Volume 206 — Federal Reporter

Suit by Joseph Hull and others against Arthur E. Burr and others. From a decree dismissing the bill, complainants appeal. The following is the decree and opinion of Dodge, Circuit Judge, in the trial court: According to the records of this court in bankruptcy, the defendants are trustees in bankruptcy of the Port Tampa Phosphate Company, adjudged bankrupt by this court on November 27, 1905. The number of the case on the bankruptcy docket is 10,748.

Bean, Judge. Suit in admiralty by the Central Door & Lumber Company against the California-Atlantic Steamship Company. Decree for libelant, and respondent appeals. The appeal in this ease is taken from a decree rendered upon a default against the appellant for failure to answer or except to the libel.

;. Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. ■. In the matter of bankruptcy proceedings of John H. Riehl. Claim by the Second National Bank of Baltimore against C. Howard Mil-ljkin, trustee, for the proceeds of the sale of a derrick hoister vessel, under- an unrecorded chattel mortgage. From an order allowing the bank’s claim of lien (200 Fed. 455), the trustee appeals.

<p>Insurance (§ 400*) — Line Insurance — -Construction and Eiteot oe Incontestable Clause — Reinstatement oe Policy.</p> <p>A policy of life insurance provided that “this contract is incontestable after one year from date of issue.” It also contained a provision that, in case of default on the payment of any premium, it would he reinstated on application and pajunent of arreaTs, with evidence of insurability-satisfactory to the company. Insurer made default in payment of a premium, and on his application and signing a “certificate of reinstatement and revival” the policy was reinstated. He paid the premiums thereafter until his death, which occurred more than a year after the reinstatement. ‘Held that, whether the reinstatement constituted a new contract or a renewal of the old, the terms of the policy were the terms of such contract, and the incontestable clause precluded any defense by the company to an action thereon, on the ground of misrepresentation or false statements in the certificate for reinstatement;</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086;, Dec. Dig. § 400.*]</p>

<p>1. Courts (§ 418%, New, vol. 14 Key-No. Series) — Jurisdiction op District . Courts — Effect of New Judicial Code — Contempts.</p> <p>Under the provisions of the Judicial Code (Act March 3, 1911, c. 231, §§ 294, 299, 36 Stat. 1167, 1169 [U. S. Comp. St. Supp. 1911, pp. 244, 246); that its provisions “so far as they are substantially the same as existing statutes shall be construed as continuations thereof, and not as new enactments,” and that the repeal of existing laws or the amendments thereof embraced in the act “shall not affect any act done or any right accruing or accrued or any suit or proceeding,” the taking effect of such Code did not affect pending suits or proceedings in the District Court, nor the power of the court to punish as a contempt disobedience of an order previously made.</p> <p>2. Injunction (§ 232*) — Proceedings for Punishment — Disposition of Fines.</p> <p>A proceeding for contempt instituted by creditors of a bankrupt in the bankruptcy proceedings for violation.of an injunction by which the estate was depleted is essentially civil and remedial, and the punitive element only incidental, and, where as a result of the action of the creditors a substantial sum is restored to the estate, it is within the power of the court to impose a fine for the contempt and direct its payment to such creditors as partial reimbursement for their costs and attorney’s fees expended.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 519-528; Dec. Dig. § 232.*]</p> <p>3. Contempt (§ 54*) — Proceedings for Punishment — Affidavit or Information. 1</p> <p>There is no prescribed form which must be followed in an information on which- a citation for civil contempt is issued; and, in the absence of objection in limine, the papers are sufficient if they clearly apprise the defendant of the nature of the charge.</p> <p>[Ed. Note. — For other eases, see Contempt, Cent. Dig. §§ 143-149; Dec. Dig. | 54.*]</p> <p>4. Bankruptcy (§ 20*) — Jurisdiction of Court — Injunctions.</p> <p>A proceeding in a state court to wind up an insolvent corporation in which a receiver is appointed tends to defeat the operation of the bankruptcy law, and may be stayed by injunction by the bankruptcy court under the power given by Bankr. Act July 1,1898, c. 541, § 2 (15), 30 Stat. 545 (U. S. Comp. St. 1901, p. 3421), to “make such orders as may be necessary for the enforcement of the provisions of the act.”</p> <p>[Ed. Note. — For'other eases, see Bankruptcy, Cent. Dig. § 23; Dee. Dig. § 20.*]</p> <p>5. Bankruptcy (§ 20*) — Jurisdiction of Court — Injunction.</p> <p>A court of bankruptcy has jurisdiction to grant an injunction, restraining any act which will interfere with the administration of the bankruptcy law against any person within its jurisdiction, whether a party to the bankruptcy proceedings or not.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p>

<p>1. Evidence (§ 442*) — Parot, Evidence Affecting Writing — Admissibility.</p> <p>A written contract which required plaintiff to devote his whole and undivided time to the service of defendant, and to perform such service to the best of his ability, and which fixed his compensation therefor must be presumed to eriibody the entire agreement of the parties with respect to the subjects dealt with, which are the services to bo rendered and the consideration therefor, and plaintiff cannot recover on an alleged contemporaneous parol agreement that he should use extraordinary efforts and devoto extra time to the work, and should receive, in addition to the stated salary, a bonus or commission measured by the results obtained.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. | 442.*]</p> <p>2. Master and Servant (§ 21*) — Contract op Employment — Provisions por Termination.</p> <p>Where a contract for personal services provided that it might he terminated by either party by giving SO days’ notice, but further provided that the employer might terminate it at any time for neglect of duty, refusal to follow instructions, or if it should consider the employe’s work unprofitable or undesirable, ‘-‘in which event compensation shall cease the day and date the' agreement is terminated,” its termination by the employer without giving its reasons was presumably ,for one of the causes specified, and the employé cannot recover compensation after such date.</p> <p>[Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. § 21.*]</p>

S. Van Valkenburg, Judge. In the matter of bankruptcy proceedings of the Osborn Confectionery Company. From an order denying a petition of the L. A. Becker Company for the proceeds of a soda fountain and appurtenances in the hands of Charles S. Gill, trustee in bankruptcy, and postponing petitioner’s claim to the claims of subsequent creditors, petitioner appeals.

<p>1. Banks and Banking (§ 161*) — Collections- -Drafts — Mode or Payment.</p> <p>A bank, holding a draft for collection, is not authorized to accept anything but money in payment thereof.</p> <p>[Ed. Note.- — For other cases, see Banks and Banking, Cent. Dig. §§ 554-561, 564; Dec. Dig. § 161.*]</p> <p>2. Money Received (| 1*) — Nature and Elements or Action.</p> <p>An action for money received will only lie where the defendants have received money, the property of plaintiff, under such circumstances as to bo obliged by natural justice, good conscience, right, and equity to, Refund.</p> <p>[Ed. Note. — For other eases, see Money Received, Cent. Dig. § 1; Dee. Dig. § 1.*]</p> <p>8. Money Received (§ 12*) — Money Paid on False Voucher.</p> <p>Plaintiff’s manager having applied to a lumber company for a loan of $5,000, the lumber company borrowed the amount from defendant bank on a note signed by it and indorsed by A. and others, certain of its officers, depositing plaintiff’s note for the.same amount as collateral. On maturity of the note A., (lie secretary (if the lumber company, drew on plaintiff’s manager for $650, and on plaintiff, through the bank, for $4,-492, the balance of the amount necessary to pay the loan; the draft on plaintiff being marked “Customer’s Draft” and sent by the bank to its correspondent for collection. On presentation thereof to plaintiff’s manager, he took up the draft by a voucher on plaintiff’s home office at St. Louis, falsely stating that it was “to apply on timber purchased.” This voucher was never seen by defendant bank, which, having been paid by its correspondent before the voucher was presented to plaintiff, credited the amount with the $650 draft on the lumber company’s note, by which it was satisfied and surrendered. The books of plaintiff’s branches in charge of such manager were audited in June and December, 1910, and in January, 1911; but the falsity of the voucher was not discovered until October of that year. On March 7, 1912, plaintiff sued to recover the money as having been paid under mistake of fact after the lumber company had become insolvent. Held that, plaintiff having been deceived by its own agent 'into paying the voucher, and defendant bank having collected the money as a mere agent of the drawer of the draft, without notice that it had been obtained on a false voucher, and the maker of the note to the bank having become insolvent, defendants could not be said to have money belonging to plaintiff, which in equity and good conscience they ought not to keep, and hence plaintiff could not recover.</p> <p>[Ed. Note. — For other cases, see Money Received, Cent. Dig. §§ 38, 39; Dee. Dig. § 12.*]</p>

<p>Pinsure Lands (§ 11*) — Government Ownership — Action fob Conversion of Turpentine — Defenses.</p> <p>Whoever buys public land, or an interest therein, from an entryman holding no patent, but only a final receipt, buys charged with knowledge of the law that the government has authority, for proper cause, to cancel such receipt at any time before issuance of a patent; and where it is subsequently canceled he cannot defend against an action by the United States for conversion of timber or turpentine from the land on the ground that he was a bona fide purchaser.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 9, 11-13; Dec. Dig. § 11.*</p> <p>Cancellation of entries, certificates, receipts, warrants, or transfers prior to issuance of patents to public lands, see note to Northern I’ac; Ey. v. United States, 101 C. C. A. 120.]</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boannan, Judge.</p> <p>Suit in equity by the Long-Bell Lumber Company against Walter Moses. Decree for complainant, and defendant appeals.</p> <p>This is a suit in equity, brought by the Long-Bell Lumber Company, a Missouri corporation, against Walter Moses, a citizen of Louisiana. For convenience, the appellee will be referred to as the plaintiff, and the appellant as the defendant. The subject of the controversy is the timber on 120 acres of land.</p> <p>The purpose of the bill is to establish by decree the plaintiff’s title to the timber, enjoin the defendant who is in possession, from cutting the timber, and to enjoin him from preventing the plaintiff from cutting the timber. The questions involved in the case can only be made clearer by a condensed statement of the facts alleged in the bill.</p> <p>On November 14, 1895, Susie L. Wellborn made a homestead entry of the land in question, and on October 4, 1901, having made the necessary proof, she received a final certificate. On January 11, 1902, she, for a valuable consideration, conveyed all the timber on the land to the plaintiff. On August 29, 1903 — 1 year 10 months and 25 days after the issuance of the final certificate to Susie L. Wellborn — James Moser “reported” to the Commissioner of the General Land Office that Susie L. Wellborn had never resided on the land. This communication of James Moser is not copied in the bill, but it is referred to in the opinion of the Secretary of the Interior — made a part of the bill — as a “protest” filed by James Moser “within two years” from the issuance of the final certificate. On September 21, 1903, the Commissioner of the General Land Office directed a special agent to investigate the entry in reference to Moser’s protest. On August 6, 1904, Abel Simms filed a contest, which was “allowed,” but was afterwards dismissed on December 14, 1905. On December 30, 1905, Simms presented a second contest; but this affidavit was rejected by the Commissioner for 'the reason that, “unless canceled as a result of the investigation ordered by office letter P, dated September 21, 1903, the entry is confirmed by the proviso to section 7, Act March 3, 1S91.” On August 2, 1906, an adverse report was submitted against the Wellborn entry by a special agent, and on September 4, 1906, the entry was suspended, and the local officers were instructed to proceed against the entry under the circular of February 14, 1906. Notice was served on Susie L. Wellborn. She denied the, charges and applied for a hearing. On January 18, 1907, a contest of the entry was filed by William A. Moses, and he was allowed to intervene and become “a party to the contest,” and the Land Department instructed the local officers to entitle the ease “The United States of America and William A. Moses, Plaintiffs, v. Susie L. Wellborn and the Long-Bell Lumber Company, Defendants.” On May 2S, 1908, testimony was submitted on both sides, and on September 14, 1908, the Register and Receiver of the. General Land Office found that Susie L. Wellborn had not resided on the claim during the life of the entry and that the improvements were not habitable, and recommended the cancellation of the entry and final certificate. Susie L. Wellborn and the Long-Bell Lumber Company appealed to the Commissioner of the General Land Office, and -the local decision was affirmed by the Commissioner. The Long-Bell Lumber Company then appealed to the Secretary of the Interior, and, on September 14, 1909, the Secretary of the Interior affirmed the decision of the Commissioner. The opinion of the Secretary of the Interior shows, as before stated, that the protest of James Moser was filed within two years of the date of the final certificate. The opinion concludes by saying that “the department has carefully considered the record in this ease, and is of the opinion that the conclusions reached by the local officers and your office are correct.” The plaintiff, the Long-Bell Lamber Company, made efforts to review this decision canceling the entry of Susie L. Wellborn, hut it was adhered to by the Secretary of the Interior.</p> <p>On December 16, 1009, the defendant, Walter Moses, made application to enter the land, William A. Moses having waived his right, and on that day Walter Moses was allowed to enter the land as a homestead, and an original certificate of homestead entry was issued to him. He is in possession of the land, claiming and cutting the timber thereon, and refusing to let the plaintiff go on the land and cut the timber.</p> <p>The United States has not intervened in the case, and Susie L. Wellborn is not a party to the suit.</p> <p>The defendant, Walter Moses, demurred to the bill.</p> <p>After overruling the demurrer, the District Court, on the averments of the bill, decreed:</p> <p>“That the defendant, Walter Moses, holds the timber upon the land Tde-eeribing it] as trustee for the Long-Bell Lumber Company, and that the timber, upon said land belongs to said plaintiff, the Long-Bell Lumber Company, and that the title to said timber be, and the same is hereby, vested in plaintiff, the Long-Bell Lumber Company. * * *</p> <p>“That the defendant, Walter Moses, be, and he is, hereby enjoined and restrained from interfering with, cutting, transferring, selling, or in any manner disposing of any of the timber upon the above-described lands, or from taking possession of any of said timber.</p> <p>“And the said defendant, Walter Moses, be, and he is, hereby ordered and directed to permit the plaintiff, the Long-Bell Lumber Company,' to cut and remove the timber upon and from said land.”</p> <p>Walter Moses, the entryman in possession of the land, and sole defendant, appeals to this court, and assigns, with various specifications, that the District Court erred in the decree rendered.</p>

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action at law by the United States against the Union Naval Stores Company. Judgment for defendant, and the United States brings error.</p>

<p>3, Gifts (§ 62*) — Causa Mortis — Delivery.</p> <p>Delivery by decedent of the key to his safety deposit box to plaintiff, as part of a gift of the contents causa mortis, constituted a sufficient symbolical delivery of the contents of the box to sustain the gift, notwithstanding such key would not give access to the box, except in conjunction with the key retained by the safety deposit company.</p> <p>LEd. Note. — For other cases, see Gifts, Cent. Dig. §Si 122-132; Dec. Dig. § 62.*]</p> <p>2. Judgment (§ 570*) — Dismissal of Action — Res Jume:ata.</p> <p>Where, after judgment for plaintiff in a state court action to recover the subject of a gift causa mortis, the state Supreme Court affirmed an order granting a new trial on the ground that the evidence was not sufficient to prove a gift, whereupon plaintiff dismissed and instituted a new suit for the same relief in the federal court, there was no judgment in state courts that could he pleaded as res judicata, but the whole matter was subject to trial anew in the federal court, without reference to the state court proceedings.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1028-1034, 1036-1040, 1042-1045, 1165; Dec. Dig. § 570.*]</p> <p>3. Courts (ü 99*) — Law of the Case--State and Federal Courts.</p> <p>The doctrine of the law of the case in its customary sense does not run from state to federal jurisdiction, or vice versa; its general application being to a second appeal in the same appellate court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*]</p> <p>4. Courts (§ 99*) — Federal Courts — State Court Decision — Effect.</p> <p>Where, in an action to recover the proceeds of a gift causa mortis, the state Supreme Court affirmed an order granting defendant a new trial, and held that the evidence was insufficient to prove a gift, after which plaintiff (dismissed and instituted a suit for the same relief in the federal court, the state court decision was but an estimate of the probative effect of certain evidence, and as such was only persuasive, and not conclusive on the federal court.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 3.40; Dec. Dig. §; 99* .....</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p>

Landis, Judge. Suit in equity by the Payson Manufacturing Company against William A. Ludwigs. From the decree, both parties appeal.

