase.

<p>1. Bankruptcy (§ 116*) — Assets — Transfer of Goods of Bankrupt — Validity.</p> <p>Bankrupts were in need of money, which was furnished by petitioners on an agreement'by which the bankrupts sold to petitioners certain accounts for goods sold, and all their right, title, and interest in and to the same and to the merchandise the sale of which created the accounts, with full power to reclaim the merchandise; the agreement also providing that, should the customers reject, return, or refuse to accept any of the goods, it should be optional with petitioners to surrender the merchandise refused or returned on receiving payment therefor in cash, or at the petitioners’ election to take from any balance they may have on hand the amount of such merchandise, the agreement giving to petitioners the accounts and the right to collect all sums due thereon, and if any goods were returned to receive and dispose of same and apply the proceeds to the debt. Held, that such agreement was not a pledge or mortgage of the goods in case they were returned, but a transfer of the title to petitioners, and that on return of goods title was not vested in the bankrupts, and hence petitioners were entitled, as against the bankrupts’ receiver, to the proceeds of the accounts or goods covered by the transfer.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p> <p>2. Cakmees (§ 51*) — “Bill of Lading” — Effect.</p> <p>A nonnegotiable “bill of lading" is not evidence of title, but is merely & receipt and contract of carriage.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 148, 149; Dec. Dig. § 51.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 790-795.]</p> <p>Lacombe, Circuit Judge, dissenting.</p>

Action by John W. McKinnon, individually and as agent for the shareholders of the Bank of North America, against Arthur P. Heinze. judgment for plaintiff, and defendant brings error.

<p>Corporations (§ 221*) — Organization—Corporate Liability.</p> <p>Where defendant took preliminary steps to form a corporation, such as preparing, signing, and acknowledging articles of incorporation, but during the times the business in question was transacted with plaintiff the articles had not been filed, and were never filed in the office of the Secretary of State of Louisiana, where the corporation purported to have been organized, as required by the laws of that state, the corporation had no existence in law or fact; and hence defendant could not resist plaintiff’s claim of personal liability on the ground that he acted, not for himself, but for such alleged corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 855-860; Dec. Dig. § 221.*]</p>

<p>Banketjftcy (§ 166*) — Preferences—Notice of Intent to Prefer.</p> <p>• Bankr. Act July 1, 1898, c. 541, S 60, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), provides that one gives a preference if, while insolvent, he makes a transfer, of property within a specified time, which will enable the transferee to obtain a greater percentage of his debt than others of the same class, and if the transferee has reasonable cause to believe that the transfer will effect a preference, the trustee may avoid it. On November 16, 1910, the bankrupt, vice president of defendant bank, was arrested for obtaining a loan from a trust company on a forged certificate of the bank’s stock. The bank’s cashier examined the certificate and informed tlie trust company that life signature was forged. Tie then asked the bankrupt, "What is the matter';'’ to which, he refused to reply, and on the next day the cashier, in the bankrupt’s presence, told the police magistrate that the signature to die certificate was forged, and the bankrupt again said nothing. The cashier owed tlie bankrupt $1,400, and on the next day the bankrupt requested the cashier to open an account with one It., deposit $150 to liis credit, and apply the balance of the cashier's debt to the bankrupt’s indebtedness to the bank, which was done. Held, that such, facts charged the cashier with notice of the bankrupt’s insolvency, and that the transfer was intended to give the bank a preference, which was recoverable by the trustee.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy,- Cent. Dig. §§ 250-250, 255-258; Dec. Dig. § Kid.*]</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Gas Burner.</p> <p>The Ruud patent, No. 761,409, for a gas burner of the Bunsen type, for use particularly in automatic water heaters, discloses invention and is valid; also held infringed by the burner of the Frampton patent, No. 980,236.</p> <p>2. Patents (§ 328*) — Validity—Gas Burner.</p> <p>The Ruud patent, No. 875,218, for a gas burner, held void for lack of invention,-in view of the prior art.</p>

Suit in equity by the Ruud Manufacturing Company, against the Pittsburg Water Heater Company. Decree for complainant on part of its claim of infringement, and it appeals.

<p>1. Set-Off and Counterclaim (§ 26*) — Equity Statute — Infringement of Patent — -Torts—Unlawful Competition.</p> <p>Equity rule 30 (198 Fed. xxvi, ltñ C. C. A. xxvi) provides that the answer must state in short form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-oil or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counterclaim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce final judgment in the ■ same suit both on the original and cross claims. Held that, where complainant sued for infringement of a patent, a claim set up in the answer of unfair competition in trade, consisting of misrepresentations by complainant of its patent rights and the scope thereof, not having arisen out of the same transaction, and not being matter which could have been litigated by cross-bill, was not available either as a set-off or counterclaim.</p> <p>[Ed. Note. — For other eases, see Set-Off and Counterclaim, Cent. Dig. §§ 43, 44; Dec. Dig. § 26.*]</p> <p>2. Set-Off and Counterclaim (§ 33*) — Proper Subject of Set-Off.</p> <p>A claim for damages arising out of a tort, not connected with the contractual relations on which the suit was brought, is not. the proper subject of a set-off, under the rule that in equity a set-off is enforced only when there are mutual debts or mutual credits, or there exists some equitable consideration, or an agreement between the parties, which would render it unjust not to allow- the set-off.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 1, 32', 54, 55; Dee. Dig. § 33.*]</p>

<p>Patents (§ 219*) — Suit to Recover Royalties — Equity Jurisdiction.</p> <p>A court of equity is without jurisdiction of a suit to recover royalties due on a contract granting licenses under a patent, nor is such jurisdiction conferred by the facts (hat the contract granted licenses to defendant and two subsidiary corporations, and that defendant bound itself to pay the royalties due from itself and the other companies, collecting from them the necessary sums for the purpose; the remedy of complainant at law being adequate in case it has or has not collected such sums.</p> <p>[Ed. Jiote. — For other cases, see Patents, Cent. Dig. §§ 339-349; Dec. Dig. § 219.*]</p>

Petition by the Texas & Pacific Railway Company against the United States of America, in which the Interstate Commerce Commission, the Railroad Commission of Louisiana, the St. Louis Southwestern Railway Company, and others intervene. On final hearing. For opinion of Interstate Commerce Commission, see Meredith v. St. Louis Southwestern Ry. Co., 23 Interst. Com. Com’n R. 31.

Petition by the Houston East & West Texas Itailway Company and others against the United States of America, in which the Interstate Commerce Commission, the Eailroad Commission of Louisiana, the St. Louis Southwestern Eailway Company, and others intervene. On final hearing.

Suit by the United States against Murdock Tillman and others to set aside a patent to public land and a deed thereunder.

In Bankruptcy. In the matter of bankruptcy proceedings of one White. On exceptions to the report of the special master, dismissing a petition of Goldstein & Perlman for the recovery of certain merchandise shipped to the bankrupt, as to which claimants claimed to have exercised their right of stoppage in transitu.

In Bankruptcy. In the matter of bankruptcy proceedings of Frank Ellenbecker and Koch & Ellenbecker. On review of determination by the referee of an application by F. W. Koch, one of the bankrupts, for allowance of exemptions. The facts are: December 23, 1912, an involuntary petition was filed against F. W. Koch and Frank Ellenbecker individually and as Koch & Ellenbecker, copartners.

<p>1. Aliens (§ 27*) — Deportation—Merchant Certificate — Conolusiveness..</p> <p>Though Act Cong. May 6, 1882, e. 126, § 6, 22 Stat. 60 (U. S. Comp. St. 1901,' p. 1307), authorizes the United States to controvert a merchant certificate under which a Chinese person claimed a right to enter the United States, and hence may offer proof collaterally to contradict the determination of the immigration authorities that the alien was entitled to land when admitted into the country, proof that he had been in the United States 16 years, 'was qualified as a merchant when he arrived, and that since that time he had been working as a laundryman, was sufficient to show the correctness of the action of the immigration authorities in admitting him.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 85-87; Dec. Dig. § 27.*]</p> <p>2. Aliens (§ 32*) — Chinese Persons — Merchants—Right to Enter — Bur-</p> <p>den of Proof.</p> <p>Where a Chinese person claims the right to remain ■ in the United States pursuant to a merchant certificate, the burden is on him to prove his proper admission and his status as a merchant.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 84, 92, 93-95;-Dec. Dig. § 32.*]</p>

<p>Bankruptcy (§ 413*) — Discharge—Authority oi Trustee to Fire Objections.</p> <p>The amendment of Bankr. Act July 1, 1898, c. 543, § 3.4b, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (U. S. Comp. St. Supp. 1911, p. 1496), providing that a trustee shall not interpose objections to a bankrupt’s discharge until he shall be authorized to do so at a meeting of creditors called for that purpose, is satisfied if the authority be given at. a meeting called by the referee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-718, 725, 727: Dee. Dig. § 433.*]</p>

<p>1 In the matter of Reuben E. Turetz, bankrupt. On review of order of referee.</p>

<p>In the matter of the application of Isaac Boorvis for naturalization. On application for amendment of record. Denied.</p>

<p>At Law. Action by Ethel M. Noon against the Gem Irrigation District. On demurrer to complaint.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of H. D. Riff. On claim of Sol Riff for wages. The referee disallowed the claim, and claimant applies for review. The claimant, Sol Kift', presented a claim against the estate of the bankrupt for the sum of $257, balance alleged to be due him for services as clerk of the bankrupt for three months next preceding the adjudication in bankruptcy.

In Equity. Bill by Rosa Gundall, individually and as administratrix, and others, against the Manhattan Railway Company and others. On final hearing. All parties to this bill.are citizens of New York, and the sole ground of jurisdiction asserted is that the case is one arising under the Constitution of the United States. Complainants have succeeded to the title of Daniel Gundall, deceased, in certain' premises on Second avenue, in this city.

In Bankruptcy. In the matter of' bankruptcy proceedings of A. Música & Son. Ancillary, proceedings by Ezra P. Prentice, as receiver, to recover money and propérty belonging to the bankrupts’ estate.

