Volume 207 — Federal Reporter

Suit in equity by the Western Union Telegraph Company against the Eouisville & Nashville Railroad Company.. From an order granting a temporary injunction defendant appeals. This is an appeal under section 129 of the Judicial Code (Act March 3, 1911, c. 231, 36 >Stat. 1134 [IT. S. Comp. St. Supp. 19.11, p. 1941) from an order refusing to dissolve an injunction.

Pollock, Judge. Petition of Charles A. Stevens, alias Charles Savage, for a writ of habeas corpus, to Robert W. McClaughry, Warden of the United Slates Penitentiary, at Peavenworth, Kan. Prom an order denying the petition, petitioner appeals.

Sanford, Judge. Action at law by the Pullman Company against Peter M. Tamble, trustee of Davidson County, Tenn. Judgment for plaintiff, and defendant brings error. Until the arising of the present controversy, the Pullman Company (hereafter called the “Company”) had not been taxed on its cars by the state of Tennessee, or by any municipality in the state, but there had been levied against it only an annual, general, specific tax, imposed by, and paid to, the state.

<p>1. Replevin (§ 9*)—Possession of Plaintiff.</p> <p>Plaintiff being in the lawful possession of land and of trees standing thereon, the unlawful severance of the trees by defendant did not deprive plaintiff of possession of the logs made therefrom; but. when defendant removed them from the land it took them from his possession, as regards his right to maintain replevin therefor.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 69-82; Dec. Dig. § 9.*]</p> <p>2. Replevin (§ 8*)—Title—Timbee on Homestead—Rights Acquired Against Trespassers.</p> <p>Plaintiff, who had entered on land of the United States for the purpose of acquiring it under the homestead laws, as he had a right, and who had continuously occupied it as such homestead for nine years, when ■defendant, without right, cut down trees thereon, then had sufficient interest in the logs to enable him to maintain replevin then brought for ■the logs, and this though the land was unsurveyed, and though he had made no entry in the land office.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 45-08; Dee. Dig. § 8.*]</p> <p>3. Replevin (§ 8*) — Occupancy of Public Land — Rights Acquired by Plaintiff—Loss of Rights.</p> <p>Plaintiff’s right of action—complete when, after he had entered on land ■of the United States for the purpose of acquiring it under the homestead laws, as he had a right, and had continuously occupied it as such homestead for nine years, defendant, without right, cut down trees thereon—was not defeated by his subsequently acquiring title to the land from the government by the use of scrip, he, when applying to enter the land with scrip, not having abandoned it, but still insisting on his homestead right; the government, under these circumstances, having no right of action for the logs or their value.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 45-68; Dec. Dig. § 8.*]</p> <p>4. Replevin (§ 108*)—Damages—Willful Trespass.</p> <p>Whether or not defendant was a willful trespasser, as regards the damages which plaintiff is entitled to recover, where, defendant having cut down trees on plaintiff’s land, plaintiff brought replevin for the logs, and defendant gave a bond and converted the logs, must be determined by what it knew, or ought to have known, at the time of the cutting, •and what it thereafter learned, though before the conversion, is immaterial. Carland, Circuit Judge, dissenting.</p> <p>[Ed. Note.—For other cases, see Replevin, Cent. Dig. § 422; Dec. Dig. § 108.*]</p> <p>5. Trespass (§ 45*)—Damages—Willful Trespass.</p> <p>Though the fact that defendant, in cutting down, without right, trees ■on plaintiff’s land, acted on advice of counsel is not conclusive on the question of willful trespass, as regards the measure of damages, it is ■competent evidence of good faith.</p> <p>[Ed. Note.—For other cases, see Trespass, Cent. Dig. §§ 116-122; Dee. Dig. § 45.*]</p> <p>6. Jury (§ 34*)—Trial by Jury—Infringement of Right—Directing Verdict.</p> <p>Where, had plaintiff, before the jury retired, waived all damages above a certain amount, the court could have ordered verdict therefor, it could do so after the Jury having retired and. failed to agree, plaintiff the* made such waiver; this not being a re-examination of a fact tried by a Jury, in violation of Const. TJ. S. Amend. 7. And this is so although onfi Juror refused his consent to the verdict ordered»</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. § 220; Dec. Dig. § 37.*],</p>

<p>Shipping (§ 132*)—Damage to Cargo—Liability op Vessel—Evidence Considered.</p> <p>Evidence considered in a suit to recover for damage to a cargo of Brazil nuts by beating or burning on a voyage from Para, to New York, and held insufficient to establish negligence on the part of the vessel in stowage or ventilation, or in failing to shovel the nuts over during the voyage in the usual imumer; it further appearing that they were subjected to worse conditions when being brought down the Amazon in river steamers and that the injury might have been sustained during that time.</p> <p>[Ed. Note.—Eor other eases, see Shipping, Cent. Dig. §§ 471-187; Dec. Dig. § 132.*</p> <p>Liabilities of vessel owners for loss or injury from improper stowage, see note to The Gualala, 102 C. C. A. 553.]</p>

<p>1. Appeal and Error (§ 673*)—Record—Matters to be Included.</p> <p>Whore, on plaintiff’s appeal from a judgment dismissing his bill, it appeared that bis only rigid s against defendant were under a contract, the provisions of which did not appear in the record, the judgment must be affirmed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. 8 2873: Dec. Dig. § 673.*]</p> <p>2. Appeal and Error (§ 909*)—Presumptions in Support oe Judgment.</p> <p>Where, on an appeal by plaintiff, it appeared that, subsequent to the contract relied on by him, he failed to comply therewith and suit was brought against him, which was compromised by the giving of a new contract, it might be inferred, in the absence of any evidence as to the terms of the new contract, that it superseded the first contract.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 367G; Dec. Dig. § 909.*]</p>

Suit in admiralty for collision by Owen J. McWilliams against the Delaware, Dackawanna & Western Railroad Company. Decree for respondent, and libelant appeals.

<p>Appeal from the District Court of the United States for the South- , ern District of New York.</p> <p>In Admiralty. Suit by the American-Hawaiian Steamship Company against the Steamship Rewis Ruckenbach, Edgar E. Euckenbaeh, claimant. Decree for respondent, and libelant appeals.</p>

Chatfield, Judge. Suit in admiralty by the John W. Sullivan Company against • the steam tug Thomas W. Rogers; John C. Rogers, claimant. Decree for libelant, and claimant appeals. On appeal from a decree of the District Court for the Eastern District of New York in favor of the libelant for $913.31 for repair^ furnished the steam tug Thomas W. Rogers, owned by the claimant John C. Rogers.

<p>Appeal from the District Court of the United States for the Southern District of Flew York.</p> <p>Suit ill admiralty by the Tweedie Trading Company against the Clan Line Steamers, Limited. Decree for respondent, and libelant appeals.</p>

<p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, in favor of libelant for an amount due for repairs .made to claimant’s vessel, the Kennebec. There is no question as to these repairs; the only question raised upon this appeal being whether the claimant is entitled by way of counterclaim to damages for alleged “conversion” of the steamer Felix Carbray.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel brought to recover damages sustained by the libelant’s barge while lying at Pier 12, Brooklyn. It was contended that while lying there she was in collision with a car„float’of the dock company in tow of its chartered tug Timmins.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Equitable Trust Company of New York, as trustee, etc.., against James Pollitz. Complainant appeals from an order denying a motion for preliminary injunction.</p> <p>Appeal from an order of the District Court, Southern District of New York, denying a motion for a preliminary injunction to restrain the defendant from taking certain proceedings in an action pending in the Supreme Court of the state of New York.</p>

<p>This cause comes here upon appeal from a decree of the District Court, Northern District of New York dismissing a bill in equity. The bill was brought under section 4915, U. S. Rev. Stat. (U. S. Comp, St. 1901, p. 3392), which provides that whenever a patent on application is refused either by the Commissioner of Patents or by the Court of Appeals of District of Columbia, upon appeal from the Commissioner, the applicant may have remedy by bill in equity, and that in such suit the court mav adjudge that such applicant is entitled to receive a patent for his invention.</p> <p>The opinion of Judge Ray in the District Court will be found in 199 Fed. 907; that of the Court of Appeals of the District of Columbia in De Kando v. Armstrong, 169 O. G. 1185.</p>

<p>This cause comes here upon a writ of error to review a judgment of the District Court, Southern District of New York, entered upon a verdict in favor of defendant in error, who was plaintiff below. The action is one at law for the infrE "ment of United States Letters Patent No. 974,789 for an ozonizer, issued to plaintiff November 8, 1910. Upon a motion for a new trial the District Judge wrote an exhaustive opinion ([D. C.] 200 Fed. 960), which may be referred to as sufficiently setting forth the details of the patented structure.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Samuel B. Archer and others against the Imperial Machine Company. Decree for defendant, and complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Rajah Auto Supply Company against Emil ' Grossman. From an order denying a motion to punish defendant for contempt, complainant appeals.</p>

<p>1. Patents (§ 81*)—Pbiob Use—Evidence to Establish.</p> <p>Oral testimony of a prior use is always open to suspicion and cannot prevail over the legal presumption of validity which accompanies a patent unless it is sufficient to establish such a use beyond a reasonable doubt.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 101; Dec. Dig. § 81.*]</p> <p>2. Patents (§ 168*)—Validity—Cancellation of Claims in Patent Office.</p> <p>The cancellation of a claim in an application for a patent which is substantially identical with a remaining claim does not affect the validity of the latter.</p> <p>¡Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 2481£, 244; Dec. Dig. § 168.*]</p> <p>3. Patents (§ 167*)—Anticipation—Pbiob Patents.</p> <p>That a drawing of a patent, through an error of the draftsman, shows a construction evidently not contemplated nor claimed by the inventor does not give the patent effect as an anticipation of a subsequent patent in that particular.</p> <p>[Eel. Note.—For other cases, see Patents, Cent. Dig. § 248; Dec. Dig. § 167.*]</p> <p>4. Patents (§ 62*)—Anticipation—Measube of Pboof.</p> <p>Anticipation must be proved by evidence so cogent as to leave no reasonable doubt in the mind of the court.</p> <p>I Ed. Note.—For other cases, see Patents, Cent. Dig. § 78; Dec. Dig. 1 62.*]</p> <p>5. Patents (§ 66*)—Anticipation—Acquiescence in Action of Patent Office.</p> <p>That an applicant for a patent acquiesced in the suggestion of the Patent Office that a feature of his device was shown in a prior patent does not estop him from denying thfe pertinency of the prior patent as an anticipation in other particulars.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 66.*]</p> <p>6. Patents (§ 26*)—Anticipation—Patent fob Combination.</p> <p>A patent for a combination is not anticipated nor invalid for lack of invention because an expert may be able to build up the patented device by selecting parts taken from the prior art.</p> <p>[Ed. Note.-—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p> <p>7. Patents (§ 35*)—Intention—Evidence.</p> <p>While great utility and extensive use will not alone sustain a patent, they constitute persuasive evidence of invention where the question is in doubt.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 39; Dec. Dig. § 35.*]</p> <p>8. Patents (§ 157*)—Construction—Bules Governing.</p> <p>That interpretation which sustains a patent should be preferred to that which defeats the grant.</p> <p>I Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 229-282; Dec. Dig. § 157.*]</p> <p>9. Patents (§ 328*)—Validity and Infringement—Eyeglasses.</p> <p>The Borsch patent No. 637,444 for bifocal eyeglasses in which the lens is made of two pieces of glass of different indices of refraction, the smaller being mounted in a recess of the larger and exposed on one face thereof, and the Borsch, Jr., patent No. 876,933 for similar eyeglasses with the added improvement that the two parts of the lens are united by1 fusing, were neither of them anticipated and both disclose patentable invention. The devices also held capable of conjoint use and both patents infringed.</p>

<p>.1. Patents (§ 165*)—Construction of Claims.</p> <p>Where a limitation expressly stated in some of the claims of a patent is omilted from others, it cannot be read into them to avoid a charge of infringement.</p> <p>LEd. Note.—For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>2. Patents (§ 165*)—-Construction of Claims — Statement of Preferred Method of Construction.</p> <p>It is proper for an applicant for a patent to point out in his specification the preferred method of operation of his machine, but, in the absence of any expression in his claims making such details elements therein, they are not limited thereby.</p> <p>I Ed. Note.—For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>3. Patents (§ 129*)—Suit for Infringement—Estoppel.</p> <p>Where a corporation alleged to infringe a patent was organized by the patentee and his family after he assigned tlie patent, and he has since been its president and active manager, it is bound by Ms estoppel and cannot deny the validity of the patent but may show the prior art to define and limit the claims.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 182%-186; Dee. Dig. § 129.*]</p> <p>4. Patents (§ 328*)—-Validity and Infringement—Cheery Stoner.</p> <p>The Rollman patent No. 686,139 for a cherry stoner held not anticipated, valid and infringed.</p> <p>5. Patents (§ 222*)—Suit for Infringement—Recovery of Profits—Failure to [Mark Article.</p> <p>The failure of the owner of a patent to mark the patented article as required by Rev. St. § 4000 (U. S. Comp. St. 1901, p. 3388), does not deprive him in a proper case of the right to an accounting for profits made by an infringer.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 352; Dec. Dig. § 222.*]</p>