<p>1. Patents (§ 280*) — Suit fob Infringement — Equity Jurisdiction.</p> <p>That a patentee has assigned an interest in his patent, including the right of recovery for past infringements, to his co-complainants, since the acts of infringement charged in the bill, does not deprive a court of equity of jurisdiction, where the alleged infringing article was made by defendant under a patent to himself, and he claims the right to make, use and sell it.</p> <p>[Ed. Note. — 3Tor other cases, see Patents, Cent. Dig. § 439; Dee. Dig. § 280.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Dental Appliance.</p> <p>The Holmes patent, No. 900,541, for a dental appliance for taking wax impressions, is valid, of a primary character, and is entitled to a reasonably broad construction; also held infringed by the device of the Burnett patent, No. 984.796.</p>

<p>In Equity. Suit by the Simmons Manufacturing Company against Kinney, Rodier Company and others. On final hearing.</p>

In Equity. Suit by the Universal Film Manufacturing Company against S. Copperman, doing business as Thalia Music Hall, and A. Polacoff, doing business as Special Film Company, Limited. On motion to vacate writ of seizure and for return of article seized.

<p>Depositions (§ 25*) — Letters Rogatory — Federal Courts.</p> <p>A federal court lias power to issue letters rogatory to. obtain the testimony of witnesses in foreign jurisdictions, which refuse to compel the attendance of witnesses under commissions; and where it is shown that the witnesses are unwilling, the examination may be oral.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 36; Dec. Dig. § 25.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Mal-schick & Levin. On certificate of a referee denying an application of the bankrupts for a rehearing of the proceedings and re-examination.

<p>1. WATERS AND WATER COURSES (§ 189*) — CONSTRUCTION.</p> <p>A franchise granted by a city to construct and maintain waterworks for the public and to lay. and maintain mains in the streets is subject to the rule that where, on a fair reading of the instrument, reasonable doubts arise as to the intent of the parties, such doubts must be resolved in favor of the public.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dec. Dig. § 189.*]</p> <p>2. Waters and Water Courses (§ 189*) — Public Water Supply — Franchises — Construction.</p> <p>Defendant, under a prior ordinance, having been grantee! a franchise to construct and maintain waterworks for the use of complainant city, which required him to furnish a sufficient supply both for public and private use of the city and its inhabitants and to convey the same from “Mink creek” and another stream, was granted a new franchise containing provisions beneficial to him and onerous to the public. This ordinance recited that the water furnished was deemed “inadequate for present and future needs, and that defendant agreed to bring in the waters of Mink creek and to make all extensions of street mains warranted by the growth of the city,” etc. Held, that the new ordinance did not limit defendants’ obligation to the bringing in from “Mink creek” only so much water as was necessary, but that he was bound to bring in all the water from such creek; the same being necessary to afford an adequate supply.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dec. Dig. § 189.*]</p> <p>3. Waters and Water Courses (§ 189*) — Public Water Supply — Franchises — -Construction op Pipe Line.</p> <p>Where a waterworks franchise not only required defendant to bring in the waters of “Mink creek” to be used as a source of. supply but also provided for the construction of a pipe line by which such result was to be accomplished, the work to be commenced within 90 days after the approval of the ordinance and carried to effective speedy completion without unnecessary delays, interruptions, or discontinuances, defendant was bound to construct a completed pipe line at once and was not entitled to construct it in installments at such intervals as he deemed proper.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. • § 272; Dec. Dig. § 189.*]</p> <p>4. Waters and Water Courses (§ 189*) — Public Water Supply — Franchises- — Extension-—Sufficiency of Supply.</p> <p>Where an ordinance, extending a waterworks franchise, recited that the present supply was insufficient and required defendant to bring in the waters of a certain creek and construct immediately a certain pipe line for that purpose, the ordinance was conclusive of the issue that the present supply was insufficient for such needs as then existed or was likely to arise in the immediate future.</p> <p>• [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 272; Dec. Dig. § 189.*]</p> <p>5. Waters and Water Courses (§ 189*) — Public Water Supply — Appropriation-Contract.</p> <p>Where the sources of a city’s water supply, which could be obtained under a gravity system^ were limited to the waters of certain creeks, the city was authorized to contract for the protection of such supply by the appropriation of all the waters of a creek by an ordinance granting defendant a franchise to continue the maintenance, operation, and extension of Ms waterworks system constructed under a prior franchise.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dec. Dig. § 189.“]</p> <p>6. Waters ax'd Water Courses (§ 190*) — Public Water Supply — Appropriation — Extent.</p> <p>A present appropriation of the entire waters of a creek for the use of a city was not against public policy because the supply was greater than the city’s immediate needs; the rule that an appropriator has a reasonable time to apply the water appropriated to a beneficial use being applicable with even greater liberality to the superior and more elastic needs of a growing municipality.</p> <p>[Ed. Note. — -For other cases, see Waters and Water Courses, Cent. Dig. § 268; Dec. Dig. § 190.*]</p> <p>7. Waters and Water Courses (§ 190*) — Pu-blic Water Supply — Excessive Appropriation.</p> <p>Where a city’s appropriation of the entire waters in a stream for a public water supply is greater than the immediate necessities of the city, the appropriation would nevertheless he consummated and the right held Intact by a temporary application of any surplus waters to other beneficial uses.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 268; Dec. Dig. § 190.*]</p> <p>8. Waters and Water Courses (§ 189*) — Forfeiture—Breach op Contract.</p> <p>Where the grantee of a waterworks franchise has committed a substantial breach of his contract to furnish the city an adequate water supply and to bring in all the waters of a certain creek therefor, the franchise is subject to forfeiture at the suit of the city, provided' it comes into court with clean hands and is willing to do equity.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dec. Dig. § 189.*]</p> <p>9. Waters and Water Courses (§ 189*)- — Forfeiture—Violation of Contract.</p> <p>Where defendant received and accepted from a city a water franchise requiring him not only to furnish an adequate water supply but also to bring into and render available for the use of the city and its inhabitants all the waters of a certain creek, and defendant, alter the expiration of a reasonable time, did neither, but instead, installed reducers in the supply pipes to consumers and promulgated a series of unreasonable regulations for the use of water by consumers to reduce the use, the franchise was subject to forfeiture.</p> <p>[Ed. Note — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dee. Dig. § 189.*]</p> <p>10. Waters and Water Courses (§ 189*) — Public Water Supply — Flat Rate.</p> <p>Where defendant, to whom a waterworks franchise had been granted, contracted for the flat-rate system of distribution, and also bound himself to furnish an adequate supply, he would be presumed to have contemplated such extravagance of use as was ordinarily and necessarily incident thereto.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 272; Dee. Dig. § 189.*]</p> <p>11. Waters' and Water Courses (§ 189*) — Public Water Supply — Adequacy —Reasonable Use.</p> <p>Whether the holder oí a waterworks franchise has furnished an ade- . quate water supply as required by his franchise must be determined with reference to the rule,of reasonable use.</p> <p>[Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. § 272; Dee. Dig. § 189.*]</p> <p>12. Waters and Water' Courses (§ 203*) — Public Water Supply — Misi- , .mum Charge.</p> <p>While a water company, furnishing water to a city under franchise, may provide a minimum charge for meter service, such charge must be reasonable in'amount and uniform in application.</p> <p>.'[Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§' 289, 290-299; Dec. Dig. § 203.*]</p> <p>13. Waters and Water Courses (§ 202*) — Public Water Supply — Use— Regulation.</p> <p>Where a defendant furnished water to a city under franchise requiring an adequate supply, rules prohibiting the use of water for sprinkling except between the hours of 6 and 8:30 o’clock p. m. and limiting such use to sprinkling through a hose with a nozzle one-fourth of an inch in diameter, and then only when held in the hand, were unreasonable.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 276; Dec. Dig. § 202.*]</p> <p>14 Waters and Water Courses (§ 189*) — Public Water Supply — Use op Water — Sprinkling Gardens.</p> <p>Where, though a waterworks franchise did not in terms provide for ■the sprinkling of gardens, flower or vegetable, the schedule rates provided for “lawn sprinkling” at so much “a lot,” defendant was required to furnish water for gardens.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. '§ 272; Dec. Dig. § 189.*]</p> <p>15. .Waters and Water Courses (§ 189*) — Public Water Supply — Fran- ' chises — Forfeiture—Remedy.</p> <p>Provision of an ordinance granting a franchise to construct and maintain a city water plant, containing a stipulation that in case defendant.'did not furnish a sufficient amount of water the city might bring in an ad-ditiónal supply, did not constitute an exclusive remedy precluding the city from maintaining a suit to forfeit the franchise on defendant’s failure to furnish an adequate supply, etc.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent.'Dig. § 272; Dec. Dig. § 189.*]</p> <p>16.. Waters and Water Courses (§ 189*) — Forfeiture—Notice.</p> <p>Notice of a city’s intention to institute suit against the grantee of a waterworks franchise to cancel the same because of his failure to perform and to furnish thp city an adequate supply of water was' not a necessary element of the city’s right to maintain the action.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Eii¿. § 272; Dec. Dig. § 189.*}</p> <p>17. Waters and Water Courses (§ 189*) — Forfeiture—Remedy.</p> <p>It was no defense to a. city’s suit to forfeit a waterworks franchise that the city might rescind by resolution; such remedy not being necessarily adequate.</p> <p>, [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 272; Dee. Dig. § 189.*]</p>

In Equity. Suit by Edward Ames Edmonds against the Spanish River Pulp & Paper Company, Eimited. The complainant filed his bill in the circuit court tor Outagamie county, Wis., the same having been removed to this court, wherein he alleges: First.

<p>1. Taxation (§ 124%*) — -Railroads—Cuartee Exemption — Effect or Lease.</p> <p>Under the law of Georgia, a lease of a railroad and equipment in ordinary terms does not pass any estate in the property to the lessee, but it becomes a tenant with the right to possession and use only, and such lease does not affect a provision of the lessor’s charter limiting the right of taxation by the state to a certain percentage of its annual income.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 221-226, 240-242, 260-263, 272; Dec. Dig. § 124%.*]</p> <p>2. Taxation (§ 124%*) — Railroads— Ciiabtek Exemption — Tbanshsb or Lessee's Interest.</p> <p>A sale under foreclosure of the leasehold Interest of the lessee in such a lease and a new lease or renewal executed by the lessor to the purchaser under a general power to lease conferred on it by statute did not affect the title to the property, which remained in the lessor as before with the right to the limited taxation given by its charter, although the lease required the lessee to pay the taxes assessed against the lessor or its property under its charter.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 224-226, 240 - 242, 260-263, 272; Dec. Dig. § 124%.*]</p>

In the matter of the Merwin & Willoughby Company, bankrupt. On review of order of referee allowing claim of the Ramson Consolidated Store Service Company in the amount of $1,929.65.

In Equity. Suit by James Dobson against the Farbenfabriken of Elberfeld Company and another. On motion to set aside service of writ of summons and return.

In Bankruptcy. Proceedings against Louis Shulman and others, trading as Louis Shulman & Bro. On certificate to review a referee’s order denying the application of the Bank of Commerce for the proceeds of the sale of certain raincoats alleged to have been pledged to the bank by the bankrupts as security for a loan.

<p>3. AlikNS (§ 7114, New, vol. 7 Key-No. Series) — Naturalization—Cancellation or Certifícate — “Illegally Procured.”</p> <p>In Naturalization Act June 29, 1906, c. 3592, § 15, 31 Stat. 601 (TJ. S. Comp. St. Supp. 3931, p. 537), authorizing the cancellation of a certificate of citizenship on the ground of fraud, or that it was illegally procured, the term “illegally procured” imports a certificate issued by a court without jurisdiction or in violation of the law’s procedure.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 146.]</p> <p>2. Aliens (§ 71%, New, vol.' 7 Key-No. Series) — Naturalization—Cancellation óf Certificate — Procurement bt Fraud.</p> <p>From the nature of proceedings for naturalization, in that they áre in fact and practice essentially éx parte, it' is obligatory upon the applicant to answer all prescribed questions fully and truthfully; and a certificate issued to an alien on his verified petition in which he stated that he was unmarried, when in fact he had a wife and children, whom he deserted and left in his native country, is subject to cancellation on the ground of fraud.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 146.]</p>

<p>Trade-Marks and Trade-Names (§ 59*) — Infringement—Injunction.</p> <p>Complainant engaged in manufacturing lubricating grease, adopting the trade-name “Keystone Lubricating Company,” and as a trade-mark the symbol of the. keystone of an arch, to be used in marking its packages, the word “Keystone” being used in connection, and its grease became known as “Keystone grease.” Held that, confusion resulting, and the public being misled to buy defendant’s lubricating grease, from its using the word “Keystone” in its corporate name, “Keystone Oil & Manufacturing Company,” and to indicate its product, it should be enjoined from using that word in that part of its business.</p> <p>[Ed. Note. — Eor other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72; Dec. Dig. § 59.*]</p>

In the matter of C. E. Henderson, bankrupt. On petition by H. A. Ferris, trustee, for an order to sell real estate and for the determination of the validity of a lien thereon.

<p>In Equity. Suit by the United States against the Midwest Oil Company and others. On motion by defendant to dismiss.</p>

In the matter of C. D. Chalmers, bankrupt. On review of referee’s order denying petition of the Madison State Bank for reclamation of property.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by the United States of America against Morris F. Knight and another. Judgment for defendants, and the United States appeals.</p>

De Haven, Judge. Suits in admiralty by M. Anderson against the steamship Queen, and by N. Jordan against the steamship Umatilla; Pacific Coast Steamship Company, claimant. Decrees for claimant, and libelants appeal.

<p>31. Master and Servant (§ 106*) — Master’s Liability por Injury to Servant — Unsafe Appliances.</p> <p>Plaintiff, who with other employes of defendant telephone company was engaged in putting up wires on a building, fell and was injured by reason of the breaking of the round of a ladder on which he was standing, which was made of a piece of board sawed across the grain. Ladders for the use of the employes were supplied by defendant, but sometimes when those were insufficient the foreman directed the men to borrow sueli as could be obtained nearby, and the one used by plaintiff had been so borrowed by another workman. Held,, that in legal effect -such ladder-was furnished by defendant, which was responsible for its condition to the same extent as though it had been furnished from its own supply.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dee. Dig. § 106.*]</p> <p>2. 'Master and Servant (§ 208*) — Master’s Liability for Injury to Servant — Defective Appliances — Assumption of Risk.</p> <p>Ladders of unusual length, which employés of a telephone company are required to use in putting up wires on buildings, are not simple appliances, like mechanics’ tools, for defects in which the employer cannot be held responsible, and the risk from which an employé assumes.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. § 208.*]</p> <p>3. Master and Servant (§ 288*) — Action for Injury to Servant — Assump- . tion of Risk — When Question for Jury.</p> <p>Plaintiff, who was an employé of defendant telephone company, while standing on a long ladder furnished by defendant, engaged in putting up wires, fell and was injured by reason of a defect in the ladder. There was evidence tending to show that the defect was not obvious to a casual observer, but was discoverable by a careful inspection, which was' not made. Held, that the question of plaintiff’s assumption of the risk was one for the jury, and not for the court.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38- C. C. A. 314.]</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Gbate-Bab.</p> <p>The Crowe patent, No. 668,495, claims 1 and 2, for- a grate-bar for use in furnaces, must be narrowly construed in view of the prior art and the proceedings in the Patent Office and limited to the specific form of hooks shown and described for attaching the chain of a traveling grate. As so construed, held not infringed by the grate-bar of the Clark patent, No. 972,751.</p> <p>2. Patents (§ 112*) — Infringement—Evidence.</p> <p>The granting of a patent for a device similar to one covered by a prior • patent is prima facie evidence that there is a difference between the two.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. §§ 162-165; Dec. Dig. § 112.*]</p>

<p>In Equity. Suit by the C. A. Dunham Company against Warren Webster & Co. On final hearing.</p>

In Equity. Suit by the T. B. Wood’s Sons Company against the Valley Iron Works for infringement of letters patent No. 790,609, for a shaft hanger, granted to Charles O. Wood May 23, 1905. On final hearing.

<p>In Equity. Suit by Daniel B. Luten against D. J. MacAfee and S. B. MacAfee.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of J. E. Robinson. The referee set aside certain personal property of_ the bankrupt as exempt under the state law, and the trustee files a petition to review.