<p>1. Action (§ 28*) — Eminent Domain (§ 309*) — Public Service Corporation —Wrongful'Entry on Land — Waiver of Tort — Action for Damages.</p> <p>Where a public service corporation, having the right of eminent domain, wrongfully enters on land required for its purposes without first making compensation, the owner may waive the tort and sue on an implied contract for the value of the land taken; satisfaction of the judgment recovered operating as a grant for the public use.</p> <p>[Ed. Note. — For other eases, see Action, Cent. Dig. §§ 196-215; Dec. Dig. § 28;* Eminent Domain, Cent. Dig. § 825; Dec. Dig. § 309.*]</p> <p>2. Indians (§ 27*) — Indian Lands — Reservation Lands — Occupancy for Irrigation Project — Action for Damages.</p> <p>Where the Interior Department had no authority to convey to an irrigation company the right to occupy Indian reservation lands for a reservoir site, the United States could not maintain an action for the alleged value of the land, taken and occupied by the company under a privilege granted by the Secretary of the Interior.</p> <p>[Ed. Note — For other cases, see Indians, Cent. Dig. §§ 19, 20; Dee. Dig. § 27.*]</p> <p>3. Waters and Water Courses (§ 242*) — Irrigation Rights — Indian Lands —“Reservation” Lands — Statutes—Repeal.</p> <p>Act Cong. March 3, 1891, c. 561, §§ 18, 19, 20 Stat. 1101 (U. 'S. Comp. St. 1901, pp. 1570, Í571), grants a right of way through public lands and reservations of the United States to any canal or ditch company formed for irrigation to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof. It further provides that no such right of way shall he so located as to interfere with the proper occupation of the reservation by the government. Held, that the term “reservation” in such act included Indian reservations, and that the act was not repealed by Act May 11, 1898, c. 292, 30 Stat. 404 (U. S. Comp. St. 1901, p. 1572), extending Rev. St. § 2339 (U. S. Comp. St. 1901, p. 1437), granting rights of way for the construction of ditches and canals used in carrying on mining operations, and authorizing the Secretary of the Interior to permit the use of a right of way through public lands of the United States, not within the limits of the military or Indian reservations, for tram-roads, canals, or reservoirs, by any citizen or association of citizens engaged in mining, quarrying, or cutting or manufacturing timber.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 147, 307; Dee. Dig. § 242.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6140-6144; vol. 8, p. 7787.]</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of Willard F. Main. On petition of the bankrupt for a discharge and specifications of objection by H. P. Nelson Company, a creditor. Objections overruled.

In Bankruptcy. In the matter of Jacob Y. Schantz & Son Company, bankrupt. On petition by certain creditors of the bankrupt to review a referee’s decision that a contract for the sale of certain of the bankrupt’s machinery operated as a preference.

Action to recover penalties by the United States of America against the New York Central & Hudson River Railroad Company. Judgment for the government on three causes of action, and verdict directed for defendant on the fourth.

At Raw.. Action by Frederick Edwin Dallyn and another, doing business under the name of Dallyn, Jardine & Co., citizens of Ontario, Canada, against Andrew Brady, a citizen of Pennsylvania. On plea to the jurisdiction.

<p>Action by H. A. Moore, trustee in bankruptcy of Philip M. Boyer, against J'ohu H. Smith & Sons and others, judgment for plaintiff.</p>

H. Hanford, Judge. Action , by the United States against the National Bank of Commerce of Seattle, Wash.- Judgment for defendant, and the United States brings error. M. P. McCoy was an examiner of public surveys and special disbursing agent of the United States, with headquarters at Seattle. His duties required him to run over one in every ten of the lines established by surveyors of public lands in certain states under government contracts in order to check up their work.

<p>1. Wills (§ 257*) — Jurisdiction of Actions Relating to Wills — California Statute — Constitutionality.</p> <p>Act March 3, 1862 Cal. (Uittoll’s Gen. Laws, § 2605), providing that “the District Court shall have lull power to set aside a will obtained by fraud or undue influence * * * and to set aside a decree of any probate court admitting to probate any supposed will when such decree has been obtained by fraud, concealment or perjury,” was void in view of Const. Oai. 1849, art. 6, which created county courts with exclusivo probate jurisdiction with the exception that issues of fact joined therein were triable in the District Court, and Const. 1862, art. 6, which eliminated the provision lor trial of issues of fact in the District Court, leaving the county courts with exclusive jurisdiction of all matters of probate, necessarily including the determina!ion of issues of fraud and undue influence arising in proceedings for probate of wills, and leaving the District Courts, as courts of general equity jurisdiction, without power to review probate decrees.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 592, 593; Dec. Dig. § 257.*]</p> <p>2. Wills (§ 257s)- — Decree Probating Will — Jurisdiction to Set Aside.</p> <p>Civ. Code Cal. § 2224, providing that “one who gains a thing by fraud. * * * undue influence * * * or other wrongful act, is * * * an involuntary trustee of the tiling gained for the benefit of the person who would otherwise have had it,” cannot be held to enlarge the jurisdiction of courts of equity as such, to include the power to set aside the decree of a probate court admitting a will to probate on the ground of fraud.</p> <p>[Ed. Note. — For other cases, see Wills. Cent. Dig. §§ 592, 593.; Dee. Dig. § 257.* I</p> <p>3. Wills (§ 225s) — Surr to Set Aside Probate- — Equity Jurisdiction.</p> <p>That jurors who were disqualified sat on the trial of an issue inyolv ing the validity of a will in a probate court, or that they committed perjury to escape successful challenge, affords no ground of equity jurisdiction to set aside the decree admitting the will to probate.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 547; Dee. Dig. § 225.*]</p> <p>4. Evidence (§ 82*) — Judicial Proceedings — Presumptions of Regularity.</p> <p>In courts of record presumptions of regularity are indulged, and, jurisdiction being once acquired, it will be presumed that the parties had due notice of all subsequent proceedings.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. § 82.*]</p> <p>5. Wills (§ 423*) — Suit in Equity to Set Aside Probate — Want op Jurisdiction — Evidence.</p> <p>Code Civ. Proc. Cal. §§ 1303, 1306, provide that where a will is offered for probate the clerk shall fix a time for hearing and give notice by publication, and that unless the parties appear the court “must require proof that the notice has been given.” No particular form of proof is prescribed, nor is there any requirement that it shall be placed on record in any prescribed form. Reid, that a recital in a judgment of a superior court admitting a will to probate, that it was proved to the satisfaction of the court that notice of the hearing had been given as required by law, raises a presumption in favor of the jurisdiction of the court which is not overcome by the presence in the record of an unverified affidavit ■of publication which does not exclude the reception of evidence not recorded. '</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 911-913; Dec. Dig. § 423.*]</p> <p>6. Wills (§ 225*) — Proceedings por Probate — Jurisdiction and Validity.</p> <p>By the statutes of California the superior court is vested with general jurisdiction in probate matters. They provide that on the filing of a petition for probate of a will notice shall be published and copies mailed to heirs resident in the state at their places of ’residence, if known to the petitioner; that “unless the parties appear the court must require proof that the notice has been given, which being made the court must hear testimony in support of the will” (Code Civ. Proc. §§ 1303, 1306): that notwithstanding the probate any party in intereát may institute a contest of the will in the same court within one year thereafter, and if no such contest is made the probate shall be conclusive, saving to infants and persons of unsound mind the right to contest within one year after removal of the disability (sections 1327, 1333). Reid that, in view ofsuch provisions,, where qualified persons appear to contest a will, the court has power to entertain and proceed with such contest and to determine whether valid notice has been given to all parties in interest, and that an error in such decision is not jurisdictional, but is an irregularity in procedure subject to review only on appeal or by motion in the proceeding itself; that a final judgment in such contest adverse to the contestants constitutes a valid estoppel against them which precludes them from questioning the validity of the will or the probate thereof in a collateral attack. -</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 547; Dec. Dig. § 225.*</p> <p>Probate jurisdiction of federal courts, see note to Bedford Quarries Co. -v. Thomlinson, 36 C. C. A. 276.]</p> <p>7. Pleading (§ .17*) — Construction—Sufficiency of Allegation.</p> <p>The allegation in a pleading of circumstances which may, but do nut necessarily, point to an ultimate fact, does not amount to an averment of such- fact.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent Dig. §§ 38, 41, 195, 350; Dec. Dig. § 17.*]</p>

L. Sanborn, judge. In the matter of Louis A. Buchner, bankrupt. From a decree (202 Fed. 979) confirming the report and findings of the Referee in Bankruptcy establishing priorities in favor of Sangamon Loan & Trust Company, D. C. Gallagher, and George White as against the Illinois National Bank and State Trust & Savings Bank of Peoria, they appeal.

Eandis, Judge. Eugene M. Stockton was convicted of using the post office establishment in furtherance of a scheme to defraud, and he brings error. Tile plaintiff in error seeks review oí a judgment of conviction and sentence herein upon an indictment charging violation of section 215 of the Penal Code.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Robert A. Bole against the Pittsburgh Athletic Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Removal of Causes (§ 111*) — Proceedings After Removal.</p> <p>Plaintiff, a citizen of Illinois, having been injured in a collision between a street car on which she was a passenger and a train belonging to defendant railroad company, an Indiana corporation, brought suit against both companies in a state court, charging that her injuries resulted from the joint negligence (in one count) or the combined and concurring negligence (in other counts) of the two defendants. The railroad company removed the cause to the federal court on the ground of a separable controversy, whereupon plaintiff dismissed as to the citizen defendant and filed a new declaration against the railroad company alone, counting entirely on its separate negligence as a basis for recovery. Defendant, without objecting that it was not in court to litigate the separate cause of action so alleged, proceeded to trial on the merits, in which plaintiff recovered judgment. Held that, the court having jurisdiction of the subject-matter by reason of the diversity of citizenship of the parties, the manner of their appearance was immaterial, and that defendant could not thereafter claim on appeal that there was an inseparable controversy between plaintiff on the one side and the two defendants originally sued, and that the case had been improperly removed.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 237, 239; Dec. Dig. § 111.*]</p> <p>2. Courts (§ 300*) — Federal Courts — Citizenship.</p> <p>Citizenship, in so far as it applies to federal jurisdiction, relates exclusively to jurisdiction of the subject-matter, and has nothing to do with the court’s jurisdiction of the parties as such; so that, while the parties cannot confer jurisdiction of the subject-matter on a federal court by agreement, yet, if the subject-matter is within the jurisdictional grant of power to the federal court, jurisdiction of the parties may be acquired by consent or acquiescence.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 847, 850; Dec. Dig. § 300.*]</p> <p>3. Courts (§ 255*) — Federal Courts — General Jurisdiction.</p> <p>Within its limitations respecting subject-matter, a federal court is a court of general jurisdiction, so that, if organic power to hear the controversy exists, it is immaterial when or how the parties invoked such jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 792, 794, 805; Dec. Dig. § 255.*]</p>

A. Carpenter, Judge. Action by Daniel B. Scully and another, doing business as the D. B. Scully Syrup Company, against the Corn Products Refining Company. Judgment for defendant, and plaintiffs bring error. Plaintiffs in error instituted an action at law against the defendant _ in error to recover damages for breach of contract. The declaration consists of four counts and what are designated as consolidated common counts.

