Volume 210 — Federal Reporter

<p>1.Evidence (§ 340*) — Certified Copt of Record — Administrator’s List.</p> <p>Where, in an action for breach of marriage promise, it appeared that defendant had been one of the administrators of his father’s estate, and a certified copy of a list of his father’s personal property had been attested by the certificate of the administrators as correct, and it also appeared that defendant was entitled to an aliquot part of such estate, such ap-praisement was properly admitted in evidence to show defendant’s financial condition.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig.' §§ 1294-1301; Dec. Dig. § 340.*]</p> <p>2. Breach of Marriage Promise (§ 35*) — Defenses—Limitations—Instructions.</p> <p>Where, in an action for breach of marriage promise, defendant testified that he broke off the engagement in a letter written plaintiff in June, 1907, and, on July 19th of the following month, plaintiff replied asking for a continuance of friendship only, such correspondence indicated an intention on' defendant’s part to break his promise to marry her, whether she consented or not, and there being no evidence of a subsequent promise on which suit could be brought, the statute of limitations against her right to sue for breach of promise began to run at that time, and it was error to refuse to charge that if the jury believed from the evidence that defendant wrote plaintiff in June, 1907, breaking off their engagement, they must find for defendant on his defense of limitations, whether plaintiff agreed to the breach or not, and to charge instead that if the jury believed that defendant wrote to plaintiff in June, 1907, breaking off their engagement, the action not having been brought within a year, they must find for defendant, provided they did not further find that the engagement had been renewed; there being no evidence of any new promise.</p> <p>[Ed. Note. — For other cases, see Breach of Marriage Promise, Cent. Dig. §51; Dec. Dig. § 35.*]</p> <p>3. Evidence (§ 271*) — Self-Serving Declarations — Letters.</p> <p>In an action for breach of marriage promise, letters written by plaintiff to defendant nearly three months after the incident with which they were sought to be connected, and after she had consulted with counsel and liad in contemplation a suit, against Mm, and to wMcli lie did not reply, and containing declarations in her own interest, were inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1084; Dec. Dig. § 271-.*]</p>

Carpenter, Judge. Suit in equity by the Canada Atlantic Transit Company, the Erie & Western Transportation Company, the Eehigh Valley Transportation Company, the Rutland Transit Company, the Erie Railroad Company, and the Western Transit Company against the City of Chicago. Decree for defendant, and complainants appeal.

Dayton, Judge. In the matter of the Charles A. Sims Company, a partnership, bankrupt. From an order denying their petition to recover certain property, George Warner, Elmer E. Herr, and Leon Rosenbaum, trustees in bankruptcy of Charles A. Sims and John Read Pettit, trading as Charles A. Sims & Co., interveners, appeal.

McPherson, Judge. Action by Hilma Nelson against Richard G. Wood. An order was granted denying plaintiff’s motion to amend the minutes-and to permit plaintiff to move for a new trial, and she brings error.

<p>1. Banks and Banking (§ 87*) — -Acts of Bank — Character of Transaction —Loan for Purchase of Cotton.</p> <p>Plaintiff bank having contracted to finance certain cotton purchases by G., a cotton broker, he purchased the cotton by buying bills of lading issued therefor. No bills were ever in G.’s possession, or under his control, he having transferred them to another bank as security for advances to pay for the cotton, which in turn transferred them to plaintiff’s cashier and received from him plaintiff’s draft for the value of the cotton, which draft was paid in due course. Prior thereto G. had contracted to sell the cotton to various purchasers, at an advance over the cost, whereupon sight drafts were drawn to the order of plaintiff bank on the several purchasers for the amounts payable by them, respectively, and bills of lading for the cotton attached thereto and forwarded through the usual channels to the buyers, and G’s. profits paid by placing the amount to his credit. Held, that such transaction did not constitute a purchase of the cotton by the bank in violation of the Oklahoma statute, providing that no bank shall employ its moneys directly or indirectly by buying or selling, goods, wares, or merchandise.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 219; Dec. Dig. § 87.*]</p> <p>2. Joint Adventures (§ 1*) — Partnership (§ 20*) — Interest of Parties. ’</p> <p>Plaintiff and the bank were neither partners nor joint adventurers in the transaction, and ■ G. had no interest in the cotton which could be the subject of an attachment in a suit against him.</p> <p>[Ed. Note.- — For other cases, see Joint Adventures, Cent.Dig. § 1-;. Dec. Dig. § 1;* Partnership, Cept. Dig. §§ 6, 7,; Dec.-Dig. § 20.*]</p>

Petition to Revise Order of the District Court of the United States for the Northern District of New York. This is a petition to revise an order of ;the District Court, Northern District of New York, making'certain allowances of fees and compensation to the receiver herein and to the counsel for said receiver.

<p>1. Patents (§ 328*) — Infringement—Bottle Sealing Machine.</p> <p>The Painter patent, No. 63S,354, for a machine for automatically sealing bottles, the essential feature of which is a pressure limiting mechanism to prevent the breaking of the bottles by excess pressure, held not infringed by a device in which the mechanism of the prior Penfield patent, No. 426,315, for a brick-pressing machine, was adapted to use in the bottle-sealing art, which required no more than ordinary mechanical skill.</p> <p>2. Patents (§ 328*) — Infringement—Feeding Mechanism for Bottle Sealing Machines.</p> <p>The Painter & I-Iawkins patent, No. 643,973, for an apparatus for feeding crowns or closures to bottle-sealing machines, claim 2, in view of the of rejections and requirements of the Patent Office, acquiesced in by the patentees, is limited to the apparatus substantially described in' the specification which is a combination structure. As no limited hold not infringed.</p> <p>3. Patents (§ 246*) — Infringement—Patent for Combination.</p> <p>A patent for a combination is not infringed if any element claimed in the combination is omitted.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 3S7; Dec. Dig. § 246.*]</p>

<p>1. Gas (§ 14*) — Gas Companies — State Regulation oe Rates — Confiscatory Rates.</p> <p>A state commission having power to fix rates to be charged by a public service corporation, as a gas or electric company, must make the rates sufficiently high to yield a fair return on the reasonable value of the property at the time it is being used for the public.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. §§ 10-11; Dee. Dig. § 14.*]</p> <p>2. Gas (§ 14*) — Gas Companies — Regulation op Rates — Valuation op Property.</p> <p>If the valuation of any one of the necessary elements of a public service plant is fixed by the rate-making authorities at a sum unjustly and unreasonably low in a substantial amount, or if the value of an element of substantial value used or useful in maintaining or operating such a plant is entirely omitted by the rate-fixing authority and rates are based on the valuation so made, such unreasonable and unjust valuation or omission of valuation is the taking of private property for a public use without' just compensation.</p> <p>(Ed. Note. — For other cases, see Gas, Cent. Dig. §§ 10-11; Dee. Dig. § 14.*]</p> <p>3. Gas (§ 14*) — Gas Companies — Rates Fixed by Public Authority — Valuation op Property.</p> <p>Evidence considered, and held to make a sufficient showing to entitle the stockholders, and bondholders of a gas and electric company to a preliminary injunction to restrain the enforcement of rates fixed by the Corporation Commission of Arizona to be charged by the company on the ground that in making a valuation of its property as a basis for such ratea the commission omitted certain elements of substantial value which the company was entitled to have included in the valuation, and that the valuation as a whole appeared to, be unreasonably low, being less than the amount complainants paid in tlie open market for the company’s stock less than a year before, on a valuation by competent experts, although the property was subject to a mortgage of $700,000.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. §§ 10-11; Dec. Dig. § 14.*]</p> <p>4. Gas (§ 14*) — Gas Companies — Regulation of Rates — “Overhead Charges.”</p> <p>“Overhead charges” is a term which, as applied to a public service corporation, includes the expense that would necessarily be incurred in the reproduction of the property; the legal expenses of organization and expenses for office, engineering, inspection, supervision, and management , during construction; fire and casualty insurance, taxes and interest during the period, contractors’ profits, and other minor expenses of like character.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. §§ 10-11; Dec. Dig. § 14.*]</p>

<p>Action by the Pensacola State Bank against R. E. Melton and otlr; ers. On motion for new trial.</p>

<p>1. Shipping (§ 204*) — Loss of Caego — Liability of Paet. Owner of Vessel.</p> <p>A suit may be maintained against a part owner of a vessel for loss of cargo for which the vessel would be liable, but his liability is limited by Act June 26, 1884, c. 121, § 18, 23 Stat. 57 (U. S. Comp. St. 1901, p. 2945), to the proportion of the loss that his individual share of the vessel bears to the whole.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 639, 640; Dec. Dig. § 204.*]</p> <p>2. Shipping (§ 132*) — Suit fob Loss of Caego — Pasties.</p> <p>Libelant advertised to transport merchandise from New York to Porto Rico, and when sufficient contracts for shipments had been obtained chartered a vessel and notified the shippers to deliver their merchandise to the vessel, and bills of lading were issued direct to them. A vessel so chartered was lost, and the insurance companies paid the loss to cargo owners. Held, that libelant had the right as bailee of the owners of the cargo to maintain a suit for such loss against the owners of the vessel, and, having such right, it could maintain the suit in behalf of the insurers as successors to the rights of the insured by subrogation.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dee. Dig. § 132.*]</p> <p>3. Shipping (§ 132*) — Loss of Caego — Seawobthiness of Vessel.</p> <p>Where a ship three days after starting on a voyage, in weather which, although heavy, was not extraordinary, sprang a leak of so serious a character that she was afterward abandoned and became a total loss with her cargo, and where three of her four pumps when put) in use almost immediately broke down and became useless without any adequate reason shown, the inference is warranted that she was unseaworthy when she commenced the voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. § 132.*]</p> <p>4. Shipping (§ 121*) — Liability foe Loss of Caego — Seawobthiness.</p> <p>The obligation on the owners of a ship according to the maritime law is that she must be in fact seaworthy at the commencement of the voyage, and it is immaterial that the owners believe her to be seaworthy or have used every reasonable, effort to make her so.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 225, 449-451, 466; Dec. Dig. § 121.*]</p> <p>5. Shipping (§ 137*) — Liability fob Loss of Caego — Haeter Act.</p> <p>Harter Act Feb. 13, 1893, c. 105, § 3, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946), which provides that if the owner of a vessel shall exercise due diligence to make her in all respects seaworthy, etc., he shall not be liable for damage or loss to cargo resulting from faults or errors in navigation or in the management of. the vessel, does not exempt him from liability for loss resulting from her unseaworthiness.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 492; Dec. Dig. | 137.*]</p> <p>6. Shipping (§ 205*) — Loss of Caego — Limitation of Liability.</p> <p>A charter of a particular vessel by the owner binds the vessel and is not the personal contract of the owner in such sense as to preclude him from limitation of his liability for loss of cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 641, 642; Dec. Dig. § 205.*]</p>

<p>Action by the United States against the Dwight Manufacturing Company to recover penalties under Immigration Act Feb. 20, 1907, c. 1134, §§ 4, 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1911, p. 503). On demurrer to- declaration.</p>

Action .by the United States against the Dwight Manufacturing Company. On motion to modify a prior order allowing a second amendment to the declaration.

<p>Aliens (§ 58*) — Contract Laborers — Penalty—Declaration.</p> <p>A declaration by the United States to recover a penalty for the importation of contract laborers in violation of Immigration Act Peb. 20, 1907, e. 1134, §§ 4, 5, 34 Stat. 900 (U. S. Comp. St. 'Supp. 1911, p. 503) which merely alleged the alien to have been “a certain alien contract laborer” without setting out facts which showed him to have been within such definition, was demurrable.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 113, 114; Dee. Dig. § 58.*]</p>

In Bankruptcy. In the matter of the Fane Lumber Company. On petition for review of an order sustaining the validity of certain vendors’ lien claims of M. K. Wall and others.

At Law. Action by the United States against the Dwight Manufacturing Company to recover penalties for violation of Immigration Act Feb. 20, 1907, c. 1134, §§ 4, 5, 34 Stat. 900 (U. S. Comp. St. Supp. 1911, p. 503), prohibiting the importation of contract laborers. On motion by the United States to amend its declaration.

<p>1¡ Shipping (§ 195*) — General Average — Expenses Subjects op Compensation — Common Peril.</p> <p>A steamship grounded in Raritan Bay, which is a land-locked harbor, by reason of the failure of tugs to meet her as ordered to tow her to her destination at Perth Amboy while the tide was sufficiently high, and owing to the prevailing wind the water was kept low for several days. Her bow was embedded in soft.mud, and mud banks were formed around her by the action of the tides. Her stern was in deeper water, and there was danger that she might be slewed around by the wind and broken or strained amidships to the injury of a part of her cargo, which consisted of nitrates, the remainder being ore. Several unsuccessful attempts were made to float her by tugs assisted by her own engines in which her machinery was injured, and her master, believing her to be in peril, caused a part of her cargo to be lightered, and it was delivered at its destination. Held, that there was a common peril to ship and cargo, and that the expenses resulting from engine damage and cost of lightering were proper subjects of general average.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig, §§ 618-621; Dec. Dig. § 195.*]</p> <p>2. Shipping (§ 195*) — General Average — Liability to Contribute — “Common Danger.”</p> <p>“Common danger” which gives a right to contribution in general average does not meán equal danger, and that a part of the cargo of a stranded steamship was of a kind which was in little danger of injury does not relieve it of liability to contribute.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 618-621; Dec. Dig. § 195.*]</p> <p>3. Shipping (§ 195*) — General Average — Perils Entitling to Contribution.</p> <p>If the master in making a sacrifice for the benefit of ship and cargo appears to have acted under an honest apprehension of imminent peril, there must be very strong evidence to overcome the presumption attaching to his opinion and to defeat the right to contribution in general average. ' ,</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Digl §§ 618-621; Dec. Dig. § 195.*]</p>

<p>1. Removal of Causes (§ 3*) — Causes Subject to Removal — Injuries to-Servant oe Carrier — Employers’ Liability Act.</p> <p>Under Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), providing that no case arising under the act, brought in a state court of competent jurisdiction, shall be removed to any court of the United States, such action is not removable, though it would otherwise be removable on the ground of diversity of citizenship.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]</p> <p>2. Commerce (§ 27*) — Injuries to Servant — Servant oe Carrier — Employers’ Liability Act.</p> <p>Where a carrier is engaged in both intrastate and interstate commerce, using the same instrumentalities, appliances, and employes in both classes of commerce, an injured servant will be regarded as having been engaged in interstate commerce, so as to entitle him to sue under Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), when the work in which he is engaged at the time of the injury is so closely connected with interstate commerce as to be a part thereof.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>3. Commerce (§ 27*) — Injuries to Servant — Federal Employers’ Liability Act.</p> <p>A servant of a carrier engaged in both interstate and intrastate commerce is entitled to maintain an action under Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 13221, where at the time of his injury he was engaged in the use of or maintaining in proper condition an instrumentality or appliance used by the carrier in interstate commerce, though such instrumentality or appliance-might also be used for intrastate business.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>4. Commerce (§ 27*) — Injuries to Servant — Carriers—Federal Employers’ Liability Act — Repair oe Fei&ht Shed.</p> <p>Plaintiff, who was employed by defendant railroad company, which was engaged in both interstate and intrastate commerce, was injured while engaged in framing a new office in a freight shed belonging to defendant, and in sawing boards and nailing them in place on the wall. The shed was owned, controlled, and operated by defendant, in furtherance of and in carrying on its business, for both interstate and intrastate shipments of freight. Held, that such work did not amount to a construction of new instruméntalities of commerce, but was rather in the nature of a repair of an instrumentality then in use, and that the work in which plaintiff was engaged was connected with interstate commerce, and hence plaintiff was entitled to sue under Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p>

<p>1. Removal or Causes (§ 16*) — Right to Removal.</p> <p>The right oí removal of causes from the state to the federal court is purely statutory and exists only in such cases as Congress has seen proper to provide for.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. § 6; Dec. Dig. § 16.*)</p> <p>2. Removal oe Causes (§ 106*) — Remand—Waiver—Piling Reply.</p> <p>Under the federal Employers’ Diability Act (Act April 22, 1908, c. 149, 35 Stat. 65), as amended in 1910 (Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1322]), declaring that federal and state courts shall have concurrent jurisdiction, and that no case arising thereunder instituted in a state court shall be removed, where such an action is removed and defendants answered after the record had been filed in the federal court, the fact that plaintiff filed a reply did not constitute a waiver of his right to move to remand the case nor confer jurisdiction on the federal court.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, • Cent. Dig. § 216; Dec. Dig.' § 106.*]</p>

