Volume 208 — Federal Reporter

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action by James G. Kidwell against the Oregon Short Line Railroad Company, judgment for defendant, and plaintiff brings error.</p> <p>The plaintiff in error brings under review a judgment of nonsuit rendered against him in an action which he brought against the defendant in error to recover damages for injury to cattle. The parties will be designated plaintiff and defendant as in the court below. The complaint alleged in substance that the defendant, a common carrier operating a line of railroad from Huntington, Or., to American Falls, Idaho, and the Union Pacific Railroad Company, a carrier operating a railroad from Granger, Wyo., to Omaha, INieb., form a connecting line of railroad between Huntington and Omaha;, that on December 4th the defendant received of the plaintiff at Hunting-ton. 398 head of fat cattle, in good condition and of average weight, for transportation over said railroads to South Omaha, through such intermediate point upon said railroads as the plaintiff might thereafter designate, the stock to be consigned to the plaintiff at such point so designated; that the cattle were received under regular tariffs and were billed to the plaintiff as consignee at Minidoka, Idaho, on the line of defendant’s railroad, it being the plaintiff’s intention, as defendant knew, to continue the transportation from Minidoka to South Omaha, and that thence the goods were carried over the Union Pacific Railroad from American Palls to South Omaha; that both said railroad companies failed and neglected to perform their duties as such common carriers; that on divers occasions, while the cattle were in transit, they were allowed to remain in the cars for longer periods than 2S consecutive hours without unloading or permitting them to be unloaded or to receive rest, water, or food and were allowed to remain. for unreasonably long periods of time upon side tracks; that the cattle were so carelessly, negligently, and roughly handled that they were thrown down, bruised, and maimed; and that their transportation was unreasonably delayed. And the complaint alleged that the loss in weight of said cattle was 72 pounds each more than they would have sustained if they had been properly handled and alleged damages in the sum of $4,627. The answer, after denying the allegations of negligence, alleged that, after the cattle had been carried to Mini-doka, the plaintiff refused to unload the same at that point, and that at his request they were transported to American Palls, at which place they were unloaded for feed, water, and rest, and 96 hours later the plaintiff reloaded the same and shipped them to South Omaha. The answer further alleged that, in consideration of a reduced freight rate, the plaintiff signed a live stock contract limiting the defendant’s liability for injury to the stock from any cause not directly the result of gross negligence on the part of the carriers, their agents and servants, and that one of the provisions of the contract of shipment was that unless claim for loss, damage, or detention were presented “within ten days from the date of unloading of stock at destination, and before the said stock has been mingled with other stock, such-claim shall be deemed to be waived and the carriers and each thereof shall be discharged from liability.” And the answer alleged that the notice was not given.</p> <p>The plaintiff’s reply alleged that the live stock contract was void for the reason that it was in violation of section 7 of the act of Congress known as the Hepburn Act, passed June 29, 1906 (Act June 29, 1906, c. 3591, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]). At the close of the plaintiff’s case, the defendant moved for a nonsuit on various grounds, one of which was that there was no evidence tending to show that the stock was injured through the defendant’s negligence. Another was that there was failure of proof that the plaintiff gave notice to the defendant of his claim for damages within ten days after the unloading of the stock at destination, and before the stock had been intermingled with other stock, as required by the contract of shipment. On the ground last mentioned, the court granted the motion and entered a judgment of nonsuit.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; John J. De Haven, Judge. ■ ...</p> <p>Robert Donaldson was convicted of conspiracy and participation m unlawfully receiving and facilitating the transportation and concealment, after importation, of certain opium imported into the United States contrary to law, and he brings error.</p>

<p>Master and Servant (§ 289*) — Injuries to Servant — Contributory Negligence.</p> <p>Plaintiff, a carpenter employed in defendant’s meat establishment, built on pilings over tide flats, was ordered to go underneath the glue house to take certain measurements. He proceeded to remove a plank from the flooring above the place where the measurements were to be made, but was directed by the foreman to go underneath the wharf. He did so taking a route between two elevator guides, which extended below the floor into the mud, and while there was struck by the descent of the counterweights and injured. The way between the guides was marked by planks laid underneath the wharf, and if he had gone any other way it would have been necessary to wade through mud and filth, which was from ankle to hip deep, to arrive at the point where the measurements were to be taken. Por five years prior to the week before the accident the counterweights had stopped above the first floor, but the week prior to the accident the cable holding the counterweights had broken, and in repairing the same the coil had been unwound from the drum so that thereafter the weights went below the first floor and almost to the mud, but plaintiff was not shown to have had knowledge of this. Held, that he was not negligent as a matter of law in traveling the route between the weight guides.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]</p> <p>Before GILBERT, ROSS, and HUNT, Circuit Judges.</p>

In Equity. Suit by the New York Continental Jewell Filtration Company against the City of Harrisburg, for infringement of letters patent No. 644,137, for a method of purifying water, granted to Omar H. Jewell, February 27, 1900, and reissue No. 11,672, for improvement in filters, granted to the same patentee June 28, 1898. On final hearing.

<p>Patents (§ 328*) — Invention—Apparatus por Marino Portland Cement.</p> <p>Tlie Edison patent No. 802,631 for an apparatus for burning Portland cement clinker is void for lack of patentable invention, being merely for a longer kiln than those in common use when it was applied for.</p>

Suit in admiralty by the Islesboro, Castine & Belfast Steamboat Company against the steamer Golden Rod; the Eastern Bay Steamboat Company, claimant. Decree for respondent, and libelant appeals.

<p>In Equity. Suit by the Ambursen Hydraulic Construction Company against the Hydraulic Properties Company. On final hearing.</p>

At Raw. Action by Bessie Patton, administratrix, against the Cincinnati, New Orleans & Texas Pacific Railway. On motion to remand. This is an action for 825,000 damages commenced by the plaintiff by summons from the Circuit Court of Hamilton County, Tennessee, a county within the Southern Division of the Eastern District of Tennessee, which was issued and served on November 4, 1912, and was returnable on January 6, 1913.

<p>1. COURTS (§ 101*) — Federal Courts — Injunctions to Restrain Enforcement of State Statutes or Orders — By Whom may be Granted.</p> <p>Judicial Code, § 260 (Act March 3, 1911, c. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 237]), as amended by Act March 4, 1913, c. 160, 37 Stat. 1013, requires the presence of three judges at the hearing of an application for an interlocutory injunction to restrain the enforcement, operation, or execution of any statute of a state by restraining the action of any officer of such state in the enforcement or execution of such statute “or in the enforcement or execution of an order made by an administrative board or commission acting under and pursuant to the statutes of such state” (the words quoted being added by the amendment) “upon the ground of the uueonstitutionality of such statute.” Held, that the amendment extends the procedure requiring three judges to applications to enjoin any order made by a state board or'commission which is alleged in the application to be in violation of the federal Constitution, although the constitutionality of the statute under which the board or commission acts may not be questioned.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 344-350, 629; Dee. Dig. § 101.*]</p> <p>2. Carriers (§ IS*) — State Regulation of Rates — Injunction—Construction of Decree.</p> <p>A decree of a federal court enjoining the enforcement of state statutes establishing a system of rates for freight and passengers on the ground that such system, taken as a whole, was confiscatory as applied to the complainant railroad company does not render the question of the validity of the passenger rates alone, or taken in connection with higher freight rates, res judicata, nor estop the State Railroad Commission, acting under another statute, from subsequently establishing the same passenger rates.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. § 18.*]</p> <p>3. Con merge (§ 10*) — Regulation of Bates — Powers of State--Nonhxeb-cise of Power of Congress.</p> <p>In the absence of any legislation on the subject by Congress, it is within the constitutional power of a state to regulate rates to be charged by railroads within the slate, and such regulation is not an interference with interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Gent. Dig. § 8; Dee. Dig. § 10.*]</p> <p>4. Carriers (§ 12 *) — State Regulation of Rates — Reasonableness of Rates.</p> <p>Where 80 per cent, of the mileage of a railroad company in a state consist of branch lines constructed with knowledge that they would not pay a fair return on intrastate business and over which it voluntarily transports coal and ore to iron and steel mills at cost, for the purpose of developing its interstate business, it cannot attack intrastate passenger rates fixed by the state as confiscatory because Its entire intrastate business does not yield a fair return on the property invested therein.</p> <p>[Ed. Note. — For other cases, see Carriers. Cent. Dig. §§ 7-11, 15-20; Doc. Dig. § 12.*]</p> <p>5. Carriers (§ 18*) — State Regulation of Rates — Presumption of Validity.</p> <p>Railroad rates established by a state legislature or duly authorized commission are presumptively reasonable and not violative of constitutional rights, and henee to authorize the courts to interfere with their enforcement their invalidity must be established clearly and beyond reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20r 24; Dec. Dig. § IS.*]</p> <p>6.CaRbiers (§ 12*)- — State Degulation or Dates — Deasonableness or Dates —Valuation or Property.</p> <p>In estimating the cost of reproduction of railroad property, for the purpose of determining the reasonableness of rates fixed by the state, it is not permissible to be governed by the value of adjoining lands enhanced by the existence and operation of the railroad and to add to such value an extra amount which it would probably cost to acquire the lands for railroad purposes.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dee. Dig. § 12.*]</p> <p>7. Carriers (§ 12*) — State Degulation or Dates — Deasonableness or1 Dates.</p> <p>Evidence considered, and held insufficient to establish the unconstitutionality of an order of the Dailroad Commission of Alabama fixing intrastate passenger rates at 2% cents per mile on the ground that it was-confiscatory as applied to complainant railroad company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>Pardee, Circuit Judge, dissenting.</p> <p>On Application for Appeal.</p> <p>8. Federal Courts — Suits to Enjoin Enforcement or State Statutes or Orders — Pro oed ure — Appeal.</p> <p>Where a majority of the three federal judges sitting together, as required by section 266 of the Judicial Code (Act March 3, 1911, e. 231, § 206, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]), on the hearing of a motion for a preliminary injunction to restrain the enforcement of a state statute or administrative order establishing intrastate railroad rates, have concurred in an order denying such injunction after a hearing on the merits, they should not, pending an appeal from such order, continue in force a temporary restraining order, granted on motion of plaintiff before the hearing, not only because said section 266 expressly provides that such temporary order “shall remain in force only until the hearing and determination of the application for an interlocutory injunction,” but also because to continue it in force would be inconsistent with, and practically nullify, the order appealed from. (Per Shelby, Circuit Judge.)</p>

In Bankruptcy. Action by S. E. Walters, as trustee in bankruptcy of L. E. Zimmerman, individually and as partner in the Zimmerman Music Company, against Mary E. Zimmerman and others to set aside an alleged preference consisting of a mortgage given by the bankrupt to one George H. Marsh.

<p>1. CORPORATIONS (§ 216*)-LIABILITY 03? STOCKHOLDERS-LAW GOVERNING.</p> <p>Tbe liability of stockholders of a bankrupt corporation on account of payment for their stock in property is to be determined by the law of the state.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 829-834; Dec. Dig: § 216.*]</p> <p>2. Corporations (§ 232*) — Liability oe Stockholders — Payment eor Stock in Property.</p> <p>Stockholders of a brewing company, who paid in part for their stock by an agreement to transfer the good will of their business as wholesale dealers in beer to the company, held liable to assessment for such part of the subscription on the bankruptcy of the company, under the law of Pennsylvania; it not appearing what, if anything, such good will was worth.</p> <p>[Ed. Not. — For other cases, see Corporations, Cent. Dig. §§ 879, 880, 883, 884, 987; Dec. Dig. § 232.*]</p>

<p>1. Aupeai. and Eeeob (§ 1232*)- — Appeal Bonds — TjIabtmtt—Teemination.</p> <p>U. S. Comp. St. 1901, p. 712, § 1000, provides that every justice or judge signing a citation on any writ of error shall take good and sufficient security that tlie plaintiff in error or appellant shall prosecute his writ or appeal to effect, and if he fail to make good his plea he will answer all damages and costs. Plaintiff, having been cast in an action against defendant, sued out a writ of error and gave a bond conditioned that he would prosecute the writ to effect and answer all damages and costs if lie failed to make the appeal good. The judgment was reversed and the cause remanded for new trial. On the second trial plaintiff was again cast, and again sued out a writ of error and gave bond with a similar condition, and again succeeded in reversing the judgment, and tlie case was returned for a third trial, with instructions following which the trial court rendered a decree in favor of plaintiff, which on writ of error by defendant was affirmed by the Circuit Court of Appeals but was reversed by the ¡Supreme Court on certiorari after which judgment ivas finally rendered for defendant. Held, that defendant’s failure to obtain a review of the judgment of the Circuit Court of Appeals on tile first two writs of error as he might have done, but his participation in a new trial on each of tlie cases, devitalized the bonds and precluded a subsequent recovery thereon for costs on the writs of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4753-4757; Dee. Dig. 1 1232.*]</p> <p>2. Appeal ato Eerob (§ 1234*) — Costs on Appeal — Bonds — Items Recoverable — Classification.</p> <p>Where plaintiff gave two bonds for costs on separate writs of error to the Circuit Court of Appeals, the surety in each binding himself only to answer for damages and costs arising if the plea was not made good, the bonds constituted a several liability only, so that no recovery could be had thereon except for the particular costs incurred on each writ.</p> <p>[Ed. iNote. — For other cases, see Appeal and Error, Cent. Dig. §§ 4761-4777; Dec. Dig. § 1234.*]</p>

<p>1. Bankruptcy (§ 14*) — Jurisdiction—Residence—Domicile.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 (Ü. S. Comp. St. 1901, p. 3420), conferring on the district courts jurisdiction to adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months or the greater portion thereof, it must be shown, in order to confer jurisdiction, that' the alleged bankrupt either had his . principal place of business, or his residence or domicile, within the division of the district in which jurisdiction is invoked.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 14.*]</p> <p>2. Bankruptcy (§ 14*) — Jurisdiction—“Residence.”</p> <p>The word “residence”" as used in Bankr. Act July 1, 1898, e. 541, § 2, 30' Stat. 545 (U. S. Comp. St. 1901, p. 3420), conferring jurisdiction on the bankruptcy courts to adjudge persons bankrupt who had their principal place of business, residence, or domicile within their respective territorial jurisdictions for the preceding six months or the greater portion thereof, should be construed as providing for jurisdiction in the alternative over those who have their residence, or their domicile, or their principal place of business within the district, and hence mere residence consisting of a relationship to the territory) which does not rise to the dignity of a domiciliary condition, if continued for the requisite proportion of the six months preceding the filing of the petition, is sufficient to confer jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 14.*</p> <p>For other definitions, see Words and Phrases, yol. 7, pp. 0151-0161; yol. 8, p. 7788.] '</p> <p>3. Bankbuptoy (jj 14*) — Jttbisdictjon—Residencio.</p> <p>The bankrupt in March, 1910, having previously been engaged in sheep raising in Montana, sent his wife to her fa tiler’s home in Michigan, and in October left Montana with a band of sheep, to feed and sell them in the East, lie arrived in Ohio, within the district in which it was sought to liave him adjudged a bankrupt, in the middle of October, 1910, where he resided until May, 1911, spending more than two-thirds of his time within the district; his absences being on business trips only. In February, 1911, he went back to Montana, sold his horses and remaining household goods, and definitely closed up his interests in that state, soiling the wire on his leased ranch, and made expressions indicating a probability that he ivould never return to Montana. He also discussed the advisability of shipping his horses and remaining goods to Ohio or selling them in Montana. He returned to Ohio in March, and remained there until May 5th, when he took up his permanent residence in Michigan. Held, that though he testified that he had formed no intention of abandoning Montana as his home until his last trip, his residence from October, 1910, until May, 1911, was within the district of Ohio, and was therefore sufficient to establish jurisdiction in the' bankruptcy court there.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 14.*]</p>

<p>The Sweet Valley Wine Company was indicted for misbranding wine in violation of the Pure Food Act, and demurred to the indictment.</p>

Libel by the United States for forfeiture of Twenty Chests of Tea-. Judgment of forfeiture. libel for forfeiture of 20 chests of tea rejected by customs examiner and released and exported under the provisions of the act entitled “An act to prevent the importation of impure and unwholesome tea,” approved March 2, 1897, and reimported into the United States in alleged violation of section 9 of the said act.

<p>In Bankruptcy. In the matter of Charles D. Hershberger, bankrupt. On review of referee’s report of audit.</p>

<p>1 Bankruptcy (§ 159*) — 'Preferences—Vacation — Requisites — Deed of Trust.</p> <p>To entitle a bankrupt’s trustee to set aside a deed of trust executed by the bankrupt as a preference in violation of Bankruptcy Act July 1,' 1898, c. 541, § 60, subds. “a,” “b,” 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act Feb. 5, 1903, c. 487, § 33, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1506), as they stood in 1903 when the deed was executed, it was essential that the trustee prove, first, that the bankrupt was insolvent at the time of the transfer; that the transfer was made within four months of the filing of the petition; that its effect would be to give the creditor a greater percentage of his debt than other creditors of the same class; and that such creditor had reasonable canse to believe that it was intended by the transfer to give such preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248, 262, 268-281; Dec. Dig. § 159.*]</p> <p>2. PARTNERSHIP (§ 52*) — What Constitutes — Evidence.</p> <p>Where a bankrupt and another were jointly interested in ventures in Mississippi and jointly bought real estate, but there was no proof that either could sell without the consent of the other, and lliey never used any firm name, purchasing tlie property in the names of both, a partnership was not shown.</p> <p>I Ed. Note. — For other cases, see Partnership, Cent. Dig. §f 75, 79; Dec. Dig. § 52.*]</p> <p>3. Bankruptcy (§ 167*) — Partnership—Preferences.</p> <p>Since partnership .creditors' are entitled to be first paid out of firm assets and individual creditors out of individual assets, if an individual member of a firm which is insolvent transfers his property in payment of a firm debt, such transfer constitutes a preference in violation of Bankruptcy Act July i, 1898, c. 541, § 60a, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), not hy the firm but by the individual member.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 282; Doc. Dig. § 167.*]</p> <p>4. Bankruptcy (§ 303*) — Preferences—Intent to Prefer — Knowledge.</p> <p>In a suit by a bankrupt's trustee to set aside a deed of trust executed by the bankrupt within four months prior to the filing of the petition as security for certain notes, evidence held to warrant a finding that the beneficiary of the deed had reasonable cause to believe that a preference was intended.</p> <p>!Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. § 303.*]</p>

Lewis, Judge. Two actions, one by Martha L. Gates, the other by Robert P. Wilder, both against the Town of Aurora. Judgments for plaintiffs, and defendant brings error.