<p>In Admiralty. Suit by Juan Veiga against the steamship Santa Clara; Joseph H. Trachy, claimant.</p>

<p>In Equity. Suit hy the’Seaboard Air Line Railway against the Railroad Commission of Georgia and others.</p>

<p>1. Shipping (§ 116*) — -Liability op Vessel fob Shortage op Cargo — Evidence.</p> <p>The receipt of a specified number of packages by the master makes a prima facie case against the ship, where a smaller number is delivered; but the ship will be discharged if he is able to show that he delivered all that he actually received.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 435; Dec. Dig. § 116.*]</p> <p>2. Shipping (§ 116*) — Short Delivery op Cargo — Evidence Considered.</p> <p>Evidence considered, and held not sufficient to exonerate a ship from liability for a short delivery of a cargo of coffee from Antwerp to New York, on the claim that she did not receive the number of bags called for by the bill of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 435; Dec. Dig. § 116.*]</p> <p>3. Shipping (§ 340*) — Contract Exempting Carrier prom Liability for Negligence — Harter Act — Speciat, Carrier.</p> <p>The provisions of Harter Act Feb. 13, 1893, c. 105, § 1, 27 Stat. 445 (IT. S. Comp. St. 1901, p. 2946), making invalid contracts relieving a carrier from liability for negligence, apply to a special as well as a common carrier.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 493-495; Dec. Dig. § 140.*]</p>

<p>In the matter of the National Marble & Granite Company, bankrupt. On certificate of referee relating to claim of C. A. Brock.</p>

<p>In Equity. Suit by Hugh T. Reynolds, trustee in bankruptcy of D. H. Young, against J. S. Davitte. On demurrer to bill.</p>

<p>In Equity. Suit by the British-American Tobacco Company, Limited, against the British-American Cigar Stores Company. On motion to dismiss bill under equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi).</p>

<p>At Law. Action by the United States against the Atlantic Coast Line Railroad Company.</p>

<p>1. Judgment (§ 948*) — Pleading—Pleas—Virginia Statute.</p> <p>Code, Ya. 1904, § 2734, which provides that, in actions of ejectment, “the defendant may demur to the declaration as in personal actions or plead thereto, or do both; but he shall plead the general issue only, which shall be that the defendant is not guilty of unlawfully withholding'the premises claimed by the plaintiff in the declaration,” was intended to simplify the proceedings, and should be construed as applying to those pleas in bar only which go to the merits of the,case and not to pleas setting up legal estoppels, as a plea of res judicata.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 1787-1793; Dec. Dig. § 948.*]</p> <p>2. Courts (§ 339*) — Federal Courts — Following State Procedure.</p> <p>The federal conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) vests the court with a discretion as to following state trial statutes, and it should decline to follow such a statute where it appears that it would unnecessarily prolong the litigation and add to the expense.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 914; Dec. Dig. § 339.*]</p> <p>3. Judgment (§ 649*) — Judgments Operative as Bar — Judgments not Reviewable.</p> <p>The conclusiveness between the parties of a judgment of a court of competent jurisdiction directly determining a matter in issue does not depend upon whether or not the law subjects such judgment to review by an appellate court.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1161; Dec. Dig. § 649.*]</p> <p>4. Judgment (§ 747*) — Res Judicata — Ejectment—Prior Judgment in Trespass.</p> <p>Under the law of Virginia, which, by Code Va. 1904, § 2756, makes a single judgment in ejectment conclusive, and also permits title to be relied on as a defense and litigated under the general issue in an action of trespass, and where on a plea of res judicata evidence aliunde is admitted to show what was litigated and decided in the former action, a judgment rendered in an action of trespass actually determining the question of title is a bar to a subsequent action of ejectment between the same parties or their privies.</p> <p>[E(l. Note. — For other cases, see Judgment, Cent. Dig. §§ 1053, 1284-1296; Dec. Dig. § 747.*]</p> <p>5. Jtjdgmicst (§ 720*) — Res Judicata — -Exteot op Estopped.</p> <p>Where the cause of action is different, a former judgment is an estop-pel only as to a matter which was actually litigated and decided.</p> <p>[lid. Note. — For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p>

<p>In Equity. Suit by the Union Furniture Company and others against the Walker-Cooley Eurniture Company and others.</p>

<p>1. Constitutional Law (§ 46*) — Determination of Constitutional Questions.</p> <p>The question of the constitutionality of the Workmen’s Compensation Law (Laws Wash.- 1911, c. 74), in compelling contribution from an employer for death of a workman through the negligence of a third person not in the same employ, is not before the court where, the third person being sued, the complaint'is demurred to on the ground of the statute abolishing right of action against him.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. .Dig. § 46.*]</p> <p>2. Death (§ 11*) — Right of Action — Abolishment.</p> <p>Right of action for death by wrongful act does not exist at common law, but solely by statute, and so by statute may be taken away.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.*]</p> <p>8. Master and Servant (§ 87%, New, vol. 16 Key-No. Series) — Workmen’s Compensation Law — Abolishment of Right of Action.</p> <p>Right of civil action for death of a workman, not merely against the employer, but against a third person, where the accident occurs “at the plant” of the employer, is abolished by the Workmen’s Compensation Law '(Laws Wash. 1911, c. 74); section 3 providing that all civil causes of action for injury to or death of workmen are abolished, “except as in this act provided,” the only relevant exception being the proviso that if the injury to a workman occurs “away from” the plant of the employer, through negligence of a third person not in the same employ, he, or in case of his death his family, may elect to take under the act, or to sue such third person; and section 5 providing for payment to a workman injured, or in case of his death to his family, of industrial insurance from the fund created by the act, which, “except as in this act otherwise provided, * * * shall be in lieu of any and all right of action whatsoever against any person whomsoever.”</p>

In Admiralty. Suit for collision by Hermann Grantz, master of the steamship Sigmaringen, against the steamship Jacob Luckenbach, with cross-libel by Edgar E. Luckenbach and others, owners of the Lucken-bach, against the Sigmaringen.

Habeas corpus by Marion A. Morse against Sidney A. Brown to obtain petitioner’s discharge from imprisonment under a conviction for keeping a disorderly house.

<p>In Equity. Suit by J. R. Cartwright against the Southern Pacific Company. On final hearing.</p>

Bankruptcy proceedings against tlie 'United Stales Lumber Company. Petition by the Reynolds Electric Company for the return of certain personal property in the possession of the trustee, alleged to have been sold to the bankrupt under a conditional bill of sale. The referee, entered an order dismissing the petition, and the claimant filed petition for review.

<p>Criminal prosecution by the United States against Pedro Rodriquez Gonzales. On motion by defendant for new trial.</p>

Angelí, Judge. Proceedings for the settlement of the affairs of the Michigan Savings & Doan Association through a receiver. Erom an order denying the claim of James S. Galloway, he. appeals. TSie Michigan Savings & Loan Association, being 'insolvent, was put into the hands of a receiver, by the court below, in 1901. The various phases of the existing and resulting situations have been before this court in Aldrich v. Gray. 117 Fed. 453, 77 C. C. A. 597, 8 Ann. Gas. 832.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Action at law by Enema McLaughlin against Joseph Horne Company. Judgment for defendant, and plaintiff brings error.</p>

In the matter of the Foreman Bros. Electric Company, bankrupt. E. E. D. Toof, trustee, appeals from an order dismissing his petition to recover a payment made by the bankrupt to the City National Bank of Paducah, Ky.

<p>Gamcng (§ 2*) — Gambling Contracts — Action to Recover Margins froc Brokers — -Law Governing — Place of Contract.</p> <p>Plaintiff sued defendants, who were brokers having their main office in Chicago, with one of their branch offices in Des Moines, Iowa, to recover certain margins paid by him on contracts for the pinchase of railroad stocks, alleging that they were merely wagering contracts on the future price of the stocks and that no actual purchase or delivery was intended. He testiiied that lie applied to make the purchases to defendant’s manager in Des Moines; that the manager telegraphed to the Chicago office, and on receipt of an answer notified him that the stocks had been brought, and he paid the margins to such manager. Held that, on plaintiffs’ allegations and testimony that no actual purchases of stocks were to be made in Chicago or elsewhere in the' execution of the contracts, they were consummated in Des Moines and were governed by the law of Iowa, by which money lost in such transactions is not recoverable.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 2; Dec. Dig. §2*</p> <p>Sales or purchases under agreements for settlement of differences between contract price and market price as wagering contracts, see note to Ware v. Pearsons, 98 C. C. A. 368.]</p>

Edward T. Sanford, Judge. From an order requiring claimant, Isaac Constam, to return certain alleged preference payments to J. M. Haley, as trustee of the estate of The Hub, bankrupt, as a condition to claimant’s right to prove his claim, he appeals.

Boyd', Judge. Action at law by J. W. Pless and J. W. Winbourne, partners as Pless & Winbourne, against D. J. McDonald and United States Fidelity & Guaranty Company. Judgment for plaintiffs, and defendants bring error.

Petition to Revise in Matter of Law a Certain 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 A. L. Haley, bankrupt. On petition to revise an order refusing a discharge.

Appeal 'from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge. Suit in admiralty by the Port of Portland against the steamship George W. Elder; J. IX. Peterson and C, P. Doe, claimants. Decree for libelant, and claimants appeal.

<p>1. Appeal and Error (§ 1017*) — Review—Referee’s Enmuro.</p> <p>A referee’s finding, in an action to recover a contribution to a syndicate agreement for fraud, that there was no actual fraud, but that defendant was guilty of constructive fraud, in that as agent for the subscribers he failed to disclose that he was Interested in one of the properties to be purchased by the corporation in process of promotion, was conclusive on writ of error.</p> <p>FEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3911. 3961, 3996-4005; Dec. Dig. § 1017.*]</p> <p>2. Appeal ash Error (§ 842*) — Scope of Review — Complaint—Sufficiency.</p> <p>Whether a complaint states a cause of action is a question of law arising on the face of the record, which is reviowable on a writ of error in connection wiih the question whether the facts found by the referee support the judgment.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §fj 3316-3330; Dec. Dig. § 842.*]</p> <p>3. Corporations (§ 573*) — Stock Subscriptions — Constructive Fraud.</p> <p>A syndicate agreement provided for the purchase of stock of an existing corporation and certain coal lands, and for the sale of the property to the corporation as reorganized, the stock of which was to be issued to the syndicate subscribers. The property was purchased, the corporation reorganized, and the stock issued, when it was discovered that one of the syndicate managers had been personally interested in property sold to the reorganized corporation. Hold, that any right of the subscribers to rescind for the manager’s fraud must be worked out through the reorganized purchasing company, since there could be no rescission without restoring such manager to his former position, and, the contract having been fully executed, there remained no right in the individual subscribers to rescind.</p> <p>[Ed. Note.' — For other cases, see Corporations, Cent. Dig. §§ 2293-2290; Dee. Dig. § 573.*]</p> <p>4. Corporations (§ 30*) ■— Organization — Syndicate Agreement — Secret Profits.</p> <p>Where one of the managers of a syndicate organized to reorganizo a corporation made a secret profit by selling certain property in which he was personally Interested to the corporation, such profit may be recovered by the company.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. § 30.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; William L,. Day, Judge.</p> <p>Suit by Albert T. Ferrell against Frank J. Prame and others. From a decree dismissing the bill, complainant appeals.</p>

<p>1. Bankruptcy (§ 413*) — Discharge—Speciftoation of Objection — Amendment.</p> <p>4 specification of objection against a bankrupt’s discharge alleged that the application should not be granted because the bankrupt, while conducting a brokerage business in Buffalo, N. Y., during the years 190b, ia07, and 1908, failed and neglected to keep any books, with full and complete knowledge of tlie Importance and necessity of books and records in the brokerage business, and with intent to defraud and deceive the undersigned objecting creditors and others. Held, that such specification, while inapt, was sufficient to sustain an amendment to conform it to the statute, reciting that the bankrupt, with intent to conceal his financial condition, failed to keep books of account or records from which such condition might be ascertained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. § 413.*]</p> <p>2. Bankruptcy (§ 409*) — Discharge—Objections—Failure to Keep Books.</p> <p>A bankrupt operated a brokerage business, telegraphing orders to a firm in Cincinnati, and receiving a commission of one-fourth of 1 per cent. The orders were given verbally, and a memorandum was made thereof on a piece of paper, which was put on a spindle and afterwards transferred to a sheet of the day’s transactions. Such sheets were kept until all trades were closed out, and then consigned to the waste basket about once a month, lie bad a bank account and a bank book, but kept most of his money in a safe, disbursing it as cash. His customers deposited a small margin, and actual deliveries were not contemplated. Ho kept no other books. Held, that such facts indicated an intent on the bankrupt’s part to conceal his financial condition by failing to keep books, and that he was therefore not entitled to a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. § 409.*]</p>

<p>1. Patents (§ 328*) — Investios—Insinuation fob Electric Weeding.</p> <p>Tiie Siemund patent, No. 967,578, for an installation for electric welding, claim 2, is void for lack oi* patentable invention.</p> <p>2. Patents (§ 22*) — Pbocioss.</p> <p>The functions performed by certain apparatus, when arranged under certain conditions, cannot be patented as a new method of producing the result if the so-called, method is merely a description in new terms of one of the forms of the old process, as carried out by the previously disclosed necessary elements of the device, and where the so-called new method is hut the description of an equivalent experimentation with the old device under conditions recognized as possible, within the knowledge of any mechanic hut not previously stated in language.’</p> <p>]Ed. Note. — For other cases, see Patents, Cent. Dig. § 24; Dec. Dig. § 22.*]</p> <p>3. Patents (§ 328*) — Validity—Process of Electric Welding.</p> <p>The Siemund patent, No. 967.579, for a method of electric welding, is void as not for a process in a patentable sense but as in fact descriptive of an expert mechanical application of an old method with a statement of the proper adjustment and manipulation of known devices to obtain the best results. Also held void for prior use of the so-called method by defendant.</p>

<p>In Equity. Suit by the Marconi Wireless Telegraph Company of America against the National Electric Signaling Company and Samuel M. Kintner and Halsey M. Barrett, receivers. On motion by complainant to strike out counterclaim.</p>

<p>In Equity. Suit by the Adams & Westlake Company against Peter Cray & Sons, Incorporated. On final hearing.</p>

In Bankruptcy. In the matter of cons.olidated bankruptcy causes of the American Fibre Reed Company and the New England Chair Company, bankrupts. Held: that the contracts were not sales of the accounts involved by the respective bankrupt corporations to the petitioner, but transfers of the accounts as security.