<p>Patents (§ 328*) Validity and Infringement—Atjtomohile Tool.</p> <p>The Bryant patent No. 1,008,694 for a spring contracting and removing device for use as an automobile tool, claims 2 and 3 held valid, and infringed and claims 1, 4, and 7 valid but not infringed.</p>

<p>Patents (§ 310*)—Suit fob Inttbtngement—Pleading.</p> <p>Allegations in a bill for infringement of a patent respecting compliance by the patentee with the statutory prerequisites to entitle him to the patent held sufficiently specific under new equity rule 25 (19S Fed. xxv, 115 O. C. A. xxv), which requires “a short and simple statement of the ultimate facts,” but an allegation merely that defendant infringed by making and offering for sale the patented article is insufficient as consistent with a rightful use.</p> <p>[Kd. Note.—For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. § 310.*]</p>

<p>In Equity. Suit by Louis Steinberger against the General Electric Company. On motion by defendant for stay.</p> <p>Motion for suspension of further proceedings herein until the hearing and determination of a suit now pending in the Eastern District of New York, brought under the provisions of section 4915 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3392) and the Acts of February 9, 1893, c. 74, § 9, 27 Stat. 436 (U. S. Comp. St. 1901, p. 3391), to have it decreed that one Hewlett was and is the first inventor of the subject-matter of the claims of the patent granted to Steinberger, and that the General Electric Company, as assignee of the invention, is entitled to receive a patent therefor, and directing the Commissioner of Patents to issue a patent to the General Electric Company accordingly.</p>

<p>In the matter of the application of Alchay Kumar Mozumdar to become a citizen of the United States.</p> <p>George W. Tyler, U. S. Naturalization Examiner, of Seattle, Wash.</p>

<p>In Bankruptcy. In the matter of Eleanor S. Keller and of Rabinowitz & Koen, bankrupts. Orders as to allowance of attorney’s fees.</p>

<p>1. Bankruptcy (§ 350*)—Priorities—-“Manufacturer”—Construction of Statutes.</p> <p>Whether or not one is a “manufacturer,” within the meaning of statutes exempting manufacturers or manufacturing establishments from taxation, or giving to employes or those furnishing materials priority of payment in case of insolvency, is to be determined by what was Ms principal business, and not by what are mere incidentals to it; and in mailing such determination the word should not tie limited to its grammatical or etymological meaning, since by usage, in course of time, and when used in such statutes, it has taken on a different meaning, which would seem to exclude one who simply makes by hand in a small way, and make it apply only to those, who make by machinery on a considerable scale and who sell their product.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 882; Dec. Dig. § 350.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4346-4358.]</p> <p>2. Bankruptcy (§ 350*)—Priorities—“Manufacture”—“Making.”</p> <p>Within the meaning of such statutes, a “manufacture” is a “making”; and while a change in the condition of existence of an article is never a making, a change in the article itself, as a result of treatment, labor, and manipulation, is always a making.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 882; Dec. Dig. § 350.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4292-4294. 4344-4346; vol. 8, p. 7716.]</p> <p>3. Bankruptcy (§ 348*)—Distribution op Estate—Debts Entitled to Priority—“Manufacturing Establishment.”</p> <p>A bankrupt company purchased cherries grown in Greece and Italy, and imported preserved in brine and sulphuric acid, extracted the preservative, stemmed, pitted, sweetened, colored, flavored, and preserved them, and sold them as cherries; the product being what is commonly known as “Maraschino cherries,” used as a garnish in drinks, ice cream, etc. Held, that it was the owner and operator of a “manufacturing establishment,” within the meaning of Ky. St. § 2487, which gives a lien to employes of such establishments, and to those furnishing materials or supplies in the carrying on of their business, on the distribution of their property to creditors, and that creditors of such classes were entitled to priority of payment from the proceeds of the bankrupt’s plant.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Gent. Dig. §§ 870-S77%; Dec. Dig § 348.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4346-4358; vol. 8, p. 7716.]</p> <p>4. Bankruptcy (§ 348*)—Priorities—Construction op Statute—General and Specific Words—Manufacturing Establishment.</p> <p>In Ky. St. § 2487, which gives to employés and persons furnishing materials or supplies for the carrying on of the business of “any mine, rail- , road, turnpike, canal or other public improvement company, or of any owner or operator of any rolling mill, foundry or other manufacturing establishment,” a lien on the distribution of the property among creditors, the words “manufacturing establishment” are not limited in meaning to iron manufacturers,, but include manufacturing establishments of all kinds.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 870-877]4; Dec. Dig. § 348.*]</p>

<p>1. Woods and -Forests (§ 8*)—National Forest Reservations—Acquisition of Right of -Way by Railroad—“Lands Specially Reserved from Sale.”</p> <p>Lands within a national forest reserve are not subject to appropriation by a railroad company for right of way and other railroad purposes, under Right of Way Acts March 3, 1875, e. 152, 18 Stat. 4S2 (U. S. Comp. St. 1901, p. 1568), which by section 5 expressly excepts from its operation lands “especially reserved from sale.”</p> <p>[Ed. Note.—For other cases, see Woods and Forests, Dec. Dig. § 8.*]</p> <p>2. Woods and Forests (§ 8*)—National Forest Reservations—Railroad Right of Way.</p> <p>Acts March 3, 1899, c. 427, § 1, 30 Stat. 1233 (U. S. Comp. St. 1901, p. 1584), providing that “in the form provided by existing law, the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad or other highway over and across any forest reservation or reservoir site when in his judgment the public interest will not be injuriously affected thereby,” whatever may be the extent or nature of the rights which it confers, unmistakably conditions the acquisition of any right upon the consent of the Secretary of the Interior.</p> <p>[Ed. Note.—For other cases, see Woods and Forests, Dec. Dig. § 8.*]</p> <p>3. Woods and Forests (§ 8*)—National Forest Reservations—Temporary Withdrawals of Land from Sale.</p> <p>Acts March 3, 1891, c. 561, § 24, 26 Stat. 1103 (U. S. Comp. St. 1901, p. 1537), authorizing the President to set apart and reserve public lands as •forest reservations, necessarily implies the authority, as a preliminary to such reservation, to make temporary withdrawals from sale of lands the reservation of which is in contemplation during the time of their examination and survey, and such withdrawals may legally be made through the appropriate departmental officers. 1</p> <p>[Ed. Note.—For other cases, see Woods and Forests, Dec. Dig. § 8.*]</p> <p>4. Public Lands (§ 92*)—Right of Wat Act—Construction.</p> <p>Under Rigid, of Way Act of March 3, 1875, c. 152, § 5, 18 Stat. 483 (TJ. S. Comp. St. 1901, p. 1569), which excepts from the operation of the act lands especially reserved, etc., the date upon which the status of the land is fixed is the time when the railroad company first seeks to give practical effect to the grant by the definite location of its line by the filing of its map of final location or actual construction, and not the time when it qualified itself as a grantee by filing its articles of incorporation.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p> <p>5. Specific Performance (§ 49*) — Contracts Enforceable — Agreements with United States.</p> <p>Defendant railroad company surveyed its line over a national forest reservation, and filed its map of definite location with the Secretary of the Interior. Pending its consideration, in order to obtain permission to proceed with the construction of its road, its duly authorized attorney filed with the Department of Agriculture a paper by which it promised to enter into a stipulation, as nearly as practicable like one relating to another reservation, to take certain measures, etc., for the protection of the forests. After it had constructed its road it refused to sign the stipulation presented, and the Secretary of the Interior did not approve its map. Held, that the agreement was not without consideration, and that the United States, having acted on it, could maintain a suit in equity for its specific enforcement against defendant.</p> <p>[Ed. Note.—For other cases, see. Specific Performance, Cent. Dig. §§ 140-151; Dee. Dig. § 49.*]</p>

<p>In Bankruptcy. In the matter of Ernest D. Wakefield. On application for discharge; objections having been filed by Lewis H. Bramer, a creditor.</p>

Action by James O’Halloran and another, partners as O’Halloran & Jacobs, against the American Sea Green Slate Company and others, to recover damages, to be trebled under the provisions of the statute, for an alleged violation of the provisions of the act of Congress approved July 2, 1890, entitled “An act to protect trade and commerce against unlawful restraints and monopolies.”

In Bankruptcy. In the matter of bankruptcy proceedings of Samuels & Lesser. Petition by Edward E. Quinn directing an undisclosed partner of the firm to file a schedule of his individual assets and liabilities. This is a petition by a creditor, in which the trustee joins, for an order directing a partner to file a schedule of Ms individual assets and liabilities preparatory to administering his estate in this court.

At Law. Action by the United States of America, on relation of the Proctor Manufacturing Company, against Ambrose 13. Stannard and others, in which the American Hardware Corporation intervened.

<p>In Bankruptcy. In the matter of the bankruptcy of the Tennessee Construction Company. On report of special master.</p>

<p>Removal op Causes (§ 79*)—Time eor Filtnr Petition—‘’Required.”</p> <p>Under Judicial Code, § 29 (Act March 3, 1911. c. 231, 36 Stat. 1095 [U. S. Comí). St. Supp. 1911, p. 112]), providing that one entitled to and desiring to remove a suit from a state court to the federal court may file a petition for removal in the state court any time before defendant is “required” by the laws of the state or the rule of the state court to answer or plead to the complaint, he must file the petition within the 20 days given by the law of the state in which to ’answer, notwithstanding a rule of the state court that a party may respond to any pleading anytime before a default is claimed, and failure to immediately claim a default for defendant’s failure to answer in the 20 days does not enlarge the time to remove.</p> <p>I'Kd. Note.—For other cases, see Removal of Canses, Cent. Dig. §§ 135, 130, 139-160; Dec. Dig. § 79.*]</p>

Denison, Judge. Proceeding in admiralty by the Thompson Towing & Wrecking Association and the Great Takes Towing Company for limitation of liability. Appeal by petitioners from decrees in favor of William Mc-Gregor and Matilda Workman, administratrix.

Sanford, Judge. Action by H. A. Williams against W. J. Massee. Judgment for plaintiff, and defendant brings error. This is an action for slander. The plaintiff in error (hereinafter called the defendant) seeks a reversal of the judgment rendered against him in favor of the defendant in error (hereinafter called the plaintiff). In early 1907 plaintiff and defendant and one Moore made an arrangement, tentative at least, to raise and train hprses at a farm near Macon, Ga.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge. ...</p> <p>... Suit in equity by David A. Nease against the Coal & Coke Railway Company, the Washington Coal & Coke Company, and others. Decree for complainant (195 Fed. 987), and defendants appeal.</p>

<p>Appeal from the District Court of the United States > for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit in admiralty by Sarah Gye, widow :of John Gye, against the Hamburg-Amerikanische Packetfahrt Aktien Gesellschaft. Decree for libelant, and respondent appeals.</p>

M. J. Cochran, Judge. Proceeding by the Gage Dumber Company against M. T. McEldowney, trustee in bankruptcy of the Clairfield Dumber Company. Decree (194 Fed. 181) for defendant, and complainant appeals. This appeal presents an issue as to the ownership of two sums of money, one of $7,485.16 and the other of $3,500.47.

Rose, Judge. Action' at law by Francis E. S. Wolfe, to the use of T. Rowland Slingluff, assignee, against the International Fire Insurance Company of Ft. Worth, Tex. Judgment for defendant, and plaintiff brings error. This is an action at law originally instituted in the superior court of Baltimore Cily on the Uth day of October, 1911. There was a motion to quash the writ of summons in that court. This motion was overruled with leave to plead.

Mandamus by Mary Amis Quinlan, executrix, etc., and by Sherley D. Murphy and others, against Elliott Graham, County Judge of Green County, Ky. , Decree for complainants, and defendant brings error.