<p>1. ContRacts (§ 303*) — Excuses for Nonferfokmanck — Breach by Other Party.</p> <p>Where one party to a continuing contract has himself broken it, he cannot recover damages for the refusal of the other party to go on with it in consequence of such breach.</p> <p>Had. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1413; Deo. Dig. § 303.*.l</p> <p>2. Contracts ' (§ 292*) — Performance—Conclusiveness of Decision of Umpire — Fraud of Party'.</p> <p>Under the rule that the action of an engineer, architect, or other person invested with the power of decision as to the performance of a contract is conclusive except in cases of fraud or such gross mistake as implies bad faith or a failure to exercise an honest judgment, tlie fraud mentioned is not limited to fraudulent conduct on the part of the umpire, but, although he acted in good faith, his determination will not be conclusive on a party, where it was brought about by tlie fraudulent conduct of the other party.</p> <p>lEd. Note. — For other cases, sec Contracts, Cent. Dig. §§ 1310, 1343; Dec. Dig. § 292.*]</p> <p>C. Sales (§ 387*) — Action for Breach — Qitestions for Jury.</p> <p>Plaintiff contracted to manufacture for defendant 5,000,000 feet of red gum lumber, the contract providing that it should be cut from good merchantable logs 24 inches and up in diameter only, also that it should be inspected by a person to be employed by both parties. In an action for breach of the contract by defendant by refusing to accept and pay for further shipments, defendant alleged that a large quantity of that shipped was cut from logs of less than 24 inches diameter. There was evidence tending to support such defense and to show that the inspector had in fact inspected and rejected certain logs as not within the terms of tlie contract but the plaintiff had ordered them sawed; that from his position while cars were being loaded the inspector could not see the logs being cut and could not tell that the lumber passed was from small logs. He testified that if he passed any such lumber he did not do it knowingly. Held, that if such were the facts, which was a question for the jury, the fact that the lumber was passed by the inspector was not conclusive on defendant that it conformed to the requirements of the contract, and that the direction of a verdict for plaintiff was error.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 110S; Dee. Dig. § 387.*]</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action at law by John G. Rhode against Ralph A. Duff and the R. A. Duff Company. Judgment for defendants, and plaintiff brings error.</p>

<p> (Syllabus by the Court.) </p> <p>Appeal and Error (§§ 1097, 1195*) — Law op tiie Case — Facts—Conclusion.</p> <p>Legal propositions once considered and decided in a given case by tbe appellate court may not be again questioned in that court on a subsequent writ or appeal to review a second trial of the same case on the same issues and evidence. . Such propositions are res adjudicata between the parties to that suit and their iirivies and constitute the law of the case. On a review of the former trial of the case, this court held the defendant estopped, by judgments in other actions between the same parties, from introducing evidence to show that the bonds in suit were void because the ordinance under which they were issued had not been properly published. Held, the defendant was estopped by that decision from introducing on the second trial, under the same issues and in the same state of the evidence, evidence to defeat any of the bonds pleaded at the first trial on the ground that the ordinance was not duly published.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§■ 4358-4368, 4427, 4661-4605; Dec. Dig. §§ 1097, 1195.*]</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Action by George W. Searle against the Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Company. From a judgment for plaintiff, defendant appeals.</p>

<p>I. Evidence (§ 474*) — 'Value oe Services — Opinion.</p> <p>In an action for death of a married woman who was the manager of her household, in which resided her husband and a grown daughter, it appearing that decedent was in good health, that she did housework, sewing, mending, etc., and tended to the buying and general management ox the house, evidence of the daughter, who had opportunity of observation and experience in household affairs, that her mother’s services were worth to herself and father from $40 to $45 a month was admissible, though advisory, only to be considered by the jury in awarding damages in the light of their own observation anti experience.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>2. Courts (§ 366*) — Federal Courts — Rules of Decision — State Statutes —Construction by State Court.</p> <p>The construction placed on a state statute by the state court of last resort is binding on the federal courts.</p> <p>LEd. Note. — For other eases, see Courts, Cent. Dig. §§ 931-957, 960-968; Dec. Dig. § 366.*</p> <p>Oonelusiveness of judgment between federal and state courts, see notes to Lant v. Kinne, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>B. Deatu (§ 16*) — State Statute — Wife’s Services — Right of Husband.</p> <p>Under the Michigan Wrongful Death Act (Comp. Laws 1897, § 10,427), an action may be maintained by a husband against a railroad company for the wrongful killing of his wife by which he lost her services, though death was instantaneous.</p> <p>[Ed. Note. — For other cases, seo Death, Cent. Dig. § 18; Dec. Dig. § 16.*]</p> <p>4. Death (§ 18*) — Beneficiaries—Adult Daughter of Deceased.</p> <p>Where an adult daughter was residing with her father and mother at the time the latter was killed, the fact that the daughter was not a minor did not deprive her of the right to damages under the Michigan Wrongful Death Act (Comp. Laws 1897, § 10,427); it also appearing reasonably certain and probable that deceased would have continued to contribute , to the daughter’s support.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 20; Dec. Dig. § 18.*]</p> <p>5. Trial (§ 255*) — Instructions—Request to Charge.</p> <p>In an action for death of a wife, the court’s omission to charge that the jury in assessing damages should deduct the cost of the wife’s maintenance to her husband was not error in the absence of a request so to charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>6. Trial (§ 252*) — Instructions—Evidence.</p> <p>Where, in an action for wrongful death of a married woman, there was no proof as to the reasonable cost of her maintenance to her husband, the court did not err in omitting lo charge the jury to deduct such cost of maintenance from the value of the wife’s services in assessing the damages.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 2,12.*]</p> <p>7. Courts (§ 406*) — Circuit Court of Appeals — Review—Damages—Exces-siveness.</p> <p>Ordinarily the Circuit Court of Appeals will decline rc .consider the question of inadequate or excessive damages.</p> <p>[Fd. Note. — For other cases, see Courts, Cent. Dig. § 1103; Dec. Dig. § 406.*]</p> <p>ó Death (§ 99*) — Excessiveness—Wrongful Death.</p> <p>In an action for the wrongful killing of a wife 62 years old, leaving her surviving as beneficiaries a husband o' the same age and a daughter 33 years of age living together in one family, a verdict awarding $4,692.50 was not excessive.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig §§ 125-130; Dec. Dig. § 99.*]</p>

<p> (SyMalms by the Cowt.) </p> <p>1. INDICTMENT AND INFORMATION (§ 34*)-INDORSEMENTS-MISNOMER OF OFFENSE.</p> <p>A misnomer, on the back of a good indictment and in the other records of the court of the offense charged as a violation of one statute when it is a violation of another, is not fatal to a conviction because it is the charge in the indictment only, and not that in the notation on its back, or in the other records of the court, against which the accused is called to defend himself.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 138=143; Dec. Dig. § 34.*]</p> <p>2. Criminal Law (§§ 300, 881*) — Post Office (88 35, 50*) — “Using Mails to Defraud” — Elements of Oitensk — Plea—Instruction.</p> <p>It is indispensable to a conviction of a crime by a jury that they find every material issue against the defendant.</p> <p>There are three essential elements of the offense described in section 5480, liev.ised Statutes, as amended by Act March 2, 1889, c. 393, 25 Stat. 873 (U. S. Comp. St. 1901, p. 3097): (1) That the person charged has devised a scheme or artifice to defraud; (2) that he intended to effect this scheme by opening, or intending to open, correspondence with some other person through the post office establishment, or by inciting such other person to open communication with him; and (3) that in carrying out such scheme such person must have either deposited a letter or packet in the post office, or taken or received one therefrom. A plea of not guilty denies the existence of each of these elements, and it is filial error to charge the Jury that if they find the existence of Ihe first and third only, they may return a verdict against the defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §8 '684=686; Dec. Dig. 8§ 300, 881;* Post Office. Cent. Dig. §§ 55, 87=89; Dec. Dig. §8 35, 50.*</p> <p>Nonmailable matter, see note fo Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 O. C. A. 518.]</p>

In the matter of the Cleveland Oil Company, bankrupt; William H. Moore, trustee. From an order disallowing the claim of the RH. Herron Company except on repayment of preferences, claimant appeals.

<p>In Error to the District Court of the United States for the Eastern1 District of Texas; Gordon Russell, Judge.</p> <p>Will Willingham was convicted of selling whisky without paying the special government tax, and he brings error.</p>

<p>In Eri'or to the District Court of the United States for the Northern District of California; William B. Gilbert, Judge.</p> <p>Action by George D. Bliss, as executor of the will of George D. Bliss, deceased, against August E: Muenter, as Collector of Internal Revenue of the United States for the Eirst Collection District of California. Judgment for plaintiff (Muenter v. Union Trust Co., 115 C. 'C. A. 390, 195 Eed. 480), and defendant brings error.</p>

<p>Courts (§ 299*) — Interstate Commerce — PleadiNO.</p> <p>A declaration alleged that at tlie time of decedent’s injury defendant owned and operated a railroad as a common carrier in interstate commerce, and among other things conducted a station and freight yard at or near Lakeland, in Florida ; that on May 27, 1910, decedent served defendant as a switchman in such yard, and. was required by defendant, in discharge of Ms doty in the moving of certain cars in the yard, to urn couple the cars attached to an engine operated by defendant’s employes; and that the engine was kept and employed at such point in the switching and movement of intrastate and interstate ears as circumstances required. Held,, that the declaration sufficiently alleged that at the time of decedent’s injury both he and defendant railroad company were engaged in interstate commerce, within Employer’s Liability Act April 22, 190S, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322).</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 841; Dee. Dig. § 299.*]</p>

<p>1. Bribery (§ 1*) — Immigration Ornraiis — '“Oktioeb.”</p> <p>Under the law and regulations of tlie Department of Commerce and Labor, an immigration inspector is an “officer” of tlie United States, and his act in recommending a rehearing for an alien under order of deportation is an act in the line of his duty, so that the offering of a bribe to him to induce the making of a recommendation for a rehearing constitutes an offense against tlie United States.</p> <p>IJEd. Note. — For other cases, see Bribery, Cent. Dig. 1§ 2, 3; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, yol. 0, pp. 4933-4951; vol. 8, p. 7737.]</p> <p>2. ALIENS (§ 54*) — DEPORTATION-“PENDING PROCEEDING.”</p> <p>Until an alien has been actually deported, and while it is within the power of the Department of Commerce and Labor to grant a rehearing, the proceeding is “pending” within the law.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5279.]</p>

<p>In Error to the District Court of the United States for the Western. District of Texas; Waller T. Burns, Judge.</p> <p>John S. Talbott was convicted of violating the Neutrality Daws, and he brings error.</p>

Holland, Judge. Consolidated actions at law by John Rangdon, by the Carbon Coal & Coke Company, by the Mt. Equity Coal Company, by J. Herbert Sweet and others, executors, and by E. Eichelberger & Co. against the Pennsylvania Railroad Company. Judgments for plaintiffs, and defendant brings error.

Suit in equity by Horace G. Johnston, Charles Rittersbacher, and Emlin H. Akin, copartners as the American Well & Prospecting Company, against the Southern Well Works Company, the Southern Car Manufacturing & Supply Company, the Parker Forge Works, and James A. Wiggs. Decree for defendants, and complainants appeal.

In Equity. Suit by the Sirocco Engineering Company against the B. F. Sturtevant Company for alleged infringement of United States letters patents No. 12,796, reissued May 26, 1908, application for reissue filed March 16, 1908, and No. 12,797, reissued May 26, 1908, application for reissue filed March 16, 1908, original patent No. 662,-395, dated November 27, 1900, both for “centrifugal fan or pump.” On final hearing.

<p>Patents (§ 328*) — Infbingement—Wind Shield fob Automobiles.</p> <p>Tlie Williams patent No. 1,011,892 for a double sash wind shield for automobiles, limited as it must be to the precise construction r-liown, held not infringed.</p>

<p>Patents (§ 310*) — Suit for Infringeüent — Pleading.</p> <p>Rule 30 of the new equity rules (19S Eed. xxvii, 115 C. C. A. xxvii), which requires the answer to state any counterclaim arising out of the transaction which is the subject-matter of the suit, should be liberally and not narrowly construed, and a counterclaim set up in the answer in an infringement suit setting out a transaction arising out of complainant's claim of infringement from which defendant alleges lie suffered damages is within the rule.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-510; Dec. Dig. § 310.*]</p>

<p>1. Tbial (§ 63*) — Reception oe Evidence — Rebuttal.</p> <p>Where testimony offered, in rebuttal was a substantive part of plaintiff’s main case, the fact that as offered it would tend to contradict defendant’s evidence, which in turn contradicted the testimony in chief, did not make it competent in rebuttal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 151-153: Dee. Dig. § 63.*]</p> <p>2. Tbial (§ 62*) — Reception oe Evidence — Rebuttal—Impeachment.</p> <p>Impeachment, to be competent in rebuttal, must be something more than a mere contradiction of the same character as the evidence in chief, to which the testimony in defense is offered in contradiction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 148-150; Dec. Dig. § 62.*]</p> <p>3. Tbial (§ 63*) — Reception oe Evidence — Rebuttal—“Inadvertent Omission” — “Unexpected Contest.”</p> <p>That plaintiff failed to introduce certain witnesses in chief whose tes-tiony was a substantive part of plaintiff’s main case, because it was assumed that defendant would call the witnesses, such failure was not an “inadvertent omission,” or an “unexpected contest,” sufficient, to move the court to permit plaintiff to introduce the witnesses in rebuttal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 151-153; Dec. Dig. § 63.*]</p>

In the matter of bankruptcy proceedings of Sam Ginsburg, bankrupt. On petition of John S. Fletcher, as receiver, to review an order of the referee making an allowance of $38 for services as such receiver.

In Bankruptcy. In the matter of James Terry, W. H. Terry, and James Terry, Jr., as partners and individuals, alleged bankrupts. On exceptions to report of special master.

In Bankruptcy. In the matter of bankruptcy proceedings of Thomas E. Johnson, bankrupt. Oh exceptions to the findings of the special master in proceedings by the Brauer Bros. Manufacturing Company and the Bostwick-Braun Company for the reclamation of merchandise sold to the bankrupt.

<p>Aliens (§ 82*) — Deportation of Chinese. — Grounds—Loss of Merchant’s Certificate.</p> <p>Where it was shown without contradiction that a Chinese person applied for a merchant’s certificate on'the ground that the one on which he came to this country had been lost in the San Francisco fire, which was refused, and it fairly appeared from the evidence that he entered with such a certificate and had in fact been in business as a merchant both in San Francisco and in New Jersey, the fact that he afterward became a laborer does not authorize his deportation as a laborer without a certificate.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p>

<p>At Law. Actions by Claude L. llagar, by Samuel H. Fellers, his guardian, and by Harley W. Mason, administrator of the estate of Grant Mason, against the Baltimore & Ohio Railroad Company. On demurrers to petitions.</p>

In Equity. This cause comes here upon exceptions to a report of William L. Turner, Special Master, filed by various' parties in interest: The order in tills proceeding provides for the filing of type… Held: a legitimate demand. The contract creditors will prepare a report in accordance with the foregoing, to which objections may be made and amendments proposed at a hearing on June 23,. 1018, at 11 a. m.

Don A. MounDay and another, having been charged with using the mails in carrying into execution a scheme to defraud, were arrested, and after the arrest, post office inspectors having searched their office and obtained books and papers which were turned over to the court, defendants applied for an order requiring the surrender of such books and papers to them as having been unlawfully seized.

Action by Anson R. Miller against the A. D. Raker Company. On motion to strike out certain paragraphs of the petition involving an alleged oral understanding on the ground that it would be at variance with the written contract sued on.

Iii Bankruptcy. In the matter of bankruptcy proceedings oí R. W. "Caliill, bankrupt. Objection of certain creditors to the allowance of the claim of the Citizens’ State Banking Company.

<p>1. Wills (§ 70*) — Validity or Bequests — Law Governing.</p> <p>When by tbe law of the domicile of the testator a will has all the formal requisites to pass title to personalty, the validity of particular bequests will depend on the law of the domicile of the legatee, except in cases where the law of the domicile of the testator in terms forbids bequests for any particular purpose or in any particular maimer, in which case the bequests would be void everywhere.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 18A-186; Dee. Dig. § 70.*]</p> <p>2. Wills (§ 14*) — Charitable Bequests — Validity—Construction oe Statute.</p> <p>Sections 18 and 19 of the Decedents’ Estates Law (Consol. Laws N. Y. 1909, c. 13), which provide that bequests to certain benevolent, charitable, and scientific corporations created under the laws of New York shall not be valid in any will which shall not have been executed at least two months before the death of the testator, apply only to the particular corporations described and do not affect the validity of a bequest to a charitable corporation of another state.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 35; Dec. Dig. § 14.*]</p> <p>3. Wills (§ 14*) — Charitable Bequest — -Validity.</p> <p>The provision of Act Pa. April 26, 1855 (P. L. 332) § 11, making void a bequest for religious or charitable uses except where made by a will duly executed at least one calendar month before the death of the testator, as construed by the courts of the state, imposes restrictions upon . the donor and not upon the donee, and does not affect the validity of a bequest made to - a charitable corporation of that state by the will of a citizen of another state and valid under the laws of such state.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 35; Dec. Dig. § 14.*]</p>

<p>Removal oe Causes (§ 110*) — Right oe Removal — Second Removal After Remand.</p> <p>Where an action in a state court against two joint defendants one oí whom was a citizen of the state, as was plaintiff, was removed by the nonresident defendant on the ground that its codefendant was fraudulently joined to prevent a removal, but was remanded, the petitioner’s right of removal was thereby finally adjudicated, and the fact that on a trial on the merits in the state court at the close of plaintiff’s case a verdict was directed for the local defendant on his motion did not give the nonresident defendant the right to again remove the cause, especially on the original petition.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. § 236; Dec. Dig. § 110.*]</p>

<p>Bankbuptcy (§ 328*) — Estate—x\ppr.TCAiioN to Reopen — Claims Liquidated by Litigation — 'Time.</p> <p>Bankr. Act July 1, 1898, c. 51.1, § 57n, 30 Stat. 561 (U. S. Comp. St. 1901,. p. 3444), providing that no claims, except such as are liquidated hy litigation, shall lie proved subsequent to one year alter the adjudication, is not only a limitation of the time within which claims may be proved, but a prohibition against the allowance of claims subsequent to tile expiration of one year, and hence a creditor, having failed to file proof of ins claim while bankruptcy proceedings were in progress, was not entitled; after the year had expired, to have the proceedings opened that his claim might be proved; the creditor’s default not having been induced' by any act of the bankrupt.</p> <p>[Ed. Note.' — Dor other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. § 328.*]</p>

In the matter of bankruptcy proceedings of Isaac Kronberg. On petition to review a referee’s order suspending proceedings on the claim of a creditor alleged to be non compos mentis until the appointment of a suitable guardian to act in his behalf.