<p>BANKRUPTCY (§ 140*)-OWNERSHIP-FCRNHCP.E OP SANITARIUM — FIXTURES—■ Separate Ownership oí? Realty and Chattels.</p> <p>A bankrupt corporation was engaged in conducting a sanitarium. Title to the building and the furniture therein had previously been vested in the same person, who conveyed the personal property to the bankrupt and the real'estate later to another corporation, organized at the time for the purpose of holding the same, and such corporation executed a mortgage thereon. Neither the deed nor the mortgage contained any reference to the personal property, nor to the purpose for which the realty was used. Held, that neither conveyed the furniture as fixtures, the title thereto having been previously vested in the bankrupt.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p>

<p>H. E. Currey was indicted for misuse of the mails and moves to quash the indictment.</p>

<p>1. Pleading (§ 151*) — Pennsylvania Pbactice — Affidavit of Defense— Demurrer.</p> <p>In a suit on a federal contractor’s bond, an objection that plaintiffs suit was not brought within the time specified by statute could be properly raised under the Pennsylvania practice by affidavit of defense, and it was not material that it was not set up by demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 302; Dec. Dig. §■ 151.*]</p> <p>2. United States (§ 67*) — Federal Contractor’s Bond — Action by Ma-terialman — Time—Statutes—Construction.</p> <p>Act Cong. Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), provides for suit by a materialman on a federal contractor’s bond in ease suit is not brought by the United States within six months after ■ final settlement of the contract, provided that the materialman’s suit must be commenced within one year after final settlement, and provided that personal notice of the pendency thereof shall be given to all known creditors, and notice shall be published for at least three successive weeks, the last publication to be at least three months before the time limited for suit. Held,, that the provision for notice is not directory only, but mandatory, creating a condition precedent to . the material-man’s right to recover on the bond, and that the last publication must be completed three months before the expiration of the year from final settlement, or the creditor’s right is barred.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p>

<p>Application of Giovanni La Mantia for writ of habeas corpus.</p>

<p>' At Law. Action by the Abrast Realty Company against William J. Maxwell to recover a corporation tax paid to a deputy collector under protest.</p>

<p>Courts (§ 278*) — Jurisdiction—Eeceivership—Injunction for Protection op Eeceivers — Effect of Sale of Property.</p> <p>A court granted an application by receivers appointed by it for a street railroad company for an injunction restraining another company from threatened action interfering with their operation of the property. At the time the property was sold by the receivers, no formal order had been entered on such application; a temporary restraining order previously made having remained in- force. B. eld, that by the sale the court lost jurisdiction to make any order restraining future acts for the protection of the purchaser, but that it retained jurisdiction to make and enforce a decree embodying its previous decision.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 819; Dec. Dig. § 278.*]</p>

<p>Admiralty (§ 14*) — Jurisdiction"—Maritime Contracts.</p> <p>A contract by which a dealer in coal agreed to furnish to the owner of a line of steamships at certain prices all the normal necessary bunker coals that might be required by the buyer for the use of all of its vessels is not a maritime contract with respect to any part of it which remains executory, and a court of admiralty is without jurisdiction of an action against the seller for its breach by failing to supply coal demanded by one of the buyer’s vessels.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 177-180; Dec. Dig. § 14.*]</p>

<p>Waters and Water Courses (§ 252*) — Irrigation—Later at, Ditches — Right to Cot — Estopped.</p> <p>Where defendants over whose land certain irrigation ditches belonging to a government irrigation project was located became a member of a water u'Seis’ association which owned the project prior to its incorporartion in the government work, and one of the by-laws of the association provided that such rules and regulations as the Secretary of the Interior might promulgate relating to the administration and use of the water should lie binding on the stockholders of the association, and the secretary put into effect certain rules prohibiting water users from cutting the banks of any canals or laterals and from taking water therefrom except at places designated by the government, defendants were estopped to claim the right to break down the banks of a lateral ditch and take water therefrom at a point not so designated, on the ground that, because they owned the fee in the soil of the ditch, they were entitled to take water at whatever point they desired.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 252.*]</p>

<p>In Admiralty. Suit by Frank J. P. Carleton and others, owners of the schooner Adelia T. Carleton, against Three Hundred, and Sixty-Seven Tons of Coal; The Camden Yacht Buiiding & Railway Company, claimant.</p>

In the matter of bankruptcy proceedings of William A. Wink. Petition by Ivan b. Hoff to revise certain referee’s orders disallowing certain powers of attorney procured by petitioner, which he sought to vote for himself at an election of a trustee for the bankrupt.

In Bankruptcy. In the matter of bankruptcy proceedings of Oliver S. Morse. On certified question by the referee as to the exemption of certain insurance on the life of the bankrupt.

<p>1. Master and Servant (§ 256*) —Employer's Liability Act — Action — Pleading.</p> <p>An action cannot be maintained against a corporation under the Employer’s Liability Act (Act Cong. April 22, 1908, c. 149, § 1, 35 Stat. 65 [IT. S. Comp. St. Supp. 1911, p. 1322]), where the complaint neither alleges nor pleads facts showing that defendant is a common carrier. ' [Ed. Note. — E’or other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.*]</p> <p>2. Courts (§ 280*) — Jurisdiction or Federal Courts — Presumption.</p> <p>It will be presumed that a cause is without the Jurisdiction of a federal District Court, unless the contrary affirmatively appears from the record.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. § 280.*]</p>

<p>In the matter of Jacob Stone, trading as J. Stone & Company, alleged bankrupt. On motion to expunge petition.</p>

<p>Bankruptcy (§ 407*) — Discharge'—Objections—Concealment op Assets.</p> <p>Where a bankrupt received $2,000 from his brokers shortly before bankruptcy, which amount was not scheduled, but used for his own purposes and in the name of his wife, such concealment constituted ground for, the denial of a discharge, without reference to whether the money was his, or was the proceeds of a loan to him.</p> <p>. [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*]</p>

<p>In the matter of Barnet Rosenzweig, bankrupt. On rule against certain persons to show cause why they should not be required to turn over property of the bankrupt.</p>

In Equity. Suits by the Crown Feature Film Company and the Royal Feature Film Company against the Bettis Amusement Company and Will C. Bettis, and by the Universal Film Manufacturing Company against Will C. Bettis and the Western Exhibitors’ Feature Film Company. On motions for orders to show cause, and demurrers to bills.

In the' matter of Charles M. Wagner, bankrupt. On petition of receiver for stay of sale of real estate in foreclosure suit and for leave to sell.

<p>Action by the B. Borchardt Company against the Yaryan Naval Stores Company. On petition of receivers for defendant for authority to issue certificates!</p>

<p>1. Aliens (§ 32*) — Depoktation op Chinese — Findings—Review.</p> <p>On appeal from a commissioner’s decision In Chinese deportation proceedings, the commissioner’s finding that one or more witnesses were not entitled to belief will not be disturbed, unless it is manifest that he acted arbitrarily.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32. *2]</p> <p>2. Aliens (§ 32*) — Chinese Person — Depobtation—Defense—Citizenship.</p> <p>Where, in a Chinese deportation proceeding, defendant claimed that' he was horn in the United States, and both he and his alleged uncle so testified, and there was no evidence introduced by the United States, except an interpreted statement made by defendant before his arrest, taken down stenographically, in contradiction of some of the evidence given by him, and the commissioner analyzed the testimony of both witnesses, but discredited only that given by defendant, leaving the evidence of the uncle unquestioned, a judgment directing defendant’s deportation cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84. 92, 93-95; Dec. Dig. § 32.*]</p>

Application and petition of John A. Bensel and others, constituting the Board of Water Supply of the City of New York, to acquire real estate for and on behalf of the city under Raws N. Y. 1905, c. 724, and amendatory acts, in the town of Hurley, Ulster county, N. Y., to provide an additional water supply.

<p>In Error to the District Court of the United States for the District of North Dakota; Cha”rles F. Amidon, Judge.</p> <p>The First National Bank of Anamoose was convicted of violating Pen. Code, § 239, in collecting a draft attached to a bill of lading for intoxicating liquors (190 Fed. 336), and it brings' error.</p>

<p>Indictment and Information. (§ 125*) — Indictment—Duplicity.</p> <p>•An indictment which charges a single conspiracy to commit distinct offenses is not duplicitous, since a conspiracy is an offense entirely distinct from the crimes the parties intend to commit thereby.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p>

<p>1. Indians (§ 37*) — Trespass on Indian Lands — “Indian Country.”</p> <p>By the treaty of October 21, 1892, ratified by Act .Tune 6, 3900, e. 818, 31 Stat. 676, between the United States and the Kiowa, Comanche, and Apache tribes of Indians in Oklahoma, such tribes ceded to the United States absolutely all their lands therein, described subject to the allotment of lands to their members in severalty and the setting apart of a tract for grazing purposes. Reid, that by such cession all the lands embraced therein ceased to be “Indian country,” or subject to the provisions of Rev. St. § 2148, that “if any person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country he shall be liable to a penalty of $1,000,” and that such character as Indian country was not restored to lands subsequently set apart by executive order of the Interior Department of June 20, 1901, for the purposes of an Indian school.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 56: Dec. 'Dig. § 37.*]</p> <p>2. Indians (§ 37*) — “Indian Country.”</p> <p>“Indian country,” as the term is used in federal statutes, is a country to which the Indians retained the right of use and occupancy, involving under certain restrictions freedom of action and of enjoyment in their capacity as a distinct people, and ceases to be such when their title is extinguished unless by virtue of some reservation expressed at the time and clearly appearing.</p> <p>[Ed. Note. — For other eases, see Indians, Gent. Dig. § 56; Dee. Dig. § 37.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3545-3549.]</p>

<p>1. Railroads (§ 480*) — Fires—Burden or I'roof.</p> <p>In an action for damages from Are, alleged to have been negligently set out by defendant railroad company, the burden is on plaintiff to establish : First, that the fire was set l>y a spark from defendant’s engine; and, second, that tlie spark escaped through defendant’s negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1709-1716, 1733; Dec. Dig. § 480.*]</p> <p>2. Railroads (§ 484*) — Fires—Negligence—Question for Jury.</p> <p>In an action for damages from fire, alleged to have been negligently set out by defendant railroad company and to have consumed plaintiff’s tobacco factory, circumstantial evidence held to justify the court in submitting to the jury the question whether the fire originated from a spark from defendant’s locomotive and whether the spark was permitted to escape through defendant’s negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*]</p> <p>3. Trial (§ 142*) — Inferences prom Evidence.</p> <p>While the jury may not infer defendant’s causal relation to plaintiffs injury merely from equally balanced uncertainties, yet plaintiff’s evidence need not exclude every other possible source of injury, but it is sufficient if the inference of defendant’s liability is fairly and reasonably probable and distinctly more probable than any other suggested explanations.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 337; Dec. Dig. § 142.*]</p> <p>4. Trial (§ 244*) — Instructions—Singling Out Evidence.</p> <p>In an action for the destruction of plaintiff’s tobacco factory by sparks alleged to have escaped from defendant’s engine, a request to charge that the fact that a particular witness heard cinders fall on the tin roof of the factory was no evidence that the cinders were alive or hot enough to set fire to the tin roof or other more inflammable substance, as boards or tobacco, was properly refused as attempting to characterize the effect of a particular portion of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>5. Appeal and Error (§ 977*) — Review—New Trial — Denial.</p> <p>In the absence of a clear showing of abuse of discretion, an order of a federal court denying a motion for a new trial will not be reviewed on error.</p> <p>[Ed. Note. — For other cases, see Appeal an® Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Habeas corpus on petition of Martin Powell. From an order discharging the writ, he appeals.</p>

Wolverton, Judge. Suit in equity by E. A. Anderson and R. B. .ierron against the -Oregon Coal & Navigation Company. Decree for complainants, and defendant appeals. This is a suit in equity brought by the appellees, plaintiffs in the court be.low, for an injunction to restrain the appellant, defendant in the court below, from driving piles or posts, or erecting any structure, bn certain property . situated in the town oj!

<p>1. Appeal and Eekok (§ 1057*) — Harmless Error — Exclusion of Evidence.</p> <p>Where k general custom of the secretary of a subdivision of defendant, a mutual insurance order, to leave receipts for assessments with the proprietor of a drug store for collection, for the convenience of the members, was conclusively proved, the exclusion of testimony offered on the trial of an action on a benefit certificate to show that such practice was not authorized by the association was not prejudicial error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4191 4199, 4205; Dec. Dig. § 1057.*]</p> <p>2. Insurance (§ 760*) — Mutual Life Insurance- — Forfeiture for Nonpayment of Assessments — Reinstatement.</p> <p>The by-laws of a mutual life insurance association provided that, on the failure of a member to pay an assessment when due, his membership and-all rights of his beneficiary under his certificate should be forfeited, hut that he might be reinstated at any time before the next assessment became delinquent “by paying the current assessment and the preceding assessment he is reported forfeited on and obtaining a dated and numbered receipt for the same.” Held, that the requirement that he obtain a receipt was a reasonable and substantial one and that payment without obtaining a receipt did not effect a reinstatement.</p> <p>TEd. Note. — For other cases, see Insurance, Cent. Dig. § 1923; Dec. Dig. § 760.*]</p> <p>Smith, Circuit Judge, dissenting.</p>

Action by Isabella Foster, as administratrix of the goods, chattels, and credits of Albert J. Foster, deceased, against the Bucknall Steamship Fines, Limited, to recover damages for the death of plaintiff’s intestate, who was killed while at work on defendant’s steamship, the Amatonga.

Angelí, Judge. Suit in equity by the De Voe Snuff Company against Jacob Wolff, executor of the estate oí Ignatz Wolff, deceased. Decree for defendant, and complainant appeals.

<p>1. Trial (§ 191*) — Instructions—Assumption or Fact.</p> <p>Where evidence that one who was suing for personal injuries had made a false claim for a pension for injuries received while in the army, and an affidavit in support of the petition was admitted, but it did not conclusively appear in the testimony that the plaintiff had done anything more than write to the maker of the affidavit and request him to make an affidavit as to the facts, a requested instruction that the United States statute in force at the time the plaintiff procured the affidavit punished, the procuring of a false affidavit was erroneous, as taking from the jury the right to determine whether the plaintiff did in fact procure the making of an affidavit, even though that clause was simply preliminary to the main part of the instruction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>2. Trial (§ 191*) — Instructions—Assumption op Facts.</p> <p>Where the second part of the same instruction told the jury that, if they found that the plaintiff: knowingly aided in making any false affidavit for the purpose of procuring a pension, they might consider that fact in determining his credibility, that part was erroneous, 1a ken in connection with the first part, where there was no evidence that the plaintiff procured any other affidavit than that offered, and which the instruction told the jury he had procured.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dee. Dig. § 191.*]</p> <p>3. Trial (§ 252*) — Instructions—Credibility op Witness.</p> <p>The requested instruction was also erroneous, where there was no evidence that the affidavit was false, since Itov. St. § 4746 (U. S. Comp. St 1901, p. 3279), punishes the procuring or making of a false affidavit, not the use of an affidavit which is not falso in support of a false claim for pension.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 590-612; Dec. Dig. § 252.*]</p>

Action by Edwin Baldwin, executor, against Elizabeth Eidman, administratrix.

Action by the United States against the Nipissing Mines Company to recover a corporation tax. Judgment (202 Eed. '803) dismissing the complaint on the merits and awarding the defendant an affirmative judgment upon a counter claim in an action brought to recover a tax assessed under the Corporation Tax Raw (Act Aug. 5, 1909, c. 6, 36 Stat. 112-117 [U. S. Comp.

<p>1. Trade-Marks and Trade-Names (§ TO*) — Unlawful Competition — Moxie.</p> <p>Complainant widely advertised and sold a beverage called “Moxie”’ in bottles of a distinctive size and shape. Defendant put out a competing beverage of a similar color, called “Bo-La,” in a similar bottle; the resemblance of the bottles being so "close that defendant’s beverage would appear to the casual inspection of a customer to be a “Moxie” bottle, and the similarity being such as to facilitate its substitution for “Moxie” without detection by the customer. There was evidence that many retail dealers, when ashed for “Moxie,” had served “Bo-La” from “Bo-LaV bottles, though defendant’s bottles were differently stamped and labeled; the difference, however, being insufficient to destroy the general similarity of appearance. Held, that defendant’s use of bottles in such close similarity to complainant’s bottles assisted in the fraudulent use by unscrupulous dealers and constituted unlawful competition, which complainant was entitled to restrain.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dee. Dig. § 70.*]</p> <p>2. Trade-Marks and Trade-Names (§ 84*) — Similar Packages — Defenses':</p> <p>Where defendant produced and sold a beverage of the same character and kind as complainant’s beverage, and adopted a bottle of novel and distinctive shape, resembling complainant’s bottles, so that defendant’s beverage could be and was sold by unscrupulous dealers when complainant’s was called for, it was no defense to a suit for unlawful competition that defendant, after adopting a similar bottle, had done all in his power to destroy the similarity, which he was unsuccessful in doing, since he had no right to do that which rendered the distinctions necessary, and which also rendered them futile.</p> <p>[did. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 9;!, 97; Dec. Dig. § 84.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Seheuer v. Miller, 20 C. C. A. 163; Dare v. Harper & Bros., 30 C. C. A. 376.J</p>

Suit by the Moxie Company against IJacliig John Bagoian. Decree for complainant for less than the relief demanded (197 Fed. 680), and it appeals.

<p>In Error to thé District Court of the United- States for the Middle District'of Pennsylvania; Chas. B. Witmer, Judge.</p> <p>Action at law by David Allegar against the American Car & Foundry. Company. Judgment for. defendant, and plaintiff brings error.</p>

Action by the United States against the Atlantic Fruit Company, From a judgment dismissing the complaint, the United States brings error.