<p>Removal of Causes (§ 84*) — Petition and Bond — Piling—Notice.</p> <p>Judicial Code, § 29 (Act March 3, 1911, c. 231, 36 Stat. 1095 [U. S. Comp. St. Supp. 1911, p. 142]), providing that written notice of a petition and bond for removal shall be given to the adverse party before being filed, is mandatory, and a failure to give such notice is ground for remanding the case.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. § 164; Dec. Dig. § 84.*]</p>

<p>1, Bankruptcy (§ 28*) — Schedules—Duty to Eile — Information—Criminal Prosecution.</p> <p>Bankrupts made a financial statement to creditors June 10, 1911, and on October 17th following a petition in bankruptcy was. filed against them. Thereafter criminal proceedings were instituted against them for conspiracy to defraud creditors by the fraudulent use of the mails, consisting of the sending through the mail 'of such prior financial statement, which was claimed to be false and fraudulent. Held, that there was no such connection between the bankrupts’ condition in June and at the time it became their duty to file their schedules as would entitle them to refuse to give a list of creditors holding securities, a list of those whose claims were unsecured, a list of liabilities in bills or notes discounted, which ought to be paid by drawers, etc., a list of stock in business and the value thereof, and a list of personal property and debts due them on open accounts, on the theory that to do so would tend to incriminate them, in that the government, from such schedules when filed, might be able to obtain evidence to show that the financial statement was false.</p> <p>[Ed. Note.- — Eor other eases, see Bankruptcy, Cent. Dig. § 27; Dee. Dig. § 28.*]</p> <p>2. Bankruptcy (§ 28*)- — -Witnesses—Constitutional Privilege.</p> <p>Where a bankrupt claims his constitutional privilege to refuse to testify or furnish information, on the ground that it will tend to incriminate him, it must at least appear to the court, from the character of the information sought or the question propounded, that his claim is justified, or he must produce facts on which he bases such claim, in order that the court may judge of their sufficiency to support it.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 27; Dee. Dig. § 28.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois; George A. Carpenter, Judge.</p> <p>Suit in equity by Maurice T. Moloney against Alfred D. Cressler and others. From the decree, complainant appeals.</p> <p>The appellant, Moloney, a citizen of Illinois, filed his bill in the circuit court for Cook county, against the appellee, Cressler, a citizen of Indiana, joining as parties defendant the members of the copartnership N. W. Harris & Co., a number of whom were citizens of Illinois, others of New York, others of Massachusetts.</p> <p>The allegations of the bill are:</p> <p>In December, 1898, Cressler represented to Moloney: (1) That he owned and controlled the capital stock of the Ottawa Gaslight & Coke Company, 450 shares of the par value‘of $100 per share; (2) that he desired to and would sell it to appellant for $115,000. (3) That the corporation owned a gas plant at Ottawa, Ill., which appellee intended putting in “first-class condition,” giving in detail alterations, improvements, and repairs so contemplated. Appellant — being unacquainted with gas plants, their construction, operation, or the requisites of equipment or operation of a first-class plant — stated to the appel-lee that he would require a statement in writing showing the then condition of the gas plant; also, the main features of the contemplated improvements; that if he should agree to purchase such stock appellee “must agree to make all the repairs and improvements necessary to make such plant a first-class, well equipped gas plant, to be passed upon and approved by a thoroughly competent expert before acceptance,” by appellant.</p> <p>To the conditions last above, appellee assented, agreeing to furnish such written instrument, to make the repairs and improvements, the same to be completed not later than July 1899, if the contemplated purchase and sale was carried out. Appellee further represented good title in the corporation, subject only to a $25,000 mortgage; that an abstract of title would be furnished; that imperfection in title would be remedied; that all indebtedness of said corporation contracted prior to January 1, 1899, would be paid by him if the sale were consummated. Appellant was willing to risk $15,000 of his own money in purchasing the plant if it were improved as promised, but was unwilling tp put in $115,000; and was willing to purchase it on condition that $100,000 could be borrowed on the security of the plant — to which appellee assented.</p> <p>Thereupon the agreement was made, appellant to buy, appellee to sell, said stock for $115,000. The latter, pursuant to his promise, furnished appellant a written statement showing the extent and condition of, and the contemplated improvements to, the plant. It contained a description of the real estate and machinery; the projected additions and improvements, such as gasholder, hydraulic elevators, new pipe connections, tramway and dump car, repairs in purifying room, retort room changes, new boiler room as specified, painting buildings, etc.; all estimated to cost $17,000, and when completed, enable delivery of gas at a cost of one-half of gross receipts, i. e., if the latter were $30,000, the profit would be $15,000.</p> <p>Such statement represented the coal gas and water gas capacities of the plant to be 170,000 and 150,000 cubic feet, respectively, per 24 hours. The connection, mains, leakage, and gas sales are detailed and described. It was therein further endeavored to demonstrate the effect of the contemplated im-I>rovements in increasing the earnings of the plant through a saving in items such as coal fuel expense, proper holding capacity, purifying, new tramway, etc., aggregating an amount to total of $2,520.27.</p> <p>It was also in such statement declared that 21 miles of new mains had been laid, and most, if not all of the buildings erected in six years last past; 760 new meters had been purchased in such years, and in eight years last past improvements aggregating in cost $75,000 had been made. The holder was in good repair for substantial work.</p> <p>This statement was made January 1, 1S99. Appellant soon after the making of the agreement inquired of N. W. Harris & Co. whether $100,000 could be borrowed on the plant. They assured him that, in view of the contemplated improvements, such loan could be effected, on first mortgage, provided good title and corporate power in the company be shown.</p> <p>After such assurances had been given, and, to wit, on March 22, 1899, ap-pellee induced appellant to advance him $28,000 on account of the purchase. Thereupon an additional and supplemental contract was entered into, which recites the making of the agreement to sell for $115,000, and that an outstanding issue of $25,000 bonds is to be paid out of the purchase price; that certain improvements are to be made as per “plans and specifications” submitted ; and contains these provisions :</p> <p>(1) That appellant had paid $28,000 as part of $115,000, purchase price.'</p> <p>(2) Balance of consideration to be paid, the $25,000 of bonds to be deposited with N. W. Harris & Oo. to be paid by them as directed by Cressler. When they have been paid, $20,000 in addition to be retained by them “until the improvements hereinbefore referred to are completed in said plant by Cressler.”</p> <p>• (3) After payment of the bonds, Cressler shall receive the balance of the consideration except the $20,000 above specified to be held until improvements are made.</p> <p>■ (4) Moloney “shall then be entitled to receive the said stóck” controlling the company as of January 1, 1899. All outstanding indebtedness on that date to be paid by Cressler. Moloney thereafter to receive all benefits and bear the burdens.</p> <p>(5) « * * * That the stock hereinafter referred to is placed with the agree-mefit in the vaults of N. W. Harris & Co. as an escrow, to be delivered and</p> <p>' the legal title of which to pass to the said Moloney when the said Cressler receives all of the consideration hereinbefore mentioned in manner and form as hereinbefore stated.”</p> <p>(6) Cressler to liquidate indebtedness owing and to receive moneys earned prior to January 1, 1S99.</p> <p>(7) Instrument executed in triplicate, “one to be deposited with the stock as aforesaid,” the parties retaining the other two.</p> <p>The bill further averred:</p> <p>The furnishing of an abstract of title, which, being submitted to said N. W. Harris & Co., resulted in objections to the title. Appellant, as attorney, was instructed by Cressler to render the service necessary to clear the title. Such service was reasonably worth $600.</p> <p>Cressler was unable to pay the $25,000 bonds. They were paid by Moloney, at Cressler’s request, principal and interest, $27,708.95. He was put to large expense in carrying out this request, which, with the reasonable value of his services as attorney in that behalf, amounted to $500.</p> <p>After paying the $28,000, and before effecting the $100,000 loan, said N. W. Harris & Co. informed appellant that the gas company was forbidden to mortgage its property, and that the contemplated loan could not be made; but that such loan might be effected by organizing another corporation under a different law, which, when consolidated- with the old company, could execute the mortgage to secure such loan. Thereupon Cressler advised Moloney to take the steps necessary to accomplish such purpose, and this was done. Moloney’s expense in doing this was $175, the value of his services, $1,000.</p> <p>The loan of $100,000 was accordingly effected August 15, 1899, and thereupon Moloney deposited with N. W. Harris & Co. the $20,000 to be paid for the improvement account as stated. Harris & Co. paid out of this for improvements which Cressler should have paid, $10,382.15, leaving in their hands $9,667.85.</p> <p>Moloney, on August 15, 1899, paid Cressler $20,000, and August 18, $15,000 both on account of the purchase price and in reliance upon the agreement to improve the plant.</p> <p>Moloney also collected outstandings of the company for which he is entitled to a reasonable collection fee.</p> <p>Cressler failed to make the improvements necessary to put the plant in a first-class condition. Moloney expended for that purpose $16,000.</p> <p>Cressler falsely represented to Moloney at the time the sale was negotiated that 21 miles of new mains had been laid within six year^ then last past, whereas in truth there were but 17 miles, 8 of which were not new, laid within six years, but in fact old and had been laid nearly forty years. His representations respecting the size of mains were false, many of such mains being much smaller than stated. He falsely represented the inlet and outlet connections to be eight inches, when in fact they were six; that the water gas machinery had a capacity of 150,000 feet per 24 hours, when it did not exceed 90,000. Moloney relied upon these representations which Cressler knew to be false, and has been damaged $15,000.</p> <p>Cressler failed in his agreement to improve the plant and put it in a first-class condition by July 1, 1899. Much of the machinery was not of the quality specified, nor was it installed until more than two years after July 1, 1899. The holder to be erected was not properly constructed, having the defects detailed in the bill. The damage to appellant by reason thereof is set at $5,000,.</p> <p>Pursuant to the “supplemental agreement” of March 22, 1899, the stock certificates were placed in the hands of N. W. Harris & Co. “in escrow to be delivered to your orator upon your orator’s payment of the purchase price of said stock.” That such stock is now in their hands. “That your orator has paid the full purchase price of said shares of stock and has frequently demanded said certificates from said N. W. Harris & Co., and from said Cressler, but that said N. W. Harris & Co. as well as said Cressler refuses to deliver the same to your orator.”</p> <p>The bill concludes:</p> <p>“And your orator further says that in justice and equity the several items of damage sustained by your orator by reason of the failure of said Cressler to perform his agreements, as is hereinbefore set forth and by reason of the false representations made as aforesaid by said Cressler and the moneys expended by said N. "W. Harris & Co. and your orator as aforesaid, ought to be recouped from the purchase price of said shares of stock, and that your orator is justly and equitably entitled to compensation from the said Cressler for said services rendered and said expenses incurred by your orator at the request of said Cressler, and that the amount thereof should be set off against the purchase price of said shares of stock, and if such damages shall be recouped from, and such compensation for your orator’s services and expenses, and moneys advanced and expended as aforesaid, shall be applied upon said purchase price then your orator has already paid to said Cressler more than the balance of said purchase price and said Cressler ought to be compelled to deliver the said shares of stock to your orator and to pay to your orator whatever sum your orator has overpaid upon said purchase price of said stock. And your orator says that lie has made frequent applications to said Cressler to come to an amicable settlement of the matters in dispute between them, but that said Cressler on various pretenses has utterly failed to do so.</p> <p>“In consideration whereof * * * your orator now prays that the damages sustained by him as hereinbefore stated and set forth may be awarded and determined by or under the direction of this honorable court; and that the expenses incurred and the value of the services rendered by your orator for said Cressler, as hereinbefore stated, may be ascertained and determined in like manner; and that the amount of such damages, expenses, and value of your orator’s said services, and money expended, when- so ascertained, may be applied upon the purchase price of said shares of stock; and that an account may be taken under the direction of this honorable court of all and every, the said transactions and dealings between your orator and said Cress-•ler; and that the same may be fully adjusted and the respective rights of your orator and said Cressler be ascertained; and that said Cressler may be decreed to pay to your orator what, if anything, shall appear upon such accounting to be due from him to.your orator, your orator being ready and willing, and hereby offer, to pay to said Cressler what, if anything, shall appear to be due from him to said Cressler; and that said Cressler may be decreed to specifically perform his said agreements to sell said shares of stock to your orator, and to assign and deliver the same to your orator; and that said N. W. Harris & Co. be required and decreed to deliver said stock so in their possession to your orator; ’and that your orator may have such other and further relief in the premises as the circumstances of the case may require and to your honors shall seem meet.”</p> <p>The defendants N. W. Harris & Co. thereupon filed their answer admitting the allegations of the bill respecting the organization of the gas company, defendant’s assurances to complainant that a loan of $100,000 could be obtained iipon the conditions stated; that objections were raised, whereupon the formation of a new company and its consolidation and merger with the old was effected, resulting in the making of the loan 'as alleged; that on August 15, 1899, Moloney paid the answering defendants $20,000, which was “to be held in trust and paid to said Moloney or his order when the improvements under way have been completed and paid for and all claims against said estate extinguished”; out of the sum so deposited $10,332.21 was paid to Moloney, leaving the balance alleged. Defendants are informed that Cressler was the contractor for certain of the improvements and has a claim against the gas ■company on account thereof; but they do not know whether Moloney is entitled to the money balance in their hands.</p> <p>The answer proceeds:</p> <p>“And these defendants admit that there was deposited with said N. W. Harris & Co. by said Moloney and Cressler a package said to contain the stock of the Ottawa Gaslight & Coke Company, to be held by said N. W. Harris & Co. in escrow and to be delivered according to memorandum on said package, that these defendants are ignorant and do not know what is contained in said package, but show that a receipt was given by said N. W. Harris & Co. for said package in the words and figures following, to wit:</p> <p>“ ‘Chicago, Mar. 24,1899.</p> <p>“ ‘Received of A. D. Cressler and M. T. Moloney, a sealed envelope said to contain $87,000 of stock of the Ottawa Gaslight and Coke Co., but the contents of which we have not examined, to be delivered according to the memorandum on the said envelope. N. W. Harris & Co., Chicago.</p> <p>“ ‘G. W. Hoover, Cash.</p> <p>“ ‘No', b. 419.’</p> <p>“That the memorandum on said package was in the words and figures following, to wit:</p> <p>“ ‘The within contains the stock of the Ottawa Gaslight & Coke Company, ■■ and a contract between A. D. Cressler and M. >T. Moloney relating to the same.</p> <p>“ ‘The contents are to be delivered to Moloney on payment to Cressler of $87,000, less $25,000 in bonds now outstanding and which are to be paid or ..taken up by Moloney.’ .</p> <p>“And these defendants further answering say that said firm of N. W. Harris & Oo. has always been and is willing to pay the amount of said balance remaining in their hands to such person or persons, as shall be lawfully entitled thereto and to whom they could deliver the same in safety, and deliver said package now in their possession to such person, or persons, as shall be lawfully entitled thereto and to- whom they could deliver the same in safety, and they hereby offer to pay over and deliver unto such parties as this court shall direct the said money and package, or bring the same into court- as the court shall direct for the benefit of such of said parties hereto as shall be entitled thereto, and these defendants disclaim all right and title of, in and to the same or any part thereof.”</p> <p>After the filing of such answer, the defendant Cressler appeared and filed his petition for removal of the cause to the United States Circuit Court, alleging therein the diversity of citizenship and that the controversy between the said Moloney, complainant, and Cressler, defendant, is a different and separable controversy from that between Moloney and the other defendants to the bill.</p> <p>The cause having been removed, Moloney made a motion to remand it to the circuit court for Cook county, which was overruled.</p> <p>The defendant appellee then answered, also presented his cross-bill for recovery of the balance due him upon the transaction; and upon the issues tendered by such pleadings the cause was heard, resulting in a decree whereby Moloney, after being credited with advances made by him in behalf of Cress-ler in respect of the agreed improvements, was adjudged to be indebted to the latter on the contract in the sum of $23,580.88, but that Moloney had suffered damage in the sum of $5,000 through Cressler’s failure to make the improvements within the stipulated time, which was deducted from such contract indebtedness, leaving $18,580.88. The decree then directed that upon payment of this sum, with interest, aggregating $28,248.03, by Moloney to Cressler, the former shall be the “complete owner and entitled to take possession of * * * .the stock held in escrow” by Harris, etc.</p> <p>Complainant has appealed from such decree.</p>

Action by Joseph Vizvari against the New York, New Haven.& Hartford Railroad Company. Judgment for plaintiff, and defendant brings error. This action is brought by an alien, a subject of the Emperor of Austria, against the defendant corporation, a citizen of the state of Connecticut, engaged in interstate commerce and doing business in the state of New York. At the time of the commencement of the action the plaintiff was a resident of the state of New York.