<p>Landlord and Tenant (§ 107*)—Fibe Escapes—Duty to Furnish—Guest of Subtenant—Death—Landlord’s Liability—State Statutes—Construction—Shops and Factories.</p> <p>Rev. St. Ohio 1880, § 2573, makes it the duty of every owner of a tenement house more than two stories high to provide a convenient exit from the different upper stories, which shall be easily accessible in case of fire. By Act April 4, 1884 (81 Ohio Laws, p. 100), and Act April 18, 1893 (90 Ohio Laws, p. 190), oilier sections were added, providing that the term “shops and factories,” as used in sections 2573b and 2573c, providing for factory inspection, etc., shall include tenement and apartment, houses, and if it is found on inspection, under section 2573c, that the means of egress in case of fire are not sufficient, or any other improvement is necessary for the safety of employes or persons occupying such shops and factories, such changes or additions being of a permanent and fixed character, the owner of the building shall be required by the state inspector on notice and under penalties to provide them and construct necessary fire escapes. Section 2573b confers on the inspector the right of entry in the shops and factories at any reasonable time, and proof of the failure of the proprietor to make the alteration ordered by the inspector shall be deemed prima facie evidence of negligence, and shall render such proprietor liable for any injury sustained by reason of such failure to make alterations. Section 2573c declares that the inspectors, if they find the means of egress in case of fire insufficient, shall notify the owners to make the alterations and additions necessary without delay, and, if they do not, they shall be guilty of a misdemeanor. Held, that such amendment was only applicable to a tenement house more than two stories high, within section 2573, in case of the owner’s failure to comply with an order of the inspector, and section 2573 having been held by the state court not to apply to an owner of a tenement house who was not in possession and control- thereof, defendant having rented the upper floors of a building more than two stories high to a lessee without restriction, and the latter having contracted to make alterations, defendant, not having been notified by the factory inspector to construct fire escapes, was not liable for the death of a guest of a subtenant, who died as the result of injuries sustained by the burning of the building, because defendant had failed to construct proper fire escapes.</p> <p>[Ed. Note.-—For other cases, see Landlord and Tenant, Cent. Dig. §§ 608-674, 676-679; Dec. Dig. § 167.*]</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action at law by W. O. Gadd against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>Affirmed.</p>

<p>1. Master and Servant (§ 28G*)— Railroads — Negligence — Question for Jury.</p> <p>AVhere a railroad engineer was killed in a collision between his engine and a ear, which in violation of the rules of the company had been left on a side track so near the passing track as not to allow clearance, the company cannot be held free from negligence as matter of law.</p> <p>[IOd. Note.-—1’or other cases, see Master and Servant, Cent. Dig. §§ 1001, 10WS, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§ 217*)—Master’s Liability fob Injury to Servant—-“Assumption of Risk.”</p> <p>To rentier the doctrine of “assumption of risk” applicable, the servant must have known, or have been chargeable with knowledge, of the danger which caused his injury, and voluntarily exposed himself to it.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 574-COO ; Dee. Dig. § 217.*</p> <p>Dor other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.]</p> <p>3. Master and Servant (§ 217*)—Master’s Liability for Injury to Servant—Assumption of Risk.</p> <p>An engineer was taking his train slowly along a lead track into railroad yards, with cars standing alongside on the left on a switch track leading into his own a short distance ahead. Being unable to determine from Ms side of the cab, he asked the fireman, whose duty it was under the rules of the company to keep a lookout on the left side, if the gtanding cars would clear, and was told they would. Later the fireman said they would not, but it was then too late to avoid, collision, in which the engineer was killed. The fireman testified, without contradiction, that the car lacked but a few inches of clearing, and he thought it would clear until they were close to it. The rules of the company required all cars left on side tracks to stand clear of all other tracks. Held,, that there was no evidence which rendered the doctrine of assumption of risk applicable to the engineer, and that on the trial of an action to recover for his death the court properly refused, not only to direct a verdict for defendant on that ground, but to submit the question to, the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 574— 600;- Dec. Dig. § 217.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>4. Appeal and Error (§ 1064*)—Review—Harmless Error.</p> <p>Where an error in instructions, if any, was so slight that it was not excepted to, nor noticed in the motion for new trial, and does not appear-to have affected the verdict, it is not sufficient ground for reversal of the judgment.</p> <p>[Ed. Note.—For other eases', see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>5. Appeal and Error (§ 263*)—Review—Instructions—Exceptions.</p> <p>An error in instructions will not be considered by the appellate court, unless specifically excepted to or otherwise called to the attention of the trial court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig.. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]</p>

McCall, Judge. Action at law by Elizabeth Rutland against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed. The defendant below, commonly known as the “Frisco” Railroad, reaches Memphis from the east and there connects with the Rock Island. This connection is by a track running through the city of Memphis from the point where incoming Frisco trains are broken up, and extending to the' Rock Island yards.

Day, Judge. Actions at law by Edmund Weber, administrator of the estate of Anna Weber, deceased, and by Henrietta Kraft, administratrix of the estate of John Kraft, deceased, against the Erie Railroad Company. Judgment for plaintiff in each case, and defendant brings error.

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

<p>1. Master and Servant (§ 121*)—Master’s Liability for Injury to Servant—Dangerous Machinery—Violation of Statutory Requirements— “Take Ordinary Care and Make such Suitable Provisions.”</p> <p>Act Ohio March 20, 1900 (94 Ohio Laws, p. 42; Bates’ Ann. St. § 4364— 89e), which requires factory owners to “ ‘take ordinary care and make such suitable provisions’ as to prevent injury to persons who may come in contact with any such machinery or any part thereof,” and in terms provides that such ordinary care and such suitable provisions -shall include the boxing of all shafting when operating horizontally near floors, and the covering, cutting off, or countersinking of set-screws, imposes a nondelegable duty, and its violation constitutes negligence per se.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*]</p> <p>2. Master- and Servant (§ 121*)—Master’s Liability for Injury to Servant—Dangerous Machinery—Negligent Failure to Protect.</p> <p>The failure of a paper company to cover a projecting set-screw, on a revolving shaft near the floor in its mill, in the most direct way between the place where an employé worked and a steam valve necessary to be operated in regulating the supply of steam to his machine, held a violation of such statute, which constituted negligence as matter of law.</p> <p>FEd. Note.—For other eases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*.]</p> <p>3. Master and Servant (§ 297*)—Action for Injury to Servant—Assumption of Risk.</p> <p>Where the question whether an employé knew of the existence of a setscrew hy which he was injured was submitted to the jury, a verdict in his favor is conclusive that he did not have such knowledge and voluntarily assume the risk.</p> <p>I Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>4. Master and Servant (§ 282*)—Action for Injury to Servant—Statutory Limitation of Recovery.</p> <p>Act Ohio May 3, 1901 (97 Ohio Laws, p. 547; Bates’ Ann. St. § 4238o—1), which limits the recovery by an employé injured by dangerous machinery to 83,000, where he remained in the service with knowledge of the emidoyer’s omission to protect such machinery as required by statute, is applicable only to cases where the employé had such knowledge.</p> <p>fEd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 997-999; Dec. Dig. § 282.*]</p>

Day, Judge. Action at law by D. Theodore Elmer, administrator of the estate of Clarence W. Rice, deceased, against B. A. Worthington, as receiver of the Wheeling & Take Erie Railroad Company. Judgment for plaintiff, and defendant brings error. The railroad company, through its receiver, prosecutes error to a judgment entered upon a verdict recovered below by Elmer, as administrator of the estate of the decedent Rice.

McCall, Judge. Action by James W. Porter, as administrator of the estate of Griff Barton, deceased, against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendants bring error.

Action by S. M. Young, as trustee in bankruptcy of the estates of Joseph T. Allen and Daniel C. Lewis, individually and as partners under the firm name of Allen & Lewis, against Ethel M. Allen and Eunice H. Lewis. Judgment for defendants, and plaintiff appeals.

<p>1. Bills and Notes (§ 517*)—Actions—Sufficiency of Evidence.</p> <p>In an action on a note, evidence held insufficient to authorize a finding that the note was delivered on and subject to a condition.</p> <p>[Ed. Note.—For other'.cases, see Bills and Notes, Cent. Dig. §§ 1807-,1815; Dec. Dig. § 517.*]</p> <p>2. Banks and Banking (§ 314*) — Dibectobs — Knowledge — Imputing to Bank.</p> <p>A trust company with which a stockholder in a corporation negotiated a loan for the purpose of advancing the money to the corporation to assist in paying its debts was not chargeable with knowledge of an agreement between the stockholders that no one should be bound to make such contribution unless all did, merely because the president of the corporar tion, who acted for the stockholder in negotiating the loan, was also a director of the trust company.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 469-473, 478, 483-487, 489, 490; Dec. Dig. § 314.*]</p> <p>3. Tbial (§ 139*)—Dibected Vebdict—When Waebanted.</p> <p>Where the evidence in favor of plaintiff is so conclusive and so preponderant that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict for defendants, the court should direct a verdict for plaintiff.</p> <p>[Ed Note.—For other cases, see Trial, Cent. Dig. §§ 332, 333, 33S-341, 365; Dec. Dig. § 139.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Robert E. D. Maxey was convicted of conspiring to commit an offense against the United States, and he brings error.</p>

<p>1. Statutes (§ 107*)—Constitutionality—Subject op Act.</p> <p>Sess. Laws Kan. 1911, c. 179, entitled “An act to prevent the adulteration of turpentine, linseed oil or flaxseed oil, prevent deception in the sale thereof, and to provide for the punishment of such adulteration and deception,” and the provisions of which accord with such title, is not invalid as in violation of Const. Kan. art. 2, § 16, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title, in that it deals with both turpentine and linseed or flaxseed oil; the subject-matter of the act, from a legislative view, being adulteration.</p> <p>[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 121-134; Dec. Dig. § 107.*]</p> <p>2, Constitutional Law (§ 276*)—Liberty to Contract—Police Powers op State—Laws to Prevent Fraud.</p> <p>Provisions in such act prohibiting the sale of any article under the name of turpentine which is not in fact turpentine and unadulterated, or any adulterated turpentine or compound of linseed or flaxseed oil unless plainly marked on the container with the word “adulterated” or “compound,” with a statement of the actual proportion of its ingredients, do not render it unconstitutional as in violation of any rights guaranteed by the fourteenth constitutional' amendment, hut such provisions are clearly within the police powers of the state.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 845, 846; Dec. uig. § 276.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Suit in equity by the St. Louis Southwestern Railway Company against the Board of Directors of Miller Levee District No. 2 and others. Decree for defendants (197 Fed. 815), and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the E. I. Du Pont de Nemours Powder Company against the steamship Charlton Hall, J. Robertson Dunn, claimant. Decree for respondent, and libelant appeals.</p> <p>Following is the opinion of the District Court, by Hough, District Judge:</p> <p>In January, 1912, the Charlton Hall arrived at Philadelphia with a cargo of nitrate from the West Coast of South America. After discharging a part of her cargo the officers of the ship deemed it advisable to fill up the No. 1 ballast tank. The sea cock was opened and more than enough time elapsed to fill up the tank, yet soundings showed that the tank was not full, while sounding the bilges revealed no water in them. This condition of affairs apparently puzzled those in charge of the steamer, but they finally shut off the sea cock and (continuing the discharge of cargo) found that so much water had come into the hold (or remained in the hold) during the extremely cold weather then prevailing that the cargo was frozen stiff for some two or three feet above the ceiling of the hold. This ceiling is a permanent board covering extending over the top of the tank and forming the floor upon which the cargo is laid. Access to the tank is gained by hatches in the ceiling. There is no evidence that at any time this ceiling was injured or broken or in any such condition that pressure or a blow could have been given by cargo to the tank. The ceiling at all times fulfilled the function for which it was devised.</p> <p>The cause of the frozen water in the cargo remained a mystery until the Charlton Hall had gone (light) from Philadelphia to New York, where she was drydocked, and it was then discovered that the cement on her port side between 14 frames was cracked and broken, much of it badly, and that one of the manhole covers, also on the port side, was displaced in -a very curious manner. As constructed, this manhole cover consisted of a steel or iron plate over the manhole, packed' with a gasket and tightened with a dog by means of a central screw bolt. This is a usual and proper method of construction. On survey the screw, dog, manhole cover, and gasket were all perfect, but the top of the tank had become deformed or buckled in such a manner that a good gasket and duly tightened dog no longer made a watertight joint. When the tank was filled the water spurted out in a considerable stream.</p> <p>This case differs from many others of the kind in the fact that this examination, made shortly after damage discovered and before the ship was laden, revealed exactly what Was the matter, for there is no contradiction of the evidence showing that the amount of water which would flow through the sea cock during the time the same was opened, and which would escape through the deformed manhole joint, was quite enough to account for all the frozen water which injured the cargo.</p> <p>It may be noted here that the rapid freezing of the water is measurably accounted for not only by the severity of the weather but the fact (of which judicial notice is taken) that the sea cocks were opened at Philadelphia in fresh water, something which greatly facilitated freezing; and this accounts for the fact that the water did not show in the bilges, which were also frozen.</p> <p>The leading question of fac.t is how and when did that deformation of the tank top occur, which (proximately if not legally) caused the injurious flow of water? Claimants contend that it arose from peril of the sea on the long and stormy passage from Antofagasta to Philadelphia. Libelant points out that no other substantial injury to the ship was discovered, that the weather, while severe, was not materially different from that encountered on the outward passage, and therefore asserts that there was a defect in the ship at the beginning of the voyage amounting to a lack of seaworthiness, concluding that, since the vessel was not seaworthy when the voyage from Antofagasta began, the saving exception in the bill of lading concerning peril of the sea does not apply, and neither does the protection of the Harter act.</p> <p>The Charlton Hall had been surveyed for reclassification immediately before starting from New York for the West Coast of South America; she received the highest classification; and the evidence is direct that this particular tank was then tested and found tight. She arrived at her first port of destination with tanks empty, and she did have heavy weather going out. As cargo went out, ballast tanks were filled, and the No. 1 tank was filled from Valparaiso to Callao, and then down to Iquique, or, in time, from October 10th to November 7, 1911.</p> <p>The first cargo for the United States was taken on (as per bill of lading) at Caleta Buena on November 4th, and next at Iquique on November 8th. Down to this time the No. 1 tank was full. Waves are high on the Pacific Ocean, and at these nitrate ports the steamer lay off the coast in surf of such a character that the lighters bringing out the cargo lost, and apparently were expected to lose (judging by the provisions of the charter party), considerable parts of their loads.</p> <p>When at Caleta Buena the inward cargo began to come on board the captain personally went into the hold, saw that it was all in order and the bilges dry; the tank was then full. Having taken on board upwards of 19,000 bags of nitrate, he went to Iquique with the tank still full, and there, having taken on more than 31,000 bags, pumped out the tank. Certainly no freezing rendered detection of leakage difficult at that time and place, yet the bilges remained dry. This is satisfactory evidence to me that the manhole cover was in good condition at and after leaving Caleta Buena, at which point the inward voyage began.</p> <p>Libelant has introduced expert evidence to show that the buckling of the tank top could not have occurred by the tossing and twisting of the ship in heavy weather without other and more substantial injury being shown to the fabric of the vessel than is indicated by the breaking and cracking of cement between frames. These opinions are most respectable, but since the weather admittedly was very heavy and the cement was, broken, they do not answer the inquiry, Why did the tank top buckle? That the metal was sufficient and of good quality is, I think, shown by the action of Lloyd’s surveyor when the difficulty was discovered, for he did not require a plate to be substituted nor the metal even to be faired in place, but put on a different kind of manhole cover which could be made tight notwithstanding the inequality or buckling of the tank top.</p> <p>In my opinion the evidence affirmatively shows that a proper manhole cover closing an aperture in a well-built tank did begin leaking by the overpowering action of the wind and waves on the voyage from Caleta Buena to Philadelphia ; the vessel having been seaworthy in respect of this tank on leaving the port of departure. It follows that the damagé complained of is within the exception of the bill of lading, and the libel is dismissed, with costs.</p>