<p>In Equity. On motion for preliminary injunction.</p>

In Bankruptcy. In tlie matter of bankruptcy proceedings of Frederick Thompson. Application by a creditor to prove his claim after the expiration of a year from adjudication, the same having been previously rejected without notice. On appeal from a Referee’s order denying the application.

Appeals from the District Court of the United States for the Central Division of the District of Idaho; Frank S. Dietrich, Judge. Suits by the United States against William F. Kettenbach and others to cancel and annul certain patents previously issued by the United States for lands situated in Idaho, under the Timber and Stone Act, and to have the lands returned to the public domain.

Rud-kin, Judge. Consolidated actions by Otto Hoffman, by E. J. Morrison, by Ciar-, ence E. Maxfield, and by George F. Mottet and others, against the Pacific Telephone & Telegraph Company. From a judgment in favor of the plaintiff in each case, defendant brings error.

Dietrich, Judge. Suit in equity by Mollie Conklin against R. M. Cobban, E. B. Weir-ick, individually and also as trustee, and the Payette' Lumber & Manufacturing Company. Decree for complainant, and defendants appeal. On September 7, 1905, the appellee brought a suit for the cancellation of certain deeds and powers of attorney which she alleged to be fraudulent and forged and which constituted a cloud upon her title to 3,723 acres of timber lands in Boise county, Idaho.

Anderson, Judge. Charles A. Davey was convicted of endeavoring to influence, intimidate, and impede a witness, and he brings error. The writ of error in this case seeks to reverse a judgment of the District Court of the United States, by which plaintiff in error was sentenced to imprisonment in the penitentiary and to pay a fine.

In Krror to the District Court of the United States for the Southern District of Illinois; J. Otis Humphrey, Judge. Action by N. D. Atkinson against the Acme Harvesting Company. Judgment for defendant, and defendant brings error. Defendant in error (herein termed plaintifE) recovered a judgment in an action on the case against plaintiff in error (designated as defendant herein) for injuries received through the fall of a trip hammer, whereby plaintiff’s hand was crushed.

<p>pn petition for rehearing.</p>

<p>1. Contracts (§ 322*) — Architects’ Services — Findings.</p> <p>In an action for architects’ services, evidence held to sustain the jury’s finding that plaintiffs only submitted sketches which were subject to change, and that no completed plans and specifications were ever delivered.</p> <p>[Ed. Note. — For other cases, see Contracts, Dec. Dig. § 322.*]</p> <p>2. Work and Labor (§ 9*) — Express Contract.</p> <p>Where there is an express written contract for services between tbe parties, plaintiff, to recover for work and labor done, must declare on the written contract so long as it remains in force and unrescindod, and cannot recover on a quantum meruit, under the rule that implied) promises exist only when there is no express promise between the parties.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 23, 24; Dec. Dig. § 9.*]</p> <p>3. Contracts (§ 2S2*) — Architects’ Services — Phans Satisfactory to Owner.</p> <p>Where a contract for architects’ services required plans and specifications satisfactory to defendant, plaintiffs were bound to furnish plans which were satisfactory to defendant, and not merely such as ought to have been satisfactory to Mm.</p> <p>[Ed. Noté. — For other cases, see Contracts, Cent. Dig. §§ 1284-1289; Dec. Dig. § 282.*]</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Page Morris, Judge.</p> <p>Action by the Marquette Cement Manufacturing Company against the C. W. Hull Company. Judgment for plaintiff, and defendant brings error.</p>

Wright, Judge. Action by the Western Union Telegraph Company of Illinois against the Southeast & St. Louis Railway Company and others. From a judgment dismissing its petition, plaintiff brings error. The Western Union Telegraph Company of Illinois, plaintiff in error, moves to reverse the decree of the District Court for want of jurisdiction, with direction to remand the cause to the state court.

Otis Humphrey, Judge. _ 1 _ Action by Elmer Dower, an infant, by Mary Smith as mother and next friend, against the Roberts, Johnson & Rand Shoe Company. Judgment for plaintiff, and ■ defendant brings error. Review is sought of a judgment in favor of plaintiff in the District Court, rendered June 13, 1912, for §55,500, for a personal injury sustained by him September 12, 1911, at the factory of defendant at Jerseyville, Ill.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by John- Nooney against the Pacific Express Company. Judgment for defendant, and plaintiff brings error.</p>

Orr, Judge. Action by the Gilmore & Pittsburgh Railroad Company against the United States Fidelity & Guaranty Company. Judgment for plaintiff for less than the relief demanded, and it brings error.

<p>In Error to the Circuit Court of the United States for the District of New Jersey; Joseph Cross, Judge.</p> <p>Action by Miarcell Zilbersher against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>x. Patents (§ 318*) — Suit foe Infeincement — Pkofits Recoverable.</p> <p>On an accounting by an infringer, where the patented article is only a part of a machine, but the entire value ol' the whole machine as a marketable article is properly and legally attributable to the patented feature, the profits are to be calculated on the whole machine, and such entire profits are also recoverable although the salability of the machine is in part due to other features owned by defendant, where it is impossible to determine what proportion of the sales are due to the latter features.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p> <p>2. Patents (§ 818*) — Suit foe Infbingement — Pbofits Recoveiiable.</p> <p>The evidence showed that sales of a grain seeder made by defendant in certain territory were due entirely to the use thereon of a furrow opener which was an infringement of complainant’s patent, hut that In other parts of the country, with different soil, such furrow opener was not an important factor and the salability of the machine was duo more to other features. Hold, that complainant was entitled to recover the entire profits made by defendant on the machines sold by it in the first territory.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. § 318.*]</p>

<p>Patents (§ 315*) — Suit fob IimuNOEMENT — Reheaeing—Newly Discovkbhd Evidence.</p> <p>To warrant the reopening and reconsideration of an infringement suit after decree and appeal taken on the ground of newly discovered evidence, due diligence in obtaining such evidence must bo shown.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 554-558; Dec. Dig. § 315.*]</p>

<p>Bankruptcy (§ 16*) — Jurisdiction op Court — District op Proceedings — Principal Place op Business.</p> <p>In order that a corporation shall have a principal place of business within a district of another state than that of its incorporation, so as to make it subject to bankruptcy proceedings in such district under Bankr. Act July 1,0898, c. 541, § 2, 30 Stat. 545 (U. S. Comp. St. 1901, p. 3420), it must have been actually doing business at such place during the greater portion of the preceding six months, and where a foreign corporation had in fact done no business in a district for more than three years, owing to the appointment of receivers for its property, the mere fact of its having filed a certificate in a public office, designating a place in the district as its principal place of business, is not sufficient to give the court in such district jurisdiction of jn'oceedings against it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 16. *J</p>

In the matter of Merwin & Willoughby Company, bankrupt. On motion to set aside and open the order in the matter of the claim of Lampson Consolidated Stores Company, and which claim on appeal to the District Court from the decision of the referee'was allowed at the sum of $204.75.

In Equity. Bill by W. A. Rexford against the Southern Woodland Company and others, for specific performance of a contract for the sale of laud.

In Equity. Suits by James M. Barkley- and others against Hugh Hayes and others, and by the Synod of Kansas of the Presbyterian Church in the United States of America against the Missouri Valley College and others. On final hearing.

In Equity. Suit by the Phillips Sheet & Tin Plate Company against the Amalgamated Association of Iron, Steel & Tin Workers and others. Proceedings for contempt against various persons for violation of injunction. On final hearing.

In Admiralty. Suit by the Shaver Transportation Company against the steam tug Samson and three barges, Columbia Contract Company, claimant, and the Standard Oil Company. On final bearing. Decree lor libelant against the libeled vessels.

<p>In Equity. Suit by Claude S. Jarvis against Robert Johnson and another. On final hearing.</p>

<p>In Equity. Suit by Edward M. Cady, as trustee for the Ohio Savings Bank & Trust Company, against John E. Barnes and another. On demurrer to bill.</p>

<p>In Equity. Bill by Edward H. Cady, trustee for the Ohio Savings Bank & Trust Company, against John E. Barnes and others.</p>

<p>Criminal prosecution by the United States against Joseph Bressl On demurrer to indictment.</p>

In the matter of bankruptcy proceedings of A. S. Young. Petition for William H. Vodrey, as trustee, to sell at private sale the right of the bankrupt in certain policies of insurance.

<p>In Equity. Suit by the Gaumont Company, John A. Schwalm, and Carl S. Rothleder against Frank Hatch. On motion to dismiss bill.</p>

<p>1. Receivers (§ 90*) — Contracts—Performance.</p> <p>A receiver appointed lor an insolvent is not bound to assume and perform contracts of bis insolvent, but may do so, if favorable to tlie estate. and elect not to do so, if unfavorable, and is entitled to a reasonable time to determine sucb question.</p> <p>LEd. Note.- — For other cases, see Receivers, Cent. Dig. §§ 164-166; Dec. Dig. § 90.*]</p> <p>2. Receivers (§ 171*) — Contracts—Performance in Part — Damages.</p> <p>Where a receiver, on being appointed to take charge of the assets of a transportation company, found a contract between the company and defendant for the carriage and delivery of a large quantity of stone, and proceeded to transport and deliver a portion of the stone in accordance with the terms of the conlract, in order to ascertain whether he would assume and fulfill the same as beneficial to the estate, and, becoming convinced that the contract was unprofitable, elected to reject it, defendant was entitled to set off damages growing out of the nonperformance of the contract against the receiver’s claim for services rendered by him.</p> <p>[Ed. Note. — For other cases, see Receivers, Gent. Dig. § 325; Dec. Dig. § 171.*]</p>

<p>Contracts (§ 116*) — Monopolies (§ 17*) — Patented Articles — Sale—Price Restrictions.</p> <p>Where a patented article has passed into the channels of trade and reached a retail dealer, the manufacturing patentee is not entitled to enforce a price restriction agreement for the purpose of preventing competition as against such retailer; such restriction being void both at common law and under Act Cong. July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibiting monopolies, etc.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 542-552; Dec. Dig. § 116;* Monopolies, Gent. Dig. § 13; Dec. Dig. § 17.-*]</p>

<p>1. CARRIERS (§ 286*)-INJURIES TO PERSONS AT STATIONS-CARE REQUIRED.</p> <p>A railroad company is bound to the highest degree of care to maintain order and guard persons waiting at its stations with tickets for its trains against such dangers as may reasonably be anticipated, and what constitutes such care varies with the circumstances and conditions.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §| 1142-1148, 1150-1152; Dec. Dig. § 286.*]</p> <p>2. Carriers (§ 320*) — Action eor Injury to Passenger at Station — Questions eor Jury.</p> <p>Defendant railroad company extensively advertised excursion trains to run for 15 days between a camp where military maneuvers wore being conducted and a town, and sold round trip tickets. After 10 o’clock one night, several hundred excursionists, who had spent the evening in the town, were gathered at the station waiting the last return train, which came in late at high speed. It had but three cars, and the people waiting could see that they were already quite well filled. There was a rush, and plaintiff, who was standing some 10 feet from the track and behind others, was pushed toward the train and fell under the wheels and was injured before the train stopped. Defendant had no guards or other employes in attendance to look after and protect the waiting passengers. Iicld, that it was its duty, under the circumstances, to exercise more than the usual care to safeguard the crowd; that it was bound to know that the number of passengers was unusual, to provide sufficient cars for their carriage and see that they were reasonably protected in reaching the same; and that whether it performed that duty was a question for the jury.</p> <p>[Ed. Note.- — Eor other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1283, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]</p> <p>3. Trial (§ 295*) — Action eor Injury to Passenger at Station — Instructions.</p> <p>Instructions given, in an action against a railroad company for an injury to a person at a station, considered, and, under the rule that they must be read as a whole, held not erroneous.</p> <p>ÍEd. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p> <p>4. Carriers (§ 317*) — Action eor Injury to Passenger at Station — Evidence. ' •</p> <p>On the trial of such an action, it was not error to admit testimony which tended to show the crowded condition of the cars to assist the jury in better understanding the action of the crowd in rushing for the train when it came in.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dee. Dig. § 317.*]</p> <p>Damages (§ 172*) — Evidence—Personal Injuries.</p> <p>In an action for a personal injury to an officer of the regular army by which he was incapacitated for service, it was not error to permit him to testify to the number of actions in which he *had been engaged, as bearing on the question of mental suffering, nor to compute the amount of money he would probably have earned provided he had received no promotion; the pay under the acts of Congress being fixed.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492, 601; Dec. Dig. § 172.*]</p>

Elliott, Judge. In the matter of bankruptcy proceedings of the Plymouth Elevator* Company. From an order (191 Fed. 633), affirming the decision of a referee holding invalid a chattel mortgage executed by the bankrupt in favor of T. E. Wells & Co., it appeals.

Petition for Revision of Proceedings of the District Court of the United States for the District of South Dakota, in Bankruptcy; James D. Elliott, Judge. Proceeding by W. Z. Sharp, trustee of the estate of the Plymouth Elevator Company, against T. E. Wells & Co., on an order directed to the latter to show cause why a chattel mortgage on certain- of bankrupt’s assets should not he declared void.

Proof of claim of J. O. & N. B. Chenault, secured by a chattel mortgage, against Roy S. Anderson, as trustee in bankruptcy of J. H. Beard. A referee’s order allowing the claim as preferred was affirmed by the District Judge, and the trustee appeals.

Petition by James A. Marcil for writ of habeas corpus to obtain his discharge from the custody of O. P. Halligan, Warden of the United States Penitentiary at Bee, McNeil Island, Washington, for the United States Government. From an order sustaining the writ and discharging petitioner, the Warden appeals.

On motion for leave to file an original petition for a writ of prohibition and annul an order entered in the suit of the Pope Manufacturing Company- against Arnold, Schwinn & Co.

Petition to Review and Revise in Matters of Law an Order in Bankruptcy of the District Court of the United States for the Northern District of Illinois; Kenesaw M. Landis, Judge. In the matter of Jacob Myers, bankrupt. On petition by the bankrupt to review and revise in matter of law an order of the District Court.

I. Grubb, Judge. Controversy between the Peck-Williamson Heating & Ventilating Company and John S. Coxe, trustee in bankruptcy for the Selmau Heating & Plumbing Company. Judgment (204 Fed. 839) for the former, and the latter appeals.

<p>Shipping (§ 172*) — Demurrage—Discharge of Cargo — Custom of Poet.</p> <p>Demurrage allowed under a contract of affreightment on discharge of cargo in New York held correct under the customs and usages of the port.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 569; Dec. Dig. § 172.* ■■</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 O. C. A. 4.]</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Dan-dis, Judge.</p> <p>Suit in equity by the Computing Scale Company against tbe Toledo Computing Scale Company. Decree for complainant, and defendant appeals.</p> <p>Appellant (defendant) was adjudged to be an infringer of claims 5 and 6 of reissued patent No. 11,536, April 28, 1896, and of claim 2 of patent No. 597,300, January 11, 1898. Each was issued on application of Albert D. Smith, for improvements in automatic computing scales.</p> <p>As the scales of complainant and defendant are identical so far as the claims in suit are concerned, the questions to be considered are tbe patentable novelty of the claimed improvements, the validity of the reissue, and the sufficiency of complainant’s proof of title.</p> <p>Prior art facts of record, which are deemed controlling, are stated in the opinion.</p> <p>Claims 5 and 6 of the reissued patent are as follows:</p> <p>“5. An indicator-drum for weighing mechanism, consisting of a spindle provided with a plurality of skeleton frames of light material and secured to said spindle, and having secured to their peripheries a sheet of paper forming a cylinder.,</p> <p>‘•6. An indicator-drum for weighing mechanism consisting of a spindle provided with a plurality of skeleton disks or frames of ihin aluminium having a sheet of paper extending around and secured to their peripheries to form a cylinder.”</p> <p>In applying for the reissue, Smith made no changes in the drawings, the descriptions, or the four claims of the original patent, No. 515,616, September 3, 1895. Application for the reissue was made on January 27, 1896, and the desired change consisted in adding claims 5, 6, and 7 to the original claims. Claim 2 of the original (reproduced in the reissue) was the only one that related to the subject-matter of reissue claims 5 and 6, and it reads as follows:</p> <p>“2. The combination of the indicator-drum constructed of thin skeleton frames of a very light material, the periphery of said drum being formed of a sheet of paper having the divisions of the weight-scale and other numerals printed thereon, tlie pinions carried by the shaft of said drum, adjustable conical bearings wherein said shaft is journaled, the cross-bar e having a suspending-clip secured thereon, tlie headed draft-pins supported loosely within the notched ends of the cross-bar c after the manner of a stirrup connection, the bow-shaped clips in the ends of the draft-pins, the springs between the coils of which said clips are inserted, whereby the tension on said springs may be altered as described, the draft-rods 7c, the yoke n whereby said rods are connected, the cross-rod a' to which the rack-bars are pivoted and whose ends are notched and embrace said draft-rods so as to be capable of sliding thereon, a ring from which the scale-pan is suspended, and suitable adjusting connections between the yoke n and said cross-rod a', substantially as described.”</p> <p>Part of the description of Smith’s invention as set forth in his original application is in these words:</p> <p>“The object of my invention is to provide scales of this description which shall be extraordinarily sensitive to weights of small amount and to accurately register the same. A further object of my invention is to provide an adjusting mechanism by the use of which the springs employed may at all times be held at uniform tension, or, in other words, when said springs have become weakened or distorted by long usage the adjusting mechanism may be employed to restore a proper tension to said springs; also, said adjusting mechanism may be used to set the scales at a ‘balance’ after the weighing-pan is suspended therefrom, and the difference in weight of various kinds of weighing-pans may be compensated for by the use of this mechanism.”</p> <p>And in order to accomplish the first of the stated objects of his invention, Smith prescribed:</p> <p>“It is a very essential feature that the indicator-drum in scales of this nature should be made of very light material, for the reason that if it be not so made the sensitiveness and accuracy of the scales will be more or less affected. For instance, heretofore in scales of this character if a given quantity is weighed successively a number of times it will be. found that said scales scarcely ever indicate the weight of such quantity twice exactly the same; there always being some slight variation in the amount registered. This is in a great measure due.to the fact that the more the actual weight of the indicator-drum itself the greater must be the force to operate it, and in order to overcome this disadvantage I have constructed the drum of thin skeleton frames of aluminium, while the periphery is formed of a thin sheet-of paper pasted to the frames. In this way I have secured a structure that is so light that the force necessary to operate it is almost insignificant.”</p> <p>So far as it needs consideration, the reissue statute reads:</p> <p>“Sec. 4916. Whenever any patent is inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the Commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee,” etc. U. S. Comp. St. 1901, p. 3393.</p> <p>Claim 2 of the second patent is this:</p> <p>“2. In a scale of the character described, the combination with a casing having openings in opposite sides but not opposite each other, of a revoluble drum provided with a series of columns of figures representing dollars and cents and two independent columns of figures representing weights in pounds and ounces, one column of the latter being arranged to be read from the same side of the casing as the figures representing dollars and cents, and the other column of weight-figures being arranged to be read solely through the opening in the opposite side of the easing, the figures representing dollars and cents not being visible from said opposite side, the openings in the opposite sides of the casing being covered with transparent material having stationary pointers thereon adapted to correspond with each other in their indications of figures so that when the pointer on one side indicates one figure in one column, the other pointer on the other side will indicate exactly the same figure in the other column.”</p> <p>Respecting the title, the only difficulty arises in connection with an assignment from the E. 0. Smith Company, a corporation, arid another assignment of identical character. Signature was as follows:</p> <p>“The E. C. Smith Company,</p> <p>“Chas. R. Luce, Pres’t,</p> <p>“William G. Bell, Treas.”</p> <p>No corporate seal was affixed. No recital appears that Luce was president and Bell treasurer, or that they as such officers were authorized to execute tlie assignment in the name and on behalf of the corporation. An acknowledgment, in the following words, was attached.</p> <p>“State of Massachusetts, County of Suffolk, ss.:</p> <p>“March 8th, 1880, personally appeared before me the persons known to be Charles K. Luce and William G. Hell, who executed the above instrument in my presence, and acknowledged the signing of the same to be their voluntary act and deed. ¿Seal.] O. If. Brown, Notary Public.”</p>

In Equity. Suit by the Motion Picture Patents Company against the Société Frangaise des Films et Cinematographes “Eclair,” trading as the Eclair Film Company. On motion to strike out certain alleged defenses.