Petition to Revise Order of the District Court of the United States for the Western District of New York. In the matter of the bankruptcy of Francis Bacon. Petition by George E. Zartman, as bankrupt’s trustee, for review of order (196 Fed. 986) reversing a referee’s order directing the surrender of certain stocks held by a bank to the trustee on his payment of a lien amounting to $498.82. Francis Bacon was adjudged a bankrupt on May 4, 1904.

<p>Appeal and Error (§ 642*) — Insupfícient Bill op Exceptions — Disposition op Cause.</p> <p>The rule applied that the Circuit Court of Appeals cannot remodel a' bill of exceptions which is defective, but'can only affirm or reverse the judgment, and will reverse and remand for a new trial where justice to either party requires it. Roemer v. Simon, 91 U. S. 149, 23 L. Ed. 267, distinguished.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. § 642.*]</p>

<p>1. Carriers (§ 318*) — Action for Injury to Passenger — Presumptions—Res Ipsa Loquitur.</p> <p>The rule applied that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.*]</p> <p>B. Carriers (§ 320*) — Action for Injury to Passenger — Questions for Jury.</p> <p>Plaintiff was injured while a passenger in defendant’s street car, caused by the breaking of a bolt in the back of a seat against which she was leaning. The bolt had a break which was invisible when it was in place, but could have readily been removed for inspection. The cars had been in use for five years, and there was no evidence that the bolt had been inspected during that time, although it was an important bolt and in a position which subjected it to strains. Beld, that the question of defendant’s negligence was one for the jury, and that it was error to direct a verdict in its favor.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]</p>

<p>1. Removal of Causes (§ 49*) — Removal by One of Two Defendants — Joint Cause of Action.</p> <p>If a complaint states a joint cause of action against two defendants, the motive which prompted the joinder is immaterial on the question whether the cause is removable by one of the defendants.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dee. Dig. § 49.*]</p> <p>2. Removal of Causes (§ 49*) — Diversity of Citizenship — Separable Controversy.</p> <p>A railroad company and the engineer of one of its trains may be sued jointly for an injury alleged to have been caused by the negligence of the engineer in the operation of the train; and the company cannot remove the cause from the state court, as involving a separable controversy, where its codefendant and plaintiff are citizens of the same state.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dec. Dig. § 49.*</p> <p>Removal of causes, separable controversy, see notes to Robbins v. El-lenbogen, 18 C. C. A. 86; Meche v. Valley town Mineral Co., 35 C. C. A. 155; Pollitz v. Wabash R. Co., 100 C. C. A. 4.]*</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.</p> <p>Prosecution by the United States against Libby, McNeill & Libby, a corporation. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Action by Paul Tusek against Charles Schenkemeyer, doing business as the Johnstown Marble & Granite Works. Judgment for plaintiff, and defendant brings error.</p>

McPherson, Circuit Judge. In the bankruptcy proceedings of the Jámes Dunlap Carpet Company an order (206 Fed. 726) was entered permitting the Sovereign Bank of Canada to prove a claim for wool sold to the bankrupt by one Joseph Reichardt, and the Assets Realization Company, as assignee of Reich-ardt for a balance of the claim unpaid, appeals.

<p>1. Criminal Daw (§ 595*) — Right of Accused to Continuance — Discretion of Court. . .</p> <p>The denial of a motion for continuance in a criminal case, based on the absence of a witness whose testimony, as stated in the affidavit, would not bear directly on the question of defendant’s guilt but' could be used only contingently to contradict expected testimony for the prosecution, held not an abuse of discretion.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.*]</p> <p>2. Criminal Law (§ 422*) — Trial—Evidence.</p> <p>The admission in evidence in a criminal trial of conversations between a witness and an alleged confederate of defendant, as guarded by the instructions of the court, held not error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.*]</p> <p>3. Prostitution (§ 4*) — White Slave Traffic Act — Prosecution for Violation — Evidence.</p> <p>The admission of evidence in a prosecution under the White Slave Traffic Act June 25, 1910, e. 395, 36 Stat. 825 (U. S. Comp. St. Supp. 1911, p. 1343), held not error and the evidence not prejudicial to defendant if not pertinent.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*]</p>

In the matter of A.' Gaglione & Son, bankrupts. From an order denying his petition to recover certain property from Fred W. Tepel, trustee, Pearson M. Walton appeals.

<p>Bankruptcy (§ 314*) — Provable Claims — Note Barred by Limitation.</p> <p>A note extended after it was barred by limitation under the statute of Texas, unless the extension was in writing and signed by the maker and contains an acknowledgment of the debt, as required by Rev. Civ. St. Tex. 1911, art. 5705, is not provable against his estate in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy-, Cent. Dig. §§ 469-473, 478, 483-487, 489, 490; Dec. Dig. § 314.*]</p>

<p>Patents (§ 328*) — Valihitt and Infringement- — Siioe.and Process of Making Same.</p> <p>The Green patent, No. 894,733, for a shoe and process of making the same, claims 1 and 6, which are process claims, are invalid as omitting the use of a hollow-bottomed last, wliich is an essential element of the-combination process. Claim 11, which is for the product, is also void as too broad, its terms covering shoes not made by the process described. Claims 2, 3, 4, 5, 8, 9, and 10, all process claims, held valid and infringed..</p>

Dayton, Judge. Suit in equity by the Coffield Motor Washer Company against Edward W. S. Neff, S. K. Lapp, and R. D. Fanner, trading as the Neff Hardware Company. From an order granting a preliminary injunction, defendants appeal.

<p>Patents (§ 328*) — Validity and Inekingement — Reineobced Shoe Last.</p> <p>The Baker patent No. 870,760 for a reinforced shoe-last held valid and infringed.</p>

At Law. Action by the Fountain Electrical Floor Box Corporation against Trustees Masonic-Hall and Asylum Fund. On motion by defendant to set aside verdict and for a new trial.

In Equity. Consolidated action by the Alabama & New Orleans Transportation Company, the Continental & Commercial Trust & Savings Bank, N. W. Halsey & Co., H. R. Higginson and others, and A. B. Leach and others, against Edward H. Doyle and others, members of' the Michigan Securities Commission, to restrain the execution of Pub. Acts Mich. 1913, No. 143, known as the “Blue Sky Law.” On motion for a preliminary injunction.

Action by M. M. Hartman, as trustee in bankruptcy of George Salloum, against Tony Ackoury, to recover certain property as belonging to the bankrupt’s estate. On demurrer to appeal.

<p>1. Public Lands (§ 106*) — Decisions oe Land Office — Review by Courts.</p> <p>In the absence of fraud or gross mistake, decisions of the officers of the Land Department, made within the scope of their authority upon questions of fact, or where questions of law and of fact are inseparably commingled, cannot he reviewed by the courts; but if by manifest mistake of law these officers deprive a man of his rights a court of equity will grant appropriate relief.</p> <p>TEd. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 104, 301, 302; Dec. Dig. § 106.*]</p> <p>2. Public Lands (§ 35*) — Homestead—Qualification of Entryman.</p> <p>If a settler is qualified when he takes up his residence and files on public land which is subject to homestead entry, he is not disqualified from making final proof because he afterwards acquires and holds more than 160 acres of other land.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§ 72-77; Dec. Dig. § 35.*]</p> <p>3. Public Lands (§ 35*) — Homestead Entries — Good Faith of Entryman.</p> <p>That land sought to be entered as a homestead by a settler is covered with valuable timber, and that its value for agricultural purposes may be questionable, where it is, however, tillable when cleared and reasonably productive, does not warrant the inference that the application was not filed in good faith for the purpose of acquiring a home.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 72-77; Dec. Dig. § 35.*]</p> <p>4. Public Lands (§ 81*) — Grant in Exchange for Park Lands — Assigna-bility.</p> <p>By Act March 2,1899, e. 377, 30 Stat. 993, creating Mt. Rainier National Park, it was provided that on conveyance by the Northern Pacific Railroad Company to the United States of its lands lying within the limits of the, proposed park that company should be authorized to select in lieu thereof ' an equal quantity of nonmineral public lands elsewhere. At that time the Northern Pacific Railroad Company owned no lands, the same having passed through foreclosure sale to the Northern Pacific Railway Company. The latter company accepted the proposed exchange, conveyed its lands within the park to the United States, and selected other lands in lieu thereof, for which it received patents; the Interior Department expressly finding that the railway company was the lawful- successor in interest of the railroad company. Held, that, in view of such ruling and of the fact that otherwise the provision of the act would be wholly ineffective, the railway company must be deemed to have succeeded by. assignment to the rights of the railroad company thereunder and its patents sustained.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 250-252; Dee. Dig. § 81.*]</p> <p>5. Public Lands (§ 29*) — Surveys—Classification of Mineral and Non-mineral Lands.</p> <p>The act having limited the right of selection of lieu lands to “nonmin-eral public lands so classified as nonmineral at the time of actual government survey which has been o.r shall be- made,” a selection of land in fact nonmineral is not invalidatéd by the fact that the surveyors did not expressly classify it as such; it being the practice of the Department to require notation of evidences of mineral deposits and to treat all lands as to wiiieli no notation is made as nonmineral.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 41-17; Dec. Dig. § 29.*]</p> <p>6. Public Lands (§ 82*) — Selection of Lands Granted — Description of Un-surveyed Land.</p> <p>Where a grant of public lands to he selected by the grantee provided that in ease the land selected should be at the time unsurveyed the list filed “should describe such tract in such manner as to designate the same with a reasonable degree of certainty” in the absence of any rule o‘f the Land Department, and where an adjoining township had been officially surveyed, a description of the land by the legal subdivision by which it would be designated-when surveyed in accordance with the established system of surveys was sufficient.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 236, 253-256; Dee. Dig. § 82.*]</p> <p>7. Public Lands (§ 81*) — Grants in Exchange for Other Lands — Construction.</p> <p>The rule that public grants are to be construed strictly against the grantee is not applicable to a grant of public lands in exchange for other lands conveyed to the United States, where the question is not one of the extent of the grant but of procedure in administration of the act.</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 250-252; Dec. Dig. § 81.*]</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edw. R. Meek, Judge.</p>

In Equity. Bill by George F. Bentley, as trustee in bankruptcy of Israel Kruger, against John Young and another. This is a bill in equity to set aside a sale of the bankrupt’s stock of goods made to the defendant Henry Young, and to recover their value. The defendant John Young is joined as the principal in the transaction.

In- Error to the District Court of the United States for the District of Wyoming; John A. Riner, Judge. . Action by Peter Goleb against the Owl Creek Coal Company. Judgment for plaintiff, and deféndant brings error. Plaintiff'in error, hereinafter called defendant, is a South Dakota corporation engaged in operating a coal mine at Gebo, in the state of Wyoming.

Otis Humphrey, Judge. Suit in equity by the C. W. Raymond Company against Grace Ball. Decree for defendant, and complainant appeals. This appeal is from a decree whereby the appellant’s bill for enforcement of its claim of title to property — alleged to be reserved as personal property, although attached to real estate owned by the conditional vendee thereof — is dismissed for want of equity.

Indiana; Albert B. Anderson, Judge. Suit in equity by Arnold F. Gerstell and the Alpha Portland Cement Company against Elbert Walker Shirk. Decree for defendant, and complainants appeal. In December, 1911, appellants entered into a written contract for the purchase of certain property from appellee.

B. McPherson, Judge. Action by Abraham Steinfeld, as trustee in bankruptcy of A. Epstein, individually and trading as A. Epstein & Co., against Abraham Epstein. From an order (In re Epstein, 206 Fed. 568), requiring the bankrupt to deliver to his trustee certain specified goods, he appeals.

<p>Appeal from the District Court of the United States for the District of Oregon;' R. S. Bean, Judge.</p> <p>, Suit by Walter Baker Moore against Mary E. Cronen. Decree for complainant, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Action by the United States against the Spokane & Inland Empire Railroad Company. From a judgment for the United States (206 Fed. .988), defendant brings error.</p>

<p>In Error to the District Court of the United States for the Middle District of’ Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>, Harry E. Kulp was convicted of violating the White Slave Traffic Act, and he brings error.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; William E. Day, Judge.</p> <p>Action by Joseph Chester against the Bolton-Pratt Company. Judgment for plaintiff, arid defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by the McLean Hardwood Lumber Company against the South Memphis Land Company. Judgment for plaintiff for $17,500, and defendant brings error.</p>

<p>Collision (§ 42*) — Liability—Defense of “Inevitable Accident” — Sufficiency of Evidence.</p> <p>To exonerate a vessel from liability for a collision concededly due to ber improper movements, on tbe ground of inevitable accident, where the real cause of §ueh movements is not shown, she must eliminate liability for all possible causes by showing as to each of them that it could not have been prevented by the proper exercise of reasonable care, and, where important witnesses and evidence are not producd and the omission is not satisfactorily accounted for, the showing cannot be held sufficient.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. § 42; Dec. Dig. § 42.*</p> <p>Eor other definitions, see Words and Phrases, vol. 4, pp. 3571-3573.]</p>

<p>Evidence (§ 382*) — Photographs—Exclusion—Discretion oe Court.</p> <p>On an issue as to whether the ocean high-tide mark crossed certain lots.at the times when they were conveyed, the exclusion of a photograph of the locality taken six years after one conveyance and' four years after the other, and of a government coast map made about the same time, was within the discretion of the court, where the evidence as to the location of the high-water mark at the timé of the conveyances and afterward was conflicting, and there was no direct evidence that it was in the same place when the photograph was taken and the survey made as when the conveyances were made.</p> <p>[Éd. Note. — For ether eases, see Evidence, Cent. Dig. §§ 1658, 1659; Dec. Dig. § 382.*]</p>

<p>Trial (§ 252*) — Instructions—Applicability to Evidence.</p> <p>In an action to recover for an injury received by plaintiff while a passenger on defendants’ railroad train by reason of the breaking of a switch which caused the ear in which she was riding to run into a switch track, where it came into collision with other ears, where it appeared that the breaking of the switch was due to a latent defect in the iron not visible on the surface; that the switch was new, of an approved pattern, and came from a skilled maker; and that it had been inspected and tested but a few minutes before; it was error for the court, in instructing the jury that the liability of defendant depended on the adequacy of the test made by the inspector, to permit them to find that it was not adequate unless he tapped the parts with a hammer, where there was no evidence that such a test had ever been applied, or should be apxilied in railroad practice, but the only evidence on the subject tended to show that the test actually made was the usual and proper one.</p> <p>[Bel. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge.</p> <p>Action by the United States against Thirty-Six Bottles of London Dry Gin; Sir Robert Burnett & Co., claimant. From a judgment in favor of claimant (205 Fed. Ill), the United States brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; James B. Holland, Judge.</p> <p>Action by W. A. E. Riegel against the Pullman .Company. Judgment for defendant, and’ plaintiff brings error.</p>

Pardee, Judge. Action at law by the United States against the Atlanta Journal Company. Judgment for defendant on demurrer, and plaintiff brings error.