Sater, Judge. Suit in equity by the Safety-Armorite Conduit Company against Cyrus Mark, Anson Mark, and Clayton Mark, partners as the Mark Manufacturing Company. Decree for complainant, and defendants appeal. The following is the opinion of Sater, District Judge: The complainant charges the infringement of its patent No. 611,900, issued to Robert and John W. Garland, October 4, 1898, for a new and useful method of treating metal pipes.

<p>1. Patents (§ 328*)—Piiotogbapiiio Pellicle—Film Suppobt.</p> <p>Hannibal Goodwin patent, No. 010,861, for a lilm support for photographic purposes especially in connection with roller cameras held valid, not anticipated, and infringed as to claims 1, 6, 8, 10, and 12, covering the process and product of the patent.</p> <p>2. Patents (§ 168*)—Intebpbetation,—Pboceedings in Patent Office.</p> <p>The interpretation to be placed on a patent is to be determined by the language of the grant, and the proceedings of the Patent Office are immaterial unless the patentee by bis acquiescence has accepted limitations imposed by the rejection of broader claims.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. § 168.*]</p> <p>3. Patents (§ 72*)—Anticipating Patents.</p> <p>Anticipating patents and publications in order to effect a patent in question must disclose the invention without patentable change or alteration.</p> <p>[Ed. Note.—For oilier cases, see Patents, Cent. Dig. §§ 86-91; Dec. Dig. § 72.*]</p> <p>4. Patents (§ 30*)—Patentable Invention—Pekfection of Abt.</p> <p>The patent law does not require that an inventor shall hare succeeded in bringing his art to the highest degree of perfection, but it is enough if the skilled In the art understand the process described and the specifications point out a practical way of performing it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 34; Dec. Dig. § 30.*]</p> <p>5. Patents (§ 283*),—Pbiobity—Pbocess Patent—Estoppel.</p> <p>A patentee, during the course of proceedings to obtain a patent, practically conceded priority of a specific process for making the same article, and. his successor in title is estopped thereafter to assert infringement by articles made in pursuance of ihe specific process patented formula.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 448-450, 452; Dec. Dig. § 283.*]</p>

<p>In Equity. Suit by Edward M. Eaug, Jr., against the Twitchell-Champliu Company.</p>

<p>In Equity. Suit by William E. Barrell against the Fitchburg Duck Mills.</p>

In Equity. Bill by the Valvona-Marchiony Company against the Louisville Cone Company and' others for infringement of Valvona patent, No. 701,776, for a mold for making biscuit cups to be used to hold ice cream.

<p>In Equity. Suit by the Valvona-Marchiony Company against Moses Silverstein and others to restrain infringement of a patent. On motion for a preliminary injunction.</p>

<p>1. Patents (§ 328*)—Validity—Molds foe Ice Cream Biscuit Cups.</p> <p>The Valvona patent, No. 701,770, for a mold for making biscuit cups 'to be used for holding ice cream, held valid, especially in so far as it provides for an appliance having all the heat absorbing and conducting sides of the mold of substantially the same thickness.</p> <p>2. Patents (§ 328*)—Ice Cream. Biscuit Cup—Infringement—“Substantially.”</p> <p>Complainant sued for infringement of Valvona patent, No. 701,770, for a mold for making biscuit cups for holding ice cream; the important rovision of the claim being a mold so constructed that all the heat absorbing and conducting sides were substantially of the same thickness. Held, that the word “substantially” meant that it was the same in all important particulars, implying that the results of the use of the device could not be obtained if there was a difference in the thickness; and hence the patent was not infringed by a. similar mold used by defendant, much heavier in construction, and the heat absorbing and conducting sides of which were not substantially of the same thickness.</p> <p>'3. Patents (§ 312*)—Infringement—Nature of Wrong—Burden of Proof.</p> <p>Infringement of a patent is a tort, and the burden of proving it is on him who asserts it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 544-549; Dec. Dig. § 312.*]</p>

<p>In Equity. Suit by the Valvona-Marchiony Company against Italo Marchiony.</p>

<p>1. Reference (§ 99*)—Finding of Master—Oonjklicting Evidence—Exceptions.</p> <p>In an action against a railroad company for injuries to a steam shovel in transportation, a master’s finding that verba] notice was given to defendant before shipment that plaintiff needed the shovel for nse on a contract under which it would be liable for a penalty of $50 for each day beyond the time limit provided for in the contract, based entirely on the conflicting evidence of two witnesses, would not be reversed by the court on exceptions.</p> <p>I Ed. Note.—For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*]</p> <p>2. Carriers (§ 134*)—Transportation oe Machinery—Injuries—Master’s Findings—Evidence.</p> <p>In an action against a carrier for injuries to a steam shovel, evidence held insufficient to support a master’s finding that a further injury following derailment of the shovel after delivery to the owners at destination was due to undiscovered and unrepaired injuries resulting from the original wreck of the shovel while in the custody of the carrier.</p> <p>[Tld. Note.—For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.*]</p> <p>3. Carriers (§ 105*)—Special Damages—Notice.</p> <p>Where, in an action against a carrier for injuries to a steam shovel during transportation to the place where plaintiff intended to use the shovel In certain contract work, the only notice of special damages given to the carrier that would result from injury to the shovel beyond necessary repairs was from the delay which the carrier was notified would cause a loss of a contract penalty of $50 a day, plaintiff not having suffered such penalty and the contract having been terminated for other reasons and the injuries to the shovel having been fully repaired, plaintiff was only entitled to recover nominal damages.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 451-458; Dee. Dig. § 105.*]</p> <p>4. Carriers (§ 105*)—Special Damage—Carriers.</p> <p>Special damages cannot be recovered against a carrier for delay in delivering machinery required by the plaintiff for contract work unless the carrier had notice of the circumstances from which such special damage might reasonably be expected to result at the time the contract of shipment was made, and it is further shown that the damages suffered were reasonably within the damages contemplated at the time the notice was given.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.*]</p>

<p>1. Interest (§ 43*)—Stipulations—Construction.</p> <p>Tke condition of a bond secured by a mortgage provided for the payment of $1,200 without mentioning interest, of which $15 was to be due on the first day of each month, and further provided that such payment of $15 was to be for interest and principal; that at the end of each year the mortgagor was to be credited for the sums actually paid, interest and principal; that should any default be made in the payment of interest, etc., the principal sum should become due. The mortgage provided that for better securing the payment of the sum mentioned in th'e condition of the bond, “with interest thereon,” the premises described were thereby granted, and further provided that, if the mortgagor should pay the sum mentioned in the condition of the bond “and the interest thereon,” the mortgage and the estate granted should cease, determine, and be void. Held, that the whole principal sum bore interest from the date of the instruments which the obligors promised to pay from month to month, with the monthly payments of principal; the bond and mortgage not being open to the construction contended for that interest was to be allowed on each installment for one month only, and to.be deducted from the $15 before applying the balance on the principal, since interest was plainly and repeatedly provided for and was in no way limited to interest on the installments, especially where, at the time of an assignment of the bond and mortgage, the mortgagor indorsed on the bond a stipulation as to the amount due, showing that he .construed the bond as providing for interest on the whole principal sum.</p> <p>[Ed. Note.—For other cases, see Interest, Cent. Dig. § 92; Dec. Dig. § 43.*]</p> <p>2. Interest (§ 1*)—Grounds for Allowance.</p> <p>Interest can be allowed only by virtue of some contract, express or implied, or by virtue of some statute, or on account of the default of the party liable to pay, when it is allowed as damages for the default.</p> <p>[Ed. Note.—For other cases, see Interest, Cent. Dig. § 1; Dec. Dig. § 1.*]</p> <p>3. Mortgages (§ 106*)—Construction bt Parties.</p> <p>The construction placed upon a bond and mortgage by the parties • thereto had force so far as there was any ambiguity.</p> <p>[Ed.-Note.—For other cases, see Mortgages, Dec. Dig. § 106.*]</p> <p>4. Bankruptcy (§ 188*)—Lien on Property—Stipulations as to Amount Due—Detect.</p> <p>A stipulation by a mortgagor who subsequently became bankrupt, indorsed on a bond at the time of an assignment of the bond and mortgage as to the amount then due, which, through an error in computation, stated a larger amount than that actually due, did not increase the lien of the mortgage as against the trustee in bankruptcy and other creditors.</p> <p>Lild. Note.—For other cases, see Bankruptcy, Gent. Dig. §§ 270, 286-289, 291-295; Dec. Dig. § 188.*]</p> <p>5. Mortgages (§ 199*)—Runts and Promts—Application.</p> <p>While a mortgagee who takes possession of tlie mortgaged property without agreement must api>ly the rents and profits derived therefrom entirely in reduction of the bond and mortgage, tlie mortgagor and mortgagee by agreement may, as against other creditors, provide for their application in part on an unsecured indebtedness due the mortgagee.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 513-525; Dec. Dig. § 199.*]</p> <p>6. Bankruptcy (§ 186*)—Possession op Property—Rights op Mortgagee.</p> <p>A mortgagee in possession of the mortgaged property when the mortgagor was adjudicated a bankrupt was entitled to retain such possession as against the trustee in bankruptcy and general creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 285, 319; Dec. Dig. § 186.*]</p> <p>7. Bankruptcy (§ 267*)—Sale op Mortgaged Property—Costs.</p> <p>In a bankruptcy proceeding a mortgagee of real estate, which was the the only jiroperty owned by the bankrupt, claimed that more was due and unpaid on the mortgage than in fact was, while the trustee claimed that much less was due and unpaid than in fact was due, and also delayed a sale for about a year after being authorized to make one, allowing the interest to accumulate. A sale was made free from liens and incumbrances, which the referee declined to confirm, and a resale was ordered. On the resale the mortgagee and certain judgment creditors interfered with tlie sale, claiming that the orders of the court were improper and that whoever purchased would be compelled to pay tlie liens in addition. A motion was made to punish them for contempt, and the court ordered a resale, enjoining further interference. The property was sold for more than the amounts of the mortgages and judgment, thus showing that Hie trustee was justified in claiming that there was some equity in the property, but for less than was necessary to pay such liens, the expenses of the sales, and the expense of administering the bankrupt’s estate. Held that, in view of the fact that both the trustee and the lienors had been more or less in the wrong, there would be allowed out of the proceeds of the sale tlie necessary expenses of the various sales but not the expenses of administration in tlie bankruptcy court.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p> <p>8. Bankruptcy (§ 267*)—Sale oe Mortgaged Property—Costs.</p> <p>In a bankruptcy proceeding the mortgagee and trustee stipulated that the mortgaged property might be sold by the trustee in bankruptcy free and clear of all incumbrances; the lien to attach to tlie proceeds, except that it should not attach to $30 of the proceeds, which it was thereby stipulated should be allowed as the expenses of the trustee in making a sale of the property and advertising it. On a sale of the property the mortgagee, however, interfered therewith, claiming to those present and to would-be purchasers that the order of the court for a sale free and clear of the mortgage was improper and ineffectual, and that whoever purchased the property would be compelled to pay the liens, in addition to the purchase price, thus making a resale of the property necessary. Held that, in view of the mortgagee’s unwarranted interference with the sale, the expense of selling the property, allowable out of the proceeds, was not limited to the amount stipulated.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Gent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p> <p>9. Bankruptcy (§ 267*)—Sale of Mortgaged Property—Costs.</p> <p>The bankruptcy court cannot order mortgaged premises sold free and clear of the lien of the mortgage and use the proceeds of the sale properly applicable to the payment of the mortgage in paying the general expenses of administering the estate in bankruptcy, but may order and make such sale free and clear of the mortgage, bring the proceeds into court, ascertain the amount actually due and owing on the bond and mortgage, and make proper allowances for the necessary expenses of so doing.</p> <p>[Ed. Note.-—For other eases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p> <p>10. Bankruptcy (§ 368*)—Trustee’s Commissions—Proceeds oe Mortgaged Property.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 48a, 30 Stat. 557 (U. S. Comp.St. 1901, p. 3439), as amended in 1903 (Act Feb. 5, 1903, c. 487, § 11, 32 Stat. 799 [U. S. Comp. St. Supp. 1911, p. 1501]), providing that trustees shall receive .from the estates which they have administered such commissions on all moneys disbursed by them as may be allowed by the courts, not exceeding the sum specified, commissions are allowable on moneys received and disbursed by them which were derived from the sales of mortgaged property, and which were covered by and properly applicable to the payment of the lien, in view of the amendment of 1910 (Act June 25, 1910, c. 412, § 9, 36 Stat. 840 [U. S. Comp. St. Supp. 1911, p. 1501]) expressly providing that they shall receive such commissions on moneys disbursed to any person, including lienholders, as may be allowed, etc.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. § 368.*] '</p> <p>11. Bankruptcy (§ 262*)—Sale of Mortgaged Property.</p> <p>Whether property of a bankrupt, subject' to mortgages or judgment liens, shall be sold free from the liens is for the determination of the bankruptcy court and not the lienors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 363-365; Dec. Dig. § 262.*]</p> <p>12. Bankruptcy (§ 474*)—Sale of Mortgaged Property—Costs.</p> <p>Where a lien asserted by a mortgagee in a bankruptcy proceeding is largely in excess of the true amount due and unpaid, or there is reasonable ground to so believe, the trustee may contest the claim and, -if successful, the court may charge some portion or all of the expense, including an attorney’s allowance in ascertaining the amount due, against the fund that would otherwise go to the lienors.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 878-884; Dec. Dig. § 474.*]</p>