Jn Error to the District Court of the United States for the Southern District of New York. Action at law by the United States against the New York & Porto Rico Steamship Company. Judgment for the United States (197 Red. 995) and defendant brings error. On writ of error to the United States District Court for the South■ era District of New Y'ork to review a judgment for $11,337.10 in favor of the United States, the plaintiff below.

McCall, Judge. Action at law by R. J. Darnell against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for defendants, and plaintiff brings error. On motion to dismiss for want of jurisdiction.

<p>1. Mechanics’ Liens (§ 93*) — Enforcement—Defenses.</p> <p>Where a contract for the construction of a malting plant provided that the work should be done under the direction of the owners, and there was no evidence that they were prevented from having their wishes as to the depth of the foundation complied with, they cannot defend an action to foreclose a mechanic’s lien on the ground that the walls had cracked by reason of the insufficient depth of the foundation.</p> <p>[Ed. Note. — Eor other cases, see Mechanics’ Liens, Cent. Dig. § 124; Dec. Dig. § 93.*]</p> <p>.2. Mechanics’ Liens (§ 93*) — Persons Entitled — Contractor — Performance of Contract.</p> <p>Where the contractors for the construction of a building have substantially performed their contract, they are entitled to a mechanic’s lien for the contract price, even though the building is defective.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 124; Dec. Dig. § 93.*]</p>

Appeals from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, in favor of defendants, sustaining .demurrers to á bill of complaint, as the same was amended, and dismissing the same. The suit is in equity, praying for the cancellation of a contract for the purchase of 50 shares of the capital stock of the bank, upon the ground of fraud practiced upon complainant by the bank inducing the making of such contract.

<p>Contracts (§ 205*) — Warranty—Purpose Intended.</p> <p>Plaintiff contracted to furnish, the steel work for a cantilever bridge across the East River in New York City at specified prices on poundage of steel furnished. -The city furnished the plans and stress sheets for the bridge with the loads originally contemplated; also a loading key, by which the stresses on each truss by reason of the live loads could be computed per linear foot; the contract requiring that plaintiff should build, construct, finish, and complete the work according to the plans and specifications, numbered, etc., and in accordance with such further details and instructions as the engineer might from time to time furnish, approve, or issue to insure the thorough completion of the work in the most efficient manner. The specifications required that the steel work should be so apportioned as to carry, in addition to its own weight, certain specified loads of live weight The city subsequently desiring to add two elevated, railway tracks, a supplemental contract was entered into, by which plaintiff agreed to furnish the additional steel at the prices provided in the original contract. Held that, plaintiff having furnished the steel and constructed the bridge in strict conformity to the specifications, there was no guaranty on its part that the trusses would not be overstrained if subjected to the live loads provided for in the specifications, and it was therefore nó defense to the city’s liability for the balance of the price that such would be the fact.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 878, 905; Dec. Dig. § 205.*]</p>

Action by Henry W. Munroe and others against the Trenton Oil Cloth & Linoleum Company. Judgment for defendant, and plaintiffs bring error. Writ of error to review a judgment of the District Court, Southern District of New York. The action was brought by the plaintiffs as assignees of the Waeber & Lee Company to recover the agreed price of four shipments of imported cork waste alleged to have been sold and delivered by said company to the defendant.

In the matter of Irving Cohen, bankrupt. This cause comes here upon appeal from an order of the District Court, Eastern District of New York (201 Fed. 188), denying the bankrupt’s application for a discharge.

<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 Rouis W. Chamberlain against J. E. Throckmorton. 'Judgment for defendant, and plaintiff brings error.</p>

<p>Aliens (§ 49*) — Exclusion—Pauper. .</p> <p>Where an alien actress came to the United States with her husband, ' who' was an engineer, and at the time of the first hearing they had property valued at more than $600, and relator had gowns valued at $1,200, a finding that she was not entitled to enter, because she was likely to become a public charge, was unsustainable.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 107; Dec. Dig. § 49.*]</p>

Bill by John A. Brown and another against Austin B. Fletcher, as trustee of the testamentary, estate of Conrad Braker, Jr. From a decree dismissing the bill (203 Fed. 70), complainants appeal.

Court of the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge. (Suit in equity by William A. Murray against the Detroit Wire Spring Company. Decree (195 Fed. '774) for defendant, and complainant appeals. Murray Drought the usual form of infringement suit, based on his patent No. 692,535, issued February 4, 1902, for a spring seat. The patent was considered by this -court, and held valid, but not infringed, in an opinion by 'Judge Severens.

<p>.Patents (§ 328*) — Invention—Pool Tables.</p> <p>The Cunningliaia patents, Nos. 553,185 and 559,790, each for improvements in billiard or pool table pockets! and No. 556,532, for improvement in return conduits for balls, connected with the pockets of such tables, are each void for lack of patentable invention.</p>

In Equity. Suit by the Crown Cork & Seal Company of Baltimore City against the Brooklyn Bottle Stopper Company and another. Applications for attachment of defendants for contempt in violating decrees restraining the infringement of the Painter and Wheeler patents covering a machine for the manufacture of bottle closures.

<p>1. Patents (§ 310*) — Suit foe Infringement — Pleading.</p> <p>In a suit for infringement of a patent for an improvement in the manufacture of metal fasteners, evidence is admissible to show that there was a demand for such fasteners, that they had not gone into commercial use because of their cost, and that such cost had been so reduced by the; patented machine that they at once came into general use, and under the new equity rules such facts should be pleaded.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Process and Machine foe 'Making Metal Fasteners.</p> <p>The Norton patents, No. 859,686, for a process of making corrugated metal fasteners, and No. 956,540, for a machine, for practicing such process, held infringed by a machine which embodies the#essenee of the invention and differs from that of the patent only in increasing the number of parts and using three operations to.accomplish what is done by the patented process and machine in one.</p>

<p>At Law. Action by William Stewart Tod against John M. Kuyken-dall. On demurrer to complaint.</p>

<p>Clint Hall and others were indicted for retarding the mails. On demurrer to indictment.</p>

<p>Principal and Surety (§ 81*) — Surety'Bond—Penalty.</p> <p>The sum mentioned in tlie surety bond given to secure performance of an improvement contract will be regarded as a penalty, and not liquidated damages, the plaiptiff in an action thereon being entitled to recover for breach only actual compensation, when capable of ascertainment; and where there is nothing in the record to indicate that it would be either difficult or impossible to assess actual damages from testimony, there'being no evidence as to the actual damage suffered, plaintiff’s recovery will be limited to nominal damages.</p> <p>'Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. § 12ti; Dec. Dig. § 81. *]</p>

<p>(T Judicial Sales (§ 19*) — Misconduct Affecting Validity — Agreements to Prevent Bidding — “General Public.”</p> <p>The general rule is that the public shall be free to bid for property offered at a judicial sale, and the law prohibits the making of any bargain or the doing of any thing which takes from the public this liberty of action; but the teim “general public” as used in this connection does not include persons who, by virtue of lien, or ownership, or otherwise, have an existing interest in the property to be sold. Such persons may combine together for the protection of their interests, and may even expressly agree not to bid against each other, in furtherance of a plan mutually agreed upon' as calculated to conserve their rights, but in so doing their activities must not operate to exclude any part of the general public as purchasers at the sale.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 41-43, 45, 40; Dec. Dig. § 19.*]</p> <p>JJ. RAILROADS (§ 192*)-FORECLOSURE SALE — VALIDITY—COMBINATION IN RESTRAINT of Bidding.</p> <p>A contract and agreement between prospective bidders for the property of an electric railroad company at foreclosure sale, by which bonds of the company, all of which had been bought up by the interests controlling a street railroad company, with the intention of buying the property aiid using the bonds in payment, were sold to another syndicate of bondholders, with the consent and assistance of a third group of bondholders, at a large advance over their cost to the sellers and above their market value, with an agreement that the sellers and their agents should,“to the extent of their power and influence, * * * in every reasonable way, aid and assist the purchasers in becoming the purchasers” of the property, held to constitute a combination in restraint of bidding which required the sale at which the property was bought for less than its fair value by the assignee with notice of the purchasing syndicate to be set aside on the objection of a nonassenting bondholder.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 391, 634-642; Dec/ Dig. § 192.*]</p> <p>3. Raileoads (§ 192*) — Foreclosure Sale — Validity—Combination in Restraint of Bidding.</p> <p>The sellers of the bonds in such case having had no interest in the property prior to the foreclosure suit, nor except as acquired for the express purpose of becoming bidders at the sale, the burden rested on the purchasers to show clearly that the sellers had altogether lost interest as intending purchasers of the property prior to the beginning of the negotiations resulting in their elimination.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 391, 634-642; Dec. Dig. § 192.*]</p> <p>4. Raileoads (§ 192*) — Foreclosure Sale — Validity—Combination in Restraint of Bidding — Knowledge Affecting Puechaseb.</p> <p>The purchasing syndicate, subsequent to its purchase of the bonds, entered into a contract by which it transferred its interests to a reorganization committee, which later became the purchaser at the sale. By such contract the committee expressly assumed the obligations of the syndicate under its contract for purchase of the bonds including liability for a deferred payment thereon of over $800,000. Held, that the committee was charged with notice of and affected by the illegality of such contract</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 391, 634-642; Dec. Dig. § 192.*]</p> <p>5. Corporations (§ 482*) — Sale of Property Under Mortgage — -Confirmation- -Matters Considered.</p> <p>If it comes to the actual notice of the court on the hearing of a motion to confirm a foreclosure sale of the property of a public service corporation that the intending purchasers have conceived a definite program, through a reorganization plan, to use such property when acquired in a way, or to effect a purpose, forbidden by the Constitution or public policy of the state, the court may properly take such fact into consideration.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. .Dig. §§ 1870, 1877 - 1888; Dec. Dig. § 482.*]</p>

At Law. Action by Edward B. Price, as administrator of the estate of Edward B. Price, Jr., against the Southern Power Company and the Catawba Power Company. On motion of plaintiff to remand the cause to the state court.

In Admiralty. Petition by the Oceanic Steam Navigation Company, Limited, as owner of the steamship Titanic, for limitation of liability. On application of the Tong Island Loan & Trust Company and other damage claimants for commission to examine witnesses. Hus is an application for a dedimus potada tom to examine certain persons Su the kingdom of (treat Britain upon oral interrogatories and cross-interrogatories.

In the matter of William A. Ballance and the William A. Ballance Company, bankrupts. On petition of Wolf Rubin to set aside a composition, and demurrer thereto.

<p>In Equity. Suit by Adolph Kiendl, trustee of Charles Taunton, bankrupt, against Charles Taunton and the Taunton Pavilion, Incorporated.</p>

Action by the United States against the Delaware, Lackawanna & Western Railroad Company. Suit to recover a penalty of $500 for neglecting to unload, feed, and water cattle delivered to the Lake Shore & Michigan Southern Railroad Company for transportation and by that company turned over in the car containing them to the defendant, the Delaware, Lackawanna & Western Railroad Company. The facts are agreed upon and a jury trial waived.

<p>1. Bankruptcy (§ 100*) — Pkoof of Insolvency — Effect of Adjudication.</p> <p>In case of an involuntary proceeding in bankruptcy, where insolvency is one of the issues, the adjudication is conclusive against all persons interested in the estate, or having had dealings with him, that the bankrupt was insolvent at the time of the commission of the act of bankruptcy alleged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 66,131, 141-144; Dec. Dig. § 100.*]</p> <p>2. Bankruptcy (§ 159*) — Voidable Preferences — “Creditor.”</p> <p>An indorser of a note is a “creditor” of the maker within the meaning of Bankr. Act July 1, 1898, § 60b, c. 541, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), relating to voidable preferences to creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248, 262, 26¿-281; Dec.'Dig. § 159*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1713-1727; vol. 8, pp. 7622, 7623.]</p> <p>3. Bankruptcy (§ 303*) — Intention of Parties — Presumption.</p> <p>If a transfer of property by an insolvent 'to a creditor necessarily re-suited in giving the -latter a preference, it will be presumed that such was the intention of the parties. '■</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig.- § 303.*]</p> <p>4. Bankruptcy (§ 303*) — Voidable Preferences — Evidence Considered.</p> <p>A sale of property by a bankrupt within four months prior to Ms bankruptcy, and while insolvent, to defendant, who was an indorser on Ms note to a bank, held under the evidence to have been made with an agreement, or understanding that the bankrupt should pay the note from the proceeds, and to constitute a voidable preference.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. § 303.*]</p>

In the matter of J. Sapinsky & Sons, bankrupts. On petitions by' the Fidelity Trust Company and others for review of orders of the referee.

At Law. Action by Elizabeth Wells, administratrix of W. J. Wells, deceased, against the Russellville Anthracite Coal Mining Company and the Eidelity Coal Mining Company. On motion to remand to state court.

<p>' At:-Law-. ■ Action by S.- E. Stiirges and others against the Portis Mining Company.' On motion by defendant for judgment on the pleadings.</p>

<p>At Raw. Action by George N. Ostrander against the Deerfield Dumber Company and Amos N. Blandin. On motion by defendants to ■set aside service of summons.</p>

<p>1. INJUNCTION (§ 95*)-UltLAWFUT, IJSK OF IXFOIiMiVTiOX OBTAINED BY EMPLOY]';.</p> <p>Complainant company established a business by making contracts with factories to sell their goods, furnishing an illustrated catalogue of the same, with retail price lists, to local merchants, with whom it also made contracts, and who sold from such catalogue to customers, making- the difference between the catalogue price and the price In a confidential price list furnished by complainant, which caused the goods to be shipped from the factory direct to the customer. Complainant expended a large sum in organizing its business and establishing a valuable good win. Defendant corporation was organized by one of the individual defendants while in the employ of complainant to engage in tlie same business, which it started by using confidential information obtained by its codeiendant while in such employment for that purpose, consisting of lists of factories, merchants, and sales agents with whom complainant had or was negotiating for contracts. It also used complainant's catalogue, at first directly and afterwards by copying it as its own, and wrote complainant’s agents, and attempted to secure their services. Held, that such use of information so obtained was fraudulent, and constituted unfair competition, and that complainant was entitled to an injunction restraining the same, and also to an accounting for profits so máde.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 108, 109; Dec. Dig. § 55.*]</p> <p>2. Equity (§ 65*) — Clean Hands — Application op Maxim.</p> <p>The fact that complainant, in making its own catalogue, copied from those of other concerns, did not debar it from relief on the ground that it did not come into court with clean hands; its right to such relief arising from the relationship between the parties and the fraudulent acts of its employe.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*]</p>

<p>At Law. Action by William Whitman & Co. against the Namquit Worsted Company.</p>

<p>Criminal Daw (§ 984*) — Habeas Cortos (§ 30*) — Judgment—Sentence in Gross</p> <p>Rev. St. § 5478 (U. S. Comp. St. 1901, p. 3696), provides that any person who shall forcibly break into or attempt to break into any post office, with intent to commit therein a felony or other depredation shall be punished by a fine of not more than ígl,000 and by imprisonment for not more than five years. Held, that where accused was charged in different counts with breaking and entering different post offices with intent to violate such section, and on conviction of both offenses a single sentence of 10 years’ imprisonment and a fine of $2,000 was assessed, such sentence, though erroneous, was not absolutely void, or a nullity so as to entitle accused to discharge from imprisonment on habeas corpus’</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §s 2504-25nq 2541; Dec. Dig. § 984;* Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30 *j-</p>

<p>Application by Edward F. Blake for a writ of habeas corpus to obtain his discharge from the custody of William H. Moyer, Warden of the United States Penitentiary at Atlanta, Ga.</p>

<p>At Law. Action by the Chehalis River Lumber & Shingle Company against the Empire State Surety Company. On demurrer to defendant’s plea to jurisdiction.</p>