<p>Copyrights (§ 60*) — Infringement—Librettos of Operas — “Version.”</p> <p>A booklet entitled “Opera Stories,” giving a mere fragmentary description of the plot and characters of various operas, each scene being covered by a single paragraph and taken from descriptions other than the operas themselves, is not a “version” within the statute and is not an infringement of the copyrights on the librettos.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Cent. Dig. § 56; Dec. Dig. $ 60.*]</p>

<p>1. Patents (§ 27*) — Patentability—“Process.”</p> <p>A “process,” within the meaning of the patent law, is a useful art, and a process may be patentable, although a mechanism is necessary in carrying it out, and the mechanism may or may not be new or patentable; but a valid patent cannot be obtained for a process which involves nothing more than the operation of a piece of mechanism, or, in other words, the function of a machine.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 55642-5651; vol. 8, p. 7766.]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Process of Hulling Cotton Seed.</p> <p>The Ball patent, No. 807,990, for a process of hulling cotton seed of various sizes without substantial disintegration of the meats, consisting essentially in passing the seed through a graduated series of hull cutting devices set successively closer together, is void for lack of invention as involving no more than the operation of well-known hulling machines acting independently but successively each more closely. adjusted than the one before and acting only on the seed left unhulled'by it. Also, held not infringed.</p> <p>3. Patents (§§ 25, 26*) — Subjects oe Patents — “Combination”—“Aggregation.”</p> <p>The distinction between a “combination” and an “aggregation” lies in the presence or absence of mutuality of action; a “combination” essentially requiring that there be some joint operation performed by its ele-, ments, producing a result due to their joint and co-operating action, while in an “aggregation” there is a mere adding together of separate contributions, each .operating independently of the other.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dee. Dig. §§ 25, 26.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1275, 1277; vol. 1, p. 271.]</p>

<p>In Equity. Suit by the Benjamin Menu Card Company against Rand, McNally & Co. and others. On final hearing. Decree for complainant.</p>

In Equity. Suit by Edwin C. Angle, as trustee in bankruptcy of Edward F. Garling, against the Bankers’ Surety Company. Decree for complainant for partial relief. Suit in equity to set aside a mortgage on real estate executed and delivered by Edward F. Garling and wife to the.

<p>In Equity. Suit by William Whitridge, Lemuel T. Appold, and Henry Williams against the Mt. Vernon Woodberry Cotton Duck Company, the Consolidated Cotton Duck Company, and the International Trust Company of Maryland, trustee. On exceptions to report of master.</p>

- In Equity. Suit by Frank R. Williams against Charles Potter and •Robert Chestnut, Oswego, N. Y., local inspectors of steam vessels; John Molther, Oswego, N. Y., ex local inspector; Frederic Pope and William Nolan, Buffalo, N. Y., local inspectors of steam vessels; Niles Nelson, Cleveland, Ohio, supervising inspector of steam vessels; James Stone, Cleveland, Ohio, ex supervising inspector of steam vessels; and George Uhler, Washington, D. C., Supervising Inspector General…

<p>Petition for attachment of Plenry Whitney Munroe for contempt, on complaint of the grand jury sitting in the District of Massachusetts.</p>

<p>L Internal Revenue (§ 8*) — Legacy Taxes — War Revenue Act — Nature of Tax.</p> <p>The tax on legacies imposed by War Revenue Act June 13, 1898, c. 448, 30 Stat. 448 (U. S. Comp. St. 1901, p. 2286), is not a tax bn property, but an excise tax or duty on the passing of an absolute right in property from the dead to the living, and is a charge or lien placed on the property so transmitted for the payment of the tax; the primary duty to pay the same resting on the executor.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 11, 12; Dec. Dig. § 8.*]</p> <p>2. INTERNAL REVENUE (§ 28*) — LEGACY TAXES — COLLECTION.</p> <p>Where an executor fails to pay the legacy tax imposed by War Revenue Act June 13, 1898, c. 44S, 30 Stat. 448 (U. S. Comp. St. 1901, p. 2286), the United States may bring an appropriate proceeding against him as provided by section 29 to have the tax made a lien on the property constituting the legacy in the executor’s possession or control and to have the property sold to pay the tax, or, if the executor has parted with the possession and control of the property constituting the legacy, the proceeding may be instituted and maintained against any person having possession and control of the property to assert and foreclose the lien.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. § 28.*]</p> <p>3. Internal Revenue (§ 28*) — Taxation—Legacy Taxes — Recovery—Rem- ■ EDY.</p> <p>Under War Revenue Act June 13, 1898, e. 448, § 30, 30 Stat. 464 (U. S. Comp. St. 1901, p. 2308), providing that on an executor’s failure to pay the tax the collector shall commence proceedings against such person or persons who may have the custody or possession of the property subject to the tax.and.to have the same sold, and from the proceeds the amount of the tax, together with costs,. etc., shall he first paid, and the balance deposited subject to payment to those persons entitled thereto, the remedy so provided was exclusive, so that on payment of the balance of the legacy, subject to the tax, to the legatee by the executor without payment of the tax in full, the legatee was not liable in assumpsit for the balance of the tax, which could be recovered only by a proceeding to impose and foreclose a lien on the property.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. § 28.*]</p>

At Law. Action by A. D. Cook against Hale & Ward. On motion by defendant for judgment non obstante veredicto and for new trial.

In Equity. Suit by the Atlas Underwear Company against the Cooper Underwear Company. On motion for preliminary injunction. The case comes before the court upon a motion for a preliminary injunction. The complainant is a corporation located at Piqua, Ohio, and manufactures underwear, particularly of the typ'e commonly known as union suits.

At Law. Action by William H. Schlottman against the E. I. Du Pont de Nemours Powder Company. On motion by defendant to set aside the verdict and for new trial.

At Law. Action by B. H. Adams and others, copartners doing business as the Adams Seed Company, against the Chicago Great Western Railroad Company and others. On motion to remand.

At Law. Action by the J. I. Case Threshing Machine Company against Road Improvement District No. 3 of Pulaski County; Ark. On demurrer to the jurisdiction of the court.

In Bankruptcy. Proceeding in the matter of Joe K. Cheatham, bankrupt. On petitions for a review of orders of the referee setting aside a sale by the trustee and ordering a resale.

At Law. Action by J. H. Vestal against the Ducktown Sulphur, Copper & Iron Company, Limited. On motion to remand to state court. This suit was commenced in the Circuit Court of Polk County, Tennessee, by the issuance of a summons requiring the defendant, “a mining corporation,” to appear and answer the plaintiff in an action of damages for injury to property in the sum of $7,500.00.

<p>1. Intoxicating Liquors (§ 14*) — State Regulations oe Shipment — Consti- . TUTIONALITY OE STATUTE.</p> <p>Sess. Laws Idaho 1909, p. 9, which makes it a crime, inter alia, for any person or corporation within the state to accept for shipment or transport any intoxicating liquor to any person, club, corporation, etc., in any prohibition district or place in the state, except for certain specified purposes, although construed as its language warrants to make unlawful such shipments, even when the liquor is intended for the personal use of the consignee, is not unconstitutional, but a valid exércise of the police powers of the state.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 16; Dee. Dig. § 14.*]</p> <p>2. Commerce (§ 61*) — Interstate Traeeic in Intoxicating Liquors — Constitutionality oe Statute.</p> <p>The Webb-Kenyon Act of March 1, 1913, c. 90, 37 Stat. 699, which pro- • hibits the shipment or transportation of intoxicating liquors from one state into another when such liquor is intended to be received, possessed., sold, or in any manner used in violation of any law of such state; is not so clearly unconstitutional as. to justify its being so declared by a federal court of original jurisdiction.</p> <p>• [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec, Dig. § 61.*]</p> <p>3. Commerce (§ 61*) — Interstate Traeeic in Intoxicating Liquors — Right oe Carrier to Refuse Shipments.</p> <p>Under such statute, where the law of a state prohibits the transportation of liquor into a prohibition district within the state, an interstate carrier may lawfully refuse to accept liquors for shipment from’ points in other states to points within such a prohibition district.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 81-84, 89; Dec. Dig. § 61.*]</p>

In the matter of the Southern Hardware & Supply Company, bankrupt. On review of order of referee denying the claim of the landlord to a lien for rent.

<p>In Equity. Bill by John W. Hood & Co. against the Board of School Directors of Tangipahoa Parish and others. On motion to dismiss.</p>

<p>1. Bankruptcy (§ 342*) — Administration of Estate — Claims—Re-examination — Fees,</p> <p>General Bankruptcy Order 10 (89 Eed. vi, 32 C. C. A. xiii) provides that before incurring any expense in publishing or mailing notices, or in traveling or procuring the attendance of witnesses, or in perpetuating testimony, the clerk, marshal, or referee may require from the bankrupt, or other person in whose behalf the duty is to be performed, indemnity for such expense, and that money advanced for such purpose 'by the bankrupt ox other person shall be repaid him out of the estate' as part of the cost of administration. Held that, where proceedings were instir tuted for the re-examination of certain labor claims filed against the estate, the referee was not authorized by such rule to require petitioner to deposit funds to indemnify the claimants for traveling expenses, hotel bills, etc., while in attendance on the hearing.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525, 529; Dee. Dig. § 342.*]</p> <p>2. Bankruptcy (§ 342*) — Claims—Re-examination.</p> <p>On re-examination of claims filed against a bankrupt’s estate, the proofs of debt filed by the claimants constitute a prima facie case in favor of the claim sought to be re-examined and will be sufficient for its support unless the objector by positive testimony overcomes the same, and if she does so additional testimony in support of the claim may then be heard.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 525, 529; Dec. Dig. § 342.*]</p> <p>3. Bankruptcy (§ 342*) — Claims—Re-examination.</p> <p>On proceedings for the re-examination of claims before a referee in bankruptcy, he is authorized to subpoena any person to appear for examination at the expense of the state by Bankruptcy Act July 1, 1898, a 541, § 21a, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3430).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 525, 529; Dec. Dig. § 342.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Charles C. Pierce, Jr. On application by the bankrupt for his discharge. On recommendations of referee that the discharge be denied.

In Bankruptcy. In the matter of bankruptcy proceedings of Charles E. Bleyer. On specifications of objection to'the bankrupt’s discharge. Charles E. Bleyer filed a voluntary petition in bankruptcy on January 9, 1913, and was adjudicated a bankrupt on the same day. In due course his application for discharge came up and was opposed by the First National Bank of Easton, Pennsylvania.

<p>1. Courts (§ 270*) — United States District Court — Jurisdiction — Residence of Parties.</p> <p>Under Judicial Code, § 51 (Act March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 150]), providing that except as otherwise provided no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but that, where the jurisdiction is founded only on the fact of diverse citizenship, suits shall be brought only in the district of .the residence of either the plaintiff or the defendant, a suit by an owner and user of registered trade-marks against a violator of its rights thereunder for an injunction and an accounting was one arising under the trade-mark laws of the United States, and jurisdiction thereof was not founded only on the fact of diverse citizenship, and hence the suit was subject to the provision forbidding suits in any district other than that of the defendant’s residence.</p> <p>[Ed. Note. — Fqr other cases, see Courts, Cent. Dig. § 810: Dec. Dig. § 270.*]</p> <p>2. Removal of Causes (§ 12*) — Court to Which Case Mat be Removed.</p> <p>Under Judicial Code, § 51 (Act March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 150]), providing that except as otherwise provided no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, and sections 28 and 29, authorizing the defendant in certain cases to remove the cause from a state court to the District Court of the United States for the proper district, a suit arising under the trade-mark laws of the United States against a New Jersey corporation could be maintained in the District Court for the District of Massachusetts unless defendant objected, and hence, where such suit was brought in the Massachusetts state court, defendant could remove it to the District Court for that district.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33 ; Dee. Dig. § 12.*]</p> <p>3. Removal of Causes (| 106*) — Remand—Waiver of Right to Remand.</p> <p>dWhere, after the removal of a cause from a state court to the United States District Court, plaintiff in stipulating that defendant might file an answer on or before a certain day and in talcing other steps did so with the distinct statement that such steps were taken without waiving its objection to the jurisdiction, plaintiff did not thereby lose its right to move for a remand of the case to the state court.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. § 216g Dec. Dig. § 106.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Vincenzo Arnao. On motion to restrain the issuance of a body execution against the bankrupt and from interfering with his property on a judgment for conversion recovered against him in the state court prior to the filing of bankruptcy proceedings.

In Bankruptcy. In the matter of bankruptcy proceedings of J. Stacy Sayer. On petition of the bankrupt'for an order reopening the estate and permitting the amendment of schedules.

<p>In Equity. Suit by Stone & McCarrick, Incorporated, against the Dugan Piano Company, Limited, and others, to restrain the alleged infringement of a copyright. On motion to dismiss.</p>

<p>1. Contracts (§ 270*) — Rescission—Time for Rescission.</p> <p>What is or is not a reasonably prompt exercise of the right to rescind a contract depends on the circumstances of each case.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1189, 1200; Dec. Dig. § 270.*]</p> <p>2. Sales (§ 121*) — Rescission for Breach — Election.</p> <p>Defendant contracted to purchase from plaintiff 20 car loads of flour of a specified quality and price, to be manufactured and shipped to defendant’s customers as ordered. Two'cars were ordered and paid for by defendant through drafts with invoices attached. Shortly afterward complaints were made by the consignees that the flour was not of the quality purchased, and on investigation defendant found it to be the fact and notified plaintiff, who admitted that the wheat was smutty and promised to mate good any loss to defendant in settling with his customers, but on receipt of a bill five weelss later refused to pay anything. Defendant thereupon refused to accept further shipments. Held, that the request by defendant for reimbursement for the amount he was obliged to pay out was not an election to affirm the contract, and that whether he exercised his right to rescind for the breach within a reasonable time was a question for the jury.</p> <p>TEd. Note. — For other cases, see Sales, Cent. Dig. §§ 296-301; Dec. Dig. § 121.*]</p> <p>3. Sales (§ 153*) — Performance—Sufficiency of Tender.</p> <p>Where a contract for the sale and purchase of flour specified the grade, the shipment by the seller to apply on the contract of a car load not of such grade, although stated to be of a superior grade, wag not a good tender under the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 358-366; Dec. Dig. § 153.*]</p>

District of Illinois; Kenesaw M. Landis, Judge. In the matter of Sophia M. Gold, bankrupt. From a decree denying their petition to reclaim property, William W. Constad and Morris Newman, doing business as Wm. W. Constad & Company, appeal.

Keller, Judge. Action at law by Frances E. Smith, an infant, by her next friend, Isaac V. Smith, against the Baltimore & Ohio Railroad Company. Judgment for defendant, and plaintiff brings error.

In Error.to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. CushJ:, man, Judge. A. W. Lueders was convicted of willfully concealing certain property from his trustee in bankruptcy, and. he brings error.

<p>1. Mortgages (§ 125*) — Provision for Attorney’s Fee — Validity and Construction.</p> <p>A provision in a mortgage for the payment of attorney’s fees and making the- mortgage a lien therefor, where recognized as valid by the law of the state, is enforceable to the extent of a reasonable fee for services actually rendered; but, until the debt becomes due and the services of the attorney are rendered, no debt exists on account of such stipulation to be added to the amount of the note or mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 211%, 244, 245; Dec. Dig. § 125.*]</p> <p>2. Bankruptcy (§ 318*) — Provable Debts — Attorney’s Pees Under Stipulation in Mortgage.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 63a(l), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447),.which limits provable debts to such as are “a fixed liability absolutely owing at the time of the filing of the petition,” a claim for attorney’s fees under a stipulation in a mortgage for the payment of such fees for the collection of the debt secured by foreclosure or otherwise cannot be allowed against or paid from the bankrupt's estate, where the mortgage debt was not due at the time of the filing of the petition in bankruptcy, and where no services were rendered by the attorney before the filing of the petition in bankruptcy; and the fact that it is sought to prove the claim only against the proceeds of the mortgaged property, sold by the trustee free from the lien, does not exempt it from the operation of such provision.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 481, 482; Dec. Dig. § 318.*]</p>

, Judge. Action by W. W. Page against the Town of Warrenton. A demurrer to the declaration was sustained, the action dismissed, and plaintiff brings error.