<p>Action by Stratton’s Independence, Limited, against F. W. Howbert, Collector of Internal Revenue.</p>

Three actions by the Sargent Land Company, Kearsage Land Company, and Sutton Land Company, respectively, against Fred Von Baumbach, Collector of Internal Revenue.

Prosecution for criminal contempt against the Southern Wholesale Grocers’ Association and others. The defendant named and three other defendants found guilty, and all other defendants discharged.

<p>1. Public Lands (§ 120*)—Suet for Cancellation of Patent—Fraudulent Entry—“Mineral Land.”</p> <p>When fraud is alleged to procure the cancellation of a patent to land entered as agricultural but claimed to he mineral land, it must be proved that at the time of final entry it was known to contain minerals in sufficient quantity to justify the expectation that it could be profitably 'developed and worked and that by reason thereof the land is more valuable therefor than for agricultural uses.</p> <p>lEd. Note.—For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4515, 4516.]</p> <p>2. Public Lands (§ 120*)—Suit for Cancellation of Patent—Homestead Entry of Mineral Land.</p> <p>Evidence considered, and held not to sustain a suit by the government for cancellation of. 'a patent issued on a homestead entry on the ground that the land was known as coal land, it being shown that, while it had onoe been withdrawn from homestead entry on that ground, It was afterward restored and was several years afterward entered as a homestead in good faith by defendant who resided upon, improved, and cultivated it for the full five years before making final proof, making no effort to develop it for coal, which was done at the expenditure of considerable time and expense by a tenant to whom he gave a mining lease two years later; that while surrounding lands had been exploited for coal by men of ex-Iierience and means for 20 years, but few paying mines had been found and many prospect developments had been abandoned, including one on the land In suit made 20 years before defendant's entry.</p> <p>FEd. Note.—For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § .120.*]</p> <p>3. Mines and Minerals (§ 2*)—Mineral Character of Land—Evidence.</p> <p>To attach mineral character to i>ublic lands it is not sufficient to demonstrate that adjacent lands are mineral In character. Outcroppings on the land itself are more or less evidentiary, but by no means conclusive, of its mineral character, and off the land tlieir value as evidence rapidly lessens.</p> <p>LEd. Note.—For other cases, see Mines and Minerals, Cent. Dig. § 2; Dec. Dig. § 2.*]</p>

In Admiralty. Suit by Charles E. Bicknell against the schooner .Dorothy and same against the Boston Insurance Company. Decree for libelant in first suit and for respondent in second.

<p>1. Monopolies (§ 28*)—Anti-Teust Act—Action fob Violation—Suit by Stockholders.</p> <p>Minority stockholders cannot maintain a suit in equity under Sherman Anti-Trust Act July 2, 1890, c. 647, § 7, 26 Stat. 210 (ü. S. Comp. St. 1901, p. 3202), to recover threefold damages in the right of the corporation for a violation of the act.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p> <p>2. Monopolies (§ 28*)—Action foe Damage—Pleading—“Interstate Commerce.”</p> <p>Allegations that an ice company is engaged in cutting and harvesting ice in New Hampshire and transporting the same to Boston and selling it in Boston are not sufficient to show that the corporation is engaged in interstate commerce.</p> <p>]Kd. Note.—For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]'</p> <p>3. Pleading (§ 8*)—Facts or Conclusions.</p> <p>General allegations in a pleading that defendants entered into a combination and conspiracy in restraint of interstate commerce in violation of Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), hold insufficient as pleading conclusions.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p>

<p>At Daw. Two actions, one by James C. Corey, the other by Jarvis W. Ferris, both against the Boston Ice Company. On demurrers to declarations.</p>

In Equity. Two suits by the Continental Securities Company against the Interborough Rapid Transit Company and others. On final hearing on original and supplemental’ bills.

In Equity. Suit by J. W. Woodford, as trustee in bankruptcy of • Benjamin Rice, against Rose Rice and others, in which defendant Cb R. Stange filed an intervening petition. Decree for complainant against all of the defendants except Stange, whose intervention is allowed.

Bean, Judge. Consolidated actions by Ida M. Moats, individually, and as guardian of George A. Moats, against the New York Life Insurance Company. Judgment for plaintiffs, in each action, and defendant brings error.

Howard, Judge. In the matter of the Western Steel Corporation, bankrupt. Held: for the security of the bondholders. The right of James A. Moore and the Western Steel Corporation to the shares of stock in the AVestern Coal & Iron Corporation were, however, at the time of the sale of the bonds in New York and at the time of the bankruptcy proceedings, in litigation in the courts of British Columbia.

<p>In Error to the District Court of the United States for the Western District of Missouri; John C. Pollock and Arba S. Van Valkenburg, Judges.</p> <p>Action at law by the City Water Company of Chillicothe against the City of Chillicothe, Mo. Judgment for defendant, and plaintiff brings error.</p>

Appeal and Cross-Appeal from the District Court of the United Státes for the First Division of the Northern District of California; John J. De Haven, Judge. Suit in admiralty by the American-Hawaiian Steamship Company against Bennett & Goodall, a corporation, respondent, and the Napa Gravel & Material Company and the American Bonding Company of Baltimore brought in by petition of respondent under admiralty rule 59. From the decree libelant and respondent appeal.

Suit in equity by the G. & C. Merriam Company against the Syndicate Publishing Company. Decree for defendant, and complainant appeals. The following is the decree and opinion of Hand, District Judge, in the trial court: [1] The complainant has never succeeded in getting from any court a decree which would forbid the publication of a “genuine” Webster dictionary in the form in which the defendants were selling theirs at the time these suits were started.

<p>1. Master and Servant (§§ 90, 97*)—Master’s Liability for Injury to Seri - ant—Measure of Care Required.</p> <p>Where an employer has made reasonable provision for the safety ‘of his employes, such as an ordinarily prudent man wotdd make for his own safety if lie was doing the work himself, lie lias as a rule performed liis duty to ills employes, and lie is not bound to anticipate and provide against accidents, the danger of which is not apparent or which cannot be ascertained by the exercise of ordinary care and does not become apparent until after the accident has happened.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 139. 163; Dec. Dig. §§ 90, 97.*]</p> <p>2. Master and Servant (§ 123*)—Master’s Liability for Injury to Servant —Appliances.</p> <p>The condition of the implements or material furnished to an employe to work with must be such as to suggest to an ordinarily careful man that there is danger in their use before the employer can be charged with negligence in not providing against it.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 233. 234; Dec. Dig. § 123.*]</p> <p>3. Master and Servant (§§ 97, 219*)—Master’s Liability for Injury to Servant—Negligence—Ass ujied Risk.</p> <p>Plaintiff was a boiler maker employed in the shops of defendant railroad company. While he and other employSs were engaged in replacing the flues of a locomotive boiler, using some old and some retipped flues, and he was expanding the end of a flue to tighten it in the flue sheet, he was injured by a piece which broke from the flue and struck him in the eye. He charged negligence in furnishing for the work flues which were old and unfit. The only way to test a fine was by actually attempting to install it in the boiler. Plaintiff and seven other witnesses, all experienced in such work, testified that they had never known a piece to break out of a flue before under such circumstances. Held, that, where experts could not anticipate danger, defendant could not be charged with negligence in not doing so and providing against it, and that the injury arose from an ordinary risk of the employment which plaintiff assumed.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 163, 610-621; Dec. Dig. §§ 97, 219.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 O. C. A. 314.]</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Suit in equity by the United States against W. S. Bennett and Josephine Bennett, his wife. Decree for defendants, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge,</p> <p>Suit in equity by Charles B. Perkins, trading as Charles B. Perkins & Co., against Apollo Bros., Incorporated, and others. From a decree for complainant (197 Fed. 476), defendants appeal.</p>

<p>1. Fbaudulent Conveyances (§ 299*)—Evidence—Withholding fbom Reoobd—Conditional Sales.</p> <p>The mere failure to file contracts of conditional sale for record, although they are required to be filed by statute to be valid against subsequent purchasers and certain classes of creditors, is not sufficient to show fraudulent intent.</p> <p>[Ed. Note.—For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 876-890; Dee. Dig. § 299.*]</p> <p>2. Sales (§ 474*) — Conditional Sales — Effect of Failube to File Contbaot.</p> <p>Under the law of Kansas, the failure to file a contract of conditional sale for record docs not render it invalid as against general creditors without lien.</p> <p>[Ed. Note.—For other eases, see Sales Cent Dig. §§ 1391-1402; Dec. Dig. § 474.*]</p> <p>3. Bankruptcy (§ 152*)—Lien of Trustee—Date.</p> <p>The lien conferred on a bankrupt’s trustee by Bankr. Act July 1, 1898, e. 541, | 47a (2), 30 Stat. 557 (TI. S. Comp. St. 1901, p. 3438), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (U. S. Comp. St. Snpp. 1911, p. 1500), dates from the time of the bankruptcy proceedings.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 194; Dec. Dig. § 152.*]</p> <p>4. Bankruptcy (§ 161*)—Preference—“Conditional Sale” Contracts—Filing Within Foub Months.</p> <p>Under the general law and also the statutes of Kansas (Gen. St. 1909, §§ 5224-5226, 5237), there is a clear distinction between a contract of “conditional sale” by which the seller retains title until full payment, with the right to take iiossession at any time, and contracts of sale by which the title is passed and a chattel mortgage for the purchase money taken back, and a contract of conditional sale, although made before, but not filed as provided by the Kansas statute until within four months prior to the bankruptcy of' the purchaser, does not constitute a preference.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. § 161.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1408-1410.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action at law by E. R. Stone against the Incorporated Town of Stonewall, Okl. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal ash Error (§ 832*)—Scope of Relief—Reheabixg.</p> <p>Where appellants’ brief specifically prayed for a decree quieting title by enjoining respondents from farther asserting any adverse claim to the property in controversy, and no question of appellants’ right to other general relief was presented to the District Court, from which complainants appealed, nor to the Circuit Court of Appeals on the original hearing, a rehearing would not he granted on the ground that the trial court might have given complainants substantial relief under the prayer for general relief without granting an injunction.</p> <p>Hid. Hoto.—For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. § 832.*]</p>

Sloan, Judge. In the matter of the Tombstone Consolidated Mines Company, Limited, bankrupt, and another. On appeal from an order disallowing a claim filed by Thomas W. Synnott, individually and as attorney and agent for Alexander Sedgwick and Merrill K. Green.