<p>In Equity. Suit by the Vacuum Cleaner Company against the American Rotary Valve Company, On motion to strike out counterclaim.</p>

<p>Criminal prosecution by the United States against Smith Sprague and George W. Doughty, for violation of the Food and Drugs Act. On motion to quash and demurrer to information.</p>

In Admiralty. Suit by Gust Nelson and others against the launch Lucille. On exceptions to report of special commissioner on claims of the S. M. Jones Company and the Texas Company.

<p>1. COTJETS (§ 327*) — JURISDICTION OF FEDERAL COURT'S-AMOUNT IN DISPUTE.</p> <p>The proviso oí Judicial Code (Act March 3, 1911) § 24, par. 1, 36 Stat. 1091, c. 231 (U. S. Comp. St. Supp. 1911, p. 135), “that the foregoing provision as to the sum or value of the matter in controversy shall not be construed to apply to any of the cases mentioned in the succeeding paragraphs of tills section,” does not enlarge the jurisdiction of the District Courts beyond that previously possessed by the Circuit Courts, but was added to the former statute merely to remove any uncertainty.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § 889; Dec. Dig. § 327.*]</p> <p>2. Courts (§ 327*) — Jurisdiction of Federal Courts — Amount in Controversy.</p> <p>An action to recover money exacted under a city ordinance imposing a license tax on users of trading stamps on the ground that it violates the constitutional rights of complainant is not one “authorized by law” to redress the deprivation of equal rights secured by the Constitution and laws of the United States, within the meaning of Judicial Code (Act March 3, 3911) § 24, par. 14, 36 Stat. J092, c. 231 (U. S. Comp. St. Supp. 1913, p. 137), which has reference to civil rights provisions, but one arising under the Constitution and covered by paragraph 1 of said section, and the jurisdictional amount of $3,000 must be involved to give a federal District: Court jurisdiction.</p> <p>ri-ld. Note. — For other cases, see Courts, Gent. Dig. § 889; Dec. Dig. § 327.*]</p>

<p>Condemnation proceedings by the United States against certain lands.</p>

At Law. Action by Georgian Young against James AY. Corrigan for breach of marriage promise. A verdict was rendered in favor of defendant, and plaintiff moves for a new trial.

<p>1. Evidence (§ 461*) — Deeds—Construction—Admissibility of Parol Evidence — Ambiguity.</p> <p>If the intention of the parties can be ascertained from the language of a deed when the court places itself as nearly as possible in the situation in which they were when the writing was made, parol or extraneous evidence of their intention is not admissible; but if, in attempting to apply the language to the subject-matter, two situations should be presented, either of which would answer the terms of the writing with equal certainty, parol evidence is admissible to prove which of the two situations the parties had in mind.</p> <p>I'Bd. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.*]</p> <p>2. Boundaries (§ 6*) — Construction—Boundaries of Grant from State.</p> <p>A deed from the state of New Hampshire for a grant of land made in 1830 construed as to the boundaries of the grant.</p> <p>FEd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 47-57; Dec. Dig. § 6.*]</p> <p>3. Judgment (§ 685*) — Persons Concluded — Privity between Mortgagor and Mortgagee.</p> <p>A mortgagee of land is not estopped by a decree affecting the mortgagor’s title in a suit to which he was not a party and which was commenced after the mortgage was given in a state where the mortgagee is the owner of the legal title, subject only to the mortgagor’s equity of redemption.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1208; Dec. Dig. § 685.*]</p> <p>4. Mortgages (§ 144*) — Covenant foe Title — After-Acquired Title of Mortgagor — Purchase-Money Mortgage^</p> <p>Where, by a deed to certain described 'lands, the grantor did not undertake to convey a particular estate but only his “right, title, and interest” therein with a special warranty against the claims and demands of all persons claiming under him and “against none other,” and he took back from the grantees a purchase-money mortgage by which the mortgagors undertook to convey title in fee simple, with a full covenant of warranty against the claims of all persons whatsoever, an outstanding interest in the land, not derived through üie mortgagee, subsequently acquired by the mortgagors, inured to the benefit of the mortgagee under the covenant in Ms mortgage.</p> <p>[Kd. Note. — For other cases, see Mortgages, Cent. Dig. §§ 285-289; Dec. Dig. § 144.*]</p> <p>5. Mortgages (§ 144*) — Rights and Liabilities of Parties.</p> <p>An agreement by a mortgagee to waive the agreement of the mortgagors made by tlieir covenant of warranty construed, and held to relieve them from any obligation to acquire any outstanding interest for the benefit of the mortgagee but not to entitle them to acquire such interest to be asserted against the mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 285-289; Dec. Dig. § 144.*]</p>

<p>1. Public Lands (§ 92*) — Grants to Railroads — Piling Maps — “Promle”— “Outline.”</p> <p>Under Act Cong. March 3, 1875, c. 152, § 1, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1508), granting a right oí way through public lands oí the United States to any duly authorized railroad company which shall lile ■with tho Secretary o£ the Interior a copy of its articles of incorporation and due proof of- its organization, and section 4, providing that any such company, desiring to secure the benefits oí that act, shall within 12 months after the location of any section of 20 miles of its road, or if upon unsurveyed lands, within 32 months after their survey, file with the register of the land office a profile of its road, and that upon approval thereof by the Secretary of the Interior it shall be noted upon the plats in such office, and that thereafter all lands over which such right of way shall pass shall be disposed of subject to such right of way, a railroad corporation, which had duly filed its articles of incorporation and proof of its organization, sufficiently complied with section 4 by filing maps showing the definite location of its fine of railroad as surveyed and located through the public lands, without filing a profile showing the elevations and grades of the proposed road, since, while technically “profile” means a side or sectional elevation, or a drawing showing a vertical section of the ground along a surveyed fine or graded work, it also means an outline or contour, and “outline” means the line which marks the outer limits of an object or figure, an exterior line or edge, contour, and Congress must have intended something more than a mere side or sectional elevation, which would convey little or no information to the government or prospective settlers, especially as the Secretary of the Interior for nearly 40 years has construed the term “profile” as meaning a map of definite location or a map of alignment.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p> <p>2. Statutes (§ 219*) — Construction by Administrative Officer — Force.</p> <p>The construction placed upon an act of Congress by the officer charged with its administration, acquiesced in by all departments of the government for nearly 40 years, should be accepted by the courts.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. § 219.*]</p> <p>3. Public Lands (§ 92*) — Grants to Railroads — Forfeiture.</p> <p>Under Act Cong. March 3, 1875, e. 152, § 1, 18 Stat. 482 (TJ. S. Comp. St. 1901, p. 1568) granting to railroad companies the right of way through the public lands of the United States, and section 4, providing that any such company, desiring to secure the benefits of that act, shall file with the register of the land office a profile of its road, that upon approval thereof by the Secretary of Interior it shall be noted upon tho plats in such office, and that thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way, but that, if any section of such road shall not he completed within five years after its location, the rights therein granted shall be forfeited as to such uncompleted section, upon the filing and approval of such profile or map, the title of the railroad company thus acquired could be divested only by forfeiture declared by the government for breach of condition, or by the voluntary act of the company itself.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p> <p>4. Public Lands (§ 92*) — Grants to Railroads — Forfeiture.</p> <p>Under Act Cong. March 3, 1875, c. 152, § 1, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), granting to railroad companies, a right of way through all public lands of the United States, and section 4, requiring such a company to file with the register of the land office a profile of its road, and providing that upon approval thereof by the Secretary of Interior it shall be noted upon the plats in such office, that thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way, but that, if any section of the road shall not be completed within five years after the location of such section, the rights therein granted shall be forfeited as to such uncompleted section, where a railroad company filed maps showing the location of its line of railway, which were duly approved, and subsequently revised the survey and location of the road, and filed new maps, showing a deviation in the central line of the road not exceeding 20 feet, which were approved by the Secretary upon its executing a relinquishment of its rights to the right of way shown on the original maps, excepting such part of such right of way as was situated within the limits of the right of way shown upon the revised maps, this change in its located line was not a waiver or forfeiture of its pre-existing rights, as the Secretary, in demanding a relinquishment only of the overlap outside the exterior limits of the two located lines, acted within his authority.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*] '</p>

<p>1. Contempt (§ 13*) — What Constitutes — Perjury.</p> <p>Perjury committed by a witness on the stand is a criminal contempt of conrt.</p> <p>jEd. Note. — For other cases, see Contempt, Cent. Dig. |§ 30-35; Dec. Dig. § 13.*]</p> <p>2. Contempt (§ 31*) — Powkb to Punish — Federal Courts.</p> <p>Power to punish for contempt is inherent in all courts of the United States on the theory that its existence is essential to preservo order in judicial proceedings and to enforce the court’s judgments.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 99, 101-104; Dec. Dig. § 34.*]</p> <p>3. Attorney and Client (§ GO*) — Disbarment oe Attorney — Federal Courts.</p> <p>Disbarment of attorneys licensed to practice in the federal conrts for misconduct is a matter which concerns only the court in which the proceedings are had, which conrt must proceed in the exorcise oí a sound judicial discretion, guarding equally the independence of the bar and the rights and dignity of the court itself.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 83; Dec. Dig. § 00.*]</p> <p>4. Attorney and Client (§ 57*) — Disbarment of Attorney — Review.</p> <p>Neither appeal nor writ of error lies to review an order »f a federal court disbarring an attorney licensed to practice before it; the only right of review being obtainable in a proceeding in the nature of mandamus, raising the question whether or not judicial discretion was exercised in the order of removal.</p> <p>[Ed. Note. — Fon1 other cases, see Attorney and Client, Cent. Dig. §§ 81, 82; Dee. Dig. § 57.*]</p> <p>5. Attorney and Client (§ 39*) — Disbarment oe Attorney — Grounds.</p> <p>Under a federal court rule authorizing disbarment of attorneys for malpractice or other sufficient cause, an attorney may be disbarred for perjury committed in a federal court hearing, whether he has been convicted or not, and whether the false testimony related to a material or an immaterial matter.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 52; Dee. Dig. § 89.*]</p> <p>6. Judges (§ 49*j — Disqualification—Disbarment of Attorney — Proceedings.</p> <p>Where, on a rule to show cause why an attorney of a federal court should not be disbarred for perjury committed while a witness before the court, respondent’s answer did not tender an issue of fact, but merely repeated the perjury in a reaffirmation of the truth of the statements given in the testimony, which had previously been determined by the court to be false, so that “rule absolute” for disbarment should be granted on the face of the record, the proceeding was not one in which the respondent was entitled to disqualify the judge under Judicial Code, § 21 (Act March 3, 1911, c. 231, 36 Stat. 1090 [U. S. Comp. St. Supp. 1911, p. 133]), authorizing the disqualification of a judge for prejudice, by the filing of an affidavit charging personal bias or prejudice against the respondent.</p> <p>[Ed. Note. — Eor other cases, see Judges, Cent. Dig. §§ 187, 188; Dec. Dig. § 49.*]</p>

<p>At Law. Action by the Northern Pacific Railway Company against Dennis Mitchell.</p>

In Equity. Suit by Thomas Buck and Katie Buck, his wife, against Thomas J. Felder and wife and others. On motion by defendants to dismiss.

In Bankruptcy. In the matter of bankruptcy proceedings of the D. Levy & Sons Company. Claim of employé for breach of contract of employment. On review of a referee’s order denying the claim.

At Raw. Action by the Falls City Construction Company against Monroe County. On demurrer to plea. The plaintiff seeks to recover a judgment on county warrants issued to it by the defendant county in payment for the construction of a courthouse. One of the defenses set up is the plea that there is another action pending in the county court of Monroe county, Ark., upon the. same warrants.

<p>1. Bankruptcy (§ 288*) — Preference—Payment After Bankruptcy — Jurisdiction of Court.</p> <p>A payment, made by a bankrupt to a creditor on an execution from money belonging to bis estate after tbe filing of the petition in bankruptcy against him and received by the creditor with knowledge of his insolvency and the proceedings, is recoverable as a preference, and the court of bankruptcy has jurisdiction to make a summary order for its return.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. § 288.*]</p> <p>2. Bankruptcy (§ 140*) — Liability of Estate for Trust Fund — Evidence.</p> <p>To charge a bankrupt estate with liability for a trust fund it must be clearly traced.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dee. Dig. § 140.*]</p>

<p>In Bankruptcy. In the matter of Elias O. Stern. On petition to review a referee’s order allowing exemptions.</p>

In Bankruptcy. In the matter of Cecil W. Nunemaker. On review of referee’s order allowing certain personal property as exempt to the bankrupt in lieu of homestead.

<p>Post Office (§ 48*) — Mailing- Nonmailable Matter — Indictment.</p> <p>To make good an indictment, under Cr. Code (Act March 4, 1909, c. 321) § 211, 35 Stat. 1129 _(U. S. Comp. St. Supp. 1911, p. 1651), for mailing a nonmailable letter, giving information as to where and how and by whom and by what means certain acts and operations could and would be done and performed for procuring and producing an abortion, the letter set' out need not be such that a stranger would know what information it gave, nor need the indictment contain- explanatory matter to show that the letter did give such information.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. § 48.*]</p>

<p>Banks and Banking (§ 96*) — Contracts with Customer fob Payment of Dbahs — Action fob Breach.</p> <p>Plaintiffs, as bankers, by arrangement with defendant, entered a credit on their books in favor oí a company dealing in figs in Turkey, to bo used by means of drafts with invoices of goods shipped to defendant attached, provided that the shipments should be made and the drafts negotiated prior to October 1st. A draft with invoice attached, dated September 28th, was presented to and accepted by plaintiffs, and defendant supplied the funds for its payment. Hold, that plaintiffs were not liable for a loss sustained by defendant on the goods because the shipment and draft were in fact made after October 1st and fraudulently antedated, nor because defendant, merely on suspicion, notified them not to accept the draft; the papers being regular on their face and apparently within the contract.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 230; Dec. Dig. § 96.*]</p>

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich,. Judge.'</p> <p>Action by the Cary Brick Company against Frank O. Tilton. Judgment for defendant, and plaintiff "brings error.</p>

Maxey, Judge. Suit in equity by Peter McClelland, Jr., against John K. Rose and others. From a decree dismissing the bill on demurrer, plaintiff appeals. This is a bill in equity by Peter McClelland, Jr., plaintiff, a citizen of California, against John K. Bose, trustee, Mrs. M. E. Grismer, and Hugh McClel-land, defendants, citizens of Texas.

<p>Appeal from the District Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p> <p>•Suit in equity by the Hanover Star Milling Company against the Allen & Wheeler Company. From an order granting a preliminary injunction, defendant appeals.</p>

M. J. Cochran, Judge. Action by J. W. Clutts, as administrator of the estate of Edward Clutts, deceased, against the Big Hill Coal Company. Judgment for plaintiff, and defendant brings error.

Bean, Judge. Proceeding by the United States, under Naturalization Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Comp. St. Supp. 1911, p. 537), for the cancellation of a certificate of citizenship issued to Rudolph Henry Rockteschell. Petition dismissed on demurrer, and petitioner appeals.

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action at law by the United States against James D. Gibson and others. Judgment for plaintiff, and defendants bring error.</p>

Petition for Review from the District Court of the United States for the Middle District of Pennsylvania; Charles B. Witmer, Judge. In the matter of the Wilkes-Barre Right Company, alleged bankrupt. On petition to revise an order of the District Court, and motion to quash the same.

<p>Trade-Marks and Trade-Names (§ 92*) — Suit fob Unfair Competition — Sufficiency of Bill.</p> <p>Complainant, which made a water motor for domestic use, manufactured motors for defendant and marked them with defendant’s name as manufacturer. On making a contract by which defendant agreed to take 500 motors per month for 5 years, complainant withdrew from the business of selling. Held, that a bill alleging only such facts and that defendant had ceased buying under the contract but was selling a motor of identical appearance of its own manufacture did not state a cause of action for unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. II 102, 103; Dec. Dig. § 92.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.] ■</p>

B. Witmer, Judge. Action at law by T. E. Spencer against the County of Pike, in the State of Pennsylvania. Judgment for defendant, and plaintiff brings error. For former opinions, see 183 Fed. 894, and 192 Fed. 11, 112 C. C. A. 433.

In Error-to the Circuit Court of the United States for the Central Division of the District of Idaho; William B. Gilbert, Judge. Action by Boise City, a municipal corporation, to recover certain license fees against the Boise Artesian Hot & Cold Water Company, Uimited.

Petition to Superintend and Revise Proceedings from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge. Petition in bankruptcy to superintend and revise an order of the District Court.