<p>1. Mines and Minerals (§ 38*) — Suit in Support op Adverse Claim — Issues.</p> <p>While a suit in support of an adverse mining claim authorized by Rev. St. § 2326 (U. S. Comp. St. 1901, p. 1430), is possessory in character, it necessarily involves not only the questions of priority of location and whether the location was made in compliance with law, but also the question whether the land was subject to location in the manner in which it was attempted to be acquired, and it is competent in sucli a suit for the court to determine the right of possession as between locators of placer and lode claims upon the same ground.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 87%~ 113; Dec. Dig. § 38.*]</p> <p>2. Mines and Minerals (§ 16*) — Mining Claims — Nature of Claim — “Dode” —“In Place.”</p> <p>A deposit of calcium phosphate lying in veins or beds of various thickness, having a dip and strike, between solid and clearly defined walls of limestone, is a vein or lode of rock in place within the meaning of iiev. St. | 2320 (TJ. S. Comp. St. 1901, p. 1424), and subject to entry thereunder only as a lode claim.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 21-23; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3479-3480; vol. 5, pp. 4223-4226.]</p> <p>3. Mines and Minerals (§ 27*) — Mining Claims — Conflicting Locations.</p> <p>Where a placer location of mining ground was void because the mineral was in veins or lodes and not subject to placer location, another who went peaceably on the land when it was in fact unoccupied, and made discovery, and performed all the necessary acts to perfect lode locations, acquired valid claims which he may protect by adverse suit.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 64, 65; Dec. Dig. § 27.*]</p>

De Haven, Judge. Action by Hugh Davis against the Metropolitan Redwood Dumber Company. Judgment for plaintiff, and defendant brings error. The plaintiff In error was engaged in logging operations, ahd in cutting redwood and fir trees and conveying the same by means of a wire cable about 1,200 feet long, attached to a steam engine which was stationed at a point at which the logs were to be loaded on the cars for transportation to its mill.

Day, Judge. Action at law by the People’s Trust Company against J. W. Holcomb and Jay E. Latimer. Judgment for plaintiff, and defendants bring error. The Trust Company recovered against Holcomb and Latimer a judgment, based upon their guaranty of a loan made by the Trust Company to the Crescent Oil Company. The preliminary agreement bore date March 9, 1905.

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois; Christian C. Kohlsaat, Judge.</p> <p>Bill by John Stone against the City of Waukegan and others. Judgment for defendants, and complainant appeals.</p>

Appeals from the District Court of the United States for the Eastern District of Michigan; Henry H. Swan, Judge. Suit in equity by Ralph I,. Held: in Aldrich, Receiver, v. Gray, 147 Fed. 453, 77 C. C. A. 597, 8 Ann.

<p>1. Courts (§ 280*) — Federal Courts — Jurisdiction—Determination.</p> <p>The power of the federal court to determine whether a removed cause shall- be remanded applies as well to a case without as a ease within its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dee. Dig. § 230.*]</p> <p>2. Courts (§ 405*) — Federal Courts — Jurisdiction—Circuit Court of Appeals.</p> <p>The Circuit Court of Appeals has no jurisdiction, either on a writ of error or by appeal, to review a decision of the District Court which involves only a question of the jurisdiction of that court, as the remedy lies exclusively in the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. § 405.*</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>3. Courts (§ 405*) — Federal Courts — Circuit Court of Appeals — Jurisdictional Questions.</p> <p>Where a case has been tried in a District Court on its merits, and is brought to the Circuit Court of Appeals with assignments of error raising a jurisdictional question, as well as an independent question of general law, the Circuit Court of Appeals has jurisdiction to determine all the questions in the case.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. § 405 ;* Appeal and Error, Cent. Dig. § 3306.]</p> <p>4. Courts (§ 404*) — Circuit Court of Appeals — Jurisdiction to Issue Mandamus.</p> <p>The jurisdiction of the Circuit Court of Appeals to issue mandamus is incidental only to other powers expressly conferred, and' will not be exercised where there is nothing to which the right to issue such writ can be appended as an incident.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 404.*]</p> <p>B. Courts (§ 385*) — Federal Courts — Supreme Court — Removed Cause.</p> <p>The Supreme Court will not entertain a mandamus proceeding to review an order of the District Court denying a motion to remand a civil case to the state court; the jurisdiction of a District Court being reviewable after a trial on the merits by appeal or writ of error.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1022-1025, 1031; Dec. Dig. § 385.*]</p>

This cause comes here upon a writ of error to review a judgment of the District Court, Southern District of New York. After the jury was impaneled defendant moved for judgment upon the pleadings and the concession of the plaintiff that his cause of action was not based upon an agreement in writing.

<p>Shipping (§ 121*) — Damage to Cargo — Liability op Vessel — Unseaworthiness.</p> <p>A cargo of cement, carried by respondent’s barge from New York to Norfolk, Va., was badly damaged by water during the voyage. No worse weather, was encountered than should have been expected, but the barge twice broke her rudder and pumping engine, although neither of two other barges in the tow was injured. The barge had never before made a sea voyage, but had been employed in inland waters, and her hatch covers were not sufficient to keep out the water which washed over her when her rudder was gone. Bold, that the damage was not due to perils of the sea, but to her unseaworthiness for the voyage, for which respondent was liable.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 225, 449-451, 4C6; Dec. Dig. § 121.*]</p>

<p>' In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by William B. Keller against Donald A. Loyless for publishing an alleged libelous article of and concerning plaintiff. The article was published on April 5, 1908, in a trade journal known as the “Southern Carbonator and Bottler/’ and was as follows:</p> <p>“¡Selling Goods to Bottlers.</p> <p>“In its March issue, the National Bottlers’ Gazette of New York perpetrated a characteristic editorial ghost dance under the above heading, running amuck with its crazy snickersnee whetted keen for the poor traveling man.</p> <p>“In this remarkable aberration, the bellicose crank, who slings muck for ink in his self-appointed and highly imaginary job of running the business of every manufacturer, supply dealer, bottler and bottling trade journal In the United Stales of America, cooiy eliminates the knight of the grip from the equation of selling in the commercial carbonating world, reducing tho business to that of a mere mail order house. He gives the faithful, order-getting road man his walking papers, with a sneer at his efficiency and with a slander on his morals and maimers, declaring:</p> <p>“ ‘The old timers who held back their orders for the coming of some glib salesman — who got him and himself, too, stone blind drunk and had “such fun” together — are fast passing away. A new era has set in. A bottler can’t be “half seas” over and do business intelligently.’</p> <p>“Ye gods! Listen to that! It was not enough to kick the drummer downstairs, but he is branded as a drunkard and roysterer, employing bibulous conviviality as an art to land orders, a good deal as the confidence man works his oily wiles.</p> <p>“The New York traducer of the bottling trade traveling man will probably be prompt with his little apology in his April issue, but Ms animus is plain enough, and the fraternity has seen him in Ms true light.</p> <p>’ “Of course, slander aside, there is but one side to the question in so far as it involves advertising and traveling salesmen. The two are co-operative in every sense. Both are good and both are necessary.”</p> <p>"Acute Botts.”</p> <p>“From Texas ‘Grandoldtaxes.’ one of the best known traveling representatives in the line, writes that ‘the editor of the National Bottlers’ Gazette must be suffering from a ease of acute botts. Don’t think his advertising scheme will work, and he will find the number of traveling men increasing year by year just the same as in the past.’ ”</p> <p>The court dismissed the complaint on demurrer, and plaintiff brings error.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy proceedings of Henry W. Probst. On bankrupt’s petition to revise an order of the District Court adjudging him guilty of contempt and fining him $100.

Appeals from the District Court of the United States for the Southern District, of New York. . Suits in admiralty by James Sullivan and the St. Paul Fire & Marine Insurance Company by. Ormsby M. Mitchell and others, by Geofge Pilbeam, and by John Baker against the steam tug R. G. Townsend; the Cornell Steamboat Company, claimant. Decrees for libelants, and claimant appeals.

In Equity. Suit by the Maxwell Steel Vault Company against the National Casket Company. On motion to dismiss under new equity-rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), and also to strike out_ alleged impertinent and redundant matter.

<p>Patents (§ 328*) — Validity—Prior Invention by Another — Gas Heated Sad Iron.</p> <p>The Wright patent, No. 1,001,331, for a gas heated sad iron, claims 4 and 5, held invalid on the ground that the device therein shown was not the invention of the patentee but in all essential respects of one of the defendants, who used due diligence in perfecting his invention and had completed and perfected it prior to the filing of a caveat by the patentee, who had been shown the same and had full knowledge of it.</p>

<p>1. Patents (§ 13*) — Subjects of Patents — “Manufacture”—Roof Structure.</p> <p>A roof structure is a “manufacture” within the meaning of Rev. St. § 4886 (TI. S. Comp. St. 1901, p. 3382), and is a proper subject-matter of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 11, 12; Dec. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 43-14-4346; rol. 8, p. 7716.J</p> <p>2. Patents (4 328*) — Validity and Infringement — Roof Structure.</p> <p>The Aiken patent, No. 718,044, for a roof structure intended for large buildings, m which light is secured by constructing the roof in alternate bays, one resting on the lower chords of the trusses and the next on the upper chords with windows in the sides, was not anticipated, and discloses-patentable invention; also h eld infringed.</p> <p>3. Patents (4 289*) — Suit for Infringement — Laches.</p> <p>Evidence held not to sustain the defense of laches in a suit for infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 467-469; Dec. Dig. § 289.*j</p>

In Equity. Three suits by the Reece Folding Machine Company and five 'suits by the Reece Folding Machine Company and others, all against Earl & Wilson, a corporation. On motion for preliminary injunction.