<p>Collision '(§ 125*)—Suit fob Damages—Sufficiency of Evidence.</p> <p>The libelant held not to have sustained the burden of proof resting upon it to establish the allegations of fault made in a libel for collision.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 266-279; Dec. Dig. § 125.*]</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Suit in equity by Max M. C'ohn against the H. J. Fleinz Company. Decree for complainant, and defendant appeals. Affirmed.</p>

Suit in equity by the United Tunnel Improvement Company against the Interborough Rapid Transit Company and the Rapid Transit Subway Construction Company. Decree for defendants, and complainant appeals. Following are the statement and opinion of Hand, District Judge, in the court below: This is a suit in equity upon two patents each issued to Jesse W. Reno, the first granted on March 24, 1903, numbered 723,307, and the second granted on March 15, 1904, and numbered 754.807.

<p>In Equity. Suit by the Corn Products Company against Douglas & Co. On final hearing. Decree for defendant.</p>

<p>1. Patents (§ 328*)—Validity and Infringement—Process for Treatment of Ores.</p> <p>The Brown patent, No. 781,711, for a process for the treatment of precious metal-bearing ores, the essential feature of which consists in changing the order of the well-known steps in the recovery of metals from the ores by the cyanide process so that the cyanide treatment for the recovery of the fine values precedes -concentration, to which only the residue or tailings is subjected, while not entitled to a broad construction in view of the prior art, is valid and is infringed by a process in which substantially the same steps are taken in the same order, although other steps not included or required by the patent are added.</p> <p>2. Words and Phrases—“Leaoiiins.”</p> <p>As applied to the cyanide process of treating ores, the essence of “leaching” does not depend upon any special mode o'f applying to the ore the dissolving cyanide solution, but upon the fact of the application producing dissolution of the finer values.</p>

<p>Patents (§ 328*)—Validity and Infringement—Seed Corn Grader.</p> <p>The Hunnicutt patent, No. 989,976, tor a seed corn grader, is void for lack of novelty as to claims 1, 2, and 4. Claims 3 and 5 hold not infringed, if valid.</p>

<p>Petition by the Louisville & Nashville Railroad Company against the United States, in which the Interstate Commerce Commission intervened. On objection to jurisdiction.</p>

In the matter of Joseph I,. Herman, Bankrupt. Claim of Mrs. E. T. Crocker. An order was entered by the referee allowing the claim as a secured claim against the estate, and the trustee petitions for a review. Order vacated, and matter referred back to the referee, with directions.

<p>In Admiralty. Suit by the Snow Marine Company against the steamer Silver Star.</p>

In Equity. Suit by George C. Rankin, receiver of tbe First National Bank of Alma, Kan., against Charles R. Miller and James Baily, executors of Robert H. Miller, deceased, and others. Judgment in favor of plaintiff against Miller and Baily.

<p>In Equity. Suit by Henry A. Hitner and Joseph G. Hitner, trading as Henry A. Hitner’s Sons, against the Diamond State Steel Company. On exceptions to master’s report.</p>

In Admiralty. Libels by the Western Assurance Company and by the British & Foreign Marine Insurance Company, Limited, against the steam tug Robert II. Cook. Decrees for libelants for half damages.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Wright-Dana Hardware Company, to review a referee’s order disallowing a claim of the Utica City Bank unless the bank should surrender and pay over the amount of an alleged preference, and also disallowing the claim of one Robert U. Kinne unless he should surrender and pay over the amount of an alleged preference.</p>

Alfred Breeding was indicted for carrying on the business of a retail liquor dealer without having paid the special tax in due time. On motion to quash the indictment.

<p>1. Bankruptcy (§ 384*)—Composition—Confirmation—Best Interests of Creditors—Evidence.</p> <p>Where a proposed composition with creditors has the approval of a majority of such creditors, such fact in itself is prima facie evidence that 'it is for the best interests of all.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. § 384.*]</p> <p>2. Bankruptcy (§ 384*)—Composition—Confirmation—'Objections—Bur-den of Proof.</p> <p>Bankr. Act July 1, 1898, c. 541, § 12d, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3426), provides that a proposed composition shall be confirmed if the judge is satisfied that the bankrupt has not been guilty of any acts, or failed to perform any of the duties which will bar his discharge. Seld, that the burden is on the objecting creditor to establish by a clear preponderance of the evidence that some valid reason exists for denying the bankrupt’s discharge, in order to prevent a confirmation of a composition.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. § 384.*]</p> <p>3. Bankruptcy (§ 384*) — Composition — Confirmation — Objections —• Grounds.</p> <p>Bankr. Act July 1, 1898, c. 541, § 12d, 30 Stat. 549 (TJ. S. Comp. St. 1901, p. 3426), provides that a composition shall be confirmed by the judge if satisfied that the bankrupt has not been guilty of any acts or failed to perform any of the duties which will bar his discharge, and section 14b, subd. 2, declares that a bankrupt shall be entitled to a discharge unless he has with intent to conceal his financial condition destroyed, concealed, or failed to keep books of account or records from which such condition might be ascertained. Seld, that such latter provision is available as an inhibition to confirmation to a composition with creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. § 384.*]</p> <p>4. Bankruptcy (.§ 384*)—Composition—Objections—Failure to Keep Books —Evidence.</p> <p>Evidence held to require a finding that bankrupts had failed to keep books of account, with intent to conceal their financial condition, and hence that they were not entitled to confirmation of a proposed composition as against the protest of certain creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig: § 384.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Ira O. Banks. Proceedings to review referee’s order allowing the respective claims of Philip Quencer and John Quencer.

Tn Admiralty. Suit for collision by Walter M. Ervin, Master of the Schooner Dorothy B, Barrett, against the steamship Texas and the tug James McCaulley, brought in under admiralty rule 59. Decree against both steamship and tug, each for half damages.

In Equity. Bill by Ben Stanley Revett against J. W. Clise and others. On objection by defendants William Nottingham, H. S. Wilkinson, and the Globe Navigation Company to the jurisdiction, on the ground that neither complainant nor defendants are residents or citizens of the district or state of Washington.

<p>In the matter of the petition of Paul Hermann Schmidt for naturalization.</p>

At Jbaw. Action by the United States, for the use and benefit of P. A. Jennings and all other creditors of the defendants, against George Cooke, G. F. Cooke, and W. H. Cooke, copartners as George Cooke & Sons, and the National Surety Company, defendants, in which Homer Minney and W. J. Maxwell, copartners as Minney & Maxwell, James Lineham, W. L. Carpenter, O. F. Leonard, Samuel Bowles, P. O. Berglund, and W. E. Rahier intervened.

<p>3. Shipping (§ 86*)—Injury to Stevedore—Action—Nature and Form.</p> <p>An action by a longshoreman to recover damages against a steamship corporation owning the ship in which he was working at the time of his injury, charging that the injury was caused by defendant’s negligence, and alleging that at the time of the injury defendant was in default in the payment of the accident funds used for compensation of injured workmen, required by Washington Workmen’s Compensation Act (Laws 1911, c. 74), and that the same was therefore not applicable, was a suit to enforce a common-law remedy in personam and not a proceeding against any res, independent of a personal defendant, and was therefore not exclusively within the jurisdiction of admiralty.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Dec. Dig. § 86.*]</p> <p>2. Constitutional Law (§ 46*)—Constitutional Question—Determination.</p> <p>Where, in a suit by^ longshoreman for injuries alleged to have resulted from defendant’s negligence, plaintiff charged that defendant was in default in the payment of accident funds used for the compensation of injured workmen, and that demand had been made for the payment of the amount due, for which reason Washington Workmen’s Compensation Act (Laws 1911, c. 74) was inapplicable, defendant’s contention that the suit was unconstitutional would not be determined, since whether unconstitutional or inapplicable it was no bar to plaintiff’s right to enforce his common-law remedy.</p> <p>[Ed. Note.'—For other eases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 46.*]</p>

<p>Bankruptcy (§ 212*)—Property Fraudulently Transferred—Jurisdiction —Powers Claimed'—Plenary Suit.</p> <p>Where, in reply to a petition by a bankrupt’s trustee to recover certain assets alleged to have been transferred by the bankrupt with intent to defraud his creditors, it was shown that, the assets were out of the bankrupt’s possession when the petition was filed, and the transferee testified under oath that he had purchased the property In good faith while the bankrupt was doing business in the ordinary manner, and had paid the bankrupt therefor with money that, the transferee had hoarded, he was entitled to have the question determined in a, plenary suit, notwithstanding his testimony was incredible.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 236; Dec. Dig. § 212.*]</p>

<p>1. Aliens (§ 32*)—Proceedings eor Deportation oe Chinese—Evidence— Former Judgment.</p> <p>A certificate, by a United States commissioner that a Chinese person of a certain name was tried before him and adjudged to have the right to remain in the United States is not competent evidence of a judgment which can be used in bar of a subsequent proceeding.</p> <p>[Ed. No.te.—Eor other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dee. Dig. § 32.*]</p> <p>2. Aliens (g 32*)—Proceedings eor Deportation oe Chinese—Abuse oe Discretion.</p> <p>Petitioner, a Chinese person, sought to enter the United States and presented as the only evidence of his right what purported to be a certificate made by a commissioner 17 years before that petitioner had been tried before him and adjudged to be a citizen and entitled to remain in the United States, which was not in a form to be competent evidence. Held, that the immigration authorities did not abuse their discretion in making further examination nor, on finding that the certificate was fraudulent, in ordering petitioner deported, although he had resided in this country for the greater part of the 17 years.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. g 32.*]</p>

<p>1. Mines asp Minerals (§ 70*)—Lease of Mine—Removal op Property— Assignment of Lease—Rights op Assignee.</p> <p>Where a lease of mining- property binding Die successors and assigns of Die respective parties authorized removal of property placed on tlie leased premises by the lessee only in case there were no arrearages ot royalty or taxes, on the termination of Die lease, a covenant between the lessee and. its assignee, to which the landlord was not a party, that the assignee should not be bound by such covenant, did not affect the landlord's right to insist that the personal property placed on the land by Die tenant and the assignee should remain until it was determined whether there was royalty or taxes in arrears.</p> <p>LEd. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 192-197 ; Dec. Dig. § 70.*]</p> <p>2. Mines and Minerals (§ 70*)—-Lease op Mine—Removal op Property-Royalty—Injunction.</p> <p>Where defendant, a foreign corporation, and having no property in New York, except certain "property on land held under an assigned lease providing for removal of such property only in case there were no arrearages of royalties or taxes at the end of the ter'm, the landlord was not required to resort to attachment to retain the property within the jurisdiction pending a determination of the question whether there were arrearages of royalties and taxes unpaid, but was entitled to relief by injunction.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 192-107; Dec. Dig. § 70.*]</p>

<p>Action by the Drexel State Bank against the City of Ba Moure.</p>

<p>Appeals from the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.</p> <p>In the matter of bankruptcy proceedings against William S. Butler & Co., Incorporated. From a decree adjudging the corporation a bankrupt, the corporation, its receivers, and certain intervening creditors appeal.</p>

Plolland, Judge. Action by J. Mitchell Clark, William H. Mills, and J. Armstrong Rawlins, copartners trading under the firm name of Naylor & Co., against the Rehigh Valley Railroad Company, the Buffalo, Rochester & Pittsburgh Railway Company, the New York Central & Hudson River Railroad Company, the Philadelphia & Reading Railway Company, the Central Railroad Company of New Jersey, and the Delaware, Lackawanna & Western Railroad Company.

Actions at law by the American Sugar Refining Company against the Delaware, Lackawanna & Western Railroad Company and the New York Central & Hudson River Railroad Company. Judgments for defendants, and plaintiff brings error.

McCall, Judge. Bill by the Illinois Central Railroad Company against the Union Railway Company. Decree for complainant, and defendant appeals. This is an appeal from the final decree of the District Court perpetually-enjoining appellant from making a crossing over appellee’s right of way and tracks at grade, or in any way except by a subway or underpass. Appellee operates a through line of railroad from Chicago to New Orleans, by way of Memphis.

Appeals from the District Court of the United States for' the District of Massachusetts; James M. Morton, Jr., Judge. In the matter of bankruptcy proceedings against Fverybody’s Store, Incorporated, alleged bankrupt. From a judgment dismissing the petition, complainants appeal.

<p>1. Insurance (§ 539*) — Employer’s Liability Policy — Notice — Duty to Gi ve—T i m f—1T11 mediately.”</p> <p>An employer’s liability policy provided that on the occurrence of an accident, whether any claim was made in respect thereof or not, the insured should immediately, and at the latest within ten days, or within the time fixed for giving notice of accidents under liability insurance policies by any special law of the state in which the policy is issued, give notice in writing of such accident to the insurer, etc. Meld, that the word “immediately,” as so used, did not mean instantly, and did not require the insured to give notice before assured itself had knowledge of the accident by which the employs in question was injured.</p> <p>IKd. Note.—For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3403-3410.]</p> <p>2. Time (Ü 15*)—“Immediately.”</p> <p>Where notice of an act is required to be given “immediately,” the word implies reasonable notice in view of all the circumstances of the case.</p> <p>[Ed. Note.—For other cases, see Time, Dec. Dig. § 15.*]</p> <p>3. Insurance (§ 513*)—Employer’s Liability Policy—Defense of Action— Costs and Attorney's Fees on Appeal.</p> <p>Where an employer’s liability policy bound the insurer to defend an action against assured for injuries to a servant, regardless of the insufficiency of the notice of injury, for which the insurer denied liability under the policy and refused to defend, tile assured was not only entitled to recover costs and attorney’s fees paid in defense of the action in the superior court, but was also entitled to recover costs and attorney's fees expended on appeal of the case to the Supreme Court.</p> <p>[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 513.*]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern Division of the District of Idaho, in Bankruptcy; Prank S. Dietrich, Judge. In tlie matter of the bankruptcy proceedings of the Lane Lumber •Company, Limited. Petition by Duval Jackson to be relieved from a bid for the purchase of certain of the bankrupt’s property.