<p>3L Master and Servant (§ 288*) — Injuries to Servant — Minors—Assumed Risk.</p> <p>Plaintiff, a boy of 17 years, was injured at 10:30 p. m. on a certain day when engaged- in unloading logs from a flat car for defendant He had worked for about two hours for each of two preceding nights. The . night in question was. dark, cold, and misty, and the only light was from an arc light 150 to 250 feet away. Plaintiff and another were directed by the foreman to get on a car and unload four logs still remaining thereon, and, after plaintiff had gotten the first log started, he attempted to move back, when he was struck across the back by another log and knocked from the car. The log which whs being removed struck the unsupported end of one which projected beyond the body of the car, with the result that the opposite end of the log swung around and struck plaintiff. He testified that there was not sufficient light to enable him to see how the logs lay, and that he thought the log they were removing would roll straight off. Held, that he did not assume the risk as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. §§ . 1068-1088; Dec. Dig. § 288*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Appeal and Error (§ 1050*) — Harmless Error — Evidence.</p> <p>Where, in an action for injuries to a servant by his being thrown from a car at night while unloading logs, the negligence alleged was the failure of the master to furnish sufficient light, and. the complaint also charged that plaintiff was inexperienced in the work, and entered the master’s employment' with the understanding that he was to be engaged in a less hazardous occupation, the master was not prejudiced by evidence that plaintiff was put to work without warning or caution as to the danger; having pleaded as an affirmative defense that plaintiff when engaged understood and fully appreciated any and all dangers connected with such employment, including the fact that the logs might roll and injure him if he got in their path, etc.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153 — 4157, 4166; Dec. Dig. § 1050.*]</p>

District of New York. Action at law by Anna M. Reilly, administratrix of Edward J. Reilly, deceased, against the Steel & Masonry Contracting Company. .Judg- . ment for plaintiff, and defendant brings error.

<p>Collision (§ 95*) — Steamer and Tus with Tow — Mutual Faults.</p> <p>A decree affirmed which held a steamer and tug both in fault for a collision between the steamer and a scow without steering apparatus in tow of the tug meeting in the narrow channel between a harbor breakwater and another submerged breakwater in course of construction; the steamer being in fault for not giving the tug and tow more room, and the tug for suddenly crossing the bows of the steamer in an effort to prevent the scow from striking the submerged breakwater.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202:' Dec. Dig. § 95.*</p> <p>With or between towing vessels and vessels in tow, see note to The John Englis, 100 O. C. A. 581.]</p>

<p>1. Trial (§ 193*) — Instructions—Commenting on Evidence.</p> <p>It was not error for the trial court in the charge to express an opinion relative to plaintiff's failure to produce a eertaip witness, where the jury was given to understand that it was not bound by such opinion.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 436-438; Dee. ‘ Dig. § 193.*]</p> <p>2. Trial (§ 255*) — Instructions—Necessity oe Requests.</p> <p>Plaintiff could not complain of the court’s failure to charge that certain evidence could be considered only in mitigation of damages, where she requested no such instruction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 627-641; Dec. Dig. § 255.*]</p>

<p>1. Patents (§ 13*) — Subjects of Patents — “Manufactube”—Street Rail-boad TbAnseeb Ticket.</p> <p>A street railroad transfer ticket, devised to keep a check on passengers and conductors with respect to the time when used, in part by means of a- coupon, the body portion when the coupon is detached being receivable only during the forenoon hours, may properly be classed as an article to be used in a method of doing business, and as such is a “manufacture” within the meaning of Rev. St. § 4886 (IJ. S. Comp. St. 1901, p. 3382), and a proper subject of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 11, 12; Dee. Dig. § 13.*]</p> <p>2. Patents '(§ 13*) — Subjects of Patents — “Manufacture.”</p> <p>The term “manufacture,” as used in the patent law, has a very com- ■ prehensive sense, embracing whatever is made by the art or industry of man, not being a machine, a composition of matter, or a design.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 11, 12; Dee. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4344-4346; vol. 8, p. 7716.]</p> <p>3. Patents (§ 328*) — Validity and Infringement — Transfer Ticket.</p> <p>The Pope patent, No. 805,153, for a time limit transfer ticket for use by street railroads, etc., was not anticipated and discloses patentable invention; also held infringed.</p>

<p>Patents (§ 328*) — Infringement—Gas Lamp.</p> <p>The Smith reissue, patent No. 13,033 (original No. 759,037), for improvements in gas lamps, construed, and held not infringed.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York. ’</p> <p>Suit in equity by William B. Palmer and Jesse V. Palmer against the Superior Manufacturing Company. From an order denying a preliminary injunction, complainants appeal.</p> <p>The District Court denied a motion for a preliminary injunction restraining the infringement of claim 1 of letters patent No. 878,995 granted to William B-. Palmer February 11, 1908, for improvements in apparatus for inverting tubular fabrics. The decision of the District Court is reported in 203 Fed. 1003. The patent was also considered by the District Court in an action against the Jordan Machine Company, the decision being reported in 186 Fed. 496. The decision of this court on appeal is reported in 192 Fed. 42, 112 C. C. A. 454.</p>

<p>Patents (§ 328*) — Anticipation—Method oe Making Garment Stats.</p> <p>The Beeman patent No. 1,002,488, for a method of making garment stays, held'void for anticipation.</p>

<p>1. Patents (§ 127*) — Suit Against Interfering Patentee — Construction or Statute.</p> <p>Rev. St. § 4018 (U. S. Comp. St. 1901, p. 3394), which provides that whenever there are interfering patents any person interested in any of them may maintain a suit in equity in which either of the patents may be adjudged void or other appropriate relief granted, applies to a case where there is a claimed interference between patents granted to the same inventor, although on a finding of interference the later patent becomes ipso facto void.</p> <p>[Ed. Noté. — Eor other cases, see Patents, Cent. Dig. §§ 179, 180; Dec. Dig. § 127.*]</p> <p>2. Patents (§ 127*) — Suit Against Interfering Patentee — Preliminary Injunction.</p> <p>In view of the further provision of said section “that no such judgment or adjudication shall affect the right of any person except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment,” the court on the giving of security may properly grant a preliminary injunction restraining defendant from disposing of his patent except on an order of the court.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 179, 180; Dec. Dig. § 127.*]</p>

<p>1. Patents (§ 297*) — Suns toe Inteingemeno>-Preliminary Injunction— Ettect ot Peioe Adjudications.</p> <p>Where there has been a prior adjudication sustaining a patent in a suit in the same or another circuit in which the validity of the patent was contested on full proofs, a District Court on a motion for a preliminary injunction should sustain the patent and leave the question of its validity to be determined on the final hearing.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 481-488; Dee. Dig. § 297.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement — Store Front Construction.</p> <p>The Plym patent, No. 852,450, for an improved store front construction, held valid and infringed on motion for a preliminary injunction.</p>

<p>In Equity. Suit by Russel Dart and others against the Saylor Electric Company. On final hearing.</p>

<p>In Equity. Suit by J. Everett Hicks against the Penn Mutual Life Insurance Company. On motion to dismiss.</p>

In Equity. Suit by-the South & North Alabama Railroad Company of Alabama against the Railroad Commission of Alabama and others. On motions for preliminary' injunction. On Application for Temporary Injunction.

<p>1. Seamen (§ 34*) — Oeeenses—Mutiny—Elements. .</p> <p>Cr. Code, § 292 (Act March 4, 1909, c. 321, 35 Stat. 1146 [U. S. Comp. St. Supp. 1911, p. 1676]), provides that whoever, being of the crew of a vessel of the United States on the high seas, unlawfully confines the master or other commanding officer thereof, shall be punished; and section 293 declares that whoever, being of the crew of a vessel of the United States on the high seas, unlawfully and with force usurps the command of such vessel from the master or other lawful officer in command thereof, or deprives him of authority and command, or prevents him in the free and lawful exercise thereof, is guilty of mutiny. Held, in order to warrant a conviction under either of such sections, it must appear that the offense was committed on the high seas on a vessel of the United .States, that defendants were members of the crew, and that the person so deprived of command was the master of the vessel or officer in command on board thereof, and while so in command defendants or some of them fe-loniously' confined him and deprived him of the free* and. lawful exercise of his authority, and also that defendants were apprehended when first _ brought into the district where the prosecution was instituted.</p> <p>[Ed. Note. — Eor other cases, see Seamen,' Cent. Dig. §§ 220-231; Dec. Dig. § 34.*]</p> <p>2. Criminal Law (§ 561*) — Instructions—Reasonable Doubt.</p> <p>While a person charged with crime cannot be convicted, except on proof beyond a reasonable doubt, such doubt must be one based on reason, or which is reasonable in view of all the evidence, and is not a mere whimsical, arbitrary, or purely speculative doubt, or a mere conjecture or guess.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*] -</p> <p>3. Cbiminal Law (§ 554*) — Testimony of Accused — Consideration.</p> <p>While accused may testify in his own behalf, his testimony should be weighed in accordance with his interest and the question of its inherent probability or improbability, and as to whether or not it has been corroborated or contradicted by other evidence in the case.</p> <p>[Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 1255, 1256; Dee. Dig. § 554.*]</p> <p>4. Seamen (§ 34*) — Mutiny—Grounds.</p> <p>Profanity or the use of opprobrious epithets, inconsiderate, insulting, rough, and improper treatment on the part of the officers of a vessel, and occasional violence, not of an unusual character, or the omission to furnish the crew with full allowances required by law, will not justify a mutiny, which can only be defended in case continued service will probably result in loss of life, limb, or other grave bodily harm, in which case the crew may take such action without unnecessary violence as will protect themselves and' provide in a reasonable way for their safety, although it may involve placing physical restraint on the master.</p> <p>[Ed. Note. — Por other cases, see Seamen, Cent. Dig. §§ 220-231; Dec. Dig. § 34.*]</p> <p>5. Courts (§ 352*) — Federal Courts — Trial—Instructions—Evidence.</p> <p>While a federal court is entitled to call to the jury’s attention portions of the evidence which may aid them in arriving at a just verdict, it is . nevertheless the duty of the jury to determine for itself the questions of fact, giving the evidence only such weight and effect as they consider it entitled to.</p> <p>[Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 926-932; Dec. Dig. § 352.*]</p> <p>6. Criminal Law (§ 423*) — Declarations—Memorandum Books.</p> <p>In a prosecution of members of a crew of a vessel for mutiny on the high seas, so-called logs, kept by two of the defendants, purporting to recount the occurrences on. the ship after leaving port and until the mutiny, were admissible only as against them.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. § 423.*]</p> <p>7. Criminal Law (§ 857*) — Trial—Verdict—Deliberation of Jurors.</p> <p>Where a majority of the jurors, after deliberation, differ from the minority, it is proper for the latter to review the grounds of their own conclusion, in order, if possible, that a verdict may be reached; but no juror should acquiesce against his individual judgment in the conclusion reached by his fellows, whether they constitute a majority or a minority of the whole body.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055'; Dec. Dig. § 857.*]</p>

At Raw. Action by R. F. Jackson against the Chicago, Milwaukee & St. Paul Railway Company. On demurrer to complaint. The following authorities are cited in support of their respective contentions: Plaintiff: Zikos v. Ore. R. & Nav. Co. (C. C.) 179 Fed. 893; Colasurdo v. Central R. R. of New Jersey (C. C.) 180 Fed. 832; Behrens v. Ill. Cent.

In Equity. Bill by Leake S. Covington, trustee in bankruptcy of the Eagle Pharmacy, to set aside as a voidable preference, a mortgage on a stock of merchandise, etc., executed to J. W. Brigman by the bankrupts.

At Law. Action by John J. McWeeny against the Standard Boiler & Plate Company. A verdict was returned in favor of plaintiff, and defendant moves for a new trial.

<p>. In Bankruptcy. In the matter of bankruptcy proceedings of Simon Burman and Benjamin Welling, doing business as the Puritan Clothing Company. Application for confirmation of composition.</p>

<p>1. Trade-Marks and Trade-Names (§ 21*) — Right to Registration — Name Used under Expired Patent.</p> <p>The owner of a patent who, during the life of the patent, used a name for the. patented article, which, by reason of such use, became descriptive of the article, cannot extend the monopoly after the expiration of the patent by registering such name as a trade-mark, nor can the use of the name during the life of the patent be availed of to make up the 10 years of actual and exclusive use necessary to authorize its registration under Act Eeb. 20, 1905, c. 592, § 5b, 33 Stat. 725 (U. S. Comp. St. Supp. 1911, p. 1461).</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 24; Dec. Dig. § 21.*]</p> <p>2. Trade-Marks and Trade-Names (§ 97*) — Infringement — Word Having Descriptive Meaning.</p> <p>Conceding that the time of such use may he included to make up the 10 years necessary to authorize the registration of the name as a trade-mark, the most that can be claimed for the registration is that it confers on the descriptive word the attributes of a technical trade-mark, and as such the owner’s right is limited to restraining others from so using it as to mislead the public as to the origin of the article.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dee. Dig. § 97.*]</p>

In Equity. Suit by Charles W. Eberhard and others, for themselves .and other semitontine life policy holders in the Northwestern Mutual Eife Insurance Company, against such company, to compel' an accounting of the funds of the company applicable to such policies, and for other relief. On demurrer to bill.

<p>In Equity. Suit by the Cuyahoga 'River Power Company against the City of Akron, a municipal corporation, and others. On motion to dismiss bill.</p>

<p>Bankruptcy (§ 60*) — Involuntary Proceedings — “Act oe Bankruptcy”— Receivership.</p> <p>Under tke express provisions of Bankruptcy Act July 1, 1S9S, c. 543, § 3a(4), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), as amended by Act Eeb. 5, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1493i, it was an act of bankruptcy for a debtor whose property was below tbe amount of bis debts, and who was unable because of the pressure of some of his debts to continue a going business, to apply to a state court for a receiver for his property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig, S 60.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Desnoyers Shoe Company. A claim of B. D. Dozier against the estate was allowed by the referee, and the question certified.

In Bankruptcy. In the matter of bankruptcy proceedings of William Watmough. On claim of the Sterling Sanitary Manufacturing Company for payment in full of a bill of goods alleged to have been purchased by the bankrupt by fraudulent representations as to,his credit.

<p>Bills and Notes (§ 68*) — Acceptance—-Promise to Accept.</p> <p>Where plaintiff bank, on presentation to it by the W. Company of checks on defendant bank, wired defendant, “Will you pay W. Company checks?” stating the amount, and received a reply“Forward your checks. They will undoubtedly be taken care of by the company when presented”— whereupon plaintiff advanced the amount of such checks to the W. Company, defendant was liable to plaintiff for the amount of the checks, since it might have put the matter beyond all possibility of doubt, and what it said in addition to “forward your checks” was not in direct answer to plaintiff’s telegram.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 110-115; Dec. Dig. § 68.*]</p>

<p>Petition by Charles Yunghauss to be admitted as a citizen.</p>

Habeas corpus by the United States, on relation of Ng. Sam and others, to procure relators’ discharge from imprisonment under deportation warrants.

<p>1. Courts (§ 344*) — Procedure—Process—SIebvxce—What Law Governs.</p> <p>Whether a summons in an action in a federal court may be. served within a federal district must be determined by the law of the United States.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec.'Dig. § 344.*]</p> <p>2. Courts (§ 274*) — Fedeéal Courts — Jurisdiction.</p> <p>Under Judicial Code, §§ 51, 52 (Act March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 150]), providing for the venue of suits brought in the federal courts, an action brought by Italian subjects resid- ■ ing in Italy, for death of their son, against a corporation of Pennsylvania and Ohio, must be brought in the .federal district where the corporation is a legal resident.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. § 274.*]</p> <p>3. Courts (§ 274*) — Federal Court — District—Action against Corporation.</p> <p>Where a railroad company was incorporated in Pennsylvania and Ohio, having its office and transacting its business in the Western district of Pennsylvania, and transacted no business and had no office or place of business in the Eastern district, the fact that it was a part of a fast freight line, consisting of the traffic departments of a number of. railroads-, maintaining a chief clerk in the Eastern district, whose authority was limited to the solicitation of freight, did not make it a resident of the Eastern district so as to subject it to suit there by service of process on such clerk.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. § 274.*]</p>

<p>COURTS (§ 274*) — Action Against Corporation — Federal District — Residence.</p> <p>Judiciary Act March 8, ipil, c. 231, § 51, 36 Stat. 1101 (U. S. Comp. St. Supp. 1911, p. 150), provides that no civil suit shall be brought in any district against any person by original process in any other district than that whereof he is an inhabitant; but, where jurisdiction is founded only on the fact that the action is between persons of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Section 52 declares that, when a state contains more than one district, every suit not of a local nature in the District Court thereof against a single defendant inhabitant of such state shall be brought in the district where he resides. Held, that where a suit for wrongful death was brought by subjects of the Czar of Russia who were residents of B. county, Ohio, and who had never resided in the Northern federal district of Ohio, against a corporation whose charter provided that its principal place of business should be located at G. in B. county, which was not in that district, defendant could not be sued in the federal courts of the Northern district, though it maintained an office and did business there.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. § 274.*]</p>

<p>Aliens (§ 54*) — Immigration—Bonds—Conclusive ness.</p> <p>Where a bond was given to secure the admission of a minor alien, conditioned that he should attend the regular .terms of the public school until he arrived at the age of 16 years, or until April 1, 1913, the bond reciting that he was then 15 years old, and also requiring that the person requesting his admission should make' quarterly reports of -the alien’s school attendance to the Commissioner of Immigration at the port of New York, the sureties were estopped by the bond to claim that the alien was in fact 16 years old when admitted, and they were liable on proof of his failure to attend school and failure to make reports as required.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Ken-derton S. Lynch. On certificate of referee presenting for review an order setting aside a landlord’s claim for a lien under a distress levy.