<p>1. Courts (§ 367*) — Federal Courts — Determination—Rule oe Property.</p> <p>Tbe decision of tbe Supreme Court of Tennessee that no constitutional union between tbe Cumberland Presbyterian Church and the Presbyterian Church of the United States of America was effected May 24, 1906, notwithstanding the decision to the contrary of the two General Assemblies of the respective churches, did not constitute a rule of property in Tennessee, but was the decision of a question of general jurisdiction, and therefore- not conclusive on federal courts sitting in that state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959: Dec. Dig. § 367.*]</p> <p>2. Religious Societies (§ 12*) — Union—Effectiveness—Ecclesiastical Questions — Determination by the Ecclesiastical Jurisdictions — Conclusiveness.</p> <p>Whether a constitutional union between the Cumberland Presbyterian Church apd the Presbyterian Church of the United States of America was effected by the attempted consolidation in May, 1906, was an ecclesiastical question, the determination of which in favor of the validity thereof was conclusive on the civil courts.</p> <p>[Ed. Note. — For other eases, see Religious Societies, Cent. Dig. §§ 87-98; Dec. Dig. § 12.*]</p>

<p>BANKRUPTCY (§ 391*)-STAY OP PROCEEDINGS AGAINST BANKRUPT-FINE POR Contempt.</p> <p>A fine imposed on a bankrupt by a state court for a civil contempt under Judiciary Law N. X. (Consol. Laws 1909, c. 30) §§ 753, 773, for disobedience of an order of that court, made in an action against him, prohibiting him from transferring his property, by disposing of property and shortly after filing the petition in voluntary bankruptcy, is not a provable debt, and the court of bankruptcy is without jurisdiction to interfere with its enforcement.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 637-655; Dec. Dig. § 391;* Courts, Cent. Dig. § 1331.]</p>

<p>In the matter of A. Epstein, bankrupt. On certificate of referee.</p>

<p>In Equity. Suit by the United Drug Company against the Theodore Rectanus Company and others.</p>

<p>In Admiralty. Suit by Sunde & Erland, Herman Larson and others, partners, as I. N. Larson & Sons, the Dickson Bros. Company and A. J. Stuckey against the schooner Fortuna. On exceptions to-intervening libel of A. J. Stuckey.</p>

<p>Bankruptcy (§ 184*) — TraNSííers—Validity—Effect op Taking Possession by Mortgagee.</p> <p>In states where the rule prevails that a chattel mortgage of a merchandise stock under which the mortgagor is permitted to retain possession and sell without accounting to the mortgagee for the proceeds is fraudulent in fact and void ab initio, the taking of possession by the mortgagee before the bankruptcy of the mortgagor does not validate his lien as against other creditors.</p> <p>LKd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*]</p>

S. Bean, Judge. „fíjeqtment by Maria de Grubissich against the Oregon & California Railroad Company. Judgment for plaintiff, and defendant appeals. The appellee herein had brought an action of ejectment to recover the possession of certain land in the §tate of Oregon, claiming title thereto as the devisee of her grandfather, Ben' Holladay, who had died iñ 18S7.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, District Judge.</p> <p>Suit in equity by Ada J. Everitt and another against John S. Duss and another. Decree for defendants, and complainants appeal.</p>

<p>Per Van Valkenburgh, District Judge.</p> <p>1. Appeal and Error (§ 1097*) — Suit fob Unfair Competition — Second Appeal — Questions Concluded.</p> <p>A determination by the Circuit Court of Appeals, based on the evidence in the record on an appeal, that the defendant was chargeable with unfair competition, should be reopened, if! at all, on a subsequent appeal taken after an accounting, only upon convincing evidence that the original conclusion was wrong.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4358-4308, 4427; Dec. Dig. § 1097.*].</p> <p>2. Trade-Marks and Trade-Names (§ 93*)- -Unfair Competition — Evidence of Intent.</p> <p>In cases of unfair competition, the fraudulent intent is often inferred from the facts, sometimes against the sworn cprotestations of the defendant.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.*]</p> <p>3. Trade-Marks and Trade-Names (§ 98*) — Suit fob Unfaie Competition— Measure of Damages.</p> <p>In patent and strict trade-mark cases, the infringer is held to account for profits accruing because of the unauthorized use of the property right; and unfair competition in trade may, under proper conditions, entitle the injured party to the same measure of relief.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]</p> <p>4. Trade-Marks and Trade-Names (§ 70*) — -Unfair Competition.</p> <p>A manufacturer of shoes, which stamped upon the soles a trade-name so nearly resembling that used by a competitor as to be calculated to confuse purchasers, did not avoid a charge of unfair trade by placing its name as maker conspicuously on the carton in which each pair of shoes was sold to the retail dealer.</p> <p>It a manufacturer Qr wholesale dealer willfully puts up goods in such way that the ultimate purchaser will be deceived into buying them as the goods of another, it is no defense that he does not deceive and has no intention of deceiving the retailer, to whom he himself sells the goods; but the question is whether he has or has not knowingly put into the hands of the retail dealers the means of deceiving the ultimate purchaser.</p> <p>[Ed. Note. — For other°cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]</p> <p>5. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]</p> <p>6. Trade-Marks and Trade-Names (§ 93*) — Suit fob Unfair Competition— Measuee of Damages.</p> <p>In such cases the complainant in a suit for the unfair competition will not be held to specific proof that ultimate purchasers were deceived, and limited to loss of profits thus established; but it will he presumed that sales made by defendant were the result of the unlawful invasion of his rights, especially when it appears that the unlawful use of the name was one of the causes, and it is impossible to apportion between that and other causes the credit for such sales.</p> <p>[Eld. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104 — 106; Dec. Dig. § 93.*]</p> <p>7. Trade-Marks and Trade-Names (§ 97*) — Unfair Competition — Construction of Injunction.</p> <p>An injunction restraining a defendant from using the name “American Lady,” as applied to its shoes for women, “when not accompanied with other matter clearly indicating that such shoes are of its own manufacture,” was not violated where its own name, surrounding in belt form the name “American Lady,” was stamped on the soles of the shoes, and the name “American Lady,” with its own name in belt form surrounding the word “Makers,” on the top facing of one shoe of each pair. (Smith, Circuit Judge, dissenting.)</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. § 97.*]</p> <p> Per JSoolc, Circuit Judge, </p> <p>8. Trade-Marks and Trade-Names (§ 98*) — Suit for Unfair Competition — * , Measure of Damages.</p> <p>In a successful suit for unfair competition, the relief to which complainant is entitled, in addition to an injunction, is limited to the recovery of .‘compensatory damages for past injury to his business, which are not, as in patent and strict trade-mark cases, measured by the profits made by defendant, but should be based on proof, and in proper cases a consideration of general conditions, such as the relation of the parties to the trade and to each other, including their respective trade areas.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Seheuer.v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

.Appeal from the District Court of the United States for District of Oregon; R. S. Bean, Judge. Suit in equity by the North Star Dumber Company and others against John W. Johnson and others. Decree for complainants, and defendant Johnson appeals. This is a suit brought in the United States Circuit Court for the District of Oregon by the North Star I .umber Company, a Minnesota corporation, against John W. Johnson and two others, all citizens of the state of Washington.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judg-e.</p> <p>Action by the Carolina Glass Company against W. J. Murray and others. Judgment for defendants, and plaintiff brings error.</p>

Rudkin, Judge. Action by the United States of America against Theodore Weis-berger and others. Judgment for defendants, and the United States brings error. The government brought this suii in the court below upon a contract entered into between it and the defendant Weisberger, and upon a bond given by the defendants for the faithful performance by the contractor of the provisions of his contract.

H. Hanford, Judge. Action at law by the Russo-Chinese Bank against the National Bank of Commerce of Seattle, Wash. Judgment for defendant, and plaintiff brings error. For a correct understanding of the present case it is necessary to make a full statement of the facts, as was done when the case was first here. ■ 187 Fed. 80, 109 C. C. A. 398.

Dayton, Judge. Action by Ernest C. Heckert against the Central District & Printing Telegraph Company. Judgment for defendant, and plaintiff brings error. This is an action at law brought by the plaintiff in error against the Central District &■ Printing Telegraph Company, defendant in error, in the District Court of the United States for the Northern District of West Virginia.

<p>1. WATERS AND WATER COURSES (§ 188*)-WATER COMPANIES — FrA NCITISES - Duration.</p> <p>A grant to a water company by a city ordinance of a franchise to operate waterworks for a definitely fixed term, accepted and acted on by the company, terminates at the end of that term by force of the terms of tho instrument of grant, and cannot be enlarged by implication.</p> <p>(Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 287, 288; Dec. Dig. § 188.*]</p> <p>2. Courts (§ 366*) — Federad Courts — Authority oit State Decisions.</p> <p>The action of the Supreme Court of Iowa in appointing three district judges to act as a court of condemnation on application of a city council after the passage' of a resolution to acquire waterworks, as authorized and required by Acts 33d Gen. Assom. c. 45, as amended by Acts 34th Gen. Assent, c. 35, was at least presumptively, if not necessarily, a de-cisión that the act is constitutional, and such decision is binding on a federal court.</p> <p>[Ed. Note. — For other cases, sée Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. § 366*</p> <p>Conelusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. it. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>3. Constitutional Law (§ 61*) — Officers (§ 30*) — Delegating Legislative Power to Judges' — -“Office.”</p> <p>The powers and functions of the three judges constituting the court of condemnation under said act in determining the value of the waterworks property after a hearing on evidence as provided by the act are judicial, and not legislative, and the act is not in violation of Const. Iowa, art. 3, § 1, which provides that no person charged with the exercise of judicial powers shall exercise legislative powers, nor of article 5, § 5, which declares that a district judge shall not be eligible to any other office during his term, except that of judge of the Supreme Court; the temporary position of the judges under such appointment not being an “office" within the meaning of the provision.</p> <p>[Ed. Note. — For other eases, see Constitutional Law, Cent. Dig. §§ 106-107; Dec. Dig. § 61;* Officers, Cent. Dig. §§ 37-43; Dec. Dig. § 30.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 4921-4931; vol. 8, p. 7736.]</p> <p>4. Removal of Causes (§ 4*) — Causes Removable — “Suit”—Condemnation Proceedings.</p> <p>A proceeding under such act, which has progressed only so far as the appointment of the judges and their organization as a court, is not a “suit,” .within the meaning of the removal act (Judicial Code [Act March 3, 1911, c. 231] § 28, 36 Stat. 1094 [U. S. Comp. St. Supp. 1911, p. 140]), and is not removable thereunder.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 11-20; Dec. Dig. § 4.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6769-6778; vol. 8, p. 7809.]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in equity by the Pennsylvania Steel Company and another against the New York City Railway Company, the Metropolitan .Street Railway Company, and others.

<p>Appeal from the District Court of the United States for the Southern District of Ohio, Western District; Howard C. Hollister, Judge.</p> <p>‘Suit in equity by the Ferro Concrete Construction Company against the Concrete Steel Company and the Isaac Faller’s Sons Company. Decree for defendants, and complainant appeals.</p>

Hollister, Judge. Suit in equity by Joseph Y. Porter against the Weir Frog Company. Decree for complainant, and defendant appeals. Porter brought, against the Weir Frog Company, a suit for injunction and accounting based upon infringement of Porter’s patent, No. 556,317, issued March 10, 1896, for a derailing switch.

<p>Patents (§ 328*) — Infringement—Tai/ey Car».</p> <p>The McKenna patents, Nos. 927,581 and 865,795, and the Goulding patent, No. 655,862, each for a tally card for use in progressive euchre contests, etc., must be narrowly construed, and, as so construed, held not infringed.</p>

<p>In Equity. Suit by the Crown Cork & Seal Company of Baltimore City against the New York Specialty Company and others. On motion of defendants.</p>

<p>Bankruptcy (§ 407*) — Discharge—Prior Discharge.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), providing that tlie judge shall hear the application for discharge and any proofs and pleas in opposition thereto, and discharge the bankrupt unless he has been granted a discharge in voluntary proceedings within six years, the six years is measured backward from the date of the filing of the application for discharge, not from the hearing of the application by the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751,'758, 760, 761; Dee. Dig. § 407.*]</p>

<p>Gaming (§ 50*) — Wagebtng Conteaots — Action by Brokers — Instructions.</p> <p>Instructions considered in an action by brokers to recover from a customer for money advanced on a contract made on the exchange for the purchase of cotton for future delivery in which the defense was that the contract was unlawful as a wagering contract, and held to fairly submit the questions in issue.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 103-107; Dee. Dig. § 50.* ¡</p>

<p>In the Matter of Marshall Manning, bankrupt; P. J. Smith, trustee. On review of order of Refere.e.</p>

<p>1. Seamen (§ 27*) — 'Wages—Lien.</p> <p>One wbo has permitted himself to be -made the record owner of a vessel, although merely for the accommodation of the real owner, and being in fact without interest, cannot establish a'lien on the vessel for wages, to the displacement of other lienholders.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 4, 141, 157-169; Dec. Dig. § 27.*] .</p> <p>Maritime Liens (§ 61*) — Proceedings fob Enforcement — Contest Be-¡ tween Lien Claimants.</p> <p>Where the proceeds of a vessel sold, in proceedings to enforce liens are insufficient to pay all claims, one lien claimant may be permitted to answer and defend against the claim of another, even after an interlocutory decree lias been entered, where newly discovered evidence jus-tillos sucli relief.</p> <p>FKd. ATote. — For other cases, see Maritime Liens, Cent. Dig. § 99; Dec. Dig. § 61.*]</p>

In Equity. Suit by the Missouri, Kansas & Texas Railway 'Company against Laura Chappell and others to restrain defendants from further prosecuting a suit in the state court in which the parties were reversed. On demurrer to complaint. At Law. . Action by Laura Chappell against the Missouri,. Kansas & •Texas Railway Company, removed from the state court. On motions to amend a petition for removal.

<p>1. Contempt (§ 3*) — Nature and Form op Remedy — Conversion of Civn. into Criminal Proceeding.</p> <p>A contempt proceeding, although instituted in civil form by an order made in a pending suit directing the issuance of an attachment to bring the defendant into court, may be converted into a criminal proceeding by the intervention of the United States and the filing of a motion ashing to be made plaintiff therein.</p> <p>[Ed; Note. — For other cases, see Contempt, Cent Dig. § 4; Dea Dig. S 3.*]</p> <p>2. Contempt (§ 38*) — Defenses—Plea of Former Jeopardy.</p> <p>The overruling of a demurrer filed by a defendant cited for contempt, and the continuance of the cause for trial on the merits before another judge, will not support a plea of former jeopardy, when by the substitution of the United States as plaintiff the cause is converted into a criminal proceeding.</p> <p>[Ed. Note. — For .other eases, see Contempt, Cent. Dig. §§ 117-121; Dec. Dig. § 38.*]</p> <p>5. Contempt (§ 58*) — Denial under Oath in Answer — Conclusiveness.</p> <p>The common-law rulé that one charged with contempt may purge himself, and be entitled to a discharge, by the filing of a sworn answer denying the contempt, is not recognized by the federal courts, which leave the question to be determined by the proofs on the hearing.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 169-175; Dee. Dig. § 58.*]</p> <p>4. Contempt (§ 6*) — Power of Federal Courts to Punish — Construction of Statute — “Misbehavior .So Near the Court as to Obstruct Administration of Justice.”</p> <p>In the provision of Rev. St. § 725 (U. S. Comp. St. 1901, p. 583), and Judicial Code (Act March 3, 1911, c. 231) § 268, 36 Stat. 1163 (U. S. Comp. St. Supp. 1911, p. 237), limiting the power of federal courts to punish for contempt to “misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice,” the second clause is not restricted in meaning to acts committed so near in point of distance to the place of holding court as to be obstructive to orderly procedure, which are covered by the preceding clause as construed by the Supreme Court, but applies to all acts of misbehavior whose natural tendency and effect are to interfere with the administration of justice, wherever the acts may be committed.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 6, 9, 10, 13; Dee. Dig. § 6.*]</p> <p>6. Contempt (§ 2*) — Acts Constituting Contempt — Fetters to Judge Relating to Pending Suit.</p> <p>Defendant wrote and sent letters to a federal judge, which were delivered to him in a room of his residence where he frequently heard matters in chambers, although it was not being so used at the time. The letters related to a pending suit, to which defendant was a party, and in which the judge was still required to take judicial action substantially affecting defendant’s interest. Much of the letters was devoted to per-Eonal abuse of the judge, either generally or because of his past actions in the suit, and they also contained references relating to action to be taken in the future, with implied threats in ease such action did not conform to defendant’s views. Held, that they should be construed in accordance with the natural meaning of the language used, rather than defendant’s actual intention as testified to subsequently, that they were calculated to influence the action of the judge in the suit and to obstruct the administration of justice, and constituted a “contempt” punishable by the court, under Judicial Code (Act, March 3, 1911, c. 231) § 268, 36 Stat 1163 (U. S. Oomp. St Supp. 1911, p. 237).</p> <p>[Ed. Note. — For other cases, see Contempt, Cent Dig. §§ 1-3, 5, 7, 8; Dec. Dig. § 2*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1489-1492: vol. 8, p. 7614.]</p>