<p>Appeal from the District: Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Dain Manufacturing Company of Iowa against the Superior Hay Stacker Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>Patents OS 328*) — Validity and Int!'kjnc¡emsnt — Reliee-Valve eor Steam Radiators.</p> <p>The Brissenden patent, No. 952,414, for ml automatic relief-valve for steam radiators in which the proper adjustment of the parts is indicated by the escape of steam when the valve seat is displaced, in view of the prior art cannot he given a broad construction, but must be limited to the peculiar arrangement of the parts shown, and as so limited is not infringed by ihe device of the Leuthesser patent, No. 944,338, in which a stem indicates displacement, operating mechanically, without the aid of steam pressure.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Lamp Bracket por Vehicles.</p> <p>The Rosenbluth patent, No. 883,973, for a lamp bracket for vehicles, designed for use on automobiles, claims 7, 8, and 10, held not infringed.</p> <p>2. Patents (§ 328*) — Validity and Infringement — Lamp Bracket for Vehicles.</p> <p>The Hughes patent, No. 962,220, for a lamp bracket for vehicles, claims 5 and 6, held void for lack of invention.</p> <p>3. Patents (§ 328*) — Validity—Designs for Vehicle Number-Plate Supports.</p> <p>The Rosenbluth design patents No. 41,3SS and No. 41,389, for designs for vehicle number-plate supports, are void as being for articles which are mechanical and functional and not ornamental.</p>

In Equity. Suit by Cecil F. Adamson against Clarence A. Shaler and others. On motion to strike out counterclaim. Complainant filed his bill charging infringement of letters patent. Defendant has incorporated in his answer two counterclaims; the first alleging unfair competition in trade, the second, a cause of action f<fr infringement of letters patent — a separate suit not connected with the subject-matter nor transactions comprehended within complainant’s bill.

<p>In Equity. Suit by the Milton Chemical Company against the Jordan Marsh Company.</p>

In the matter of the Caswell-Massey Company, bankrupt. In re claim of the Lamson Consolidated Store Service Company. The following is the opinion of the referee in the Matter of the Kugler Syndicate, Bankrupt: This is a motion to reduce a claim filed by the Lamson Consolidated Store Service Company for $717.85 to $96.

In Bankruptcy. In the matter of bankruptcy proceedings of the Miller Bros. Grocery Company. On petition to review, a referee’s order disallowing the claim of the Bamson Company.

<p>Abatement and Revival (§ 53*) — Action Against Dibkotobs ok National Bank — Survival.</p> <p>There is an implied contract on the part of the directors of a national bank to faithfully perform their duties as directors, and if by their misconduct or negligence damage results to the creditors or stockholders, a cause of action arises which may be enforced by a receiver. Such a cause of action is contractual, and survives against the representatives of a deceased director.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 253, 252; Dec. Dig. § 53.*]</p>

In Bankruptcy. On objections by the administrator of F. W. Hall, deceased, to the decision of the referee in bankruptcy proceedings against F. W. Hall & Sons, a copartnership composed of John F. Hall, Samuel J. Hall, and David B. Hall.

<p>1. Damages (§ 67*) — :Right to Interest — Unliquidated Demands.</p> <p>The allowance of interest on damages is not an absolute right, but a matter of discretion.</p> <p>[Ed. Note. — For other cases, see Damages, Gent. Dig. §§ 135, 136; Dec. Dig. § 67.*]</p> <p>2. Damages (§ 2*) — What Law Governs — Breach oe Contract — Bate oe Interest.</p> <p>Where interest is allowed for breach of contract, the rate which governs is usually that of the place of ■ performance, which, if in a foreign country, must be proved like any other fact.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 2; Dec. Dig. §2.*]</p>

<p>Removal op Causes (§ 120*) — Remaxu—Costs.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1098) § 37 (U.' S. Comp. St. Supp. 1911, p. 146), which provides that on remanding a cause the court “shall make such order as to costs as shall be just” the court may properly allow a docket fee of 810 for plaintiff’s attorney.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 253; Dec. Dig. § 120.*]</p>

In Admiralty. Suits for collision by the T3ay State Dredging Company, Limited, owner of Dredge No. 4, and by Frank Silver and others, against the steamer Grand Manan; the Grand Manan Steamboat Company, claimant. Libel by Daniel F. Warren, administrator of estate of James H. Carey, deceased, against the Grand Manan Steamboat Companj', and cross-libel by the Grand Manan Steamboat Company against the Bay State Dredging Company, Limited.

<p>1.Public Lands (§ 92*) — Right op Way over Public Lands — Construction of Grant.</p> <p>Under Act July 2, 1864, c. 217, 13 Stat. 365, granting to the Northern Pacific Railroad Company right of way 400 feet wide over the public lands “for the construction of a railroad and telegraph,” it acquired the land embraced in such right of way for railroad purposes only, and had no power to dedicate the entire right of way, so acquired over a government subdivision of land, as a public street, reserving to itself only, the right to operate its tracks over the street; and its power in, that regard was not enlarged by the fact that it acquired title to the remainder of the section under the subsidy grant contained in the same act, the two grants being separate and distinct.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§ 276-282;, pec. Dig. § 92.*]</p> <p>2.Dedication (§ 19*) — By Deed — Construction of Plat.</p> <p>A railroad company, as owner of a tract of land over which its line was built and on which was its station and side tracks, platted the same as an addition to a town. The plat showed the tracks and a strip of land lying on both sides 225 feet in width and designated as “Railroad Street.” The dedicatory language of the plat was as follows: “The streets shown by said plat are dedicated to be used by the public until lawfully vacated, except that strip of land 225.7 feet in width designated as ‘Railroad Street,’, which is reserved for the tracks and use of said railroad company.” Held, that the plat did not constitute a dedication of such strip as a public street, although it showed lots fronting thereon.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 35, 37-47; Dec. Dig. § 19.*]</p> <p>3. Dedication (§ 20*) — Common-Law Dedication — Acquiescence in Public Use.</p> <p>The temporary use of unoccupied portions of a railroad right of way by the public or adjoining owners for street purposes held not to constitute a common-law dedication of the land as a street by the railroad company, where as fast as required it was occupied by the company and its lessees with structures, used in connection with its railroad business,</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 17-30; Dec. Dig. § 20*</p> <p>For other definitions, see Words and Phrases,. vol. 2, pp. 1908-1917; vol. 8, pp. 7629, 7630.]</p> <p>4. Dedication (§ 21*) — By Estoppel — Sale of Lots.</p> <p>The sale of lots in accordance with a plat which showed them fronting on a strip of land occupied by railroad tracks held not to constitute a dedication of such strip as a street by estoppel, where by the dedicatory language of the plat it was expressly reserved for railroad purposes.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 50-54; Dec. Dig. § 21.*]</p>

<p>In Equity. Suit by John T. Little, August Stahlberg, Lawrence Ryan and William T. Oathout, partners as Ryan & Oathout, Joseph Schaick, George D. Purves, Harold L. Blake, Adolph Rensch, William B. Stone, Albert J. Ziv, William E. Thompson, Abraham H. Goldberg, Ed. Schimmel, Marie C. J. Bille, Carrie Ml Noerenberg, Lena M. Royce, the Pearl Laundry Company, Charles E. Marr, Sam Langert and Sidney Kellner, copartners, Louis K. Lefevre and Elza K. Pearson, copartners, against W. Y. Tanner, as Attorney General of the State of Washington, Géórge H. Crandall, Prosecuting Attorney of Spokane County, and E. W. Evenson, County Treasurer of Spokane County, Wash. On motion for preliminary injunction, and motions by defendants to quash and to dismiss bill. Motions to quash and dismiss denied.</p>

<p>1. Highways (§ 5*) — Private Roads — Rights of Public.</p> <p>Wliere certain roads were built across a ranch after 1883 by settlers to reach their claims on public land and were used by occasional hunters and pleasure seekers, and the ranch owner never consented to their use by the public, the fact that they were used at some times by persons not settlers, without objection from the owner, was insufficient to make them public highways.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 6, 7; Dec. Dig. § 5.*]</p> <p>2. Highways (§ 2*) — Public Highways — User.</p> <p>Pol. Code Cal. § 2618, declares that public highways are roads, streets, alleys, etc., laid out or erected as such by the public or, if laid out or erected by others, dedicated or abandoned to the public or made such in actions for the partition of real property, and section 2621 declares that no road or traveled way, used by one or more persons over another’s land, shall become a public highway by use or until so declared by the board of supervisors or by dedication by the owner of the land affected. Held, that, under such provisions, a road over another’s land cannot become a public highway by user.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. § 3; Dec. Dig. § 2.“*|</p> <p>3. Highways (§ 1*) — Establishment—Abandonment—Dedication.</p> <p>Unless a highway is established by public authority, there must be an abandonment or dedication thereof to the public by the landowner, and, though.this, need not be by express grant nor evidenced by writing, there must be evidence showing an intention to abandon or dedicate the land to the use of the public or proved facts from which such intention may be fairly deduced.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 1, 2; Dec. Dig. § 1*1</p> <p>4. Dedication (§ 20*) — Abandonment to Public Use — Evidence.</p> <p>Occasional and irregular travel across a ranch by land claimants and hunters was not evidence of an abandonment or dedication of the land covered by the trails to public use for highway purposes by the owner, nor was "it evidence of adverse use necessary to establish a presumption of dedication.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 17-30; Dec. Dig. § 20.*]</p> <p>5. Highways (§. 155*) — Public Highways — Interest oe United States.</p> <p>Where certain crossroads through a ranch privately owned were not highways, and there was no access by such ways from the public domain to a beach road, the United States had no interest in the question whether the beach road was a public highway.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 432-430; Dec. Dig. § 155.*]</p> <p>6. Highways (§ 99*) — Establishment—Maintenance—Jurisdiction—State or Federal Authority.</p> <p>The establishment and maintenance of highways as such over privately owned lands is a matter primarily for the control of state authorities, in which the federal government is not interested.</p> <p>[Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 323-330; Dec. Dig. § 99.*]</p> <p>7. Highways (§ 155*) — Obstruction—Injunction—Right to Sue.</p> <p>A private owner of land has no right to enjoin the obstruction of a road unless he can show access thereto over some lawful way, and the' federal government has no other or greater rights.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 432-436; Dec. Dig. § 155.*]</p> <p>8. Highways (§ 1*) — Way op Necessity.</p> <p>Ways of necessity are essentially private ways and not public highways.</p> <p>[Ed. Note. — For other cases, see Highways, Cent Dig. §§ 1, 2; Dec. Dig. § 1.*]</p> <p>9. Public Lands (§ 114*) — -Patent—Way op Necessity — Implied Reservation.</p> <p>In the absence of a reservation in a grant of public land, there is no implied reservation of a right of way over the land granted to afford access by the public to other land belonging to the government.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 314-322; Dec. Dig. § 114.*]</p> <p>10. Easements (§ 18*) — Way op Necessity.</p> <p>Ordinarily a way of necessity arises when the owner of a tract of land conveys a portion thereof to another and there is no access from a public highway to the land conveyed except over the grantor’s remaining land or that of a stranger, or when the owner sells a portion of his land and the part remaining is inaccessible except over the land sold or that of a stranger, and such right does not arise where the claimed way is merely more convenient or desirable than some other way because of the mountainous character of the country, etc.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*]</p> <p>11. Easements (§ 18*) — Way of Necessity — Time of Necessity.</p> <p>In order to establish a right to a way of necessity, the necessity must exist at the time of the grant and as to the whole tract conveyed or reserved, since neither a grantee nor grantor can subsequently subdivide his land and sell off a roi’tion in such a manner as to create a way of necessity in favor of his grantees over parts previously granted unless the way rests in grant or the easement is an apparent and continuous one, existing and in use at the time of the conveyance.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*]</p> <p>12. Public Lands (§ 19*) — Fence Law — Effect.</p> <p>Act Cong. Feb. 25, 1885, c. 149, § 1, 23 Stat. 321 (U. S. Comp. St. 1901, p. 1524), prohibits the inclosure of public land, and section 3 forbids obstruction to or prevention of entry on or free passage over or through public lands by force, threats, intimidation, or unlawful fences or inclosures. Meld,, that such act was simply intended to preserve access to the public domain and was not intended to interfere with the use and enjoyment of private property unless such use was a mere subterfuge for inclosing or preventing access to the public domain; and hence the act did not prevent a property owner from constructing fences in good faith on her own land to protect the same against trespass, and useful for the proper enjoyment of such land, without any intention of appropriating or inclosing public lands or preventing lawful access thereto.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 25, 2ti; Dec. Dig. § 19.*]</p>

<p>1. Specific Peefobmance (§ 99*) — Default oe Complainant — Effect.</p> <p>Complainant and defendants’ predecessor having agreed to a proposition for the sale of certain land to the latter for railroad purposes, a written contract pending the delivery of deeds was demanded; but its terms could not be agreed on because complainant insisted on a provision for a common user bridge which was not in the original negotiations and to which defendants’ predecessor would not agree. Complainant demanded a return of the unexecuted draft of the proposed written contract, which was done, and thereafter, when the railroad company de-mantled deeds to the property in accordance with the original agreement, complainant refused to perform except on payment of $10,000 additional, as it claimed for interest on the original consideration during'the delay, which defendants’ predecessor declined to pay. Held, that such demand was a breach of the agreement by complainant barring its right to specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 299-804; Dec. Dig. | 99.*]</p> <p>2. EVIDENCE (§ 401*)-PAROL EVIDENCE — WRITTEN CONTRACT.</p> <p>Where a contract for the sale of certain real property for railroad purposes provided that complainant vendor should co-operate with the ven-dee in procuring other properties in H. and also franchises there, parol evidence, though admissible to show that franchises in a particular place were contemplated, was not admissible to prove that such provision was intended to require the railroad company and the city to construct a joint user bridge, provided the city contributed its share of the cost of construction and maintenance.</p> <p>LEd. Note. — For other cases, see Evidence, Gent. Dig. §§ 2129-2188; Dec. Dig. § 461.*]</p> <p>3. Vendor and Purchaser (§ 16*) — Offer and Acceptance.</p> <p>Where an acceptance of an offer for the sale of land for railroad purposes required the vendor to co-operate in procuring franchises in II. for the railroad company, a provision, in the proposed contract subsequently tendered for execution, that the vendor would co-operate in procuring such franchises in II., and also in jirocuring such additional rights of way in the city as the railroad company might desire, was not objectionable as substantially broadening the terms of the acceptance.</p> <p>[Ed. Note.- — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16. *1</p> <p>4. Vendor and Purchaser (§ 16*)- — Contract—Execution.</p> <p>Where a contract for the sale of certain real property for railroad purposes was prepared and submitted to complainant’s president in accordance with previous correspondence between the parties, and lie redrafted the contract to include an additional provision for a joint user bridge to which the railroad company would not agree, and he was unwilling to sign any other contract not containing such clause, it sufficiently appeared that complainant refused to execute the contract in accordance with such correspondence.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.*]</p> <p>o. Vendor and Purchaser (§ 42*) — Formal Contract — Waiver.</p> <p>Where an acceptance of a proposition for the sale of land for railroad purposes called for the execution of a formal contract, but, the parties being unable to agree oil the elimination of a clause therefrom providing for a joint user bridge, complainant requested the return of the un-executed contract, and the railroad company complied with such request, but stated that in returning the same they had no intention of waiving their rights with reference to the agreement to purchase the projierty, they did not waive the provision in the acceptance requiring the execution of a formal contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. % 68; Dec. Dig. § 42.*]</p> <p>6. Vendor and Purchaser (§ 42*) — Contract of Sale — Execution—Waiver.</p> <p>Where a railroad company’s acceptance of a proposition to sell certain land for railroad purposes provided for the execution of a formal contract, but the parties were unable to agree on the form proposed, which complainant insisted should contain a clause for a common user bridge, whereupon negotiations ceased for a time, during wMcIl tlie railroad company treated with the city in regard to such bridge, and afterwards notified complainant that it was ready to consummate the transaction and accept deeds to the property, the railroad company’s conduct did n'ot constitute a waiver of its right to a formal agreement in accordance with the offer and acceptance.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 68; Dec. Dig. § 42.*]</p> <p>7. Frauds, Statute of (§ 129*) — Part Performance.</p> <p>Where an acceptance of a proposal to sell land for railroad purposes provided' that a formal agreement should be entered into in accordance with the offer and acceptance, and that complainant vendor should remove the buildings from the property within six months from the date of the deeds, but no formal contract was ever agreed on, and complainant refused to deliver the deeds on demand, the mere removal of the buildings, not shown to have been done solely in part performance of the contract, was not such a part performance as would take the case out of the statute of frauds.</p> <p>[Ed. Note.- — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 326, 326; Dec. Dig. § 129.*]</p>

In Admiralty. Suit for collision by Donald B. Smith, master of the steamer Seaconnet, against the steamer Georgia, tire Hartford & New York Transportation Company, claimant, with cross-libel against the Seaconnet.

At Law. Action by Charles A. Strout, as substituted trustee of the Goddu Company, against the United Shoe Machinery Company and others. On motion to strike out amendment to special replication, and on demurrer to such replication.

In Admiralty. Petition by the Baltimore, Chesapeake & Atlantic Railway Company, as owner of the steamer Avalon, for limitation of liability; also against the power launches C. F. Co. No. 2, C. F. Co. No. 3, and C. F. Co. No. 4, and the Consolidated Ferry Company, their owner, and against Gustav Bembe as owner of the bugeye Elisha, for collision; also suit by said Bembe against the Avalon.

<p>In Equity. Suit by Clara L. Griffin against Ransom S. Morgan.</p>

<p>1. Removal oe Causes (§ 36*) — Citizenship oe Paeties — Real oe Nominal Pakties.</p> <p>Insurance companies which have paid policies on property destroyed by fire caused by the negligence of a third person and have by equitable principles or by the terms of the policies been subrogated to the right of action of the owner against such person may maintain an action thereon in their own name under the laws of Washington, which require actions to be brought in the name of the real party in interest and permit the assignment of such causes of action, and where they join with the owner as plaintiffs they are parties in interest, and not merely nominal parties-for the purpose of determining the removability of the cause.</p> <p>[Ed. Note. — For other cases,-see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*]</p> <p>2. Teusts (§ 30%*) — Ceeation—“Expeess Teust.”</p> <p>An “express trust” can be created only by agreement of the parties to-the trust concerning it (citing 3 Words and Phrases, pp. 2611-2613).</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 41, 41%; Dec. Dig. § 30%.*]</p>

In Admiralty. Proceeding by tbe owners of the steam tugs Ticeline and Transfer No. 12, for limitation of liability. On exceptions to report of commissioner.

In the matter of the National Envelope Company, bankrupt; Win-field Predmore, trustee. The Riverside National Bank appeals from an order of the District Court disallowing its claim to a lien by virtue of a chattel mortgage.