<p>Tbade-Marks and Trade-Names (§ 95*) — Suit for Unfair Competition — Preliminary Injunction.</p> <p>Complainant built up a large trade in a patented miners’ lamp, among the miners of a region who were largely foreigners, without much education and with little knowledge of the English language. Defendant put on' the market in the same region a lamp identical in shape, having accessories "of similar appearance, all packed in a box resembling complainant’s in size and shape, and containing directions printed in different languages which were a verbatim copy of complainant’s. The result was that defendant secured a considerable part of the trade which had previously been complainant’s. Held, that the means used were unfair and apparently adopted to deceive purchasers, and that complainant was entitled to a preliminary injunction.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*]</p>

<p>1. Bankruptcy (§ 166*) — Mortgages—Fraud—Rights op Mortgagee.</p> <p>Where a bankrupt executed a mortgage on certain of his assets pursuant to a plan to prefer certain favored creditors with the proceeds of the loan and defraud his other creditors, the mortgagee, having advanced a present consideration for the mortgage, was entitled to enforce the same against the bankrupt’s estate, unless he not only knew of the mortgagor’s insolvency and his plan to prefer creditors, but also that the mortgagor ^intended after preferring such creditors to go into bankruptcy for the purpose of defrauding his other creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p> <p>2. Bankruptcy (§ 166*) — Preferential Payments — Purpose.'</p> <p>Preferential payments made by an insolvent in the hope and for the purpose of continuing his business are not fraudulent, though they are under certain circumstances voidable by his trustee in bankruptcy, but preferential payments made by an insolvent who does not expect to continue in business, and who is endeavoring to provide for certain creditors at the expense of others, are fraudulent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p>

<p>At Law. Action by Willard Case against the Mountain Timber Company.</p> <p>The following authorities are relied upon by plaintiff: Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. -399; Prout v. Starr, 188 U. S. 537, 23 Sup. Ct. 398, 47 L. Ed. 584; Thompson v. Whitman, 18 Wall. 457, 21 L- Ed. 897; So. Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Pennoyer v. Neff, 95 U. S. 714, 24 L. Eid. 565; Freeman v. Howe, 24 How. 450, 16 L. Ed. 749; Buck v. Calbath, 3 Wall. 334, 18 L- Ed. 257; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. 96, 28 L. Ed. 690.</p> <p>The following authorities are relied upon by defendant: Merritt v. American Steel-Barge Co., 79 Fed. 228, 234, 24 C. C. A. 530; Powers v. Blue Grass, etc. (C. C.) 86 Fed. 708; Krippendorf v. Hyde, 110 UV S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145; Stanton v. Embry, 93 U. S. 548, 23 L- Ed. 983; Sperry & Plutchinson Co. v. Tacoma (C. C.) 190 Fed. 682; Id. (D. C.) 199 Fed. 853; Ball v. Tompkins (C. C.) 41 Fed. 486, 490; Rodgers v. Pitt (C. C.) 96 Fed. 675; Fountain v. 624 Pieces of Timber (D. C.) 140 Fed. 381; No. Carolina, etc., v. Westfeldt (C. C.) 151 Fed. 294; Guardian Trust Co. v. K. C. So. Ry. Co., 146 Fed. 340, 76 C. C. A. 615; Louisville, etc., v. Knott, 130 Fed. 826, 65 C. C. A. 158; Guaranty, etc., v. No. Chicago St. Ry. Co., 130 Fed. 807, 65 C. C. A. 65; Baltimore & O. R. Co. v. Wabash Ry., 119 Fed. 680, 57 C. C. A. 322; Hubinger v. Central Trust Co., 94 Fed. 790, 36 C. C. A. 494; Ahlhauser v. Butler (C. C.) 50 Fed. 708; Heidritter v. Elizabeth Oilcloth Co., 112 U. S. 294, 5 Sup. Ct. 135, 28 L. Ed. 729; Spencer v. Wolfe, 49 Neb. 8, 67 N. W. 858; Merchants’ Sav. Bk. v. Noll, 50 Neb. 615, 70 N. W. 247; State ex rel. v. Smith, 57 Neb. 41, 77 N. W. 384; M. P. R. R. Co. v. Fox, 56 Neb. 746, 77 N. W. 130; Ragan v. Morrill, 43 Neb. 361„61 N. W. 590; Omaha Loan & Trust Co. v. Knight, 50 Neb. 342; 69 N. W. 933; Stelling v. Peddicord, 78 Neb. 779, 111 N. W. 793; Shabata v. Johnston, 53 Neb. 12, 73 N. W. 278; Texas & Pac. R. R. v. Saunders, 151 U. S. 105, 14 Sup. Ct. 257, 38 L. Ed. 90; St. Louis & San F. R. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L- Ed. 659; Henderson v. Carbondale Coal & Coke Co., 140 U. S.-25, 11 Sup. Ct. 691, 35 L. Ed. 332; Edgell et al. v. Felder, 84 Fed. 69, 28 C. C. A. 382; Hupfeld v. Automaton, etc. (C. C.) 66 Fed. 788; Lowry v. Tile, etc. (C. C.) 98 Fed. 817; Briggs v. Stroud (C. C.) 58 Fed. 717; President, etc., v. Merritt (C. C.) 59 Fed. 6; Mills v. Duryee,. 7 Cranch, 481, 3 L. Ed. 411.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Printograph Sales Company. On petition of the trustee to restrain a sale of the bankrupt’s assets under a landlord’s warrant of distress.

In Bankruptcy. • In the matter ■ of bankruptcy proceedings of the Knox'Automobilé Company. On petition to review an order authorizing the trustee to sell all the property of the bankrupt at private sale, without notice to creditors or prior approval of the court.

Action by Joseph Adzenoska and another against the Erie Railroad Company. On rule to show cause why the suit should not be dismissed.

Application by Sol. B. Kantor and another for an order directing Guy Murchie, United States Marshal, to deliver to them certain property. Marshal ordered to return the property to the person legally entitled thereto, without regard to certain process from the state courts.

In Admiralty. Libel by Henry F. Stockwell, receiver of John H. Dialogue & Son, bankrupts, against the tug Transit, and cross-libel by Charles- I. Walker, managing owner of the Transit, against said Stockwell, receiver. On petition by libelant to vacate order requiring filing of security on cross-libel.

<p>In Error to the District Court of the United States for the District of New Jersey; Charles P. Orr, Judge.</p> <p>Action by the Parkview Building & Loan Association against Herman C. H. Herold, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville; James E. Boyd, Judge.</p> <p>■ In the matter of the American Foundry & Supply Company, bankrupt. Appeal by S. G. Bernard, trustee, from a decree establishing a lien in favor of H. G. Eea.</p>

Campbell, Judge. Proceeding by the United States against J. Horace Marshall, administrator, etc., and others, to cancel a patent alleged to have been obtained by fraud. From the decree, the United States appeals.

Orr, Judge. Actions by John Dalzell against the Commercial Union Assurance Company, Limited, and against the London & Lancashire Fire Insur-anee Company. Judgment for plaintiff in each case, arid defendants bring error.

McCall, Judge. Action at law by the River & Rail Storage Company against the Monongahela River Consolidated Coal & Coke Company. Judgment for plaintiff, and defendant brings error. The River & Rail Storage Company owned a wharf structure and wharf boat upon the river front, in Memphis. The coal and coke company (hereinafter called “defendant”) was engaged in transporting coal down the river, past the city.

Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Judge. In the matter of ‘William Laderburg, bankrupt. Petition by bankrupt to revise an order denying his claim to exemption, on objection of F. C. Miller, trustee.

<p>Appeal from the District Court of the United States for, the Western District of Texas; Thomas S. Maxey, Judge.</p> <p>Proceeding by the United States against N. Jim Quan. Order of deportation, and defendant appeals.</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of New Jersey; John Rellstab, Judge. . . In the matter of bankruptcy proceedings of’ John N. Martin.

<p>Maritime Liens (§ 65*) — Equipment op Vessel — Washington Statute.</p> <p>Under Rem. & Bal. Code Wash. § 1182, which makes all vessels liable for all work done or materials furnished for their construction, repair, or equipment at the request of their owners, where one furnished prior to June 23, 1910, a valuable engine for the equipment of a motor boat on request of the owner, but slight evidence should be required to establish the fact that it was furnished on the credit of the vessel.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 103; Dec. Dig. § 651*</p> <p>Maritime liens for supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]</p>

<p>In Equity. Suit by the Haskell Golf Ball Company against the Sporting Goods Sales Company. On final hearing.</p>

<p>In Equity. . Suit by the Outlook Envelope Company against the Sherman Envelope Company. On final hearing.</p>

<p>1. Carriers (§ 12*) — State Begtjlation or Bates — Beasonableness of Bates.</p> <p>The value of the property of the Chicago & Northwestern Bailway Company in South Dakota devoted to the intrastate passenger traffic and the gross earnings, and expenses and charges properly assignable to such traffic, determined, based on reports of the business for one year, and on the basis of the amount of business done in such, year a passenger rate of 2y2 cents per mile fixed by order of the State Board of Railroad Commissioners, held not confiscatory, but the subsequent act of February 2, 1909 (Acts S. TJ. 1909, c. 6), fixing such rate at 2 cents per mile, held confiscatory and unconstitutional.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>2. Carriers (§ 12*) — State Regulation of Rates — Reasonableness of Rates.</p> <p>Where it appears from the evidence that the net earnings of a railroad company from intrastate business under a rate fixed by state authority will approximate a sum that would give a fair return on the value of the property devoted to the service, and the evidence consists largely of opinions as to values upon, which the witnesses differ considerably, a federal court is not justified in declaring such rate confiscatory.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p>

<p>1. Bankruptcy (§ 44*) — Corporations—Filing Petition — Authority.</p> <p>Directors of a Pennsylvania corporation, without special authority from stockholders, have power to authorize the filing of a petition to have the corporation declared a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 43-46; Dec. Dig. § 44.*]</p> <p>2. Bankruptcy (§ 43*) — Corporation—Voluntary Petition — Insolvency.</p> <p>Insolvency is not a necessary prerequisite to the filing of a voluiitary petition for bankruptcy adjudication against a corporation.</p> <p>[Ed. Note. — Fbr other cases, see Bankruptcy, Cent Dig. § 38; Dec. Dig; § 43.*]</p>

In Equity. Suit by the J. E. Davis Manufacturing Company against the Firemen’s Fund Insurance Company and others to set aside and declare void a certain award of appraisers in proceedings to adjust a fire insurance loss.

<p>Bills and Notes (§ 438*) — Discharge—Cancellation oe . Surrender op. Notes.</p> <p>To induce a creditor of a corporation who had issued an attachment against it to withdraw its attachment and contribute a specified amount to enable the corporation to meet its pressing demands, it was agreed that certain other creditors would release their demands, among whom was the president’s mother-in-law. At his request, the president’s wife obtained her notes from the mother-in-law, stating that the company wanted to show them to a creditor in order to show the amount of the indebtedness to her and that she would bring them bach- to the mother-in-law as soon as she was through with them. The president, however, produced the notes for cancellation at a meeting of the creditors, and, without any inquiry as to his authority to deliver them for cancellation, though they were not indorsed by the mother-in-law, the signatures were torn oft and they were treated as canceled. Held, that the notes were not in fact discharged, as the president had no authority to surrender them for cancellation, having obtained them for a specific purpose, and there was no reason for applying the doctrine of estoppel, as the notes on their face showed the president’s lack of title.</p> <p>[Ed. Note. — Eor other eases, see Bills and Notes, Gent. Dig. §§. 1277, ■ 1278; Dec. Dig. § 438.*]</p>

In Equity. Suit by the Portland Railway, Light & Power Company against the City of Portland to enjoin the enforcement of a city ordinance requiring street railway companies in the city to sell six tickets for 25 cents. On motion to dismiss.

<p>1. Seamen (§ 6*) — Contract of Employment — Construction — Term of Service.</p> <p>Articles by wbicbi a seaman engaged for service on-a steamship for “one or more trips” from New York to Savannah and return to New York or Boston, and such other coastwise ports or places as the master might direct, for a term not exceeding one calendar month, the port of discharge to be New York or Boston, as practically construed by the parties, held not to bind the seaman to serve more than one round trip.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 8-18; Dee. Dig. § 6.*] •</p> <p>2. Seamen (§ 33*) — Wages—Failure to Pay on Termination of Service— Validity of Contract — Construction of Statute.</p> <p>The provisions of Rev. St. § 4529, as amended by Act Dec. 21, 1898, c. 28, § 4, 30 Stat. 756 (TJ. S. Comp. St. 1901, p. 3077), requiring the payment of seamen within two days after the termination of their term of service or on their discharge if before that time, under penalty of payment of wages during the time such payment is delayed, if “without sufficient cause,” cannot be abrogated by contract between the parties, and a failure to pay within the time prescribed, in reliance on the terms of such a contract, is without sufficient cause and does not relieve the shipowner from such penalty to be computed to the time payment is made or tendered.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 218, 219; Dec. Dig. § 33.*]</p>

<p>Shipping (§ 209*) — Suit for Limitation op Liability — Pleading and Procedure.</p> <p>In a suit for limitation of liability, the court will not determine petitioner’s liability and right to limitation before passing on an appraisal of the vessel and stipulation for value, nor have damage claimants any standing to raise or contest such issues until they have been brought in- by monition,- presented their claims, and answered the petition as permitted by admiralty rule 56 (13 Wall. xiii).</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 646-655, 659, .661, 662; Dec. Dig. § 209.*]</p>

Application by K. Gregory and others for a writ of habeas corpus to secure a discharge from certain deportation warrants in immigration proceedings.

<p>Salvage (§ 10*) — Right to Compensation- — Saving Ship ebom Fiee.</p> <p>Salvage awards made to a number of tugs for the rescue of a steamship from her slip, where she was in serious danger from an oil fire.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 18-20; Dec. Dig. § 10.*)</p>

<p>Prosecution by the United States against David Lamar, alias7 David H. Lewis. On application to forfeit defendant’s bond.</p>

<p>Courts (§ 262*) — Jurisdiction or Federal Courts — Joinder oe Causes or Action.</p> <p>Under Equity Rule 26 (198 Fed. xxv, 115 C. C. A. xxv), authorizing a joinder of causes of action, a suit of which a federal court has jurisdiction because of the nature of the cause of action cannot be used as a means for bringing within its jurisdiction a different cause of action between the same parties, over which the court would have jurisdiction only on the ground of diversity of citizenship which does not exist.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §| 797, 798; Dec. Dig. § 262.*]</p>

Sanford, Judge. Action by W. K. Anderson, administrator of Ray Farmer, deceased, against the Louisville & Nashville Railroad Company. To review a judgment of dismissal, plaintiff brings error. Plaintiff’s decedent, Ray Farmer, was in the employ of the railroad company as a brakeman on its line between Etowah, Tenn., and Corbin, Ky. Ha was a resident of Whitley county, I-Cy., and the railroad company is a corporation of that state.