In Equity. Suit by the Reece Folding Machine Company against Earl & Wilson, a corporation. ()n demurrer to bill of complaint, which seeks to restrain by injunction the defendant from violating the terms and conditions of two certain leases and licenses for the use of certain patented folding machines.

<p>3. Bankruptcy (§ 143*) — Right Passing to Trustee — Liquor License — Renewal.</p> <p>Where the bankrupt possessed a liquor license, the right to which for (he current year was sold as a part of the bankrupt’s estate, but at the time of the adjudication no application for renewal thereof had been filed, the bankrupt’s right to a renewal did not pass as a part of the bankrupt’s estate, and he could not therefore be required to join with a purchaser of the balance of the current license in an application to the state authorities for a renewal thereof to such purchaser.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. || 194, 201, 202, 213-217, 223, 224; Dee. Dig. § 143.*]</p> <p>2. Courts (§ 367*) — State Laws as Rules of Decision in Federal Courts-— Rules oj? Property.</p> <p>Questions affecting title to property which is created under a state statute must be construed in accordance with the rules of property established by the decisions of the state courts, in administering such property as a part of the estate of the owner in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958. 959; Dec. Dig. § 367.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Francis Bacon. On specifications of objection to the bankrupt’s discharge.</p>

In Bankruptcy. In the matter of Isaac Josephs, bankrupt. On specifications of objection to the bankrupt’s discharge. Suspended, pending a release of liability on certain loans.

<p>1. Municipal Corporations (§ 943*) — Railroad Aid Bonds — Issuance — Statutory Provisions — Compliance—Recital.</p> <p>On June 20, 1895, a town meeting voted to issue bonds to the amount of $8,500, and to subscribo for stock in a projected railroad, provided that the railroad company guaranteed that the balance of the money over the subscription necessary for the completion of the road to the town should be subscribed and furnished, and the road equipped and operated, within a year from the date of the meeting. On May 11, 1896, another meeting was held; but the vote at that meeting did not receive the necessary majority, and on June 13th a third meeting was convened, at which it was voted to ratify all acts done at the previous meetings, and to authorize the town to subscribe for stock to the amount of $8,500 in the railroad company, provided that a sufficient guaranty should be given that the railroad should be completed and operated to the town within six months. The bonds recited that they were issued in conformity of the vote passed at the special town meeting held July 13, 1896. Held, that since the vote at that meeting was in substantially the same terms as. and ratified, the vote at the former meeting the recital of the bonds referred the purchaser back to that vote as the authority on whicli the bonds were issued; and hence the fact that the meeting of July 13th was illegal did not invalidate the bonds, since the purchaser was entitled to assume that they had not been issued until the railroad had complied with the guaranty as required by the first vote.</p> <p>[Ed. Note. — -For other cases, see Municipal Corporations, Cent. Dig. §§ 1972-1977; Dec. Dig. § 943. *J</p> <p>2. Towns (§ 52*) — Railroad Aid Bonds — Issuance.</p> <p>Where railroad aid bonds were issued by a town in accordance with the authorization voted at two different town meetings, the latter of which was illegal, the vote at that meeting, though conferring no authority to issue the bonds, did not take away the authority already given.</p> <p>[Ed. Note. — For other cases, see Towns, Cent. Dig. §§ 90-94; Dec. Dig. § 52.*]</p> <p>3. Municipal Corporations (§ 943*) — Railroad Aid Bonds — Recitals.</p> <p>Bonds of a town issued in aid of a railroad, and reciting that they were issued under a vote of the town at a town meeting which was illegal, did not estop the holders from showing that the bonds had been otherwise previously authorized at a legal meeting.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent Dig. §§ 1972-1977; Dee. Dig. § 943 *J</p> <p>4. Municipal Corporations (§ 943*) — Railroad Aid Bonds — Bona Fid® * ■■ Purchaser.</p> <p>In the absence of recitals in bonds issued in aid of a railroad concerning the authority under which they are issued, a bona fide purchaser may assume that they were issued in conformity with the votes of the town, and that the conditions prescribed by the votes and by legislative enactments bad been complied with.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1972-1977; Dec. Dig. § 943.*]</p> <p>5. Municipal Corporations (§ 943*) — Railroad Aid Bonds — Validity—Recitals.</p> <p>Where a statute confers on a town, on the performance of certain precedent conditions, authority to execute bonds to aid in the construction of a railroad, and imposes bn certain officers the responsibility of issuing the bonds when such conditions have been complied with, recitals by the officers that the bonds had been issued in conformity with the statute imported a full compliance therewith in favor of a bona- fide purchaser for value, and precluded inquiry whether such conditions had in fact been performed before the bonds were issued.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1972-Í977; Dec. Dig. § 943.*]</p> <p>6. Municipal Corporations (§ 948*) — Railroad Aid Bonds — Exchange fob ■ Stock — Donation.</p> <p>Where a town authorized a bond issue in aid of a projected railroad •to be exchanged for the railroad company’s stock of equal par value, 'and the bonds after the exchange were sold to a bona fide purchaser for .value, the fact that the stock was worthless did not affect the town’s ‘“.liability on the bonds, on the theory that the issuance of the bonds ' 'amounted to a donation, which the town had no authority to make.</p> <p>. , [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ ■1982-1990; Dec.' Dig. § 948.*]</p> <p>7. Towns (§ 52*) — Debt Limit — Determination.</p> <p>Const. Me. Amend, art. 22, provi ties that no town shall create any liability which, with previous liabilities, shall exceed 5 per cent, of the last regular valuation of the town, provided that the article shall not apply to ■any fund received in trust by the town, nor to temporary loans to be paid out of money raised by taxation during the year in which they are made.- At the time the town issued bonds to the amount of $8,58S.85 its valuation was $171,775, its permanent interest-bearing debt was $3,-2G7.78, in addition to which there was outstanding a town note for $1,-666.66, payable to the ministerial and school fund, dated March 10, 1854, which represented the proceeds of the sale of land granted to aid the ministry and common schools. The interest on the note had in theory been paid by taxes assessed each year for the purpose, but such interest was not indorsed on the note and had not in fact been paid to the trustees of the fund as a separate corporation, but the assessments had been turned in to the town treasurer and used for the support of the schools of the town, in addition to the regular amount appropriated for, that purpose, and applied in the manner provided for the disposition of such funds. Held, that such note represented a part of the permanent interest-bearing debt of the town, and was not a fund held in trust; and heneé at the time the bonds were issued the town's limit of further indebtedness amounted to í?3,(>51.i.í, and the town was therefore liable on each bond for s^ii.'U/ssoo 0f its value.</p> <p>| Ed. Note. — For other crises, see Towns, Cent. Dig. §§ 90-94; Dec. Dig. § 52.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of William J. Thompson, bankrupt. On petition of John J. Stoer, claimant of a certain dredge known as Dredge No. 1, to review a referee’s order refusing to deliver the dredge to claimant and sustaining the title of the trustee.

In Bankruptcy. In the matter of Israel Podolin and others, trading as the Franklin Suit & Skirt Company. The bankrupts having been ruled by the referee to file more complete schedules, the order was brought to the District Court for review of certificate of the Referee.

In bankruptcy. In the matter of bankruptcy proceedings of Dreuil & Co., bankrupts. On petition of the Canal Bank & Trust Company and counterclaim of the Commercial National Bank to recover the proceeds of certain cotton from the trustee. Judgment in favor of the Canal Bank & Trust Company as prayed.

In Bankruptcy. In the matter of bankruptcy proceedings of Dreuil & Co. and others. Joint petition by the Bank of Orleans and the Commercial National Bank that a warehouse receipt for 100 bales of cotton and the cotton represented thereby be turned over to the petitioners.

<p>1. Criminal Law (§ 620*) — Trial—Indictments—Consolidation.</p> <p>Where indictments and all of the counts thereof charged accused as president of a specified national bank with acts of the same character and degree of offense, constituting an alleged violation of the national banking act, an order consolidating the indictments for trial and the trial of the same as one ease was authorized by Rev. St. § 1024 (U. S. Comp. St. 1901, p. 720).</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1376; Dec. Dig. § 620.*</p> <p>Consolidation of and trial of indictments together, see note to Dolan • v. United States, 69 O. C. A. 287.]</p> <p>2. Banks and Banking (§ 257*) — National Banks — Officers—Offenses— Misappropriation — Indictment.</p> <p>A count in an indictment against the president of a national bank charged him with misappropriating the property of the bank, to wit, a draft drawn by H. on a specified trust company of the value of $27,125. Held, that, since the test of the offense is whether the misappropriation was made by accused with intent to injure the bank, the count was not detective for failure to charge that the bank sustained a loss by the transaction.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 966, 970-976; Dec. Dig. § 257.*]</p> <p>3. Indictment and Information (§ 125*) — Duplicity.</p> <p>Where a count in an indictment against the president of a national bank charged misappropriation of the property of the bank, to wit, a specified draft of the value of $27,125, it was not rendered duplicitous because when the draft was drawn there was substituted in its place three separate notes aggregating the same amount, alleged to be fictitious and worthless, on the theory that because the notes were used as substitutes for the draft three offenses were committed.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p> <p>4. Indictment and Information (§ 125*) — Bank Officers — Duplicity.</p> <p>A count in an indictment against a national bank president charged misapplication of the funds by means of moneys and credits withdrawn in tlie form of cash exchange in the sum and value of $9,000, by means of a check drawn by the B. State Bank on the national bank in the sum of $9,000, the state bank having no credit with the national bank, which gave therefor four drafts payable to the customers of the state bank, one for $3,000 and three for $2,000 each. Held, that the misapplication charged was the payment of the draft for $9,000 by means of the national bank’s drafts and not the ultimate payment of the latter drafts; and hence the count was not duplicitous.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. §§ 334-400; Dec. Dig. § 125.*] '</p> <p>5. Banks and Banking (§ 257*) — National Banks — Officers—Offenses— False Entries.</p> <p>An indictment against a national bank president charged the making of a false entry in the ledger of the bank by debiting tbe account of the F. Bank with $25,000. It further charged that, by such transaction, the account of the F. Bank was reduced by such amount. Held, that such indictment was not demurrable in that 'an entry of $25,000 on the debit side of the account did not indicate that that amount had been received by the national bank as alleged, since, if the sum had' been received, the entry would, have been in the credit column, for as the sum was taken from the F. Bank's credit, it constituted a false entry unless it was paid out on a check or draft of the F. Bank.</p> <p>' [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 966, 970-976; Dec. Dig. § 257.*]</p> <p>6. Banks and Banking (§ 257*) — National Banks — Offenses of Officers —False Entries.</p> <p>In a prosecution of a national bank president for making a false entry in the bank’s books relative to the alleged withdrawal of $25,000, charged against the account of another bank, evidence held to justify the jury in finding that the entry was false and that it had not been authorized by the president of the bank against the account of which the amount was charged.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent Dig. §§ 965, 966, 970-976; Dec. Dig. § 257.*]</p> <p>7. Criminal Law (§ 558*) — Weight of Evidence — Duty to Credit.</p> <p>The rule that positive, uncontradicted testimony as to a particular fact should control the decision does not apply if the testimony is inherently improbable or the witness is contradicted .by physical facts or omissions, or his manner of testifying raises doubts as to his sincerity.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1250; Dec. Dig. § 558.*]</p> <p>8. Banks and Banking (§ 256*) — National Banks — Funds—Misappropriation — Loss.</p> <p>Where a national bank president misappropriated funds of the bank, the criminal character of the transactions was to be determined from the facts existing when they occurred, and if they were then criminal they did not lose their criminal character by the fact that he subsequently made good to the bank the amount so misappropriated.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 958-964, 967; Dee. Dig. § 256.*]</p> <p>■9. Criminal Law (§ 1177*) — Conviction—Sentence—Different Offenses— Operation Concurrently.</p> <p>A national bank president, having been convicted under three indictments, was sentenced on one of the counts to a term of imprisonment without the imposition of a fine, to run concurrently with the sentence on the counts of the other two indictments. Held, that such sentence was in legal effect a single judgment and sentence, and, being supported by the other two indictments, it was immaterial that the evidence did not support a conviction on the third.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3183-3189; Dec. Dig. § 1177.*]</p> <p>10. Witnesses (§ 277*) — Cross-Examination of Accused.</p> <p>Where, in a prosecution of a national bank president for violation of the national bhnking act, accused had testified in his direct examination that certain notes executed to a trust company had been paid in full with interest, and one of the indictments charged that the notes had never been paid, it was proper to permit the government to cross-examine accused fully as to the transaction by which a credit was obtained with the trust company to take up the notes.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-9<83; Dec. Dig. § -277.*]</p>