<p>Bankbuttcy (§ 175*) — Mortgages—-Validity as Against Trustee.</p> <p>A "mortgage given by a bankrupt, although for a valid consideration and valid as between the parties, if withheld from record by agreement or understanding between them, so as not to affect the mortgagor’s credit, may be set aside at the suit of his trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 218; Dec. Dig. i 175.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; Wm. T. Newman, Judge.</p> <p>. Proceeding by Edward F. Blake for writ of habeas corpus for his discharge from the custody of William H.' Moyer, Warden of the United States Penitentiary at Atlanta, Ga. Writ denied, and petitioner appeals.</p>

Whitaker Thompson, Judge. Suit in equity by the National Electric Signaling Company and Samuel M. Kintner and Halsey M. Barrett, receivers, against the Tele-funken Wireless Telegraph Company of the United States. Decree for defendant, and complainants appeal.

<p>In Equity. Suit by the General Electric Company and Edward M. Hewlett against Louis Steinberger.</p>

<p>In Equity. Suit by the General Electric Company against the Yost Electric Manufacturing Company. On final hearing.</p>

<p>In Admiralty. Suit by John A. Thompson against the sailing schooner Pred E. Sander. On exceptions to libel. Exceptions overruled.</p>

<p>Receivers (§ 152*) — Liability of Funds in Hands of Receiver — Establishment of Trust.</p> <p>Intervening petitioners entered into contracts with defendant company, for which receivers were afterward appointed, by which goods of petitioners, severally, were to be plaeed in' defendant’s store for sale. The management and control of the goods until sold, of the persons employed to sell them, and of the making of the sales, remained wholly with petitioners; but the contracts provided that “all sales and cash are to be handled in the same way that all other sales and cash are handled in the company’s store,” and that defendant should account and pay over monthly to each petitioner the receipts from sales after making certain deductions. The proceeds received from sales were mingled by defendant with its own funds, and at the time of the receivership certain of such pro-coeds had not been accounted for, but wore traceable into specific funds of defendant which passed into the hands of the receivers. Held, that there was nothing in the contracts which established a trust relation between the parties with respect to the money received or which gave petitioners any greater rights in the funds in which it was included than other contract creditors.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 272-275, 278; Doc. Dig. § 152.*]</p>

<p>1. Monopolies (§ 12*) — Anti-Trust Act — “Combination in Restraint or Interstate Commerce.”</p> <p>A combination formed for the express purpose and with the express intent of eliminating the natural and existing competition in interstate commerce, and of monopolizing and restraining such commerce by the employment of unusual and abnormal methods of business, or which places the direct instrumentalities of interstate commerce in such a relation as to create a single dominating control in one corporation, whereby natural and existing competition in such commerce is unduly restricted or suppressed, is one in violation of Anti-Trust Act July 2, ÍS90, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1275, 1276; vol. 8, p. 7606.]</p> <p>2. Commerce (§ 17*) — Instrumentalities of Interstate Commerce — Towing Tugs.</p> <p>Tugs employed in the business of towing into and out of harbors and bsiween ports vessels engaged in interstate commerce, and in the lighter-ing and wrecking of vessels so engaged, are themselves instrumentalities of interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 10, 11; Dec. Dig. § 17.*!</p> <p>3. Monopolies (§ 12*) — Contracts in Restraint oe Interstate Commerce— Anti-Trust Act — “Unreasonable Restraint op Trade.”</p> <p>While the salo of a business and the surrender of the good will pertaining thereto and an agreement thereunder, within reasonable limitations as to time and territory, not to enter into competition with the purchaser, when made as part of the sale of the business, and not as a device to control or monopolize interstate commerce, is not within federal Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), the imposition of a restraint greater than necessary to afford fair protection to the legitimate interests of the purchaser constitutes an unreasonable restraint within the act.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6185, 6186.]</p> <p>4. Monopolies (|§ 12, 16*) — Anti-Trust Act — Combination in Restraint of Interstate Commerce.</p> <p>The Great Lakes Towing Company was organized in 1899, and shortly afterward acquired in its own name, or that of controlled companies, the property and good will of practically all local tug operators in 14 of the principal lake ports, not including Lake Ontario. These purchases were made under contracts which bound the sellers not to engage in the towing or wrecking business on any of the Great Lakes except Ontario for. a period of five years. In this manner the company acquired some 120 tugs. It also made a contract with another owner whose tugs were not bought, by which he bound himself, in consideration of an annual payment to him in cash, not to do- any towing on the Great Lakes for a term of five years. Whenever local competition later developed, the company at least met any cut rates at that port, even at a serious loss, until competition was ended, after which rates were restored. It adopted a system of exclusive contracts with vessel owners by which, in consideration of their giving it all their towing and wrecking business throughout one or more seasons at all ports where it did business, it gave them a large discount from its tariff rates, with a guaranty that the contract rates, taken together, should not exceed the sum of the rates they might otherwise obtain by reason of the cutting of rates by competitors. By means of such contracts it obtained control of 90 per cent, or more of the towing business at such ports, and, together with the other means stated, acquired a practical monopoly of such business. Hold, that such company and its controlled companies were clearly organized and operated with the purpose and effect of securing a monopoly, and constituted a combination in restraint of interstate and foreign commerce in violation of Anti-Trust Act July 2, 1890, c. 64T, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Gent. Dig. §§ 10, 12; Dec. Dig. §§ 12, 16.*]</p>

<p>1. Steket Railboads (§ 49*) — Constuuctioiv or Lease — Liabilities op Lessee.</p> <p>A lease of street railroad lines provided that “the lessee shall also from time to time pay or cause to be paid all rentals and other sums of money which are or may be or become due or payable under or by reason of any leases and other contracts to which the lessor is a party or to which any of the demised property is or may be subject, and tbe lessee assumes all tbe obligations of tbe lessor under all sucb leases and contracts.” Sold, that sucb assumption clause did not cover tbe liability of tbe lessor for breach of a contract to furnish cars and facilities for tbe use of an express company for which it was to receive instead of to pay rent.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. §-49.*]</p> <p>2. Street Railroads (§ 49*) — Construction oe Lease — Liability, oe Lessee.</p> <p>By tbe habendum clause of a lease of a street railroad system, tbe lessor demised, inter alia, all its benefits and rights under a contract by which it agreed to furnish cars and other facilities to an express company for a term of years subject to the burdens and conditions imposed on it by such contract. The lease further provided^ that in ease of default by the lessee in payment of rent or performance of any other conditions, continuing for a stated time, it should terminate at once. The lessee performed the contract and received the rental provided therein, until it became insolvent, and receivers were appointed for its’property, and the receivers thereafter performed it until the lease was terminated. Held, that the assignment of the contract effected by the lease was subject to the forfeiture clause therein to which the express company must be deemed to have assented, and that the lessee was not liable for damages for nonperformance after the lease was terminated.</p> <p>[Ed. Note.- — For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>3. Carriers (§ 15*) — Contracts with Express Companies — Action eo Breach — D amages .</p> <p>Evidence held insufficient to establish substantial damages for breach of a contract, by the defendant street railroad company to furnish cars and facilities to an express company for a term of years.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 25-27; Dec. Dig. § 15.*]</p>

<p>1. Street Railroads (§ 49*) — Lease—Insolvency of Lessee — Accounting Between Paeties.</p> <p>A lease oí a street railroad required the lessee to do certain reconstruction work, the cost of which was to be repaid by the lessor, which had the option to pay in its bonds, issued under an existing mortgage, at their face value. In some cases payment was so made, and the lessee, after writing its guaranty on the bonds, sold them at a premium. Held, that it could not be required to account to the lessor lor the amount of such premiums.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>2. Steeet Railroads (§ 49*) — Lease—Insolvency of Lessen — Accounting Between I’aeties.</p> <p>On an accounting between the parties, the lessee was entitled to interest on the sums advanced by it during the period of reconstruction.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Gent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>3. Street Railroads (§ 49*) — Lease—Insolvency of Lessee — Accounting Between Parties.</p> <p>Where a lease of a street railroad provided that the lessee should receive certain cash in the treasury of the lessor, but in case of termination of the lease for its default the money should be considered as a loan and returned with the other property of the lessor, such money must be considered on a termination of the lease as a part of the property leased, compensation for the use of which was covered by the rent reserved, and the lessee is not chargeable with interest thereon.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>4. Street Railroads (§ 49*) — Lease—Insolvency of Lessee — Accounting Between Parties.</p> <p>By a lease of a street railroad the lessee assumed and agreed to pay all debts and liabilities of the lessor not incurred to the lessee. By a further provision the lessee was authorized, if it should deem it expedient, to change the motive power in use, and for the amount so expended it was to receive bonds of the lessor to be secured by a subordinate mortgage. Prior to the insolvency of the lessee and the termination of the lease, it had changed the motive power of certain parts of the leased lines, but had not demanded or received the bonds to which it was entitled therefor. Held, that such indebtedness of the lessor was not included in that assumed by the lessee, and that on an accounting between the parlies it was entitled to credit for the amount so expended.</p> <p>TEd. Note. — For other cases, see Street Railroads, Gent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>5. Street Railroads (§ 49*) — Lease—Insolvency of Lessee — Accounting Between Parties.</p> <p>Various items of debit and credit considered on an accounting between lessor and lessee of a street railroad on the termination of the lease through the insolvency of the lessee.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Gent. Dig. §§ 125, 126; Dec. Dig. § 49.*J</p>

<p>This cause comes here upon exceptions to the findings and conclusions of the special master.</p> <p>The following is the opinion of the special master:</p> <p>On the 1st day of March, 1910, two orders were made directing the filing not later than March 2, 1910, of the claims of the Central Park, North & East River Railroad Company against the Metropolitan and City estates nunc pro tunc as of the last day fixed for filing of such claims, such date in the case of the Metropolitan estate being January 15, 1908, and of the City estate December 10, 1907. Claims were duly filed, that against the Metropolitan being based on alleged breaches of covenants contained in the Central Park lease of October 14, 1892, to the Metropolitan Crosstown, which was devolved by operation of law through successive consolidations upon the Metropolitan Company and that against the City Company by virtue of the Metropolitan-City lease of 1902, which went into effect on April 1st of that year, which it is asserted operated as an assignment of the earlier lease mentioned and expressly assumed the performance of such covenants. The items of damage alleged are for failure to keep roadbed in repair $500,000, and a similar failure as to rolling stock for a like amount; for failure to pay certain real estate taxes aggregating $4,960.13, and certain specific franchise taxes $256,120.17; for failure to meet $1,200,000 with certain interest of outstanding Central Park bonds, secured by mortgage, issued and made December 1, 1872, payable in 1902; and for failure to return a cash item of $108,000, claimed to have been taken over by the Metropolitan at the inception of the Central Park lease, the aggregate of the items exclusive of interest being $2,569,080.30. The claim as filed against the City Company alleges identical breaches of the same covenants, demanding the same damages, the liability being based on privity of estate or contract. These claims were amended by orders dated December 6, 1911, allowing a demand for failure to repave within the railroad area amounting to $179,479.63. An offset is claimed by the respondent Metropolitan receiver of $861,729 for improvements, being based on certain provisions of the Central Park lease. The disposition of most, if not all, of the items will be controlled by the views taken of similar contentions involved in the claim of the Second Avenue Company expressed in the memorandum recently filed respecting that claim to which counsel are referred for a fuller statement of those views than will be necessary here.</p> <p>(1) Item of damage for failure to keep roadbed in repair now reduced by claimant to $88,044.80.</p> <p>As reduced it includes two items which are objected to. The first is an item of $3,500 for repairing the crossing at Fifty-Ninth street and Columbus avenue. It appears that the Metropolitan receivers did repair this crossing at an expense of $3,500 and brought suit for the amount, which has not been prosecuted to judgment. There are no facts establishing the liability of the Central Park Company in the record, as counsel points out. It is plainly an item to which claimant is entitled, and it is allowed unless the respondent receiver concedes that the claimant is free from any liability for the money expended on this repair.</p> <p>The second item is for raising the tracks at the approach to the Queens-boro Bridge amounting to $10,004/79. This work was not begun until November 13, 3908, three months after surrender of the lines to the Central Park Company, and it has not been shown that the Metropolitan or its receivers were ever called on to do the work. (Dearly this claim was not in existence on January 15, 1908, and cannot be allowed. It is not a question of repair.</p> <p>The item is allowed against the Metropolitan estate at $77,910.01 subject to the possible deduction indicated.</p> <p>(2) Item of damage for failure to restore personal property. Minimum claimed $394,897. Maximum claimed $450,000.</p> <p>Thus reduced, those alternative demands represent claimant’s ideas as to the value of 210 horse cars, 1,206 horses, 225 sets of harness, and 1,209 bridles. Only the valuation to be placed on the horse cars suggests dispute; the valuation of the other items being substantially conceded. The amounts to be reported respecting these latter will be.</p> <p>Horses .$205,020</p> <p>Harnesses . 5,377</p> <p>$210,397</p> <p>Claimant makes two contentions in support of the valuation that it asks me to place on the horse cars, which it insists should not be less than $184,500:</p> <p>1. That there should be included in this valuation the value of some 40 electric cars substituted for some 14 horse cars in use on the Fifty-Ninth Street line before electrification on the theory that they are “substitutes, increments or additions,” within the meaning of the lease, to the delivery of which they became entitled on its termination.</p> <p>2. That the Metropolitan must account for the value of these cars in 3892, and not for the value in 1908, when the right to the delivery under the lease accrued.</p> <p>Respecting the first contention, it is sufficient to say that it has already been determined adversely to the claimant by the court. Pointing out that this case differs from the Second Avenue, in the respect that no part of the construction nor any part of the equipment was paid for by the lessor, Judge LACOMBE distinctly holds that these electric cars were not substitutes for the horse cars. There is nq additional evidence in the record here to justify any other or different finding.</p> <p>As to the second contention, it seems equally certain that, failing to return the identical 210 cars in the stipulated condition at the termination of the lease, the lessee is bound to account for their value at that time and not for the value at the inception of the lease. If at the time of surrender the lessee had gone into the open market and purchased 210 horse cars of the same type as the original cars in the stipulated condition of efficiency and repair, the lessor would have been bound to accept them, if tendered. The Metropolitan creditors are certainly not bound by any higher value nor in any way concluded by the reports based on original costs a dozen years and more prior to 1908, contained in the railroad reports. The question is whether the value as of that date can be determined with approximate fairness from the evidence. The claimant’s manager, Mr. Pinch, testified that $150 a car, both for box and open cars, was about the fair market value in 3908. This testimony was elicited on cross-examination and is met by testimony of respondent’s expert, that the value was from $110 to $125 per car at that time, and that 200 or more cars could then have readily been obtained, which is what Mr. Pinch himself testified in effect. He also testi-lies that in 1908, he leased 60 closed cars and 45 open cars from the Metro* politan receivers, and that from $100 to $150 was the amount required to put them in fair operating condition. On the whole it would seem from evidence such as this, which is doubtless the best that the nature of the case permits, that $250 per car for each of the 210 cars to the return of which the claimant became entitled was their full value at the time the right to the return accrued and would be an ample allowance to suggest to the court. This amounts to $52,500, making the total allowance to be reported under this head $262,897.</p> <p>3. Item of damages for paving, amount claimed $173,731.21 and interest $5,455.72; total $179,186.93.</p> <p>Of the principal sum, two items are conceded. These are the judgment against the Central Park Company of $104,944.15 and the two paving items which claimant under its agreement with the (New York Central Railway Company was liable to pay amounting to $54,251.62. This sum is $159,195.77.</p> <p>The paving claims represented by the difference, which is $16,530.44, is disputed. It is sufficient to say with reference to these claims that no notice to repair the areas covered by these items was ever served on the Central Park Company, though it may have been on the sublessee, the City Company. I think that as si matter of law no liability for such claims exists (130 App. Div. 842, 115 N. Y. Supp. 878), and that they should not be allowed.</p> <p>Interest from the completion of the work to October 1, 1907, only can be allowed. This amounts to $533.68. The balance of interest claimed is on work completed after the appointment of the Metropolitan receivers on October 1, 1907.</p> <p>It results that $159,195.77, with $533.68 interest, or $159,729.45, should be suggested under this head.</p> <p>4. Item of damages for unpaid real estate taxes and special franchise taxes $230,071.56 and interest.</p> <p>These real estate taxes amount to $4,965.13 and became liens on the real estate of the Central Park Company prior to the making of its lease to the Metropolitan in 1892. Counsel for the receiver apparently thinks that the only clauses in the lease which can be pointed to as suggesting a possible right to the allowance is the covenant to pay taxes which is, of course, prospective, and the clause assuming liabilities. Dike the Second Avenue lease, however, this lease contains a promise that the lessee would pay, save harmless and indemnify the lessor from and against any and all unpaid taxes and all lawful claims and demands existing at the date of the lease. The interest on these taxes to October 1, 1907, is $8,760.88, subject to verification, so that the total amount allowable is $13,726.01. To this must be added the tax lien transfer and interest in all $471.29.</p> <p>The special franchise taxes claimed are from 1901 to 1907, inclusive, and amount to $161,924.19, the interest, subject to verification, being $35,041.48, and are allowable as in the Second Avenue case. The total of amounts allowable are:</p> <p>Totals.</p> <p>Tax lien transfer. $197.30 Interest $273.93 $471.29</p> <p>Real Estate Taxes. 4,965.13 “ S,760.88 13,726.01</p> <p>Franchise taxes. 161,924.19 “ 35,041.48 196,965.67</p> <p>$167,086.68 $44,076.29 $211,162.97</p> <p>(5) Item of damage for money delivered at the inception of the lease, $108,618.16.</p> <p>With respect to this item claimant has been able to present somewhat more proof than was possible to claimants in the Second Avenue case. The record affirmatively shows that the books of account of the Metropolitan Crosstown, of the Houston & West Streets & Pavonia Ferry Railroad Company, and of the Metropolitan itself, covering the period in 1892, when the cash was taken over, have wholly disappeared, and the minute books of the two former companies as well. A minute book of the Central Park Company covering the period from 1877 to 1895 was produced from the custody of officers of the Central Park Company, who had been chosen long after the making of the lease when the Metropolitan was in control. The book contains minutes of a meeting on November 14, 1892, a month later than the lease, at which an examination of the accounts and vouchers of the company for October, 1892, was certified. Minutes of a meeting of the same committee on December 2d following sets forth a report containing the following:</p> <p>“The Committee also have examined and certify that the total amount of cash on deposit to be turned over to the Metropolitan Crosstown Railway Company this day by check pursuant to the terms of the lease dated October 14, 3892, is as follows:</p> <p>In the Mercantile Trust Company of N. T. City General a/c.$ 1,077 45</p> <p>In the Mercantile Trust Company Tax Reserve a/c. 25,709 95</p> <p>In the Rank of New Amsterdam N. X. City General a/c. 81,270 76</p> <p>In the office of the Company, Petty Cash. 500 00</p> <p>$108,018 16</p> <p>“Besides yesterday’s and to-day’s receipts in hands of receivers, conductors and in course of collection, less payments made therefrom not yet adjusted and interest on above deposits to this date.</p> <p>“LSigned] " Jno. T. Terry,</p> <p>“Charles Dana.”</p> <p>The minutes of finance committee meetings were approved by the directors on December 13, 1892, and on September 12, 3893. Mr. Ilasbrouck, who was prior and subsequent to the making of the lease a director and vice president of the lessee company, and a direcior, treasurer, and either vice president or secretary of the Houston & West Streets & Pavqnia Perry Company reported to tire directors of Central Park Company (of which he had been made a direcior and vice president after the lessee assumed control and on April 5, 1893), submitted his report io the directors that the property had been turned over to the lessee and the terms of the lease faithfully compiled with. These minutes are, of course, objected to as self-serving declarations; but, on the theory adopted in the Second Avenue ease, they may be regarded as admissions of the lessee, it being in control under the lease. Evidence that the funds in the Mercantile Trust Company and the Bank of New Amsterdam, presumptively those specified in the minutes, were paid out on December 5, 1892 — when the lease under the lease was in control — was also introduced.</p> <p>. The allowance of $108,018.16, will be recommended, but without Interest, as that was not reserved.</p> <p>(6) Item of rents paid receivers for horse and electric cars and for horses, $134,229.33.</p> <p>This item embraces the rents paid subsequent to August 5, 1908, which ended the receivers’ period of occupation, for property of the nature indicated, under orders of the court and. under reservation that the amounts so paid should be refunded, if it should be established that the cars and horses were the property of the claimant.</p> <p>This item is not provable in this proceeding. We are concerned here with ascertaining claims against the Metropolitan Company, fixed in their nature, arising out of breaches of covenants in the lease, actually or constructively in existence as of January 15, 1908, against that company, but not eiáims arising out of acts of the receivers after the termination of the period of experimental occupation. The evidence of identity of cars leased by the receivers with those originally turned over in 1892 may, under the reservations, be pertinent In the use and occupation proceedings, but surely cannot be involved in this. Its disallowance will therefore be recommended.</p> <p>(7) Item of damages for the principal of the Central Park bonded debt.</p> <p>This Item is based on the assumption clause contained in the lease of 1892. This the claimant, as did claimants in the Second Avenue case, regards, as between lessor and lessee, as an absolute and unconditional promise; but the courts hold it to be, even as between the parties, as only a promise to answer for any deficiency in the value of the property, which is held to be the primary fund for payment, to be resorted to before resort may be had to the lessee under its covenant. Farmers’ Loan & Trust v. Central Park Co., 193 Fed. 963, 113 C. C. A. 591; Second Avenue Bondholders’ Appeal, 198 Fed. 747, 117 C. C. A. 503.</p> <p>On the day fixing provable status, January 15, 1908, this claim was clearly contingent and cannot therefore be allowed. It may be added that in this case, unlike the Second Avenue case, a sale has been had, and an amount in excess of principal, interest, and taxes due has been realized.</p> <p>(S) Item of rental unpaid during the period of occupation, $81,000.</p> <p>This item suggests no dispute and is allowed.</p> <p>(9) Item of legal expenses, $29,893.17.</p> <p>This item is based upon a covenant to indemnify from all expenses of prosecution or defense of actions or proceedings pending at the time of the lease or brought at any time thereafter against the lessor for any lawful claim existing at the time of the lease.</p> <p>The request for services claimed for and the rendition of such services were after January 15, 1908, and must be disallowed for that reason. It may be noted that a large part of the amount claimed was for services not in connection with actions pending or claims existing at the time of the lease, and are therefore not within the covenant in any event.</p> <p>(10) Items of car license fees, $8,350, repairs to cars $15,750, and for 40 electric cars $104,500; $128,640.</p> <p>The item relating to the 40 electric cars has been disposed of in another connection and is disallowed. That for repairs of cars so far as it suggests any provable claim — and I do not think it does- — has been fully disposed of in connection with the valuation placed upon the horse cars. As to the car license fees they are for 1908, there is no proof that the Central Park Company ever paid them, and, if it did, it was under no legal liability to do so, as the receivers and not it were operating, so that the payment, if made, was voluntary. City of N. X. v. Sixth Ave. B. Co., 77 App. Div. 367, 79 N. Y. Supp. 319. Moreover, it is not at all clear that the fees were due from any one on January 15, 1908, for no proof of the ordinance was offered. They should therefore be disallowed.</p> <p>It remains to be determined whether the respondent receiver is entitled to the offset claimed of $861,792.37 of expenditures for the electrification of Fifty-Ninth street and of Tenth avenue, the amount of which are conceded. The lease contains the same covenant to issue bonds for the betterments of this nature secured by lien of mortgage which is present in the Second Avenue lease and the right to bonds of the face value of these expenditures was complete on October 1, 1907, when the Metropolitan receivers were appointed, although no demand up to that time had been made. The Central Park lease does, however, expressly assume and agree to pay these bonds, which the Second Avenue lease did not do. Even with this assumption, however, the respondent is, I think, entitled to the equitable offset claimed for the reasons more fully stated in the memorandum filed in the Second Avenue Company’s claim for breach of lease to which counsel are referred and it is therefore allowed.</p> <p>As against the Metropolitan estate, the result reached may be thus summarized.</p> <p>1. Roadbed . $ 77,910 01</p> <p>2. Equipment . 262,897 00</p> <p>3. Paving. 159,729 45</p> <p>4. Taxes . 211,102 97</p> <p>5. Loan ....'. 108,018 16</p> <p>6. Rent during occupation. 81,000 00</p> <p>■ Total . $901,317 59</p> <p>Less . 861,792 37</p> <p>Amount allowed. $ 39,525 22</p> <p>As against the City Company the disposition to he recommended to the court in the Second Avenue breach of lease claim will dispose of the items 1, 2, 5, and 6 above stated, as not allowable. Of the franchise taxes, which are allowable, viz., the franchise taxes from 1002 to 1900, inclusive, the principal sum aggregates .$189,544.41, and the interest subject to verification to $27,848.04; a total of $167,393.05. The only item here involved which is not disposed of in the Second Avenue case is the item of paving claims. I think the liability of the City Company is either to the city of New York, or to the Metropolitan Street Railway Company for charges such as those and not to the Central Park Company at ail. These charges are clearly not “rent” within the meaning of article 3 of the Metropolitan-City lease, as recently construed by the Circuit Court of Appeals. The covenants contained in articles 2 and 4 which include them are just as clearly for the benefit of the Metropolitan Company and not for that of third parties. Weldon National Bank v. Smith, 86 Fed. 398, 30 C. C. A. 133. So the similar covenant in the Central Park lease is, in its nature, personal and not such as runs with the land, even if the Metropolitan-City lease could be considered as operating as an assignment of the former lease, which, for the reasons suggested respecting the practically identical Second Avenue lease, I do not think it can. It may be noted that the City Company was vouched in, in the action by the City of New York which resulted in the judgment for $104,944.15 constituting the larger part of this amount claimed here and allowed against the Metropolitan estate. None of the paving claims has ever been paid by the Central Park Company.</p> <p>Proposed r<®orts in accordance with the foregoing should be filed with me and served on respondents on or before May 12, 1913, and proposed amendments and objections thereto five days later.</p>