<p>1. Appeal and Error (§ 266*) — Necessity oe Exceptions — Report oe Master — Discretion oe Court.'</p> <p>The general rule that, where exceptions are taken to parts of a master’s report, the parts not excepted to will stand as correct, and will not he open to review in an appellate court, is subject to the exception that if the report is clearly erroneous in any particular it is within the discretion of the court to correct the error.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1552-1565, 1568-1571; Dec. Dig. § 266.*]</p> <p>2. Equity (§ 427*) — Decree—Conformity to Prayer.</p> <p>Suits in chancery are tried and reviewed in view of the fact that a court of equity has, and frequently exercises, the power, where justice may thereby be done, to grant to litigants the right remedy although they have sought the wrong one.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 1001-1014; Dec. Dig. § 427.*]</p> <p>3. Appeal and Error (§ 274*) — Appeals in Equity — Powers oe Appellate Court — Scope oe Review.</p> <p>A federal appellate court in an equity suit is not compelled to affirm an unjust decree, nor is the appellant so conclusively estopped that it may not attack such a decree by the fact that it gave a wrong reason for its exceptions to the erroneous conclusion of the master which it assails.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605, 1606, 1607, 1624, 1631-1645; Dec. Dig. § 274.*]</p> <p>4. Appeal and Error (§ 266*) — Appeals in Equity — Report oe Master— Exceptions to Conclusions.</p> <p>Where it appears on the face of a master’s report that he has drawn an erroneous conclusion from the facts he found, the absence of an exception does not disable an appellate court from correcting the error and entering a just final decree.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1552-1565, 1568-1571;' Dec. Dig. § 266.*]</p> <p>5. Railroads- (§ 30*) — Reorganization—Participation oe Stockholders— Liability eor Debts oe Old Company.</p> <p>A reorganization of an insolvent corporation, by which both its mortgage bondholders and its stockholders in exchange for their bonds and stock are given an interest in the new company, which purchases the property of the old company at a foreclosure sale made pursuant to such plan of reorganization and by the consent of the old company and its stockholders is fraudulent in law as to unsecured creditors of the old company, whose claims are left unpaid, and renders the new company liable for the claims of such creditors, ■ at least to the extent of the value of the interest in the new company secured by the stockholders of the old company.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 32; Dec. Dig. § 30.*]</p> <p>6. Equity (§ 426*) — Jurisdiction—Granting Affirmative Relief to Defendant.</p> <p>That a claim has not been reduced to judgment and an execution returned unsatisfied does not prevent the creditor from asserting the liability o' a fraudulent trustee tlierefor in a federal court of equity in a suit to which the creditor is made a party defendant and wherein the court has acquired jurisdiction of the subject-matter and the parties, and where the adjudication of such liability is necessary to the disposition of the case.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 999, 1000; Dee. Dig. § 426.*]</p> <p>7. Railroads (§ 30*) — Reorganization—Participation bi Stockholders— Rights op Creditors.</p> <p>Where the property of a corporation through a reorganization plan, and a consent decree of foreclosure was acquired by a new company in which the stockholders of the old were given an interest by an exchange of their stock for stock of the new company, thus withdrawing such property from the reach of unsecured creditors of the old company, such a creditor is not limited to his remedy against the exchanging stockholders, but nmy hold the new company liable as a fraudulent trustee of the property.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 32; Dec. Dig. § 30.*]</p> <p>8. Railroads (§ 30*) — Reorganization—Participation of Stockholders— Liability for Debts of Old Company.</p> <p>Where, through a reorganization scheme, the property of a corporation was purchased by a new company under a consent decree of foreclosure, and the stockholders of the old company were given in exchange for their stock, bonds, and stock of the new company of substantial value, leaving the claims of unsecured creditors of the old company unpaid, the new company is estopped to deny that the equitable interest of such creditors in the property was at least equal in value to the amount it paid the stockholders.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 32; Dec. Dig. § 30.*]</p> <p>9. Railroads (§ 30*)- — Reorganization—Participation of Stockholders — • Liability for Debts of Old Company — Remedies of Creditor.</p> <p>In such case the remedy of a creditor in equity is not limited to a decree subjecting the property to his claim although he is entitled to such remedy, but he may recover directly against the new company to the extent of the value of such payment to the stockholders, which in equity belonged to its creditors.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 32; Dec. Dig. § 30.*]</p> <p>10. Railroads (§ 30*) — Reorganization—Rights of Creditors — Estoppel.</p> <p>The fact that a creditor of the old company, which was also a stoek-holder, joined in the reorganization agreement, assisted in its promotion,' and exchanged its stock thereunder for the bonds and stock of .the new company, did not estop it from enforcing its claim against such com* pany, where the agreement did not contain anything requiring the committee in charge, or the new company as successor in trust to the stockholders of the old, to violate their legal obligation to provide for the debts of the old company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 32; Dee. Dig. § 30.*]</p> <p>11. Railroads (§ 30*) — Reorganization—Rights of Creditors — Laches.</p> <p>A creditor of a corporation held not barred by laches from prosecuting its claim against a new corporation which acquired the stock and property- of the debtor under such circumstances as to render it and the property in its hands liable for the debts of the old company.</p> <p>[Ed. Note. — For. other cases, see Railroads, Cent. Dig. § 32; Dec. Dig. § 30.*]</p> <p>12. Appeal and Error (§ 1175*) — Appeals in Equity — Entry op Final Db- • oree — Variance prom Prayer por Relief.</p> <p>An appellate court in an equity suit lias power to remand the case to permit the filing of new or amended pleadings by a party praying for the specific relief to which such party is shown by the proofs to be entitled; but, where such new pleadings would serve no useful purpose, it .may enter a final decree granting such relief, although different from that prayed for.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p> <p>13. Estoppel (§ 52*) — Nature and Elements op Estoppel — “Estoppel in Pais.”</p> <p>The indispensable elements of an “estoppel in pais” are: (1) Intentional or reckless misrepresentation of a known and material fact inconsistent with the subsequent claim of him who makes the misrepresentation ; (2) ignorance of the truth and absence of equal means of knowledge of it by the party who claims the estoppel; (3) action by the latter induced by the misrepresentation and injury to the latter if the truth is permitted to be proved.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. § 52.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2497-2508; vol. 8, p. 7655.]</p>

<p>1, Contracts (§ 29*) — Frauds, Statute of (§ 159*) — Making of Contract— Question foe Jury.</p> <p>A memorandum, sliown to be a specification of machinery for defendant’s cotton mill, designating certain items to be furnished by plaintiff ■with, the aggregate price of the same marked thereon, with testimony that such items and price were agreed upon between the parties, and that the memorandum.was then delivered by defendant to plaintiff as the basis for a formal contract to be drawn and signed later, together with letters subsequently written by defendant to plaintiff, expressly recognizing the existence of a contract with plaintiff for that particular work, and disclosing a knowledge on the part of defendant that plaintiff was .proceeding to carry out such contract, held sufficient evidence to require the submission to the jury of the question whether a contract was made, and whether it was sufficiently evidenced under the statute of frauds although the formal writing was never executed.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 141-143, 1824; Dec. Dig. § 29 ;* Frauds, Statute of, Cent. Dig. § 378; Dec. Dig. § 159.*]</p> <p>2. Contracts (§ 32*) — Formal Requisites — Agreement to be Reduced t,o Writing. <</p> <p>Although the parties to a verbal agreement, the terms of which are mutually understood and agreed upon, contemplate that it is to be reduced to writing and signed, yet, if the understanding is that this is simply to be done as a memorial of the agreement, it is binding notwithstanding it is never put to writing.</p> <p>[Ed. Note.' — For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. § 32.*]</p>

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>The Hocking Valley Railway Company was convicted of offenses (194 Fed. 234), and it brings error.</p>

Killits, Judge. The Sunday Creek Company was convicted of soliciting and accepting discriminatory rates-from a railroad company (194 Fed. 252), and it brings error.

Middleton Smith, Judge. Petition by the Columbus Buggy Company and others for an adjudication of bankruptcy against D. H. Counts and D. H. Counts, Jr., as copartners doing business as D. H. Counts & Son, and against D. H. Counts individually. From a decree adjudging D. H. Counts, individually, an involuntary bankrupt, he appeals.

Petition to Revise Order of the District Court of1 the United States for the Southern District of New York. • In the matter of the bankruptcy proceedings of Sherwoods, Incorporated. From an order allowing certain claims of the Berghoff Brewing Association under a lease to the bankrupt, Frederick M. Leonard, as trustee, appeals and petitions to revise.

On Cross-Writs of Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge, Action at law by Keen D. Smith against the Atlantic Coast Dine Railroad Company. Judgment for defendant, and both parties bring error.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Martinsburg, in Bankruptcy; Alston G. Dayton, Judge.</p> <p>In the matter of Charles Town Light & Power Company, bankrupt. From an order allowing the claims of the Hanover Sayings Fund Society, the People’s Bank of Hanover, and John R. Bittinger, bondholders,'against the proceeds of the mortgaged property, Amelia Davis, trustee, and others, appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge. -</p> <p>Action at law by the General Electric Company against Charles M. Alderson and Samuel Stephenson. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Ebrok (§§ 209, 1001*) — Review — Verdict — Proceedings in Trial Court.</p> <p>A jury’s verdict is not subject to review unless there is an entire absence of substantial evidence to sustain it, and there has been a request for a peremptory instruction and an exception taken to the ruling of a trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1290-1298, 1300, 1303, 3922, 3928-3934; Dec. Dig. §§ 209, 1001.*]</p> <p>2. Appeal and Error (§ 209*) — Findings by Court — Review.</p> <p>Where an action at law is tried to the court and a jury is waived, the-court’s general finding stands as the verdict of a jury and may not be reviewed unless the lack of evidence to sustain the finding has been suggested by a ruling thereon or a motion for judgment, or some motion to-present to the court the issue of law so involved before the close of the-trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1290— 1298, 1300, 1303; Dec. Dig. § 209.*]</p> <p>3. Evidence (§ 450*) — Parol Evidence — Accident Policy — Premium Payments — Eppect.</p> <p>Where, in an action on an accident policy for the amount paid in satisfaction of a judgment for injuries to one of plaintiffs’ employes, defendant claimed that the employe was not covered by the policy because he was a common laborer and not a “steel man,” and it appeared that the policy, while intended to cover all employes, classified them by certain designations, and that defendant’s auditor, on inspecting plaintiff’s pay roll, demanded and received an additional premium payment, a question, asking one of the plaintiffs what employes’ compensation was included in-such payments, was admissible and not objectionable as tending to vary the written contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. § 450.*]</p> <p>4. Evidence (§ 553*) — Hypothetical Questions.</p> <p>Where a witness testified that he would class a man who worlced about a building in process of construction as a utility man and did all kinds of menial labor as a common laborer and not as a steel man, the court did not err in permitting the witness to ask a hypothetical Question hypothesizing the different acts of the servant connected with the building, and asking whether the witness would say that such a man was working in the capacity of a “steel man” or as a common laborer.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*</p> <p>Facts which must be included in hypothetical questions, see note to McIntyre v. Modern Woodmen of America, 121 C. C. A. 10.]</p>

<p>1. Master and Servant (§ 286*) — Action eor Injury to Servant — Negligence oe Master — Question eor Jury.</p> <p>A car heavily loaded with pig iron and having no brake was moved from where it stood on the “cripple” track in defendant’s yards to another yard at a considerable distance and there left standing on an inclined track. A block was placed under a wheel, but in taking up the slack to uncouple the engine the jar, although not unusual, caused the car to override the block, and it ran down the grade and struck and killed plaintiffs intestate, who was a brakeman in the yard. The reason lor moving it in its defective condition was not shown, but the movement was made by direction of the yardmaster, and the conductor in charge testified that he did not know the car had no brake. Held, that the proximate cause of the injury was the defective condition of the car, that the duty of controlling and safeguarding its movement was a primary duty of the master, which, the defendant could not delegate, and that under the evidence whether it was negligent in causing such movement, and-especially without advising the person in charge of the defective condition of the car, was a question for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1083, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.2]</p> <p>2. Master and Servant (§ 289*) — Action eor Injury to Servant — Contributory Negligence.</p> <p>Deceased, with three others, was engaged in reeling a fire hose on the switch engine when the car approached. Two of the others, who were on either side of him, got off the track. The third climbed into the cab, and deceased was following him when he was struck. Held, that the question of his contributory negligence was 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>1. Indians (§ 13*) — Lands—Nattjke or Title.</p> <p>Under Act Aug. 7, 1882, e. 434, 22 Stat. 342, § 5, authorizing allotments of land to members of the Omaha Tribe of Indians, and section 6, providing that upon the approval of such allotments, the Secretary of the Interior shall cause patents to issue which shall be of the legal effect, and declare tliat the United States will hold the land allotted for 25 years in trust for the sole use and benefit of the allottee, or, in case of his decease, of his heirs according to the laws of Nebraska, and that at the expiration of such period the United States will convey it by patent to such Indian, or his heirs, in fee discharged of the trust, by operation of the law and the preliminary patent the equitable interest subject to the restrictions contained in the statute, and possibly to the plenary power of Congress to enact legislation for the government of Indians, passed to the allottee, while the legal title was retained by the government for 25 years.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p> <p>2. Indians (§ IS*) — Descent—Jurisdiction of Courts.</p> <p>Act June 25, 1910, c. 431, 36 Stat. 855, providing that when any Indian to whom an allotment of land has been made dies before the expiration of the trust period without a will, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and that his decision thereon shall be final and conclusive does not violate Const, art. 3, § 1, vesting the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish, and section 2, providing that the judicial power shall extend to all eases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority; since, while the judicial power of the United States extends to cases in equity arising under the laws of the United States, the jurisdiction of a particular court created by Congress may be limited by Congress to a portion only of such judicial power, and that act, therefore, so far as it conflicts therewith, repealed Act Aug. 15, 1894, c. 290, 28 Stat. 305, providing that persons in whole or in part of ■ Indian blood or descent entitled to an allotment, or claiming to be so entitled, or to have been unlawfully denied or excluded from any allotment or parcel of land,,may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper Circuit Court of the United States, and the amendatory act (Act Feb. 6, 1901, c. 217, 31 Stat. 760), authorizing the circuit courts to try and determine-any such action, and providing that the judgment or decree of any such court in favor of any claimant shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allotted and approved by him.</p> <p>[Ed. Note. — For other eases, see Indians, Cent. Dig. § 49; Dec. Dig. § 18.*]</p> <p>•3. Indians (§ 18*) — Descent—Jurisdiction oe Courts.</p> <p>If, notwithstanding Act June 25, 1910, c. 431, 36 Stat. 855, providing that when any Indian to whom an allotment has been made dies before the expiration of the trust period without a will, the Secretary of the Interior shall ascertain the legal heirs of such decedent, and that his decision thereon shall be final and conclusive, the courts will interpose and protect the equities and rights of persons to lands, where such rights are infringed because of erroneous procedure of the officers of the Land Department either upon the facts or upon the law, they would not determine who were the heirs of a deceased allottee, where the Secretary of the Interior had not as yet passed upon that question.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 49; Dec. Dig. § 18.*]</p> <p>4. Indians (§ 18*) — Lands—Descent—Children of Plural Marriages,</p> <p>Congress not having prohibited plural marriages among tribal Indians, the children of polygamous marriages, made while the parties were members of an Indian tribe whose customs permitted polygamy, were lawful heirs of their father; the state laws regulating marriage not applying, as members of an Indian tribe owe no allegiance to tbe state while in tbeir tribal relation, and receive from the state no protection.</p> <p>[Ed. Note. — For other eases, see Indians, Cent. Dig. § 49: Dec. Dig. § 18.*]</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; W. H. Munger, Judge.</p> <p>Suit by Simeon Hallowell against John M. Commons, as Acting Indian Agent, etc., and another. From a decree dismissing the bill, complainant appeals.</p>

Petition by the A. D. Howe Machine Company for writ of mandamus against Hon. Alston G. Dayton, United States District Judge for thé Northern District of West Virginia, to compel alleged compliance with the original decree in a suit for infringement of patent after affirmance on appeal.

Orr, Judge. Action by Francis J. Torrance, trustee of the estate of William H. Graham, bankrupt, and Justus Mulert, trustee of the estate of M. K. Salsbury, bankrupt, against the Third National Bank of Pittsburgh. Judgment for defendant, and plaintiffs bring error.