<p>1. CORPORATIONS (§ 158*) — RlCHT TO NEW STOCK — DENIAL—NECESSITY OP TENDER.</p> <p>Where defendant corporation wrongfully refused to transfer stock on its books, the certificate for which, with a power of attorney to transfer, was held by complainant’s predecessor in title, and denied his right to subscribe for his share of a new stock issue on the ground that only registered stockholders had such right, an actual tender of the price for the new stock would have been useless and was not necessary to preserve complainant’s rights.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 449, 587-592; Dec. Dig. §158.*]</p> <p>2. Corporations (§ 158*) — Stockholders—Right to Subscribe por New Stock.</p> <p>A transferee of certificates of stock of a corporation, with power of attorney to transfer, presented .the same and demanded their transfer on the books. The corporation authorized a new stock issue to which all stockholders of record on a certain date were given a preference right to subscribe. Held, that such stockholder had the right to act on the assumption that his stock had been duly transferred, and to preserve his right to make the subscription was not required to offer to subscribe in the name of the prior holder, although through the wrongful act of the company the transfer had not been made.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 449, 587-592; Dec. Dig. §158.*]</p> <p>3. Corporations (§ 158*) — Right op Stockholders to Subscribe por New Issue — Enforcement in Equity.</p> <p>Where a corporation has authorized a new stock issue with a preferred right in each existing stockholder to subscribe for his proportionate share of the new stock, such right of a stockholder to retain his relative interest in the property and control of the corporation is a substantial right which he may enforce by a suit in equity, and cannot be compelled to resort to an action at law for damages.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 449, 587-592; Dec. Dig. § 158.*]</p>

<p>In the matter of the James Dunlap Carpet Company, bankrupt. Qn review of order of referee.</p>

In Equity. Bill by G. Searing Wilson against the American) Ice Company and others to compel defendant to declare a dividend on his preferred stock and for ancillary relief. On motion to dismiss the bill for insufficiency of fact appearing on the face thereof.

In Bankruptcy. In the matter of Joseph Dunfee, bankrupt. On motion to vacate an order -staying the plaintiff from entering judgment and further prosecuting an action in the Supreme Court of New York against the bankrupt.

<p>In Equity. Suit by the United States against Albert. S. Lavenson and Jane Doe Lavenson, his wife, and the Whatcom County Railway & Light Company.</p>

<p>1. Evidence (§ 548*) — Mf.dioai, Experts — Opinions on Statements Made to Them.</p> <p>The testimony of a physician as to statements made to him by plaintiff as 1o an accident in which it is claimed plainUff was injured, and as to feelings and sensations of plaintiff subsequent to the time of the accident ¡¡no prior to his examination >\v the doctor to qualify him to testify for plaintiff, and the doctor’s opinion, based as well on such statements as on his personal examination, is inadmissible.</p> <p>(Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2365; Dec. Dig. i 548*]</p> <p>2. Evidence (§ 548*) — Medioat, Experts — Opinions on Statements Made to Them.</p> <p>The symptoms of neurasthenia, whether it he traumatic or acquired, being the same, and no physician being able to classify a (tase of neurasthenia as traumatic unless he has a history of the case, from which he can say that an accident occurred, a physician, stating that he formed his opinion from the history of the case given him by plaintiff, may not give his opinion that plaintiff is suffering from traumatic neurasthenia.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2365; Dec. Dig. § 548.*]</p>

In Equity. • Suits by John I,. McKinney and the Fidelity Title & Trust Company against the Kansas Natural Gas Company and the Delaware Trust Company. On petition of the Attorney General of Kansas and the state receivers of the Kansas Natural Gas Company, praying for delivery of its property into their possession.

In the matter of bankruptcy proceedings of the Lane Lumber Company, bankrupt. On objections to a referee’s order allowing a claim for fees to the bankrupt’s attorneys.

<p>In the matter of M. C. Hasie, Jr., bankrupt. On certificate of referee in the matter of the claim of D. E. Waggoner.</p>

<p>1. Bankruptcy (§ 14*) — Courts—Jurisdiction.</p> <p>A summary order by a bankruptcy court of the district of Massachusetts directing the Bank of Commerce, located in the district of New Mexico, to pay over money to 'complainant, the bankrupt’s trustee in Massachusetts, was without efficacy in New Mexico, since the process of a bankruptcy court is restricted to the territorial limits of the district.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 14.*]</p> <p>2. Bankruptcy (§ 154*) — Recovery of Assets — Summary Proceedings.</p> <p>Where, in a jiroceeding against a bank to recover money alleged to belong to the bankrupt’s estate, it was alleged that the bank received the money prior to the adjudication and held it on a claim of set-off, in that the bankrupt had converted certain property of which the bank was the real owner, and that the bank was entitled to set off such claim against the bankrupt’s claim for the money, it sufficiently appeared that the bank’s claim was adverse, and could be determined only in a plenary suit.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 451-455; Dec. Dig. § 154.*]</p> <p>,3. Bankruptcy (§ 279*) — Bankrupt’s Assets — Recovery — Summary Proceedings — Plenary Suit.</p> <p>The bankruptcy court in the district of Massachusetts having entered a summary order against the Bank of Commerce in New Mexico, requiring the bank to pay over funds to the bankrupt’s trustee, a proceeding was instituted to enforce the order, in which an ordinary summons issued against the bank at law as a suit for money judgment. The complaint stated a cause of action for moneys of the bankrupt held by the ' bank passing to the trustee, though the prayer was for a summary order for payment, and it was further alleged that the bank was claiming a set-off for conversion of property by the bankrupt, ft eld, that the proceeding was not subject to a motion to dismiss or to quash the service, but would be regarded as a plenary suit, and amended, so as to comply with the requirements thereof.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p>

In the matter of bankruptcy proceedings of Starkweather & Albert, a copartnership composed of Herbert Starkweather and John Albert. Application to set aside an alleged voidable preference to the National Bank of Webb City, Mo. On review of a referee’s order in favor of the trustee.

<p>In the matter of the Tennessee River Coal Company, bankrupt. On petition of George M. Candler and others to review order of referee.</p>

Action by James P. Mitchell and others, constituting the Board of Trustees of the Town of Las Cruces, N. M., against the National Surety Company. On motion to set aside the service.

<p>1. Bankruptcy (§ 63*) — Corporations—Involuntary Pbooeeotngs — Acts op Bankruptcy — Receivers—Application by Officers and Directors.</p> <p>Where the officers and directors of a corporation, constituting a majority of the stockholders, and holding a large majority of the stock, filed a petition in the state court for the appointment of a receiver, and, though there was no appearance in writing by the corporation, the secretary and manager appeared before the chancellor at the time the appointment was made, and there was no showing that other stockholders made any objection, or that they intended to oppose ilxe proceeding, it would be construed to be the act of the corporation.</p> <p>¡Bd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 63.*]</p> <p>2. Bankruptcy (§ 81*) — Involuntary Petition — Construction.</p> <p>An allegation in an involuntary bankruptcy petition against a corporation, that it had made an assignment by filing a petition admitting its insolvency and inability to pay Us debts, and asking for the appointment of a receiver, was in effect an allegation that the corporation, being insolvent, applied for a receiver of its property, within the bankruptcy law (Act July 1, 1898, c. 541, 30 gtat. 544 [U. S. Comp. St. 1901, p. 3418]).</p> <p>¡Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, 125; Dec. Dig. § 81.*]</p> <p>S. Evidence (§ 380*)--Farol Evidence — Record.</p> <p>Where a petition for the appointment of a receiver of a corporation alleged that it was insolvent, and the court’s order appointing a receiver recited that “on consideration of the foregoing petition” the receiver was appointed, and he was required at once to notify all creditors, parol evidence was inadmissible to show that the receiver was not appointed on the ground of the corporation’s insolvency, but rather to conserve the assets of its estate, as such evidence tended to contradict, vary, and explain the record, though the order of appointment did not recite the ground on which the receiver was appointed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1678-1697; Dec. Dig. § 386.*]</p> <p>4. Bankruptcy (§ 20*) — Insolvent Corporation — Administration of Assets.</p> <p>Creditors of an insolvent corporation, for which a receiver had been appointed at the instance of its officers and directors on the ground of insolvency, are entitled to have the corporation’s assets administered in the bankruptcy court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.* |</p> <p>5. Bankruptcy (§ 91*) — Corporations—Insolvency.</p> <p>In involuntary bankruptcy proceedings against a corporation, evidence held to require a finding that the corporation was insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 137-139; Dec. Dig. § 91.*]</p>

<p>Bribery (§ 1*) — Indictment—Requisites.</p> <p>An indictment wMch alleges that tlie defendant was a special officer for the suppression of the liquor traffic amongst the Indians, that it was among his duties to make recommendations to the Commissioner of Indian Affairs as to applications for executive or judicial clemency on the part of those convicted of selling liquors to Indians, that it was the custom for the courts in passing sentence upon persons convicted in such courts to confer with the United States attorney and with the Commissioner of Indian Affairs, that certain individuals had pleaded guilty to selling liquors to Indians and had been sentenced to fine and imprisonment, that the court had announced that he would not reduce the sentence without a recommendation from the Commissioner of Indian Affairs, and that the defendant accepted a bribe from the attorney of the person so sentenced to induce him to recommend to the Commissioner that the sentence be reduced, does not charge an offense, since there is no law conferring upon the Interior Department or the Bureau of Indian Affairs any duties regarding recommendations to executive or judicial departments concerning clemency toward persons convicted of a crime, and a rule or departmental regulation or an established custom cannot take the place of an act of Congress in declaring an offense.</p> <p>[Ed. Note. — ■-Eor other cases, see Bribery, Cent. Dig. §§ 2, 3; Dec. Dig. § 1.*]</p>

Submitted on petitions of John W. Remmerde, bankrupt, and his wife, for review of an order of the Referee setting apart to the bankrupt a homestead, but subjecting the same to the payment of certain of his debts.

Submitted on petition of Johanna Remmerde, wife of the bankrupt, for review of an order of the Referee reducing the amount of her claim against the bankrupt estate; and the petition of the trustee and certain creditors of the bankrupt for review of the order allowing said claim in any amount.

<p>In the matter of Arthur F. Falkenberg and Sam S. Bacharach, partners doing business as The Emporium. On application by receiver in bankruptcy for the allowance of receiver’s and attorney’s fees on final report.</p>

<p>Master and Servant (§ 17*) — Hours of Service Act — CONSTRUCTION.</p> <p>A fireman on á locomotive engaged in hauling trains on an interstati railroad is an employs “actually engaged in or connected with the movement of” such trains, and within the provisions of Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. Supp. 1911, p 1321), and to require him to remain on duty for a longer period than 16 consecutive hours is a violation of the statute, although such duty for a part of the time has no connection with the running of trains, and regardless of whether such other work precedes or follows his service as fireman.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16: Dec: Dig. § 17.*]</p>

At Law. Action by Lavina B. Evans, administratrix, against the Sioux City Service Company and others. On motion of the plaintiff to remand the cause to the state court.

<p>In the matter of the Waters-Colver Company, bankrupt. On report of commissioner on petition of the Badenhausen Company.</p>

<p>Rait,roads (§ 230*) — Regulations -IIoi-rs of Service Act-Watchman of Engine — Movement of Train — “Employes.”</p> <p>Within Act March 4, 1907, c. 2099, 94 Stat. 1415 (IT. S. Comp. St. Supp. 1911, p. 1921), regulating the hours of service of employes of railroads in interstate commerce, “employf's” being defined as “persons actually engaged in or connected with the movement of any train,” a locomotive fireman, while acting as watchman of his engine when it and its train is being drawn by another locomotive, his duties at such time being to keep up a certain amount of fire and see that the water does not run too low and that a certain amount of steam pressure is preserved, is actually engaged in connection with the movement of the train, so that time so consumed by him is within his hours of service.</p> <p>LEd. Note. — For other cases, see Railroads, Cent. Dig. § 744; Dec. Dig. § 290.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2369-2377; vol. 8, p. 7649.J</p>

In the matter of' George B. Hall and another, bankrupts. Claim of the Lumbermen’s Cement & Brick Company, presumably a corporation. An order was entered by the referee rejecting the claim, and the claimant petitions for a review.

<p>1. Aliens (§ 69*) — Naturalization—Certificate of Arrival.</p> <p>Under Act June 29, 1906, c. 3592, § 1, 34 Stat. 596 (U. S. Comp. St. -Supp. 1911, p. 124), providing that it shall be the duty of the Bureau of Immigration and Naturalization to provide for use at the various immigration stations throughout the United States books of record, wherein the commissioners of immigration shall cause a registry to be made, in the case of each alien arriving in the United States, of his name, age, etc., date of arrival, and, if entered through a port, the name of the vessel in which he comes, and that it shall be the duty of such commissioners to cause to be granted to such alien a certificate of such registry, with the particulars thereof, and section 4, providing that, at the time of filing the petition for admission to citizenship, there shall be, filed' with the clerk of the court a certificate from the Department of Commerce and Labor, stating the date, place, and manner of the petitioner’s arrival in the United States, where an alien deserted a ship on which he. was employed at New York harbor, and entered the country without inspection, a certificate offered by him on an application for naturalization, which was not based upon his registry at the time of entry, but on information acquired at a hearing subsequent thereto at an immigration station at another port, and which was granted solely for the purpose of allowing him to file a petition, in order that the court might determine whether the certificate of arrival required by section 4 must be made up from the registration described in section 1, could not be accepted as complying with section 4, and before the applicant could be admitted to citizenship he must conform to the requirements of the law, and'be properly inspected and manifested by the proper immigration officers.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 227; Dee. Dig. § 69.*]</p> <p>2. Aliens (§ 68*) — Naturalization—Proceedings.</p> <p>Citizenship is a privilege, and the laws prescribing the procedure necessary to perfect this status should be strictly followed.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. 5 68.*]</p>

<p>Removal oe Causes (§ 17*) — Action Under Employer’s Liability Act— Waiver-of Objection.</p> <p>The provision of Employer’s Liability Act April 22, 1908, c. 149, § 6, 35 Stat. 66, As amended by Act April 5, 1910, c. 143; § 1, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324), that an action brought thereunder in a state court of competent jurisdiction shall not be removed, confers a personal privilege on the plaintiff which he may waive, and does waive, where he fails to object to a removal when made and thereafter invokes the affirmative action of the federal court.</p> <p>[Ed. Note. — -Eor other cases, see Removal of Causes, Cent. Dig. § 10; Dec. Dig. § Í7.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of josiah Hale.</p>

<p>Petition in bankruptcy by William Rhoades Perkins against Harry Howard Dorman. On motion to dismiss the petition.</p>

<p>In Admiralty. Suit by Alfred G. Trudell against the steam tug Ashbourne; the Philadelphia & Reading Railway Company claimant.</p>

<p>Costs (§ 128*) — Suits in Forma Pauperis — Interest ok Attorney.</p> <p>Plaintiff cannot take advantage of Act June 20, 1892, c. 209, 27 Stat. 252 (17. S. Comp. St. 1901, p. 706), permitting the prosecution of suits in forma pauperis, without prepayment of or the giving of security for costs, upon the making of affidavit of inability to do so because of poverty, where her attorneys are prosecuting the case on a contingent fee basis and are admittedly able to give security for the costs.</p> <p>[Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 497, 499, 503, 511; Dec. Dig. § 128.*]</p>

<p>In Admiralty. Suit by the Merritt & Chapman Derrick & Wrecking Company against the schooner Daylight. On petition of claimant to bring in new party.</p>

Bill by Will T. Barker and others against Edwin G. Eastman, trustee, and others. From a decree dismissing the bill (192 .Fed. 659), the complainants appeal.