In Equity. Suit by the Richmond, Cedar Works against one Pinnix and others. Bill in equity, brought by plaintiff, to remove cloud from and quiet title. The land in controversy is situate in the Eastern district of North Carolina, being a portion-pf the Dismal Swamp, of the value of $60,000.

<p>1. Banks and Banking (§ 75*) — Insolvency-—Deposits Received when Insolvent — Trust.</p> <p>A private banker, who at the time of making a general assignment was so hopelessly insolvent that his estate in bankruptcy will not pay more than one per cent, on claims of general creditors, was legally chargeable with knowledge of his insolvency on the preceding day, which made his acceptance of deposits on that day fraudulent and impresses a trust on the money received in favor of the depositors where it is traced into the hands of his trustee.</p> <p>I'Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 157; Dec. Dig. § 75.*]</p> <p>2. Mortgages (§ 121*) — Mortgage Given as Indemnity — Substitution oe Obligation oe Mortgagee.</p> <p>Bankrupt was owner of a private hank which was depository for a school district and had given a surety bond to secure its deposits. Anticipating an increased deposit, the bankrupt applied to the surety company for au additional bond, and as indemnity executed to the-company a mortgage on land reciting the execution of the bond by the company and its conditions. The bond was afterward executed and forwarded to the bank for delivery to the board of education, but, not being required at that time, was returned and canceled. At the suggestion of the bank that it would be required later, the mortgage was retained, and on request a few months later the company executed a new bond of the same tenor and recorded the mortgage. It subsequently became liable for and paid in full the amount of such bond, which in the meantime had been renewed. Held that, since the liability incurred was that contemplated by the parties when it was executed, the mortgage did not become functus officio when the first bond was canceled, but remained in force as security for the second bond and its renewal, and that it was entitled to priority over a second mortgage to one who had both actual and constructive notice that it was in existence.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 237-241; Dee. Dig. § 121.*]</p> <p>3. Evidence (§ 400*)- — Pabol Evidence Affecting Writing — Identification of Mortgage with Obligation Secured.</p> <p>The admission of extrinsic evidence to identify a mortgage with the obligation which it secures is not a violation of the rule that a writing cannot be varied by parol.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*]</p>

<p>In Equity. Suit by the Sperry & Hutchinson Company against Henry Pommer and others. On final hearing.</p> <p>Suit to restrain defendants from interfering with complainant’s business — by acts alleged to amount to unfair competition in trade — • and inducing complainant’s customers to break their contracts.</p>

<p>1. Bankruptcy (§ 140*) ~ Ownership or Property — Seller and Buyer op Machinery — Effect op Substitution of Purchasers.</p> <p>Claimant sold two drop forges to the owner of a plant on a conditions! 1 sale contract which provided that they should be considered personalty and remain the property of claimant until paid for, which contract was duly recorded. The machines were very heavy and were bolted to concrete beds but could be removed without injury to the building. The purchaser sold the plant to bankrupt, not having paid for (lie forges, and for the purpose of substituting bankrupt in his place a new contract in the same terms was made between claimant and bankrupt and recorded and the old one canceled. Held, that the transaction did not affect the status of the forges, which remained personal property as between claimant and the bankrupt and its creditors and holders of subsequently acquired liens on the plant.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*]</p> <p>2. Fixtures (§ 22*) — Between Seller and Buyer op Machinery — Intent in Making Annexation.</p> <p>Drop forges, motors, and printing presses, all heavy machines bolted to concrete beds in a manufacturing plant and which were necessary to the business carried on therein but could be removed without injury to the building, may retain the character of chattels and not become a part of the realty, under the law of Ohio, where such was the intention of the owner of the plant when they were installed, as where they were purchased under conditional sale contracts expressly providing that they should remain personalty and the property of the seller until paid for.</p> <p>[Ed. Note. — For other cases, see Fixtures, Cent. Dig. § 57; Dec. Dig. § 22.*]</p> <p>3. Bankruptcy (§ 144*) — Title and Rights op Trustee — Equities op Third Persons. •</p> <p>Bankr. Act July 1, 1898, c. oil, § 47a2, 80 Stat. 557 (U. S. Comp. St. 1901, p. 3439), as amended by Act June 25, 3910, c. 412, § 8, 30 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), by vesting a trustee with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, as to property in the custody oí the court, simply puts the trustee in the position of a creditor who has reduced his claim to judgment, whose rights with respect to specific property are subject to all latent or secret prior liens or equities in favor of third persons.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 237; Dec. Dig. § 144.*]</p> <p>4. Bankruptcy (§ 140*) — Title and. Rights oe Trustee- — Property Held under Unrecorded Conditional Sale Contracts — Ohio Statute — “Creditor.”</p> <p>Gen. Code Ohio, § 8568, which provides that conditional sale contracts, unless evidenced by writing and recorded, “shall be void as to all subsequent purchasers and mortgagees in good faith and creditors,” avoids such contracts as to such creditors only as have acquired liens upon the property and does not include creditors who, prior to. the recording of such a contract, have acquired general liens through the appointment of a trustee in bankruptcy for the purchaser.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dee. Dig. § 140.*</p> <p>For other definitions, see Words and Phrases, v.ol. 2, pp. 1713-1722; vol. 8, pp. 7622, 7623.]</p> <p>5. Mechanics’ Liens (§ 198*) — Property Affected — Fixtures Purchased Under Conditional Sale Contract.</p> <p>A mechanic’s lien which under the statute attaches to real property only does not attach to machinery installed on the premises as against the seller of such machinery under a conditional sale contract valid as against the owner of the premises and by which he agreed that it should remain personalty and the property of the seller until paid for, and it is immaterial that the contract had not been recorded at the time the mechanic’s lien was acquired.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 348-355; Dec. Dig. § 198.*]</p>

In Equity. Suit by the United States against the Utah Power & Eight Company. On motion to dismiss the whole and specify parts of the- complaint.

<p>1. Corporations (§ 253*)- — Action Against Stockholder — Proceedings Under Double Liability Statute.</p> <p>A judgment of a court of Ohio in sequestration proceedings under the state statute determining the insolvency of a corporation and the necessity and- amount of an assessment against the stockholders under their statutory double liability, and appointing a receiver to collect the same, if the proceedings were regular, is conclusive on a stockholder served with process of the receiver’s right to maintain an action against him and of the necessity of the assessment and propriety of the amount; but if he was not within the state and did not appear he is not precluded from making any defense to the receiver’s action which is personal to himself, and if he was not served with process, either personally, or by publication, the proceeding is a nullity as to him.</p> <p>. [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1024-1030; Dec. Dig. § 253.*]</p> <p>2. Corporations (§ 248*) — Action Against Stockholder — Defenses—Payment.</p> <p>In an action by a receiver specially appointed to collect assessments, made against the stockholders of an insolvent corporation under a double liability statute against one of such stockholders, an allegation in the answer that defendant compromised with plaintiff and paid him a stated sum of money in full settlement of the claimed liability states a defense, at least pro tanto, to the extent of the actual payment made.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 998-1001; Dec. Dig. § 248.*]</p>

<p>1. Municipal Corporations (§ 327*) — Contracts—Statutes—Effect on Existing Contracts.</p> <p>A statutory provision relating to cities cannot be read into a contract with a city which was of a class expressly excluded from the operation of such provision when the contract was made, but was later made applicable by amendment.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 850; Dec. Dig. § 327.*]</p> <p>2. Indemnity (§ 13*) — Liability foe Injuries from Defective Street — Recovery Over Against Contractor.</p> <p>Defendant paved a street under a contract with a city which required it to make any repairs needed at any time within seven years on ten days’ notice, or to pay the reasonable cost.of such repairs. The pavement became defective, because of a hole, within the time, and the city notified the contractor to repair it; but it did not, and a woman, who stepped into the hole and was injured, recovered a judgment against the city which it paid. Meld, that it could not recover over against the contractor, since it was primarily under the duty to keep the street in repair, which duty it neglected, although it had knowledge of the defect and could have repaired it, and recovered therefor from defendant under the contract, which gave defendant the option to make the repairs or pay for them.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.*]</p>

<p>In Admiralty. Suit for collision by the Atlantic Refining Company, owner of the tug Imperator, against the steamer Riverside; Chester Shipping Company, claimant.</p>

In Admiralty. Suit by the Barkentine Bahama Company, owner of the barkentine Lahaina, against the tug Defender, the launch Fearless, and the Quinault Lumber Company. Libelant relies upon the following authorities; S. S. Syracuse v. Thos. Langley, 12 Wall. 167, 20 L. Ed. 382; Grand Trunk Ry. Co. of Canada v. Griffin (C. C.) 21 Fed. 733; Tug Margaret v. Chas.

<p>1. Bankruptcy (§ 267*) — Sale of Mortgaged Real Estate Eree from Liens —Wipe’s Right op Dower.</p> <p>Under the law of Ohio by which a wife by joining in a mortgage of her husband’s real estate releases her right of dower only to the mortgagee and his assigns, where real estate of a bankrupt was sold free from the liens of mortgages thereon and the contingent right of dower of his wife, the wife is entitled to the full value of her dower interest from any surplus remaining after payment of the mortgage debts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*] •</p> <p>2. Bankruptcy (§ 396*) — Exemptions.</p> <p>The value of personal property exemptions allowed to a bankrupt cannot be set off against a homestead exemption to which he is entitled for the purpose of diminishing the latter.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. § 396.*]</p> <p>3. Bankruptcy (§ 399*). — Exemptions—Grounds for Disallowing.</p> <p>That a bankrupt failed to schedule a life insurance policy is not ground for disallowing his exemptions, where the omission was without fraudulent intent, but through mistake, and there was no concealment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. § 399.*]</p> <p>4. Bankruptcy (§ 348*) — Claims Entitled to Priority-Wages.</p> <p>An agreement by a merchant to pay his wife and adult daughter wages for managing his store during a time when he was ill in a hospital is valid, and they are entitled to the allowance of their wages earned within three months prior to his bankruptcy as preferred claims against his estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dee. Dig. § 348.*]</p> <p>5. Evidence (§ 594*) — Degree of Proof — Making of Contract.</p> <p>The uncontradieted testimony of both parties to the making of a parol contract between them cannot be ignored because not corroborated.</p> <p>[Ed. Note. — For other cases, see Evidence, Cént. Dig. § 2431; Dee. Dig. § 594.*]</p>

<p>At Law. Action by W. A. Cory, administrator of tlie estate of Albert L. Stafford, deceased, against the Lake, Shore & Michigan Southern Railway Company. On motion to strike paragraph from answer.</p>

Suit in equity'by Warren D. Ridgeway, trustee in bankruptcy of Ida- G. Kendrick, against Ida G. Kendrick and others. From the decree, complainant appeals.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Bill in equity by Daniel J. Leary against the Mayor and Aldermen of the City of Jersey City and others. From a decree (189 Fed. 419), dismissing the bill, the plaintiff appeals.</p>

De Haven, Judge. _ _ Suit in admiralty by the Richmond Dredging Company against the Standard American Dredging Company, California Reclamation Company, and Atlas Gas Engine Company. From a decree in its favor, libelant appeals.