EL Hanford, Judge. Action by David Perkins against Charles D. Intermelá and the American Surety Company. Judgment for plaintiff, and defendants bring error. Interínela Is the treasurer of the city of Port Townsend, Wash., and the American Surety Company is the surety upon his official bond.

C. Van Fleet, Judge. Action at law by J. C. Will Jorgensen against the County of Tuolumne, Cal. Judgment for defendant, and plaintiff brings error. The plaintiff, J. C. Will Jorgensen, and his brother, II. H. Will Jorgensen, under the firm name of Jorgensen Bros., constructed a reinforced concrete bridge across the Stanislaus river, under a contract with Tuolumne county, Cal.

Appeal, from District Court of the United States for the Western Division of the Western District of Washington. Claim by the Pacific State Bank against A. S. Coats, as trustee in bankruptcy of the Raymond Box Company, bankrupt. From a judgment of the District Court disallowing the claim, claimant appeals.

In Krror to the District Court of the United States for the District of Montana; George M. I’ourquin, Judge. In the matter of proceedings to punish H, Lowndes Maury for contempt of court. The defendant was adjudged guilty of contempt and ordered to pay a fine of $500, and he firings error.

<p>In Equity. Suit by Andrew Thoma and others against Angelo Perri and others. On motions by defendants to dismiss.</p>

At Law. Action by Jacob Evans and another against the Lehigh Coal & Navigation Company. On motion to dismiss for want of jurisdiction, after mistrial and motion for entry of judgment in favor of defendant on the whole record.

<p>In Equity. Suit by the Sperry & Hutchinson Company against the City of Tacoma, Wash., and others. On motion for the cancellation of an injunction bond.</p>

<p>In Equity. Suit by the Toledo Traction, Light & Power Company against Barton Smith and others. Temporary injunction granted.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of George F. Scruggs. Petition by the trustee to review a referee’s order allowing a claim of a lien on the proceeds of sale of the bankrupt’s stock of goods, etc., and for the rent of a storehouse of which the bankrupt was a lessee.

<p>Insurance (§ 130*) — Contract—‘‘Acceptance” of Application.</p> <p>Decedent, whose tile was insured in defendant company for $5,000, applied to defendant’s local agent for $10,000 additional insurance. The application stated that, if the total face value of insurance carried in defendant amounted to $15,000, a microscopical examination of urine was required. Decedent was examined by defendant’s medical examiner, but no such microscopical examination was made. The first annual premium was contingently paid, and decedent received a receipt which stated that it was binding on the company from the date of the medical examination, provided the application for insurance was approved and the poliej issued by the company as applied for. Defendant’s medical board disapproved the application, and under defendant’s rules it went to and required approval by three of defendant’s executive officers, or it stood rejected. Three of such officers marked the application “Approved,” with the date, and affixed their initials; but at least one did not know that no microscopical examination had been made, though abbreviations on the application indicated that fact. The application then went to the policy department, where, the absence of a microscopical examination having been discovered, the application was referred back to the executive officers, and the prior approval canceled. On January 22, 1906, a letter was written to the soliciting agent that such examination was desired. Decedent was killed on January 26th, the day before such letter was received, and payment demanded and refused. Meld, that there was no sufficient acceptance of the application to constitute a contract, and defendant was not liable.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 195-202; Dee. Dig. § 130.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 54, 55.]</p>

<p>Libel by the United States against Eighty-Five Head of Cattle, alleged to have been fraudulently imported into the United States. Judgment for claimants.</p>

In Equity. Suit by Henri Eecouturier, as administrator of the estate of Charles Rubens (also known as Samuel Woog), deceased, against Henry R. Ickelheimer, individually and as executor of the alleged will of Charles Rubens (also known as Samuel Woog), deceased, and others. On motion to dismiss.

In Equity. Suit by Henri Lecouturier, as administrator of the estate of Charles Rubens, against Henry R. Ickelheimer, individually and as executor, and others. On objection to complainant’s competency to sue. Time granted to obtain authentication of letters.

Action by Estella Lizzie Reynolds, for herself and her four minor children, Louis P., George M., Naomi E., and Russell O. Reynolds, against the United States, to secure for herself and her children allotments of certain lands under Indian treaties and the acts of CouL gress ratifying the same. Allowed in part, and denied in part.

Petition for Revision of an Order of the District Court of the United States for the Southern Division of the Southern District of California; Olin Wellborn, Judge. In the matter of bankruptcy proceedings of Benjamin C. Crandall. Claim by Nellie M. Crandall against Wm. H. Moore, Jr., as trustee in bankruptcy of the estate of claimant’s husband, Benjamin C. Crandall. A decree of the District Court was entered allowing the claim, and the trustee petitions for review.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge.</p> <p>Action at law by John Regan against the Parker-Washington Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California.</p> <p>Action at law by the Los Angeles Gas & Electric Corporation against the Western Gas Construction Company. Judgment for defendant, and plaintiff brings error.</p>

Action by John Shandalla against the Lehigh Valley Coal Company to recover damages for injuries to plaintiff while employed by defendant in its Exeter, Pa.,' coal mine as a car pusher. While so employed, plaintiff lost the index finger of his left hand and two joints of the next finger by reason of an alleged defective block used in stopping cars as they descended to the cage. From a judgment for plaintiff for $2,563.95, defendant brings error.

<p>Appeal 'from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Tweedie Trading Company against Charles D. Barry and others, doing business as Henry W. Peabody & Co-. Decree for libelant, and respondents appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of N,ew York.</p> <p>Suit in admiralty by the Duplan Silk Company against the American & Foreign Marine Insurance Company. Decree for defendant, and libelant appeals.</p>

This cause conies here upon appeal from an order of the District Court, Southern District of New York, denying a motion for an injunction pendente lite- to restrain the collector from destroying some chests of tea, imported by complainants. The cause involves a construction of the Tea Act of March 2, 1897. The examiner at the port oí New York held that the teas did not come up to the established standard.

Suit in admiralty by the Boston Insurance Company against the steam tug Bern; the Philadelphia & Reading Railway Company, claimant. Decree for libelant, and claimant appeals. This cause conies here upon a decree awarding damages to libelant against tlie tug. The barge Anna H. Costello, laden with coal and coming out of the Kills, in tow of tlie tug Bern, was stranded on the Staten Island shore through the admitted negligence of the tug.

Suit in admiralty for collision by the American Linseed Company, owner of the steam lighter Guy G. Major, against the ferryboat Plain-field ; the Central Railroad Company of New jersey, claimant. Decree dividing damages, and claimant appeals.

Rose, Judge. Suit in admiralty by the Southern Transportation Company, as owner of the barge Brandywine, against the Philadelphia, Baltimore & Washington Railroad Company. Decree for libelant, and respondent appeals.