In Error lo the District Court of the United States for the District of New Hampshire. Action by Hannah Bethune against the Central Vermont Railway Company. Judgment for plaintiff, and defendant brings error.

In the matter of Andrew J. Shea, bankrupt. On appeal and petition to revise by the bankrupt and his wife, Abbie A. Shea, to review orders requiring them each to turn over property. Appellant and petitioner Andrew J. Shea became the owner of a federal homestead consisting of 130.05 acres of land in St. Louis county, Minn., under patent issued by the United States August 17, 1908. Prior thereto he had been engaged in litigation over this tract with one Walter Douglas.

Petition by the B-R Electric & Telephone Manufacturing Company and ’another to vacate an order adjudicating the Southwestern Engineering Company bankrupt, on the petition of the ¿Etna Eife Insurance Company. To review an order denying the petition, the petitioners appeal, and also petition to revise.

■ In Error .to the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge. Action by. A. Y. Jameson against the United States Farm Land Company. Judgment for defendant, and plaintiff brings error.

Campbell, Judge. Suit by Wellman & Rhoades, a partnership composed of C. E. Well-man and E. S. Rhoades, against W. E. Thomason and others. From a decree for complainants, defendants appeal.

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty for collision by Carl Franck and others and by the Empire Lighterage & Wrecking Company, owners of the_ lighter Eagle and her cargo, against the steamship Prinz Eitel Friedrich; Hamburg-American Line, claimant. Decrees for libelants, and claimant appeals. On appeal from decree of the District Court for the Southern District of New Xork.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Margarete Steiff, a German corporation, against John Bing. From an order granting a preliminary injunction, defendant appeals.</p> <p>Following is the opinion of Ward, Circuit Judge, in the District Court:</p> <p>[1] The description of the defendant in the bill is singular, viz.: “A citizen of the United States and a resident and inhabitant of the borough of Manhattan, city, county, and state of New York.” It has been held not enough to describe a party as a citizen of the United States; the proper course being to say of what state he is a citizen. Picquet v. Swan, 5 Mason, 35, Fed. Cas. No. 11,134; M[ilson v. City Bank, 3 Sumn. 422, Fed. Cas. No. 17,797; Merserole y. Paper Collar Co.', 6 Blatchf. 356, Fed. Cas. No. 9,488. The fourteenth amendment to the Constitution provides: “See. 1. All persons born or naturalized -in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Argumentatively, therefore, the statement that the defendant is a citizen of the United States is a statement that he was either born or naturalized in the United States, and, as he resides in the state of New York, that he is a citizen of that state. If he is not a citizen of some state, the court is without jurisdiction.</p> <p>[2] The bill charges that the defendant shows jobbers who are intending customers toy animals made by the complainant as samples of what his German principals manufacture. It is shown that certain of the complainant’s toys are copied by the defendant’s principals most accurately and in special features which are unnecessary, such as, for example, the peculiar pattern of the wheels, the inaccurate position of the elephant’s tusks, and the peculiar marking and attitude of the complainant's horse. Why does the defendant use the complainant’s toys as samples to sell from, and not the Bing toys, and why do his principals manufacture toys in accurate imitation of the complainant’s? The natural explanation is, in order to at least let the. public buy the Bing toys under the impression that they are the complainant’s. We have gone very far in this circuit in the way of enjoining unnecessary imitation of features which are nonfunctional. See Rushmore v. Manhattan Works, 1.03 Fed. 930, 90 C. O. A. 299, .1,9 L. R. A. (N. S.) 269; Rushmore v. Badger Oo., 198 Fed. 379, 1.17 O. O. A. 255.</p> <p>The complainant may have a very narrow injunction pendente lite.</p>

Suit in admiralty for collision by the West Shore Railroad Company, owner of the ferryboat Newburgh, against the steam tug William E. Gladwish, Elmer A. Keeler, claimant, with cross-libel. Decree for libelant, and claimant appeals.

Suit in equity by Emanuel David and Samuel Weinschenk, copart- ’ ners under the firm name and style of Hy-Do Knitting Company, against Morris Harris. Decree for defendant, and complainants appeal. On appeal from a decree of the District Court for the Southern District of New York dismissing the bill which was based on letters patent No. 925,146 granted June 15, 1909, for improvements in sweaters.

<p>Patents (§ 200*) — Infringement—What Constitutes.</p> <p>The fact that a town adopted plans for bridges which embodied a construction covered by patents, and advertised and accepted bids thereon, does not render either the town or bidder liable for infringement, where, on learning of the patentee’s claim, the plans were changed, and the patented construction was not used.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 359; Dec. Dig. § 260.*]</p>

<p>Bankruptcy (§ 363*) — Dividends—Declaration—Claims Proved After Declaration.</p> <p>Though Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3444), providing that claims shall not be proved against an estate subsequent to a year after the adjudication, by implication allows proof of a claim within a year, yet section 65b, as amended by Act Feb. 5,1903, e. 487, § 15, 32 Stat. 800 (U. S. Comp St. Supp. 1911, p. 1508), providing, in case of a certain state of the funds, for declaration of the first dividend within 30 days after the adjudication, and for 'subsequent declarations of dividends, “provided that the final dividend shall not be declared within three months after the first dividend shall be declared,” by implication allows the final dividend to be declared at any time after four months from the adjudication, with the effect that one thereafter, though within the year, proving his claim, is barred from participation in the distribution; section 65c providing that the rights of creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by proof and allowance of claims subsequent to such payment or declaration.</p> <p>[Ed Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 550-554; Dee. Dig. § 363.*]</p>

<p>1. Fraudulent Conveyances (§ 104*) — Elements of Fraud as to Creditors —Intent.</p> <p>The voluntary transfer of any interest in property by a husband to his wife when he is actually insolvent is fraudulent and void as to his creditors under the law of Massachusetts, although not made with intent to escape the payment of any particular debt or debts.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 337-344; Dec. Dig. § 104.*]</p> <p>2. Bankruptcy í§ 303*) — Action by Trustee to Recover Property prom; Bankrupt’s Wife — Burden of Proof.</p> <p>Where a general course of business was shown on the part oí a. bankrupt, who was a builder, extending over several years and while he was insolvent, to build upon property acquired in the name of his wife and then sell the same, the proceeds being reinvested in the same manner, the burden rests upon the wife, in a suit by his trustee to recover property so standing in her name at the time of the bankruptcy, and in the improvement of which some of his indebtedness scheduled was incurred, to show how much, if any, interest in the property belonged to her.</p> <p>[Ed. Note. — Bor other cases, see Bankruptcy, Cent. Dig. §§ 458-162; Dec. Dig. § .‘103.*]</p> <p>S. Bankruptcy (§ 303*) — Action by Trustee to Recover Property — Voidable Transfer.</p> <p>Evidence considered, in a suit by a trustee in bankruptcy to recover property, and held to show that a brother of the bankrupt’s wife, who purchased the property, then standing in her name, a few days prior to the filing of the voluntary petition in bankruptcy, was chargeable with notice that the conveyance' was made in contemplation of, bankruptcy, and for the purpose of placing the property beyond the reach of the bankrupt’s creditors.</p> <p>[Ed Note. — -For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. § 303.*]</p>

In Admiralty. Suit for collisiqn by Gerhard Johannsen, master of the steamship Wegadesk, against the steam tug Curtis Bay (the Curtis Bay Towing Company, claimant) and the schooner Edward B. Wins-low (Henry W. Butler, master, claimant), with cross-libels.

<p>In Equity. Bill for an injunction by the New England Telegraph Company of Massachusetts against the Town of Essex. Heard on pleadings and proofs.</p>

In Bankruptcy. In the matter of Richards Bros., bankrupts. Application by bankrupts for allowance of exemptions, to which the receiver filed objections.

<p>In Equity. Action by Moritz Schwarz and others, doing business as Benjamin Schwarz & Sons against Joseph Harris, as administrator de bonis non of tlie estate of John Kennedy, deceased.</p>

At Law. Action by the Kendrick State Bank against the First National Bank of Portland, Prior to June, 1910, the Kendrick State Bank of Jdalio had been a correspondent of the defendant, the First National Bank of Portland, Or. J. VV. Bradbury, who was the president of the former bank, was the owner of the capital stock thereof to the amount of 828,000 out of an entire capitalization of 8*25,000.

In the matter of Romadka Bros. Company, bankrupt. On review of order of referee rejecting the claim of the executors of Charles P. Romadka, deceased. Held: and was there received on the day of holding such meeting, to wit, March 17, 1909; that at or about the same time, possibly later, the note in question in this matter, and which bears date on March 17, 1909, was executed. The referee disallowed the claim, and claimants seek review of his action.

In Equity. Suit by the Borden’s Condensed Milk Company against • the Horlibk’s Malted Milk Company and others. On final hearing. The bill charges unfair trade practices, and prays for an injunction. The complainant is a New Jersey corporation, for many years engaged in the manufacture of condensed, evaporated, and malted milks.

<p>In Equity. Suit for injunction by the Seattle Electric Company against the City of Seattle and others.</p>

In the matter of Barney Silverman, bankrupt. Review of order of referee directing the bankrupt to turn over to his trustee goods, wares, and merchandise of the value of $2,100, or in case he has secretly disposed thereof, then the proceeds to that amount.

<p>1. Pleading (§ 214*) — Demurrer—Admissions by Demubeer.</p> <p>In an action by the United States to recover dividends on corporate stock owned by it, a demurrer by the United States to a plea setting up the statute of limitations operates as an admission that the government owned the stock and was entitled to the dividends at the time mentioned in the bill of particulars made part of the declaration.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]</p> <p>2. Limitation of Actions (§ 11*) — Actions by United States — State Statute.</p> <p>In the absence of a federal statute limiting the time for the bringing of a suit by the United States in its sovereign capacity for the recovery of mbney to be paid into the national treasury, no state statute of limitations cari bar the remedy.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. § 11.*]</p> <p>3. United States (§ 141*) — Actions—Presumption.</p> <p>In an action by the United States to recover dividends on corporate stock owned by it, it will be presumed, in the absence of allegations to the contrary, that the money to be recovered will be paid into the national treasury as public money.</p> <p>[Ed. Note.. — For other cases, see United States, Cent. Dig. §§ 136-139; Dec. Dig. § 141.*]</p> <p>4. Limitation of Actions (§ 11*) — Action by United States.</p> <p>An action of assumpsit, brought by the United States to recover dividends on corporate stock owned by it to be paid into the national treas-•Dry, is a suit in its sovereign capacity, which, is not barred by a state statute ot limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-89; Dec. Dig. § 11.*]</p> <p>5. LIMITATION OF ACTIONS (§ 31*). — ACTION BY UNITED STATES.</p> <p>The rule that the United States, when it becomes a stockholder in a corporation, does not thereby impart to the corporation its rights and privileges as a sovereign, and that it has only the rights of a stockholder with respect to the corporate transaction and affairs, does not prevent the application of the rule that a state statute of limitations will not bar an action by the government in its sovereign capacity to recover dividends on corporate stock owned by the government.</p> <p>[Ed. Note.- — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dee. Dig. § 11.*]</p> <p>6. Limitation of Actions (§§ 165, 175*) — Nature of Statutory Limitations.</p> <p>A statute of limitations bars the remedy, but does not affect the right, and it may be waived.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 619, 662; Dec. Dig. §§ 105, 175.*]</p> <p>7. Limitation of Actions (§ 14*) — Actions by United States — Agreement as to Time.</p> <p>There is an essential distinction between a pure statute of limitations, on the one hand, and, on the other, time stipulations entering into and forming part of a contract on which the United States as one of the contracting parties brings suit; or a time limitation for an appeal, or the filing of pleadings, or the taking of other steps necessary to the due and orderly prosecution of legal or equitable remedies; or a requirement of notice to be given within a certain time as a condition precedent to the fixing of the liability of a party; in all of which latter cases the United .States will be bound by a lime limitation as would a private individual.</p> <p>[Ed. Note.- — For other cases, see Limitation of Actions, Cent. Dig. §§ 59-61; Dec. Dig. § 14.*]</p>

In Equity. Suit by Alice R. Thayer against the City of; Boston and others. On motion for preliminary injunction and hearing on the merits.

In Admiralty. Suit by Barney Zywicki, by his mother and next friend, against the Jos. R. Foard Company, of Baltimore City, the General Stevedoring Company, and the Mayor and City Council of Baltimore. On exceptions by the city to the libel.

<p>At Law. Action by the K. H. Stanton Company and another against the Rochester German Underwriters’ Agency. On trial to the court without a jury.</p>

<p>At Law. Action by Ida McKernan and others against the North River Insurance Company.</p>

<p>Action for penalties by the United States of America against the Spokane & Inland Empire Railroad Company. On motion of defendant for judgment notwithstanding the verdict.</p>

<p>In the matter of Harry Rose, bankrupt. On intervention of Rice & Hutchins. Heard on certificate of the referee.</p>

f' In Equity. Sill by the J. Elwcfod Lee Company against the Grace Hospital. On motion to dismiss, and plea in abatement of receivers’ petition, filed Septembéf 3, 1912, against executors of will of Annie Preston Lincoln and others.

<p>1. Seamen (§ 27*) — Lien fob Wages — “Canal Boat” — Construction of Statute. ... • , .</p> <p>' Rev.' St. 4251 (U. S. Comp. St. 1901, p. 2929), which provides that “no canal boat without masts or steam power, which is required to be registered-or licensed, or enrolled and licensed,” shall be subject to a maritime lien for wages,,applies to any boat without masts or steam power, which-, is- used as. -a,.canaL boat on canals and rivers, and required to be registered; whether 'architecturally a “cánal boat” or a scow.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 4, 141, 157-169; Dee. Dig. § 27;* = ...</p> <p>For other- definitions, see Words and Phrases, vol. 1, p. 948.1</p> <p>2.- Seamen (§ 27*)^-Lien fob Wages- — “Master.”</p> <p>' A captain of a scow, having no seamen under him, and who does the work o,f a deckhand, and does not have the right to control the ves-' sells movements-or employment, and- collects freight only by special di-' rection ofrthé'owner, is not h “master,” and as a general proposition is-entitled -to á Hen -for.wages.</p> <p>. , [Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 4, 141,-157-169;. -Dec. Dig. §...27.* . .</p> <p>For other definitions, see Words and Phrases, yol. 5, pp. 4403, 4404.]</p>

Action by the United States against the Spokane Mill Company, a corporation. On motion of the United States for reinstatement of the action, which had been dismissed for want of prosecution.

<p>Trade-Marks and Trade-Names (§ 95*) — Infringement and Unfair Competition — Preliminary Injunction.</p> <p>A preliminary injunction, before the answer is filed and the issues made up, in a suit for infringement of a trade-name and unfair competition, should not be granted, complainant’s rights not being free from doubt, and there being a sharp contention on all the points presented, especially in view of the new equity rules, enabling parties to obtain a speedy hearing.</p> <p>[Ed. Note. — Ifor other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

<p>At Law. Action by Gail Hamilton Reynolds, by his guardian ad litem, Robert Fairley, against the Great Northern Railway Company. On motion to modify judgment.</p>

<p>Aliens (§ 68*) — Naturalization—Certificate of Entry.</p> <p>It is not ground for refusing naturalization to an alien, otherwise qualified, that the certificate of his entry into the .United States, duly-made .by the Department of Commerce and Labor, and filed with his petition as required by Naturalization Act June 29, 1906, c. 3592, § 4 (2), 34 Stat. -596 (U., S. Comp. St. Supp. 1911, p. 529), was not based on the record of Ms'entry, but on information otherwise obtained by the department; it appearing that through oversight of the inspector he was not registered.</p> <p>[Ed, Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. | 68.*]</p>

<p>Removal or Causes (§ 75*) — Jurisdiction of Eedebal Court — Amount in Controversy.</p> <p>Where, in an attachment suit begun in a state court, the defendant has not been served nor entered a general appearance, but appeared specially and filed a petition for removal, the amount in controversy, for the purpose of determining the jurisdiction of the federal court on a motion to remand, is limited to the indebtedness claimed in the affidavit for attachment, which is the full amount for which the court could render judgment, in the absence of personal jurisdiction over the defendant.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 132; Dec. Dig. § 75.*]</p>