<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 John Daw against the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company. Judgment for defendants, and plaintiff brings error.</p>

<p>CARRIERS (§ 320*) — ACTION TOR INJURY TO PASSENGER — REFUSAL OF INSTRUCTION Requested.</p> <p>Plaintiff and a companion went from Toledo to Detroit on defendant's interurban line and for return bought a ticket consisting of six coupons, two of which were good for the fares of the two passengers within Detroit and were given to the conductor; the next two covered the fares between the two cities and had not been called for nor given up when, near the Toledo limits, there was a collision in which plaintiff was injured. She was taken into Toledo in another car and gave the conductor the two Toledo coupons but retained the others, which she produced on the trial. Held, that such facts alone, and that she did not seek out the conductor prior to the collision to give him the tickets, especially in view of her testimony that she had not thought of them and the fact that defendant had in its possession the other four coupons with the same numbers, showing the date of use, did not constitute any substantial evidence that plaintiff had lost her status as a passenger through a fraudulent attempt and intent to evade payment of fare which required the court ta submit that issue to the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 114S;, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]</p>

<p>1. Appeal and Error (§ 927*) — Review—Judgment on Directed Verdict.</p> <p>On review of a judgment on a directed verdict, the appellate court must take that view of the evidence most favorable to the defeated party.</p> <p>I'Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 29Í7, 3748, 3758, 4024; Dec. Dig. § 927.*]</p> <p>8. Bills and Notes (§ 264*) — Action Between Indorsers — Parol Evidence of Agreement.</p> <p>Defendant and plaintiff, in the order named, were indorsers on a note given by a corporation in which both were interested. The noté was renewed several times, plaintiff being the first indorser on the renewals, the last of which he was compelled to pay in part, and he brought an action to recover the amount from defendant, alleging an agreement by defendant, when the first note was given, to pay it personally. There was evidence tending to support such allegation, and plaintiff testified that when he indorsed the renewal notes he did not know that the order of the in-dorsements had any legal significance, while it appeared that defendant did know such fact. Held, that under the Negotiable Instruments Act of Michigan (Pub. Acts Mich. 1905, No. 265, § 70), which provides, in accordance with the rule of the general law, that while, as between themselves, indorsers are liable prima facie in the order of their indorsements, evidence is admissible to show an agreement otherwise, the evidence was sufficient to require the submission of the case to the jury, as it would have justified a finding that the agreement of defendant to pay the original note impliedly extended to the renewals.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 612; Dec. Dig. § 264.*]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge. In the matter of Ottenwess & Huxoll, bankrupts. On petition of Guy W. Rouse, mortgage trustee, to revise order of District Court.

o Appeal from the District’ Court of the United States for the District of Maine; Clarence Hale, Judge. Libel by the American Trading Compan}'- against the bark Loch Rannoch and cross-libel by J. L. Hansen, master of said bark, against the American Trading Company. Decree for charterer on the cross-libel, and cross-libelant appeals.

Whitaker Thompson, District Judge. Suit in equity by William A. Lawrence & Son against the P. E-Sharpless Company. From a decree (203 Eed. 762) in favor of complainants for less than the relief demanded, defendant appeals, and complainants prosecute cross-appeal.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Arthur D. Brown, Judge.</p> <p>Suit in equity by the Brown & Sharpe Manufacturing Company against the L. S. Starrett Company. Decree for complainant, and defendant appeals.</p>

<p>Patents (§ 310*) — Suit for Infringement — Pleading.</p> <p>The overruling of a plea, filed by the defendants in an infringement suit, alleging that the subject-matter of the patent appeared from the file wrapper and contents themselves to have been in public use and on sale more than two years before the application was filed, held not to preclude them from raising the issue of such prior use as one of fact by their answer.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§■ 507-540; Dec. Dig. § 310.*]</p>

<p>At Taw. Action by the United States against Benoni F. Du Perow. Trial without a jury, and judgment for plaintiff.</p>

<p>In Equity. Suit by the Medical Society of South Carolina against Frank B. Gilbreth for reformation of a building contract. On- exceptions to the report of a special master.</p>

<p>In Equity. Suits by the Southern Pacific Company and the Oregon & California Railroad Company, by the Oregon-Washington Railroad & Navigation Company, by the Spokane, Portland & Seattle Railway Company, by the Oregon Electric Railway Company, by the Northern Pacific Railway Company, by the United Railways Company, by the Pacific & Eastern Railway Company, and by the Oregon Trunk Railway, against tlie Railroad Commission of Oregon; Clyde B. Aitchison, Thomas K. Campbell, and .Frank J. Miller, as Commissioners, members of and constituting said Railroad Commission of Oregon; A. M. Crawford, as Attorney General of the State of Oregon; George J. Cameron, as District Attorney of the Fourth Judicial District of the State of Oregon; E. B. Tongue, as District Attorney of the Fifth Judicial District of the State of Oregon; John FT. McNary, as District Attorney of the Third J udicial District of the State o E Oregon; Edwin R. Bryson, as Prosecuting Attorney of the Fourth Prosecuting Attorney District of Oregon; B. F. Mulkey, as Prosecuting Attorney of the First Prosecuting Attorney District of Oregon; and George M. Brown, as Prosecuting Attorney of the Third Prosecuting Attorney District of Oregon. Final hearing on bill and answer.</p>

At Law. Action by S. L. Duckworth against George A. Appostalis. On demurrer to second count of declaration.

<p>1. Treaties (§§ 4, 12*) — Validity — Construction and Operation or The ■ - Hague Treaty — “Internment.”</p> <p>The provision of chapter 2, art. 11, of The Hague Treaty of October 18, 1907, ratified by the United States and by Mexico November 27, 1909 (36 Stat. 2324), 'that “a neutral power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theater of war,” which act of internment consists in disarming such troops and keeping them in honorable confinement, does not violate any provision of the Constitution of the United States, nor require legislation to render it effective, and is therefore a part of the law of the land which the President has full power to execute.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. §§ 4, 12; Dec. Dig. §§ 4, 12.*] .</p> <p>2. Treaties (§ 5*) — Construction and Operation op The Hague Treaty.</p> <p>The two parties engaged in civil war in Mexico are belligerent parties according to. the law of nations, and the fact that the United States has not accorded official recognition to either does not affect iis right and duty to execute such treaty provision with respect to troops of either party who seek asylum in its territory.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 5; Dec. Dig. § 5.*]</p> <p>3. Constitutional Law (§ 251*) — “Due Process op Law” — Meaning.</p> <p>The words “due process of law” as used in Const. U. S. Amend. 5, were intended to convey the same meaning as the words “by the law of the land,” as found in the twenty-ninth chapter of the Magna Charta, and mean process due according to the law of the land.</p> <p>[Ed. Note. — For other cases, see Constitutional Haw, Cent. Dig. §§ 726, 727, 732; Dec. Dig. § 251.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 2227-2256; vol. 8, p. 7644.]</p>

<p>Bankruptcy (§ 10*) — Adjudication—Jurisdiction—-Corporations—Principal Black op Business.</p> <p>The articles of a bankrupt corporation organized in 1904 stated that its principal place of business was in the city and county of New York, in the Southern federal district, and for some time thereafter the corporation had a factory, as well as an office, or place of business for selling its product, keepiug books, etc., in New York; but in 1908 it removed its entire plant to Albany, in the Northern district, where all its subsequent business was transacted, except that it continued to rent and maintain an office and salesroom in New York under the management of one of its directors, who was also secretary and resided in that city, using the room to exhibit samples of goods and supply small orders. No meeting of stockholders was ever held in New Y'olk, and with one exception all meetings of directors for more than six months prior to the filing of the bankruptcy petition had been held in the Albany office. Held, that the corporation’s principal place of business was in the Northern district, notwithstanding the irrovision of its articles, and that the court of that district had jurisdiction of the bankruptcy proceeding against it, under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545 (U. S. Clomp. St. 1901, p. 3420), applicable to corporations and providing that the federal District Courts are invested, within their territorial limits, with such jurisdiction as will enable them to exercise original jurisdiction in bankruptcy and adjudge persons bankrupt who have had their principal place of business within their respective territorial jurisdiction for the preceding six months or a greater portion thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 20; Dec. Dig. § 10.*]</p>

<p>Pood (§ 24*) — “Adulterated Pood”- — Decomposed Eggs.</p> <p>Pood and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354) § 2, prohibits tbe introduction into one state from another state of any article of food which is adulterated. Section 0 declares that the term “food” shall include all articles used for food, whether simple, mixed, or compound; and section 10 provides for the seizure and condemnation of any article of food that is adulterated within, the meaning of the act and which, having been transported in interstate commerce, remains unsold, etc. Held that, where decomposed canned eggs, which had not been denatured and therefore could have been used either for food or tanning purposes, were shipped in interstate commerce from one warehouse of the owner to another, they were “an adulterated article of food” within the definition and meaning of the act, and it was no defense to a proceeding by the United States to condemn them that the owner intended that they should be used only for tanning purposes.</p> <p>[Ed. Note. — Por other cases, see Pood, Gent. Dig. § 17; Dec. Dig. § 24.*</p> <p>Por other definitions, see Words and Phrases, vol. 3, p. 2856; vol. 1, p. 211.]</p>

<p>1. Bankruptcy (§ 91*) — Acts of Bankrupt — Transfer with Intent to Prefer.</p> <p>Bankr. Act July 1, 1898, e. 541, § 3a2, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), provides that acts of bankruptcy by a person shall consist of his having transferred while insolvent any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors. Held that, where an involuntary bankruptcy petition is based on such act of bankruptcy, the burden of proving insolvency is on the petitioning, creditors, provided the bankrupt appears and produces his books under section 3d, providing that, when a person against whom a petition has been filed as provided under the second and third subdivisions of the section takes issue with and denies the allegation of insolvency, it shall be his duty to appear in court on the hearing, with his books, papers, and accounts, and give testimony concerning his solvency, etc., and in case of his failure so to attend the burden of proving his insolvency shall rest on him.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 137-139; Dec. Dig. § 91.*]</p> <p>2. Bankruptcy (§ 91*) — Insolvency—Evidence.</p> <p>On an answer to an involuntary bankruptcy petition, seeking an adjudication for the making of an alleged preference, evidence held to require a finding that the alleged bankrupt was insolvent at the time the payment was made.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 137-139; Dec. Dig. § 91.*]</p>

<p>At Law. Action by the United States against the Missouri, Kansas & Texas Railway Company.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of William J. Gray and others, individually and trading as William Gray & Sons. On referee’s certificate to review an order denying a right of partnership creditors to share in the individual assets of one of the partners.

<p>1. Master and Servant (§ 204*) — Injuries to Servant — Employers’ Liability Act — Negligence op Fellow Servant.</p> <p>In an action for injuries to a freight conductor under the federal Employers’ Liability Act, plaintiff cannot be held to have assumed the risk of the negligence of his flagman, his fellow servant, in failing to protect the rear of the train while standing on a main track.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314J</p> <p>2. Master and Servant (§ 247*) — Injuries to Servant — Proximate Cause.</p> <p>A freight train having stopped on a main track in the railroad yard, the engine was run to a position in the rear of the caboose, with the intention of being coupled to the rear of the train, when the flagman notified the conductor that there was no air hose on the front of the engine. The conductor stated that he would procure a hose and attend to coupling the engine, and hoth left the caboose immediately. In a few moments, while the conductor was between the engine and the caboose attending to the coupling, the engine was struck by a train coming up from behind, resulting in injury to the conductor; the flagman not having performed his duty to protect the rear end of his train. Hold, that the flagman’s negligence in omitting to promptly perform such duty, as distinguished from the conductor’s negligence in failing to see that the flagman’s duty was performed, was the proximate cause of the accident.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Gent. Dig. §§ 795-800; Dec. Dig. § 247.*]</p> <p>3. Master and Servant (§ 180*) — Injuries to Servant — Negligence—Railroads — Rear oe Train — Failure to Protect.</p> <p>Where a freight conductor was caught and injured between his engine and the caboose by the engine being struck by a train approaching from the rear, due to the flagman’s failure to protect the rear end of the train, the flagman’s negligence, under the federal Employers’ Liability Act, was the negligence of the railway company as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 359-361, 363-368'; Dec. Dig. § 180.*]</p> <p>4. Master and Servant (§ 289*) — Injuries to Servant — Railroads—Negligence — Contributory Negligence — Question eor Jury.</p> <p>Where a freight conductor was injured while attempting to couple his engine to the caboose by the engine being struck by another train approaching from the rear, due to the negligence of the conductor’s flagman in omitting to protect the rear end of the train, the conductor’s alleged contributory negligence in failing to see that his flagman performed his duty to so protect the train hold properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]</p> <p>5. Trial (§ 296*) — Instructions—Cure by Other Instruction.</p> <p>Where a freight conductor was caught and injured between his engine and the caboose by the engine being struck by a following train, and the court properly submitted the question of the conductor’s contributory negligence in failing to see that the flagman performed his duty to protect the rear end of the train to the jury, a charge that if, under the circumstances, the conductor’s negligence contributed either in whole or in part to the injury, the jury, under the federal Employers’ Liability. Act, should reduce plaintiff’s recovery pro tanto, the court did not err in affirming one of plaintiff’s points that the conductor was entitled to assume, when he went between the engine and the caboose, that the flagman would obey the rules of the company and perform his duty to flag the following train.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p>

.Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. Suit in admiralty by George H. C. Meyer, H. R. E. Meyer, Jr., J. W. Wilson, and John M. Quaile, partners as Meyer, Wilson & Co., against the barque Babin Chevaye; Bureau Eréres & Bailergeau, claimants. Decree for claimants, and libelants appeal.

<p>Appeal from the District Court of the United States for the Southern . Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit by the Corey Brothers Construction Company and the Union Portland Cement Company against the Continental & Commercial Trust & Savings Bank and another, as trustees, to enforce liens on the Big Dost River irrigation system in Idaho. Decree for complainants, and defendants appeal.</p>

Orr, Judge. In the matter of bankruptcy proceedings of the B. White Company, a corporation. A petition was filed in the name of the City of Pittsburgh for an order on the South Side Trust Company, trustee of the bankrupt, for an order compelling the trustee to pay city taxes assessed against certain real estate sold on foreclosure of a mortgage and purchased by the mortgagee. From an order denying such relief, on the ground that the taxes had been paid, the City appeals.

Suits by the United States against the First National Bank of Detroit, Minnesota, and against the Nichols-Chisolm Dumber Company and others, to cancel certain Chippewa Indian conveyances. Decree for complainant in two of the cases, and for defendant in the third.

Sater, judge. Action at law by Annie B. Glinn, administratrix of Hugh A. Mor-ford, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Eouis Railway Company. Judgment for plaintiff, and defendant brings error. On motion to dismiss and to strike the bill of exceptions from the files.

<p>Patents (§ 129*) — Assignment—Effect as Estoppel.</p> <p>The rule that an assignor of a patent is estopped from denying its validity applies to a corporation afterward organized, and of which he became president, when charged with infringement, but does not apply to a manufacturer, which on the order of such corporation built the alleged infringing machine, except as to that particular machine.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 182%-186; Dec. Dig. § 129.*]</p>

<p>1. Patents (§ 159*) — Construction—Extrinsic Evidence.</p> <p>Wliile the patent is the measure of the grant, and other applications are not usually material to its construction, where other applications by the patentee and interference proceedings relating to the same subject-matter are pending at the same time, all may be looked into to determine the construction of the patent as granted.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 233, 236; Dec. Dig. § 159.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Blind-Stitch Sewing Machine.</p> <p>The Lewis patent, No. 862,830, for a blind-stitch sewing machine, while valid and meritorious, is not infringed by the machine of the Arbetter patent, No. 690,385, conceding priority to Lewis, the two patentees having independently and ¿t nearly the same time invented machines to accomplish substantially the same result but by essentially different means and operations.</p>

<p>Patents (§ 828*) — Validity and Infktngioment — Candy Pulling Machines.</p> <p>The Dickenson patent, No. 831,501, for a candy puiling machine, claim 1, is for a pioneer and basic invention and is neither for a function nor broader than the invention; also, held infringed. Claim 2 held valid but not infringed. The Jenner patent, No. 804,726, also for a candy pulling machine, held invalid as to claim 1, as (oo broad, but valid and infringed as to claims 7 and 8.</p>

<p>L Sales (§ 69*) — Contract op Sale — Specific Property.</p> <p>Where a contract for the sale of 20 car loads of sauerkraut specified only kraut of good quality, 1913 pack, equal to that furnished by the seller during the season of 1911, but did not require that it should be kraut manufactured at the seller’s own factory, nor even be made from cabbage grown in Michigan, the contract was not for the purchase and sale of specific kraut; though both parties believed that the kraut to be furnished would be manufactured at defendant’s factory, and it was a sufficient compliance with the contract if he produced goods of the proper quality manufactured by others.</p> <p>[Ed. Note. — For other cases, see Sales; Cent. Dig. § 183; Dec. Dig. § 69.*]</p> <p>2. Specific Performance (§ 121*) — Contract—Purchase and Sale of Personalty.</p> <p>In a suit to compel specific performance of a contract for the sale of a quantity of sáuerkraut equal to that produced by the seller and sold to. the busier in 1911, which was only a fair quality, the contract only requiring that it be of good quality, 1913 pack, tank cured, standard cut, and well packed, evidence held insufficient to show that the buyer, after the seller’s breach of contract, by reasonable diligence could not have purchased similar kraut elsewhere to fill the contract.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. § 121.*]</p> <p>3. Specific Performance (§ 69*) — Sale of Personal Property — Right to Relief — Adequate Remedy at Law. •</p> <p>Where complainant contracted to purchase 20 car loads of sauerkraut from defendant during the season of 1913 for the sole purpose of reselling it to complainant’s customers in the usual course of trade, and the contract was entirely executory at the time of the seller’s breach, complainant had an adequate remedy at law by the recovery of damages, and could not maintain a suit for specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §■§ 200-202; Dec. Dig. § 69.*]</p>

Application by Christopher James Davis Deans for naturalization. The court finds the facts as follows: The applicant is a native of Scotland. In November, 1906, after he had reached the age of 21 years, he emigrated to the United States. He is a boiler maker by trade and found employment in Schenectady, N. Y., where he resided for one year.

<p>1. Eminent Domain (§ 81*) — Improvement op Navigable Stream — Taking op Private Pier.</p> <p>Where the effect of the widening of the navigable channel of a river by the United States is to change the line of navigability as previously established by state authority, and to partially destroy piers built to such line by a riparian owner under lawful authority, which were themselves built as an aid to commerce and under the law of the state constitute property, the result is a taking of such property within the meaning of the fifth amendment, and the owner is entitled to compensation therefor.</p> <p>[Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. §•§ 227-230; Dec. Dig. § 84.*]</p> <p>2. Eminent Domain (§ 84*) — Rights op Riparian Owner — Inclosing Log Pond.</p> <p>The construction of a log pond below low-water mark in a navigable river by making an inclosure through which the water flows does not give a riparian owner any right of property in the water or the soil beneath for which the United States can be required to pay because of the destruction of the pond in improving the navigation of the river.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 227-230; Dec. Dig. § 84.*]</p>