<p>On motion to modify decree.</p>

<p>Shipping (§ 50*) — Construction op Charter'Party — Liability for Galley Coal.</p> <p>Under a charter party which, required the owners to pay for all “stores” and the charterer for “all the coals,” coal used in the galley, as well as that used for steaming i>urposes, was chargeable to the charterer; it not being shown that the galley coal was kept separate from the general supply.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 150-155; Dec. Dig. § 50.*]</p>

<p>1. Patents (§ 72*) — Anticipation—Combination.</p> <p>It is not sufficient, to constitute an anticipation, that, the devices relied upon might, by a process of modification, reorganization, or combination, be made to accomplish the function performed by the device of the patent.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 86-91; Dee. Dig. § 72.*]</p> <p>2. Patents (§ 62*) — Anticipation—Evidencie.</p> <p>On the question of anticipation, the fact that the patented device is so far different from those of the prior art that it has superseded them in general use is entitled to great weight.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 78; Dee. Dig. § 62.*]</p> <p>3. Patents (§ 328*)--'Vapidity and Infringement — Fruit Grader.</p> <p>The Strain reissue patent, No. 12,297 (original No. 780,412), for a fruit grader, for assorting fruit with reference to size, was not anticipated, and discloses invention; also held infringed by the machine of the Parker patent, No. 997,468.</p> <p>4. Patents (§ 239*) — Infringement—Adding Improvements to Patented Device — “Infringer.”</p> <p>One who appropriates another’s patented invention, though he may add thereto another element to perform an additional function, is an “infringer.”</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. 377, 878; Dee. Dig. § 239.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3594.]</p> <p>5. Patents (§ 176*) — Infringement—Limitation of Cuaiaís — “Find to End.”</p> <p>The expression “end to end,” used in a patent claim in describing the relative position of rollers, does not necessarily require that there shall he no longitudinal space between the ends of the rollers, nor impose a limitation which will enable another to avoid infringement by leaving a space between them, where it does not change their function or mode of operation.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 250%-252; Dec. Dig. § 176.*]</p>

<p>1. Patents (§ 195*) — Contract fob Sale of Patent — Delivery of Patent— “Patent” — “Title Deed.”</p> <p>A “patent,” like a “title deed,” is a personal chattel, and a contract for the sale of the patent right may require the delivery of the original letters patent.</p> <p>' (Ifid. Note. — Eor other cases, see Patents, Cent. Dig. §§ 272-274; Dec. Dig. § 195*</p> <p>Eor other definitions, see Words and Phrases, vol. 6, pp. 5228-5231; vol. 8, p. 7748.]</p> <p>2. Patents (§ 195*) — Sale—Construction oir Contract — Agreement to Deliver Original Patent.</p> <p>A contract for the sale of a patent required the seller to forward the “original patent papers,” together with an assignment, to a bank for examination by the purchaser, who, if they were found regular, agreed to accept them and pay the bank the agreed purchase price. Held, that the delivery of the original letters patent was a material requirement of the contract, and their tender by the seller a condition precedent to the creation of any obligation on the part of the purchaser to complete the purchase.</p> <p>fKd. Note. — For other cases, see Patents, Cent. Dig. §§ 272-274; Dec. Dig. § 195.*]</p>

<p>In Equity. Suit by the Daniel Green Felt Shoe Company against the Dolgeville Felt Shoe Company. On final hearing.</p>

<p>In Equity. Suit by Charles F. Hopewell against the Finscott -Supply Company. On final hearing.</p>

<p>1. Patents (§ 22*) — Invention—Substitution of Equivalents.</p> <p>To substitute one kind of well-known gearing for another in a valve reseating tool would not involve invention, even though better results and more uniform grinding are obtained.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 24; Dee. Dig. § 22.*]</p> <p>2. Patents (§ 142*) — Reissue—Claims Abandoned in Original Proceedings.</p> <p>The voluntary cancellation of a claim in the original application for a patent calling for positive driving means as an element of a combination is an abandonment of such element, and a claim for continuously acting positive means cannot be made the basis and principal feature of a reissue, nor can it be claimed that such feature was omitted from the original patent by inadvertence, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 214; Dec. Dig. § 142.*]</p> <p>3. Patents (§ 138*) — Validity of Reissue — Laches.</p> <p>In the absence of special circumstances, a reissue should not he granted after a delay of nearly three years, and the rule should be strictly enforced, when, during the delay, other inventors have taken out new patents in ilie same art, which would infringe the reissue.</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. §§ 201-203; Dec. Dig. § 138.*]</p> <p>4. Patents (§ 328*) — Validity of Reissue — Machine eob Reseating Valves.</p> <p>The Hazeltine reissue patent, No. 33,421 (original No. 918,049), for a machine for reseating valves, is void because of the absence of statutory ground for a reissue and also because of delay in applying therefor.</p>

<p>In Equity, Suit by Thomson Electric Welding Company against North & Judd Manufacturing Company and others. On final hearing.</p>

<p>1. Trade-Marks and Trade-Names (§ 11*) — Unfair Competition™Trade-Marks Identified with Patented Artioms — Expiration of Patent.</p> <p>“Where during the entire lite oí a patent complainant, as the exclusive agent, sold the patented article under certain trade-marks o£ his own, the packages also bearing the patent mark, it must be presumed that the trade-marks became the identifying mark of the patented article, and on the expiration oí the patent their use became tree to other makers of such article.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 15; Dec. Dig. § 11.*]</p> <p>2. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition — Imitation of Dress of Competitor.</p> <p>The right of another maker to use such trade-marks, however, is not unrestricted, but subject to the condition that they clearly distinguish their goods from those of■ the original maker; and such a user, who, instead of doing so, deliberately imitates the packages and dress oí the original maker’s goods in the respects most likely to attract attention, is chargeable with unfair competition, which will be enjoined.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]</p>

<p>At Daw. Action by Stephen M. Weld & Co. against the Victory Manufacturing Company. Verdict directed for plaintiffs.</p>

<p>In Equity. Suit by the National Mines Company against the Charleston Hill National Mining Syndicate, a corporation, and the Mammoth National Mines Company. Judgment for complainant.</p>

In Equity. Suit by the Louisville & Nashville Railroad Company against the Railroad Commission of Alabama. On petition by complainant and rule issued thereon against Charles Henderson, Leon McCord and Frank Julian, respondents, to show cause why they should not be punished for contempt for violation of injunction. Rule discharged.

<p>.Aliens (§ 62*) — Citizenship—Bight to Admission — Personal Disqualification.</p> <p>Where a Syrian, on application for admission to citizenship, testified that he came to the United States 11 years before and was a Christian, but could neither read' nor write English, and spoke and understood English very imperfectly, did not understand any questions relating to the manner or methods of American government, or the responsibilities of a citizen, and could not be made to understand in English the purport of questions whether he was a polygamist or a disbeliever in organized government, both of which he answered in the affirmative, desiring citizenship only that he might bring his wife and children into the country, his personal disqualifications were such as to disentitle him to admission, without reference to whether he was a free white person within the Naturalization Act (Act Cong. March 26, 1790, e. 3, 1 Stat. 103), as amended by Act July 14, 1870, c. 254, 16 Stat. 254.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. §§ 123-125; Dee. Dig. § 62.*]</p>

<p>Food (§ 5*) — Imitation—“Misbranding”—Champagne.</p> <p>Food and Drugs Act June 30, 1906, c. 3915, § 8, 34 Stat. 770 (U. S. Comp. St. Supp. 1911, p. 1357), provides that for the purposes of the act an article shall he deemed to be misbranded, in the case of food (drink), if it be an imitation of or offered for sale under the distinctive name of another article, or if it be labeled or branded so as to deceive or mislead the purchaser, provided that an article of food which does not contain any added poisonous or deleterious ingredients shall not he deemed to he adulterated or misbranded; in case of mixtures or compounds, which may be now or from time to time hereafter known as articles of food, under “their own distinctive names and not an imitation of or offered for sale under the distinctive name of another article,” if the name be accompanied on the label or brand with a statement of the place where the article has been made or produced, and in the case of articles labeled, branded, or tagged so as to plainly indicate that they are compounds, imitations, or blends, and the word “compound,” “imitation,” or “blend,” as the case may he, is plainly stated on the package in which it is offered for sale. A wholesale liquor dealer in New York ordered four eases of champagne from S. & Co. in Illinois. The order was filled with cases, the outside of which were marked with designs to represent cases of champagne and contained bottles of the same shape and made to imitate an ordinary champagne bottle. The bottles were corked and dressed about the neck the same and in very close imitation of ordinary champagne bottles, having the same style of label and seal, both attached in the same maimer, and on the label was the name “Special Gold Cabinet, Superior Quality,” with a coat of arms on one side and the initials “H. II. S. & Co.,” and on the other certain figures, but without the word “champagne.” The contents of the bottles was a very cheap, ordinary, low grade of carbonated white wine! The boxes were also marked with the words “Extra Dry,” when in fact the contents were not “extra dry.” Held to constitute misrepresentation by misbranding, intended to deceive and defraud purchasers, within the act, and that the champagne was subject to forfeiture.</p> <p>[Ed. Note. — For other cases, see Food, Cent, Dig. § 1; Dec. Dig. § 5.*]</p>

<p>At Taw. Action by Gertrude Mattison, as administratrix of Bernie Mattison, deceased, against the Boston & Maine Railroad. On motion to remand the case to the Supreme Court of New York.</p>

In the matter of Herman T. Hodge, bankrupt. On opposing motions to confirm report of referee recommending denial of a discharge and to set aside such report and grant a discharge.

At Raw. Action by the Buckeye Powder Company against the Haz- . ard Powder Company. On motion to compel a witness, whose testi- . mony was being taken by deposition de bene esse, to answer certain questions.

At Law. Action by Lizzie M. Troxell against the Delaware, Lackawanna & Western Railroad Company. On rule to show cause why defendant’s costs in a former action should not be deducted from the amount of the judgment in the present action, and on appeal by plaintiff from clerk’s taxation of costs.

In Error tp the District Court of the United Stales for the District of1 Idaho; Frank S. Dietrich, Judge. Action at law by Jake M. Shank against the Great Shoshone & Twin Falls Water Power Company. Judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; James B. Holland, Judge.</p> <p>Action at law by the Hamilton Manufacturing Company against the Roxford Knitting Company. Judgment for plaintiff, and defendant brings error.</p>

Holland, District Judge. Action at law by the Flexilis Werke, Spezial Tiegel Stahlgiesserei, Gesellschaft mit Beschrankter Haftung (which name translated into the English language is “Flexilis Works, Special Crucible Steel Foundry, Company with limited liability”), and Edwin Bosshardt, against Henry Hess. Judgment for defendant, and plaintiffs bring error.

Proceeding by the Oceanic Steam Navigation Company against A. Leonard Brougham for contempt. From a judgment imposing a fine on defendant, he brings error. Writ of error to review an order of the District Court, Southern District of New York, adjudging the plaintiff in error guilty of contempt of court and imposing upon him a fine of $200 payable one-half to the United States and one-half to the petitioner in the limitation of liability proceedings.

J. Cochran, Judge. Action at law by Cynthia Audas against the Highland Land & Building Company of Dayton, Ky. Judgment for defendant, and plaintiff brings error. On August 29, ISO'!, Thomas Audas and his wile (the latter being plaintiff in error here) borrowed $2,500 from one Kearney, giving as security therefor a mortgage on certain land in Campbell comity. Ky.. in which mortgage plaintiff in error joined. On April 28, .1900.