Appeals from the District Court of the United States for the Southern District of New York. Suit in admiralty by Mary A. Quigley, executrix, etc., against the steam tug Transfer No. 20, the New York, New Haven & Hartford Railroad Company, claimant, and steam tug Olympia, the Goodwin Sand & Gravel Company, claimant; Cleary Bros, againgt the same. Decrees against the Olympia, and her claimant appeals.

<p>In Errof to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Charles A. Bruce and the Corporate Organization & Audit Company against the Cincinnati, Hamilton & Dayton Railway Company. Defendant seeks by writ of error to review an order fixing and taxing the fees and poundage of the sheriff of New York County under an order of attachment issued by the state court before removal of the cause.</p> <p>Following is the opinion of Coxe, Circuit Judge, in the District Court:</p> <p>This case comes here on a motion by the sheriff of the county of New York for an order fixing and taxing his fees and poundage upon a levy made under a warrant of attachment issued out of the Supreme Court of the state, prior to the removal of the action to this court. The warrant was regularly issued and under it the defendant’s property was duly attached pursuant to the provisions of sections 644, 647, 648, 649 and 709 of the New York Code. The property consisted of stock and bonds and a deposit of $20,607.97 held by a New York banking house as security for a demand note of $500,000, owned by the bankers. Subsequently a bond was given and the attachment was duly discharged by an order of this court.</p> <p>Although the amount claimed by the sheriff is grossly out of proportion to the work done and risk taken by him, I see no answer to his claim. He seems to have done everything which the law required in making the levy. lie could not have taken the property Into his possession because the bankers Insisted that they held a valid lien upon it. His action resulted in securing the plaintiffs’ claim as effectually as if he had the securities in his possession. The sheriff has done Ms work and is entitled to the fees allowed by the state statutes. The proposition that the fees are out of proportion to the work done is one which should lie addressed to the' Legislature and not to the courts. Under the law as interpreted by the New York authorities, I think the sheriff is entitled to his fees. See chapter 418, vol. 1, Laws of New York, 1892, p. 868; Jones v. Gould, 114 App. Div. 120, 99 N. Y. Supp. 789; Jones v. Gould. 119 App. Div. 817, 104 N. Y. Supp. 935; Plummer v. Power Co., 88 App. Div. 452, 85 N. Y. Supp. 107.</p> <p>The question was recently determined by this court, Judge Noyes writing the opinion, in Lindsey v. Rubber Co. (D. C.) 197 Fed. 775, where the situation was substantially the same as in the case at bar.</p> <p>The motion is granted.</p>

In Equity.. Suit by the Perfection Cooler Company against Henry G. Cordley and others. On supplemental bill in the nature of a bill of review, filed by defendants by leave of court March 26, 1913.

Petition for writ of habeas corpus by Moola Singh and 72 other Hindoo aliens to obtain a release from a deportation warrant.

<p>United States (§ 67*)—Action on Contbactob’s Bond—Limitation—“Final Settlement.”</p> <p>Under Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1911, p. 1071), which gives a right of action on the bond of a contractor for government work in favor of persons supplying labor or materials but limits the time for bringing such action to one year “after the performalice and fina] settlement of said contract,” the “final settlement” dates from the settlement and certification of the contractor’s accounts after completion of the work by the proper auditor in the Treasury Department.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*</p> <p>For other definitions, see Words and Phrases, yol. 3, p. 2804.]</p>

In Bankruptcy. In the matter'of bankruptcy proceedings of William F. Codori, bankrupt. On exceptions to the confirmation of a sale of bankrupt’s real property. Confirmation refused, and trustee, directed to readvertise and sell.

<p>In Equity. Suit by the New Paddock-Hawley Company against the Eayetteville Wagon Wood & Lumber Company and W. W. Key, its trustee in bankruptcy.</p>

<p>1. Damages (§ 130*)—Excessiveness—Personal Injuries.</p> <p>Plaintiff, a young lady troubled witli defective vision but with no other physical infirmity, attempted to alight at a station from a Pullman car, expecting that the usual movable stool had been placed on the platform to break the distance between the bottom step and the platform. This, however, had been omitted by the porter, and as she stepped down she fell between tlie lower step and the platform and was thrown forward on her face and sustained bruises and a severe sprain of the ankle. Held, that a verdict awarding her $2,500 was not excessive.</p> <p>|Kd. Note.—For other cases, see Damages, Cent. Dig. §§ 357-307, 370; Doc. Dig. § 130.*]</p> <p>2. Carriers (§ -136*)—Injuries to Passenger—Alighting from Train—Movable Stool—Failure to Provide—Negligence—Question for Jury.</p> <p>In an action for injuries to a passenger while alighting from a Pullman car by a fall alleged to have been due to the porter’s omission to place the usual movable stool to break the distance between the lower step of the car and the platform, causing plaintiff to fall, whether the porter’s omission constituted actionable negligence held for the jury.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. Si 416.*]</p> <p>3. Carriers (Si 416*)—Injuries to Passengers—Alighting ifROir Oar—Contributory Negligence.</p> <p>Plaintiff, a passenger troubled with defective vision but being able to see and move about, had been accustomed to travel and use Pullman cars and prior to the occasion in question had always been assisted by tlie porter to alight, who had always placed a movable stool between the lower slep of (he car and the platform. On the occasion in question, when she arrived at her destination, the porter took her umbrella and preceded her out of the car and down the steps to the platform, on reaching which he stepped to one side. Plaintiff descended the steps without looking, supposing that the stool had been placed in position as usual. This, however. had been omitted, and as she stepped off she went down between the lower step and tlie platform and was thrown forward on her face and injured. Held, that her failure to look to see whether the stool had been put in position did not constitute contributory negligence as a matter of law.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 416.*]</p> <p>4. Carriers (§ 303*)—Passengers—Alighting from Car—Duty to Assist.</p> <p>While a railroad company; in the absence of something to show that a passenger about to alight requires assistance, is under no obligation to render assistance, yet, if its agents and employes voluntarily assume to render assistance, it must do so with due and ordinary care and is liable if such assistance is withdrawn and the passenger is injured.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*]</p> <p>5. Carriers (§ 303*)—Transportation of Passengers—Duty to Use Care—■ Extent.</p> <p>The duty of a carrier to use due care for the safety of its passengers obtains not only while the passenger is being carried on the train but so long as the relation of carrier and passenger exists and acts are being performed reasonably and fairly attributable to that relation, including the act of the passenger in alighting from the train.</p> <p>[Ed. Note.—For other eases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dee. Dig. § 303.*]</p>

<p>Habeas Corpus (§ 15*)—Congressional Inquiry—Probable Cause—Refusal to Testify.</p> <p>That a witness before a committee of the House of Representatives, which was acting under a resolution authorizing inquiry, as a basis for remedial legislation, into the subject of the relations of national banks in various directions, refused to give the names of officers of national banks, who, as he testified, were members of a certain syndicate, constitutes “probable cause” (the sole inquiry in habeas corpus proceedings) for the warrant for his commission to the custody of the marshal to await a warrant for his removal to the District of Columbia, where he had been indicted under Rev. St. § 102 (U. S. Comp. St. 1901. p. 55), malrfns it an offense for a witness before any committee of Congress to refuse to answer any question “pertinent to the question under inquiry”; the subject being one Congress could investigate, and the question not encroaching on the domain of inquisitorial power, and invading no constitutional rights of the witness.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 15; Dee. Dig. § 15.*]</p>

<p>Pardon (§ 14*)—Parole—Good Time—“Legal Custody”—“‘Control.”</p> <p>Act Cong. June 21, 1902, c. 1140, 32 Stat. 397 (U. S. Comp. St. Supp. 1911, p. 1701), provides that each prisoner confined, in execution of a sentence, in any United States penitentiary, whose record justifies it, shall be entitled to a deduction for good time, commencing from the first day of his arrival at the penitentiary. Act June 25, 1910, c. 387, 36 Stat. 819 (U. S. Comp. St. Supp. 1911, p. 1702), declares that every prisoner confined for a term of more than one year, whose record shows an observance of the prison rules, and who has served one-third of his term, may be released on parole. Section 3 declares that the parole shall be granted on such terms as the hoard of parole shall prescribe, the prisoner to remain, while on parole, in the legal custody, and under the control of the warden of the prison from which he was paroled, and until the expiration of the term or terms specified in his sentence, less such good time allowance as is provided. The act also provides for the retaking of a paroled prisoner who has violated his parole, at any time within the term or terms of his sentence, and for a hearing before the board, which may revoke the order and terminate the parole, and, if revoked, the prisoner shall serve the remainder of the sentence imposed; the time the prisoner was on parole not being taken into account to diminish the time of his sentence. Held, that “legal custody” and “control” did not contemplate actual custody or confinement of a paroled prisoner, and that such a prisoner was not subject to prison rules providing for a forfeiture of good time allowance by a breach of such rules, so that on Ms return for breach of his parole he was not subject, to a forfeiture of his good time earned, in determining the date of the expiration of his sentence.</p> <p>[Ed. Note.—For other cases, see Pardon, Cent. Dig. §§ 28-31; Dec. Dig. § 14.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1519-1552; vol. 8, p. 7617.J</p>

Application of Stanley Kasper Brykczynski for a certificate of naturalization. The petitioner was born in Berlin, Germany, March 8, 1888, emigrated to the United States, and, since April 29, 1889, has been a. resident of Wisconsin. lie entered the United States navy May 20, 1908, upon a four-year term of enlistment.

<p>In Equity. Suits by Daniel E. Smith against J. B. Eloyd and others, and by Mary I. Sullivan against the same. On motion to remand to state court.</p>

<p>In Error to the District Court of the United State for the District of Arizona; Richard E. Sloan, Judge.</p> <p>Action by Thomas P. Clark against the Arizona. & New Mexico Railway Company.' Judgment for plaintiff, and defendant brings error.</p>

<p>In Equity. Suit by Edwin Walker, John W. Dorman, Edward J. Dorman, and Mary E. Rex ford against Henry Giles and Catherine Nielsen, copartners trading as Giles & Nielsen Nickel Works. On final hearing.</p>

<p>In Equity. Suit by McClellan Stillwell, doing business under the firm name of the Economy Culvert Company, against Frank McPherson, Highway Commissioner of the Town of Ithaca, Tompkins Comity, N. Y.</p>

l'n Equity. Suit by Arthur K. Beckwith against the Malleable Iron Range Company. On motion by defendant to strike certain specifications from master’s summons. Held: in effect, that equity rule No. 79 (new rule No. 63 [198 Fed. xxxvii, 115 O. 0. A. xxxvii]) was not applicable to an accounting in a patent infringement suit.

<p>In Equity. Bill by the W. E. & John Barnes Company against the Vandyck-Churchill Company and others.</p>

<p>Judgment (§ 828*)—Res Judicata—Review of Obdeb of Raileoad Commission—Washington Statute.</p> <p>Laws Wash. 1909, c. 93, creating a public service commission with power to regulate railroad rates, which gives to a railroad company the' right to maintain a suit in the superior court to review any order of the-Commission, with the further right of appeal to the Supreme Court of' the state, is within the provisions of the state Constitution and provides for a full review by judicial tribunals which when exercised renders the-matter res judicata; and a railroad company, having availed itself of such remedy, cannot thereafter maintain a suit in a federal court to restrain the enforcement of an order which has been sustained by the state courts. In case conditions change after an order has been made-so as to render it unjust or unreasonable, the remedy is by a petition for rehearing before the Commission.</p> <p>[Ed. Note.—Eor other cases, see Judgment, Cent. Dig. §§ 150L-1509;. Dec. Dig. § 828.-]</p>

<p>In Equity. Suit by the United States against Elizabeth Eenore to cancel a certificate of citizenship alleged to have been illegally procured.</p>

<p>At Law. Action by Wells Fargo & Co. against the Mayor and Aldermen of Jersey City.</p>

<p>In Bankruptcy. - In the matter of bankruptcy proceedings of William F. Hennebry. On specifications of objections to the bankrupt’s petition for discharge.</p>

<p>1. New Trial (§ 76*)—Grounds—Excessive Verdict.</p> <p>Since tbe amount of the verdict in a personal injury action will not be reviewed by the Circuit Court of Appeals, the trial court should carefully consider a motion by defendant for a new trial on the ground that the verdict allowed was excessive, to the end that no injustice should be permitted because of an award not warranted by the evidence.</p> <p>[Ed. Note.—For other eases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76.*]</p> <p>2. Damages (§ 132*)—Excessiveness—Personal Injuries.</p> <p>Plaintiff, a mail clerk, in perfect health, of good habits, and a strong, vigorous young man earning $1,100 a year, and between 25 and 26 years old, was injured in a wreck on March 15, 1912, on defendant’s railroad. Plaintiff was pinned under the wreckage for some hours, and was only released by cutting into the car. He received a severe and compound fracture of both lower bones of one leg near the ankle joint, and other bruises and injuries of a lesser nature. He was taken to a hospital, where the bones were set; but they did not unite well, became infected, and after three months he was taken to another hospital, where the bones were reset, and. they, with the wound, treated for several weeks, during all of which time he suffered much pain, mental and physical. It was several weeks before he could get around at all, or that he was able to hiove with the aid of crutches, and at the time of trial in June, 1913, he used a cane for that purpose. While in the hospital chronic nephritis developed as a direct result of the injury, which will prevent his engeglng in any arduous work, mental or physical. The ankle is permanently stiffened, and he will continue to suffer mental and physical pain and require medical attention in the future. Under civil service rules he received full salary up to March 15. 1913, after which he will receive half salary until March .15, 1911, when his pay will cease. Held, that a verdict allowing plaintiff §17,500 was not so excessive as to indicate passion or prejudice on the part of the jury.</p> <p>|Rd. Note.—For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p>

Action by Elbert A. Read against E. T. Neff and another. On motion by defendants to vacate the summons and the officer’s return and to dismiss the case.