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action at law by D. S. Snyder against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Pleading (§ 129*) — Admissions by Failure to Deny.</p> <p>Under the law of Tennessee, as settled by decision, that the defense of limitation must be pleaded, where after the filing of a plea in an action for personal injury, setting up the statute of limitation of one year, plaintiff amended his declaration, alleging matter in avoidance of the plea, and defendant, although given time, did not file any plea to the amended declaration, it waived the defense of limitation, and could not raise it by a motion in arrest of judgment.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*]</p>

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action at law by Mary J. Benson, administratrix, against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings error.</p>

Thomas S. Maxey, Judge. Action at law by Bernhard Hoersgen against the Southwestern Portland Cement Company. Judgment for defendant, and plaintiff brings error. Action for damages for personal injuries brought by Bernhard Hoersgen, an alien, against the Southwestern Portland Cement Company, a corporation. The defense was that the injury was caused by the negligence of a fellow servant of the plaintiff.

Lewis, Judge. John Gould and others were convicted of crime, and bring error, and the United States moves to dismiss a second set of writs of error, and to set aside a second set of orders.

Sater, Judge. Suit in equity by the Central Trust Company of New York against the Cohimbus & Hocking Coal & Iron Company. From an order requiring Frank B. Keech and others, constituting a reorganization committee, to pay 50 per cent, of the claim of the Stowe-Fuller Company, a creditor, the committee appeals.

Boyd, Judge. • Action between Harriet L. Betts and another and Ben W. Gahagan and others, judgment for the latter and the former brings error. On motion to dismiss and cross-motion at the hearing to docket and file a transcript of the record, notwithstanding the order of dismissal.

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy; Jas. M. Morton, Judge. In the matter of’ the J. B. Judkins Company, bankrupt. On petition by bankrupt to revise order of District Court, and on motion to dismiss same.

.Suit in equity by E. Hugh Smith, trustee in bankruptcy of G. Milton Sydnor, against the Northern Neck State Bank and others. Decree for complainant, and defendant bank appeals.

United States for the Southern District of New York. Suit in admiralty by the United States Metals Refining Company against Charles A. Jacobus and another. Decree for libelant, and respondents appeal.

Appeals from the District Court of1 the United States for the Eastern District for New York.. Suit in admiralty for collision by the McAllister Steamboat Company, owner of the steamer Ajax, against the ferryboat Columbia, the Brooklyn & Manhattan Ferry Company, claimant with a cross-libel. Decree for libelant, and claimant appeals.

<p>Collision (§ 74*) — Moving and Moohed Vessels — Negligent Navigation. A finding that a'tug was solely in fault for a collision with another tug, which was tied up at a bulkhead, affirmed.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. § 104; Dee. Dig. § 74.*J</p>

<p>Appeal and Ekrob (§ 539*) — Right of Review — Limitation by Stipulation.</p> <p>The Circuit Court of Appeals held, limited by the stipulation of the parties, and by the omission of matters from the record as sent up, to' the consideration of a single question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2357, 2358, 2464; Dec. Dig. § 539.*]</p>

<p>Patents (§ 328*) — Adjudication of Invalidity — Effect of Disclaimeb— Solder-Saving Device.</p> <p>A disclaimer filed by the patentee as to certain claims and parts of claims in the Fellows patent, No. 595,705, for a solder-saving device for use in the manufacture of sheet metal cans, which had previously been adjudged void for lack of patentable invention in the same suit, held not to so change the combination of the patent as to avoid the effect of such decisions. ,</p>

<p>Patents (§ 328*) — Validity and Infringement — Knotting Machine.</p> <p>The Colman patents, No. 672,636 and No. 755,110, for a knotting machine designed, for tying knots in thread as it runs off the bobbin onto the spool in cotton mills, were not anticipated and disclose invention, the machine being of a primary character and great utility; also hold infringed.</p>

<p>Patents (§ 324*) — Suits for Infringement — Effect of Appeal from Order Granting Preliminary Injunction — Power to Make Administrative Orders.</p> <p>Tlie allowance of an appeal from an interlocutory order granting a preliminary injunction in an infringement suit does not deprive the trial court of power to entertain a motion by complainant to require an increase of the bond given to secure a suspension of the injunction, pursuant to leave reserved to complainant in the order allowing the appeal, nor to make other orders purely administrative in character.</p> <p>]Kd. Note. — For other cases, see Patents, Cent. Dig. §§ 600-606; Dec. Dig. § 324.*]</p>

<p>1, Patents (§ 157*) — -Infringement—Construction of Claims.</p> <p>Unless there are limitations written into the claims of a patent or imposed by tbe prior art or by the acceptance of a narrow claim in place of a broad one in tbe Patent Office, in order to secure the patent, the inventor is entitled to every form in which his invention may be copied and to a broad construction.</p> <p>[Ed.-Note. — Eor other cases, see Patents, Cent. Dig. §§ 229-232; Dec. Dig. § 157.*]</p> <p>2. Patents (§ 246*) — Infringement—Omission of Elements in Combination.</p> <p>Joining two elements of a patented combination into one, or dividing one into two, the one or the two, as the case may be, doing the same work as was done before in the same way, and no more, will not avoid infringement; but when the patentee writes into his claim a specific element, especially when there is a prior art, and gives to that element a specific or special function in tlie combination, one who leaves such element out, and does not substitute'an equivalent, is not an infringer, although tlie result is the same, brought about by minor changes and suitable adaptation of the remaining elements.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 387; Dec. Dig. § 246.*]</p> <p>3. Patents (§ 240*) — Infringement—New Combination.</p> <p>The fact that one by changing the location of one of the elements ol the machine and claim of a patent and attaching it to another of the elements of the machine and claim without changing the form and function of the element to which it is attached, except to make; it perform a double oifice or function, may and does leave out one of ihe elements of the patent as claimed, and still, obtain the same result, does not make him an infringer, even though in all other respects his machine is a Chinese copy of the one described and claimed in the patent, but his change produces a new combination.</p> <p>|Ed. Note. — For other cases, see Patents, Cent. Dig. § 887; Dec. Dig. § 246.*]</p> <p>4. Patents (§ 240*) — Infringement—Combination.</p> <p>Where a patentee has specifically claimed all the elements of a comlunation, he thereby asserts their materiality, and cannot be hoard to deny it</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 387; Dec. Dig. § 216.*]</p> <p>5. Patents (§ 328*) — Infringement—Incubator.</p> <p>The Hall patent, No. 692,277, for an incubator, as limited by the prior art and the specific language of the claim, held not infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Necktie.</p> <p>The Keys patent, No. 923,534, for an improvement in neckwear, claims 2 and 3, hold void for lack of invention, and claim 7 as broader than warranted by the specification. Claim 1, for a necktie having a portion of the inner side of the neckband cut away and a strip of antifriction fabric substituted, therefor, to prevent it from being torn by the rear collar button, was not anticipated and discloses invention; also held valid, as against the claim of prior use, and infringed.</p>

<p>1. Patents (§ 328*) — Novelty—Weft Replenishing Mechanism bob Looms.</p> <p>The Smith patent, No. 692,935, for weft replenishing mechanism for looms, claims 13 and 14 held void for lack of patentable novelty in view of the prior Northrop patent, No. 600,016.</p> <p>2. Patents (§ 102*) — Limitation—Oath to Application.</p> <p>On a fair construction, the language of the oath required of an inventor to his application applies to what is described as his invention, and also to what is claimed, and is not limited merely to what is both described and claimed.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. § 142; Dec. Dig. § 102.*]</p>

In Equity. Suit by the Coldwell-Gildard Company and others against the Stafford Company for infringement of reissue patent No. 11,923 (original No. 637,234), granted to Coldwell and Gildard July 30, 1901, for a warp stop motion for looms.

<p>Patents (§ 328*) — Validity—Vehicle Seat.</p> <p>The Miller patent,.No. 1,007,041, for vehicle seat and lock therefor, claims 1 and 2, held void for lack of patentable novelty and invention.</p>

<p>Municipal Corporations (§ 281*) — Street Paving — Assessment for Cost op Water, Gas, and Sewer Connections — Charter Provisions.</p> <p>. Chapter 8, § 17, Milwaukee Charter, provides that, when the common council shall order the paving of a street in which water or gas mains or sewers have been laid, it may by resolution require the board of public works to cause service pipes and connections to be made therewith at the cost of the property fronting on such street; that the board shall give notice to the owners by publication for six days in the official papers requiring them to do the work according to a plan and specification to be before prepared and on file; that, if such owners shall refuse or neglect to do the same before the paving, “and within 10 days after the publication of such notice, the said board may procure the same to be done,” the cost to be made a special assessment against the property. After such a notice had been ordered published with respect to a street fronting complainants’ property, but before the completion of the publication, the board advertised for bids for the work, and before the expiration of 10 days after the completion of the publication lot a contract for the work, which was done, and the cost assessed against complainants’ property. Reid, that the right of complainant to do the work himself was a substantial right; that the steps prescribed by the charter must be taken in orderly sequence, and the taking of each is a condition precedent to the right to take those following it; that, until the expiration of the 10 days during which complainant had the exclusive right to do the work, the board was without power or jurisdiction to take any steps to have it done; and that its action in the premises rendered the assessment invalid.</p> <p>TEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 745-749; Dec. Dig. § 281.*]</p>

In Equity. Suit by the Sarfert Company against Frank Chipman and others. On application of complainant for an order directing repayment of fees for making and certifying transcript of record to Circuit Court of Appeals.

<p>At Law. Action by the Security Sales Agency, a West Virginia corporation, against the A. S. Abell Company. On demurrer to declaration.</p>

<p>Action by the United States against Holland-America Line. Judgment for defendant.</p>

<p>1. Trade-Marks and Trade-Names (§§ 11, 71*) — Names Applied to Patented Articles — Rights After Expiration of Patent.</p> <p>While the name of a patentee used as a mark or in advertising to designate the patented article' cannot be monopolized as a trade-mark after the expiration of the patent, it may also have become in some degree significant of origin with the public, and in such case its subsequent use by a competitor must be in such manner or in connection with such notice that purchasers will not be deceived as to the manufacturer.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 15, 82; Dec. Dig. §§ 11, 71.*]</p> <p>2. Trade-Marks and Trade-Names (§ 71*) — Names Applied to Patented Articles — Rights After Expiration of Patent.</p> <p>For 12 years before the expiration of a patent for a door check, complainant made and sold such checks under a contract with the owner of the patent, and had marked the same with the name “Blount,” who was the patentee, and its own name. During the same time others had made under the patent, but none had marked them with such name. T.wo years after the expiration of the patent, defendant commenced the manufacture of a door check very similar in appearance to those of complainant, and placed on the plates attached thereto the name “Blount” in conspicuous letters, followed by its own name in much smaller letters. It also advertised them in the same manner. Held, under the evidence, that during the preceding 14 years the name had come to indicate in part the door checks made by complainant, and that its use by defendant was a violation of complainant’s rights; that it was entitled to have defendant make the name less, and its own name more, conspicuous, and otherwise indicate clearly that its door checks were not those of complainant.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. § 71.*]</p> <p>3. Trade-Marks and Trade-Names (§ 75*) — Unfair Competition- — Proof of Deception.</p> <p>In a suit; for unfair competition, proof of actual deception is not necessary, but the court may determine without it from the exhibits themselves whether deception will be the natural and probable result of their use.</p> <p>FEd. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. § 75.*]</p>

<p>In Admiralty. Suit for collision by the New York, Philadelphia & Norfolk Railroad Company against the steamship North Point, with cross-libel.</p>

<p>In the matter of the Wenatchee-Stratford Orchard Company, bankrupt. On review of decision of referee. Returned to referee with directions.</p>

<p>In Equity. ■ Suit by the United States against the Henrylyn Irrigation .Company, the Inter-Mountain Water Company, and J. A. Mc-Ilwee. On demurrer to bill.</p>

<p>1. Shipping (§ 45*) — Charter—Consignment oe Vessel to Third Party por Loading.</p> <p>• When a charterer consigns the vessel to another for loading, he makes himself responsible for the acts and omissions of such consignee the same as though he had directed the vessel consigned to himself at the same place.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 177-181; Dec. Dig. § 45.*]</p> <p>2. Shipping (§ 62*) — Charter—Duties op Master.</p> <p>The master of a chartered vessel is the agent of the ship, and represents the owner in the performance of the charter, and lie cannot be required to act for or to assume duties on behalf of the charterer which might prejudice the interests of the owner.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. |§ 257-269, 313-315, 317; Dec. Dig. § 62.*]</p> <p>3. Shipping (§ 177*) — Charter—Liability op Charterer por Dead Freight.</p> <p>Libelants chartered a schooner to respondent for the carriage of a full cargo of kiln-dried yellow pine lumber at a stated freigl t per thousand feet. Respondent had purchased from a manufacturing company lumber of the kind specified in the charter, and consigned the vessel to such company for loading. A large portion of the lumber loaded, was not kiln-dried, but was wet and heavy, in consequence of which the vessel could not carry the quantity she could have taken of kiln-dried lumber. Held, that the master was under no duty to the charterer to refuse to receive the lumber tendered, nor in fault-for signing a bill of lading for kiln-dried lumber, but that the charterer was responsible for the action of its consignee and liable under the charter for the shortage; of cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §;] 076-582, 584; Dee. Dig. § 177.*]</p> <p>4. Shipping (§ 45*) — Demurrage—Liability op Charterer — Customary Dispatch in Discharging.</p> <p>The charterer having sold the cargo consigned the vessel to the purchaser for discharge, but, after she had partially discharged, the consignee refused to receive more because of the quality of the lumber, and she suffered a considerable delay before fully discharged. Held, that the charterer was liable for demurrage at the rate fixed by the charter for such delay under a provision of the charter for customary dispatch in discharging which entitled her to be discharged with due diligence according to the lawful and reasonable custom of the port.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 177-181; Dec. Dig. § 45.*]</p>

In the matter of the Columbia Real Estate Company, alleged bankrupt. On exceptions to master’s report finding against the alleged acts of bankruptcy.

<p>In Bankruptcy. In the matter of the bankruptcy of Aaron M. Felts. On specifications of objections to the bankrupt’s petition of discharge.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of the McCarthy Portable Elevator Company. The referee disallowed a claim filed by Joseph F. McKiernan for $1,076 for money advanced to the bankrupt, and he filed a petition for review.

<p>Collision (§ 93*) — Steam Vessels Meetinc — Failure to Keep Lookout.</p> <p>A collision in the Elizabeth river, off Norfolk, in the evening, between a tug passing down and a gasoline sloop coming in, held, on conflicting evidence, due solely to the fault of the tug in failing to keep a lookout; there being no one on deck but the wheelsman, who changed her course and brought about the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. g 95.*]</p>

<p>Salvage (§ 18*) — Persons Entitled to Compensation —Members ok Fishing Crew.</p> <p>Libelants were fishermen, employed on a gasoline fishing schooner; their pay depending upon the weight of fish caught by them and sold to the owner. The schooner became disabled 40 miles from land, and libel-ants volunteered to take the ship’s dory and compass and go to shore for assistance, which they did, leaving the master and others on board. The service was not extrahazardous, nor was the schooner abandoned. Held, that they bore such relation to the vessel that they were not in the position of salvors, and were not entitled to salvage compensation.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 31-43; Dec. Dig. § 18.*]</p>

<p>Collision (§ 74*) — Moving and Moored Vessels — Presumption of Faulk</p> <p>There is a presumption of negligence against a moving vessel, whiclb comes into collision with another vessel moored where she has a right to be, which she must overcome by evidence to avoid liability.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 96, 124-183’.,; Dec. Dig. § 74.*]</p>

<p>In Admiralty. Suit by J. W. Wilson against the Manhattan Canning Company. On exceptions to libel.</p>

<p>1. Courts (§ 289*) — Federal Courts — Jurisdiction—Interstate Commerce— Action fob Under Freight Charge.</p> <p>Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1092 [U. S. Comp. St. Supp. 1911, p. 136]) § 24, par. 8, giving federal District Courts jurisdiction of all suits and proceedings arising under any law regulating commerce, conferred jurisdiction of a suit by an interstate carrier to recover $12.87 undercharges on an interstate shipment of apples without reference to diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 830; Dea Dig. § 289.*]</p> <p>2. Carriers (§ 196*) — Limitation of Actions (§ 30*) — State Statutes — Application.</p> <p>Where, in an action by an interstate carrier against the consignee to recover undercharges on an interstate shipment, there was no allegation that the consignee was guilty of any wrongful act by which the carrier suffered, the action was not within Civ. Code La. art. 3536, fixing a prescription of one year for actions sounding in tort, nor article 3534, fixing a similar prescription for actions for the payment of freight on ships or other vessels; such section not being applicable to railroads.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 879-S87; Dee. Dig. § 196;* Limitation of Actions, Cent. Dig. § 141; Dee. Dig. § 30.*]</p> <p>3. Limitation of Actions (§ 29*) — State Statutes — “Account.”</p> <p>In an action by an interstate carrier to recover undercharges on an interstate shipment of freight, the claim of the carrier was not an “account” within Civ. Code La. art. 3538, prescribing a prescription of three years for actions based on an account of any description, as an account implies a course of dealing between the parties involving reciprocal debits and credits, or where the debt is increased from time to time or goods are sold on credit, etc.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 136-140; Dee. Dig. § 29.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 86-96; vol. 8, p. 7561.]</p> <p>4. Carriers (§ 35*) — Interstate Freight — Contract for Transportation— Rates — Regulation.</p> <p>The making of a contract for the transportation of freight in interstate commerce at a rate less than that prescribed by the schedules on file with the Interstate Commerce Commission does not prevent a recovery of the difference by the carrier, since both parties to the contract of shipment are bound by the tariff so filed..</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 94; Dec. Dig. § 35.*]</p>

<p>Receivers (§ 139*) — Sale—Vacation—Laches.</p> <p>The property of a corporation was sold by a receiver on March 20, 1909, and the sale confirmed April 5th following. On March 26, 1912, complainant, a stockholder, sued in equity to set aside the sale, which had been made to two persons, who had been trustees of the company; one being its manager and the other its attorney. The bill alleged that ■defendants had conspired with another to secure the property of the corporation; that they had caused the books and records of the corporation to be removed from the state, and had procured the sale of the corporation’s property by inducing suits on fraudulent claims, etc., praying ■that they might he decreed trustees of the property for the corporation, its stockholders, and creditors. Said, that the bill was not demurrable for laches, since a federal court sitting in equity will determine the question of laches according to the circumstances of each ease rather than by following the statute of limitations of the state.</p> <p>[Ed. Note. — For other eases, see Receivers, Cent. Dig. §§ 243, 244; Dec. Dig. § 139.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of CharlesDaly and Albert B. Rector, partners doing business as Rector & Daly,, and individually. Application by the bankrupt Daly for a discharge.. On February 8, 1911, a petition for involuntary bankruptcy was filed herein with the clerk of this court. On October 24, 1911, after confession of bankruptcy by answer, the above-named parties were adjudged bankrupt.

In Admiralty. Suit by Albert J. Keil and others against the steam vessel Zapora; the International Fisheries Company, claimant. On exceptions to amend libel.

<p>Bankruptcy (§ 279*) — Voidable Transfer of Property — Gift of Engagement Ring.</p> <p>The gift by an insolvent, within four months prior to his bankruptcy, of a diamond ring to the woman to whom he was engaged to be married, was a transfer of property in violation of the bankruptcy law, although made in good faith and without knowledge or belief by either party of his insolvency, and the ring or its value is recoverable by his trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p>

<p>Prostitution (§ 3*) — White Slave Act — Construction—Indictment—“Ant Other Immoral Purpose” — “Prostitution.”</p> <p>The White Slave Act (Act June 25, 1910, c. 395, 36 Stat. 825 [U. S. Comp. St. Supp. 1911, p. 1343]) prohibits the transportation, etc., of women in interstate commerce “for the purpose of prostitution or debauchery or any other immoral purpose.” Held, that the words “any other immoral purpose,” though construed in accordance with the rule of ejusdem generis, were satisfied by an indictment charging that accused persuaded a woman to go from one state to another for the purpose of engaging in illicit intercourse, cohabitation, and. concubinage with accused; illicit cohabitation and concubinage being immoral acts analagous to prostitution within the letter of the act.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dec. Dig. § 3.* *</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5740, 5741.1</p>