<p>In Equity. Suit by Harriet Elizabeth McBride -against Emma Jane Kirkpatrick. On motion to exclude testimony.</p>

<p>1. Nuisance (§ 3*)—Injuries to Property from Operation—“Actionable Nuisance.”</p> <p>The consequential, incidental, and unavoidable annoyance or damage resulting to the occupiers of land adjacent to a duly authorized railroad from its nonnegligent and careful operation docs not constitute an “actionable nuisance,” irrespective of the extent of such annoyance or damage.</p> <p>[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 149.]</p> <p>2. Constitutional Law (§ 278*)—Eminent Domain (§ 2®)—'Takings of Property Without Compensation—Damages from Operation of Railroad.</p> <p>Nor does the causing of such damage to the property owner by such nonnegligent operation of the railroad constitute a taking or appropriation of his property without due process of law, or just compensation, in violation of the Constitution of the United States.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 763, 765, 767-770. 772-777, 779-806, 808-810, 816-824, 907-924, 912; Dec. Dig. § 278;* Eminent Domain, Cent. Dig. §§ 3-12; Dee. Dig. § 2.*</p> <p>Consequential and indirect damages, see note to 16 C. C. A. 468.]</p>

<p>1. Corporations (§ 187*)—Agreements Between Stockholders—Construction.</p> <p>Plaintiff and W. transferred certain patents, etc., to a corporation in exchange for all of its stock. They subsequently transferred a majority of the stock under an agreement that they should be paid therefor $300.-000 out of the profits of the company before any dividends should be declared. The majority stockholders had advanced large sums of money to the corporation, for which they held interest-bearing notes, and plaintiff became dissatisfied because the amount due him did not also bear interest. One of the majority stockholders, who was also a director, prepared an agreement stating that plaintiff demanded that the $300,000 be put on an equal basis to that advanced on the notes, that he agreed to that proposition and thought the best way to d'o this was by the issue of 6 per cent, preferred stock, to be repurchased by the company out of surplus as accumulated, that plaintiff was to receive a specified salary, that the majority stockholders would make other advances as needed, that all questions of policy in the company as to which differences might arise between the majority and a minority should be submitted to arbitration, and that the provision for issuing preferred stock should include all money payable by the company under its contracts; This agreement was signed by such majority stockholder and by plaintiff. Held, that this did not constitute an agreement by the corporation to assume an indebtedness to plaintiff of $300,000 or to put plaintiff’s claim on an equal basis with the promissory notes, leaving the way of doing tins open, but was an agreement between the stockholders to equalize their claims by advancing the claim of plaintiff and W. to the form of interest-bearing stock; the majority stockholders to waive their position as creditors by exchanging their notes for preferred stock, especially as the corporation could not require the majority stockholders to accept stock in exchange for the notes.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 702, 703; Dec. Dig. § 187.*]</p> <p>2. Corporations (§ 174*)—Stockholders—Relation to Corporation.</p> <p>Holders of preferred stock of a corporation are not creditors.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 649-652; Dec. Dig. § 174.*]</p> <p>3. Contracts (§ 47*)—Consideration—Necessity.</p> <p>Where the owners of all the stock of a corporation transferred a majority thereof under an agreement that they should be paid iherefor out of tlie profits of the company before any dividends should be declared, the corporation, not being indebted to the sellers of the stock, could not assume the payment of the debt due them without a consideration.</p> <p>I Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 220, 221, 256-258; Dee. Dig. § 47.*]</p> <p>4. Contracts (§ 75*) — Consideration — Sufficiency — Assumption of Liability.</p> <p>Plaintiff and another, owning all the stock of a corporation, transferred a majority under an agreement that they should be paid therefor out of the profits of the company before any dividends should be declared. The purchasers of this stock had advanced large sums of money to the corporation, for which they held interest-bearing notes. Plaintiff becoming dissatisfied because the amount due him did not also bear interest, an agreement was made between him and one of the majority stockholders to equalize his claim and those of the majority stockholders, the agreement providing that the best way to do this was by issuing preferred stock. In consideration of this agreement, plaintiff, who had been in the company’s employ, agreed to remain with the company.. It was plaintiff’s contention that the agreement was merely one to equalize the claims, leaving the way of doing this open, and that the company subsequently assumed the payment of the amount due him with interest. Held that, plaintiff having agreed to remain with the company in consideration of the agreement with the majority stockholder, his agreement to remain in the company’s service was not a sufficient consideration for the corporation’s alleged promise to assume the debt due him.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 273-285; Dec. Dig. § 75.*]</p> <p>5. Contracts (§ 330*)—Actions—Parties.</p> <p>Plaintiff and W. transferred certain patents, etc., to a corporation in exchange for all of its stock, and subsequently transferred *h majority of the stock under an agreement that.they should be paid therefor $300,-000 out of the profits of the company before any dividends should be declared. The purchasers of this stock had advanced large sums of money to the corporation, for which they held interest-bearing notes, and plaintiff became dissatisfied because the amount due him did not bear interest. An agreement was made between him and one of the majority stockholders to equalize these claims by exchanging them for. preferred stock, to be repurchased by the company out of surplus as accumulated; the contract further providing that plaintiff was to be employed at a specified salary, that the majority stockholders were to make further advances if required, that all differences in the management of the company, arising between the majority and a minority, should be arbitrated, and that the provision for issuing preferred stock was to include all money payable by the company under its contracts, with accrued interest. Held that, assuming that W. assented to this agreement, he did not thereby surrender his right in the $300,000, and -the contract did not change the ownership of that right to a sole right in plaintiff; and hence the contract could be enforced only by plaintiff and W. jointly.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1589, 1591-1594, 1596, 1597, 1602-1604; Dec. Dig. § 330.*]</p> <p>6. Contracts (§ 9*)^-Essentials—Meeting ox Minds.</p> <p>Plaintiff and W. transferred certain patents, etc., to a corporation in exchange for all of its stock. They subsequently transferred a majority of the stock under an agreement that they should be paid therefor $300,-000 out of the profits of the company before any dividends should be declared. The majority stockholders had advanced large sums of money to the corporation, for which they held interest-bearing notes, and plaintiff became dissatisfied because the amount due him did not also bear interest. One of the majority stockholders, who was also a director, prepared an agreement stating that plaintiff demanded that the $300,000 be put on an equal basis to that advanced on’ the notes, that he agreed to that proposition and thought the best way to do this was by the issue of 6 per cent, preferred stock, to be repurchased by the company out of surplus as accumulated, that plaintiff was to receive a specified salary, that the majority stockholders would make other advances as needed, that all questions of policy in the company as to which differences might arise between the majority and a minority should be submitted to arbitration, and that the provision for issuing preferred stock should include all money payable by the company under its contracts. This agreement was ■ signed by such majority stockholder and by plaintiff. Plaintiff contended that the agreement'merely provided for equalizing claims, leaving the manner of doing it open. Held that, if the agreement was not a completed contract to equalize the claims by exchanging them for preferred stock, it •was no contract whatever, since, it being left uncertain whether the majority stockholders should surrender their claims or whether the corporation should assume a new indebtedness to plaintiff and W., the minds of the parties had not met.</p> <p>[Ed. Note.—For other cases, see Contacts, Cent. Dig. §§ JL0-20; Dec. Dig. § 9.*]</p> <p>Aldrich, District Judge, dissenting.</p>

Appeal and Cross-Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. _ _ Suit in admiralty for collision by Frederick Hale, master of the barge Elizabeth E. Vane, against the steamship Columbia, the Chesapeake Steamship Company, claimant, and the tug Howard Reeder, brought in under admiralty rule 59 (29 Sup. Ct. xlvi). Decree against the Columbia and the Howard Reeder, and their claimants appeal.

Whitaker Thompson, Judge. Suit in admiralty for collision by E. Furman Smith and others, owners of the schooner Eugene Cathrall, against the tug Philadelphia; Joshua E. Tracy, claimant. Decree for libelants, and claimant appeals.

<p>1. Patents (§ 234*)—Infringement—Evidencie.</p> <p>Similarity of structure cannot be predicated on similarity of names, nor the mere use of old elements, as new combinations make new inventions.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 370, 381; Dec. Dig. § 234.*]</p> <p>2. Patents (§ 328*)—Vapidity and Infringement—Grass Twine Machines.</p> <p>The alonaban & Kleren patents, No. 688,789, for a grass twine machine, and No. 785,070, for a material feeding device for such machines, while valid, are of narrow scope and limited to the specific form of the improvements shown; as so limited, held not infringed.</p>

Anderson, Judge. Suit in equity by the Krell Auto Grand Piano Company of America against the Story & Clark Company and Harold J. Morris, agent. Decree for defendants, and complainant appeals.

<p>In Equity. Suit by the Long Arm System Company^ against the New York Shipbuilding Company and others. On motion for preliminary injunction.</p>

<p>In Equity. Suit by Minerals Separation, Limited, and the Minerals Separation American Syndicate, Limited, against James M. Hyde.</p>

<p>1. Patents (§ 328*)—Validity and Infringement—Underfeed Furnace.</p> <p>Tiie Daley patent No. 644,664 for a furnace having an underfeed held not anticipated, valid and infringed on motion for a preliminary injunction.</p> <p>2. Patents (§ 297*)—Suit for Infringement—Preliminary Injunction.</p> <p>When a patent has been sustained after a thorough defense by competent and diligent counsel, and the defendants’ structure, in a'subsequent case is substantially like that involved and held to infringe in the prior suit in essential particulars, the complainant should be given the benefit of such adjudication on an application for preliminary injunction, and the burden rests on the defendant to distinguish the cases.</p> <p>TEd. Note.—For other cases, see Patents, Cent. Dig. §§ 481-488; Dec. Dig. § 297.*]</p>

<p>Claim of Warner R. Crowell against the insolvent estate of the Bowker Torrey Company, to the allowance of which Albert O. Smith, conservator, and others, filed objections.</p>

In the matter of George D. Howell, alleged bankrupt. On involuntary petition by Mechanics’ & Metals’ National Bank and others. The petitioners allege the insolvency of the respondent and Ms liability as an indorser of the notes which they severally hold. The McOrum-IIowell Company was a corporation, organized under the laws of Connecticut but having the largest amount of its property and assets in ■ Pennsylvania. The capital stock was $7,000,000, half preferred, half common.

<p>In Admiralty. Suit by the Munson Steamship Line against the Elswick Steam Shipping Company, Limited.</p>

<p>In the matter of J. B. Wall, bankrupt. On review of order of referee denying petition of the Southern Rock Island Plow Company to reclaim property.</p>

<p>1. Maritime Liexs (§ 25*)—Construction of Statute—“Necessaries.”</p> <p>In Act June 23, 1910, c. 373. Ü 1, 36 Stat. 601 (U. S. Comp. St. Supp. 1911. p. 1191), giving a maritime lien “to any person furnishing repairs, supplies or other necessaries * * * to a vessel whether foreign or domestic upon the order of the owner or owners or of a person by him or them authorized,” the word “necessaries-’ does not include towage, which is not within the scope of the act. but is limited in meaning to such things, of the general nature of repairs and supplies, as are fit and proper for the use of a ship.</p> <p>[Ed. Note.-—For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4693-4703.]</p> <p>2. Towage (§ 9*)—Lien-—Services Rendered to Charterer.</p> <p>A towing company furnishing towage to chartered barges employed by a firm dealing in ice, under a general contract with the charterers and with knowledge that they were charterers and not the owners, is not entitled to a maritime hen on the vessels therefor.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. § 9; Dec. Dig. § 9.*]</p>

<p>Jacob L. Goldman was indicted for misuse of the mails. On motion to quash, and on demurrer to the indictment.</p>