. Action at law by Anthony S.- Hannay and others against the Guaranty Trust Company of New'York. Judgment for plaintiffs, and 'defendant brings error. This case comes up on writ of error to review a Judgment rendered in the District Court for the Southern District of New York. The defendants in error were the plaintiffs below, and the plaintiff in error was the defendant below, and will be hereinafter so called.

<p>In Errpr to the District Court of the United States for the Western District of Texas; Thos. S. Maxey, Judge.</p> <p>Action at law by Alberto Sandoval and others against Theo Priest and others. Judgment for defendants, and plaintiffs bring error.</p> <p>The plaintiffs in error on this cause brought suit in trespass to try title to recover the title and possession of a tract of land containing about 82 acres alleged to be of the reasonable cash market value of $309 per acre, situated in Bexar county, Tex.</p> <p>The defendants in error pleaded, as against plaintiffs in error, not guilty, and the statutes of limitations of three, five, and ten years.</p> <p>The plaintiffs in error claimed title by descent from their father; Carlos Sandoval, who was a grandson of Maria de Jesus Carbajal, who was the first wife of Mariano Kodriguez, who purchased the entire Gavino Valdez grant including the land in controversy in Bexar county, Tex., which was granted by the Spanish government to Gavino Valdez, the parish priest of the village of San Fernando, now the city of San Antonio, in 1798. Mariano Rodriguez married his first wife, Maria de Jesus Carbajal, in the year 1S00. On September 15, 1809, Mariano Rodriguez purchased the entire Valdez grant from the original grantee, and conveyance duly made. The said first wife of Mariano Rodriguez died in 1832, and plaintiffs in error are Adelaida Lopez de Sandoval, the wife of her grandson, and Alberto Sandoval and Felix Sandoval, her great-grandchildren.</p> <p>On the trial in the lower court, after plaintiffs in error had introduced their evidence in chief, the trial court announced that if plaintiffs in error had any title it was an equitable title and that it was not necessary for them to proceed further unless they expected to prove that the legal title had been conveyed to them or to some one under whom they claim, or had in some manner become vested in them; and upon the plaintiffs in error announcing that, unless the testimony they had introduced showed that they had a legal title, then they had no legal title, since Mariano Rodriguez at his death left a will, which was duly probated, by the terms of which he bequeathed and devised all of his property, whether real or personal, to three of his children by his second wife, the court announced that it would give to the jury a peremptory instruction to render a verdict in favor of all of the defendants against all the plaintiffs, without requiring the defendants in the lower court to introduce any testimony whatever. And the court gave a peremptory instruction to the jury to return a verdict in favor of all the defendants, against all the plaintiffs, which verdict was returned by the jury under said peremptory inT struction; and the court then rendered judgment that plaintiffs in error take nothing by their suit'against defendants in error, and that defendants In error go without day and recover of plaintiffs in error all their costs, to which judgment the plaintiffs in error in open court then and there excepted.</p>

Circuit Court of the United States for the District of New Jersey. Action at law by the City of Camden against the Armstrong Cork Company. Judgment for defendant, and plaintiff brings error. Affirmed. The following is the Mickle map referred to in the opinion:

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Virginia, at Alexandria, in Bankruptcy; Edmund Waddell, Jr., Judge. In the matter of the Columbia Cotton Oil & Provision Corporation, bankrupt.

Cush-man, Judge. Action by Q. Tweeten against the Tacoma Railway & Power Company. Judgment for defendant, and plaintiff brings error. The parties herein will be designated plaintiff and defendant, as they were • in the court below. The plaintiff was in the employment of the defendant as a common laborer, digging holes for poles to sustain electric wares.

Proceeding by the United States to condemn and acquire land for a site for a United States post office in the borough of the Bronx, city of New York. To review a final order affirming the award of commissioners, the United States and Mary A. Randel and another bring cross-writs of error. On cross-writs of error to the District Court for the Southern District of New York sued out by the United States and by Mary A. Randel and Fanny 5.

<p>Municipal Corporations (§ 1007*) — Claims—Contracts—Submission.</p> <p>Rev. Codes Mont. § 3278, provides that all contracts for work or for supplies or material for which more than $250 must be paid shall be let by the city council to the lowest, responsible bidder, etc. Section 3279 declares that no money must be paid to any person claiming under a contract with the city council until he has first filed with the clerk a statement under oath disclosing the names of all persons interested in the contract or the proceeds or profits thereof. Section 3280 provides for the alteration or modification of such contracts, and section 3281 declares that no allowance for extra work shall be made except by resolution, and an agreement as provided in the preceding section. H-elcl, that a contract .with the city for the construction of a waterworks system was governed by such provisions, and not by sections 3283, 3288, providing that all demands against the city or town must be itemized and verified and presented to the council for allowance within one year from the date of accrual, etc., and hence a claim for a balance due under such contract was not objectionable because not so verified.</p> <p>TEd. Note. — For other cases, see Municipal Corporations, Dec. Dig. § 1007.*]</p>

the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge. Action by Luther M. Patterson' and others against Robinson Bros. & Co. Judgment for plaintiffs and defendant brings error. Reversed, and new trial ordered.

<p>Subrogation (§ 7*) — Surety—Rights op Creditor.</p> <p>Where a state treasurer filed a claim against the receiver of an insolvent bant for unpaid deposits as a general creditor and the bank’s surety paid the balance of such claim and took an assignment thereof from the state, the surety’s right was limited by the rights derived,.from the particular claim so filed, and it was therefore not subrogated to the right of the state to priority of payment, if any.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 17, 18, 21-29, 58, 77, 83, 92; Dec. Dig. § 7*</p> <p>Nature and theory of right of subrogation, see note to Merchants’ & Miners’ Transp. Co. v. Robinson-BaxteiGDissosowa-y Towing & Transp. Co., 113 C. C. A. 434.]</p>

<p>In Error to the District Court of the United States for Jackson Division of the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action by Elise H. Woodruff, as administratrix, etc., against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Youmans, Judge. John S.chaap was convicted of attempting to introduce intoxicating liquor's into the Indian country, and brings error.

<p>Pledges (§ 19*) — Debts oe Liabilities Secueed — t“Holdee.”</p> <p>- A promissory demand note, payable at the Bank of P. to the order of the maker, indorsed by him and delivered to such bank, recited the deposit of certain collateral security for payment of it, or any other liability of the maker to the holder thereof then due, or to become due or thereafter contracted, with full power to the holder to sell, sign, and deliver such security at public or private sale on the nonperformance of the promise to pay or the nonpayment of any of such liabilities, and to apply the residue, after deducting expenses, to pay all of such liabilities as the holder should deem proper, returning the overplus to the maker. Held, that the maker must have meant to give to the word “holder” its well-understood, broad, inclusive, legal meaning, as the one in actual or constructive possession of the note and entitled to recover or receive payment, and not to restrict its meaning to the Bank of P.; and hence, where that bank sold the note and delivered the collateral to the transferee, such transferee could hold the collateral as security for notes held by it on which the maker was liable, though never owned by the Bank of P.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 58-63; Dec. Dig. § 19.*]</p>

<p>1. Aliens (§ 47*) — Right to Enter — Disqualification—Conviction of Misdemeanor Involving “Moral Turpitude.”</p> <p>Conviction of an Englishman of criminal libel against the King by charging him with bigamy in putting away his lawful wife in order to obtain a woman of royal blood was not a conviction of a misdemeanor involving moral turpitude, within Act Eeb. 20, 1907, c. 1134, § 2, 34 Stat. §99 (U. S. Comp. St. Supp. 1911, p. 600), providing that aliens who have been convicted of a felony, or other ¿rime or misdemeanor involving moral turpitude, shall be excluded from the United States.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 106; Dec. Dig. § 47.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4580, 4581.]</p> <p>2. Aliens (§ 54*) — Exclusion — Conviction of Misdemeanor Involving Moral Turpitude.</p> <p>Whether an alien seeking to enter the United States has been convicted of a misdemeanor involving moral turpitude so as to justify his exclusion as provided by Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. p. 899 (U. S. Comp. St. Supp. 1911, p. 500), must be determined by the judgment of conviction, and not from the testimony adduced at the trial.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p> <p>3. Aliens (§ 46*) — Exclusion — Conviction of Misdemeanor Involving Moral Turpitude. ■</p> <p>Where an alien has been convicted of a crime which in its essence does not involve moral turpitude, he cannot be excluded on that ground when applying to enter the United States because of evidence outside the record showing that he is a depraved person.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig.. § 105; Dee. Dig. § 46.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by Chappell & Co., Limited, and another, against Lew M. Fields and another. Judgment for complainants, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the District of Idaho ; Frank S. Dietrich, Judge.</p> <p>Suit by the Washington Water Power Company against Kootenai County and another. From a judgment granting insufficient relief to plaintiff, it appeals.</p>

<p>1. Master and Servant (§ 286*)— Actions for Injuries — Questions for ■ J DRY.</p> <p>In an action by a railroad section band for injuries sustained while he and other employés' were returning to their camp on a number of hand cars, where there was evidence tending to show that the employés upon the car immediately preceding plaintiff’s car negligently slackened their speed without warning, thus causing a collision between such car, plaintiff’s car, and the ear following plaintiff’s car, defendant’s negligence was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>2. Commerce (§ 27*) — Interstate—Railroads—“Interstate Commerce” — Employers’ Liability.</p> <p>A railroad section hand, engaged in ballasting the main track of a railroad which carried freight and passengers between different states, was engaged in interstate commerce within the federal Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65, as amended April 5, 1910, c. 143, § 1, 36 Stat. 291 (TJ. S. Comp. St. Supp. Í911, p. 1322).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*</p> <p>Employés engaged in interstate commerce within employers’ liability acts, see note to Baltimore & O. R. Co. v. Darr, 124 C. C. A. 571.</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]</p> <p>3. Commerce (§ 27*) — Railroads.</p> <p>A railroad section hand, who had been engaged in interstate commerce during the day, was still so engaged while riding on a hand car furnished by the railroad company at the conclusion of his day’s labor, by direction of his foreman, for the purpose, not only of returning from his place of work to the camp maintained by the company, but also for the purpose of taking the hand car to a point where it was to be removed from the track so as to leave the road open to the passage of trains.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>4. Master and Servant (§ 198*) — Relation oe Parties — Accidents while Going to or prom Work.</p> <p>Railroad employes, while being carried as part of their daily service to and from their place of work, are fellow servants, even if there is no agreement that they shall be so carried, if such be the implied agreement or regular custom of the railroad company, assented to by the employés.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 198.*]</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Clinton W, Howard, Judge.</p> <p>Proceeding in admiralty by the Pacific Towboat Company, owner of the tug Argo, for limitation of liability. From a decree awarding damages to Ivan Nordstrom, intervening claimant, petitioner appeals.</p>

This cause comes here upon appeal from a judgment of the District Court, Southern District of New York, in favor of defendant in error, who was plaintiff below.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings of Nathan Abramson and Aaron Fichhandler, individually and doing business as Shavertown Creamery Company. Petition by Aaron Fichhandler to revise an order denying a petition to stay the enforcement of a judgment recovered by the state of New York against the bankrupts for violation of the Agricultural Daw, § 32.

Young, Judge. Bill by %■ R. Goshorn against C. C. Murray, receiver of the Cosmopolitan -National Bank, for an accounting of the proceeds of certain checks deposited by complainant with the bank immediately before it closed. - Judgment for complainant (197 Fed. 407), and defendant appeals;

<p>' 1. Copyrights (§ 12*) — 'Validity—Authorship.</p> <p>' Where complainant’s copyrighted article containing a proposed program for “Peace Day” in the public schools was taken almost exclusively ■ ' from a United States Bureau bulletin compiled by another, complainant i was not entitled to a copyright thereon, for want of original authorship.'</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 14, 15; Dee. . Dig. § '12.*]</p> <p>2. Copyrights (§ 12*) — Material Subject to Copyright — Public Documents.</p> <p>Copyright Act (Act March 4, 1909, c. 320, 35 Stat. 1077 [U. S. Comp. 'St. Supp. 1911, p. 1474]) §■ 7, provides that no copyright shall subsist in the original text of any work which is in the public domain or in any publication of the United States government, or any reprint, or in whole or in part thereof. Held, that an article, entitled “Peace Day in Uncle Sam’s Schools,” purporting to contain a proposed program for observance of such day, taken almost exclusively from a United States bulletin published by the Bureau of Education, and compiled by the secretary of the American School Peace League, was not copyrightable.</p> <p>.[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 14, 15; Dec. Dig. § 12.*</p> <p>Matter subject to copyright, see note to Cleland v. Thayer, 58 C. C. A. 273.]. ■</p>

<p>Bbokebs (§ 49*) — Compensation—Failure to Complete Contract.</p> <p>A contract by which defendant employed plaintiff to procure S. to undertake the sale of 108,000 acres of land for more than $3,000,000 to numerous separate purchasers of separate tracts, to be made during many months of time, provided that if defendant made a sale or sales contract with S. at a price of $35 an acre plaintiff would be paid a commission of 5 per cent, and a further sum of $25,000, conditioned, however, upon the fulfillment of the contract by S., it being thereby agreed that the commission was not earned, due, or payable except upon the fulfillment ol' the contract by S., the contract further providing that when defendant had received the net sum of $300,000 there was earned and would be paid plaintiff $20,000, and that a like sum would be earned and paid when each additional sum of $300,000 had been received by defendant. Relé, that the purpose of the second condition was not merely to fix the time of payment of the commission, but that its chief object was to fix the amount of commission that would be earned under various circumstances, and thereby the damages which plaintiff could recover if a contract was made with S., but not performed by him; and hence, defendant having expressly conditioned its liability for a commission upon the fulfillment by S. of a sale or sales contract and the- receipt by defendant of the sums specified, there could be no recovery where no contract with S. was ever made, conceding that ordinarily a broker may recover, though no legally binding contract has been made between the customer and his principal, if their minds meet on the substantial terms of the contract</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dec. Dig. g 49.*</p> <p>Compensation of broker as dependent on ability or willingness of purchaser to perform contract, see note to Robertson v. Allen, 107 C. C. A. 265.]</p>

<p>In Error to the District Court of the United States for the Eastérn District of New York.</p> <p>Action by Adolph Blau against the Richmond Eight & Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Florida; Wm. B. Sheppard, Judge. Petition by Thomas W. Fielding, referee in bankruptcy, to superintend and revise as matter of law certain rulings of the District Judge in the matter of bankruptcy proceedings of Philips & McEachin, bankrupts, in which T. W. Shands and others are trustees.

<p>1. Trial (§ 168*) — Peremptory Instruction — Form.'</p> <p>A motion for a peremptory instruction at the end of the entire case should be to direct a verdict and not to dismiss the complaint.</p> <p>[IOd. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. § 168.*]</p> <p>2. Brokers (§ 94*)' — Liabilities as to Third Persons — Delegation of Authority — Sales.</p> <p>Where a bank employed a general merchant to sell certain wool, and he employed a wool broker to make the sale, the court properly charged that if the bank either authorized or employed the broker, or, having ascertained that the merchant had employed him to sell the wool, acquiesced in his employment and ratified it, the bank would be liable for the broker’s contract of sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 136; Dec. Dig. § 94.*]</p> <p>3. Appeal and Error (§ 1052*) — Evidence—Damages.</p> <p>Where, in an action for breach of a contract for the sale of wool made May 28, 1909, plaintiff only recovered 2 cents a pound and there was some testimony that such wool sold at 23 cents a pound at the time the wool should have been delivered, and no testimony to the contrary, defendant was not prejudiced by proof that plaintiffs paid 26 cents a pound for such wool in January, 1910.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dee. Dig. § 1052.*]</p>

J. Cochran, Judge. In the matter of the American Fibre Reed Company and the New England Chair Company, bankrupts. From an order denying its claim to the proceeds of certain accounts, the Home Bond Company appeals.

<p>X. Mandamus (§ 1*) — Nature of Remedy — Equity Suit.</p> <p>The remedy by mandamus is essentially and exclusively a legal one, unknown to courts of equity, and hence a. bill in equity, praying for the issuance of mandamus to correct certain tax assessments, was insufficient to establish equity jurisdiction.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*]</p> <p>2. Courts (§ 322*) — Federal Courts — Jurisdiction—Diversity oe Citizenship.</p> <p>Where federal jurisdiction depended entirely on diverse citizenship, and plaintiffs were alleged to be citizens of New York and New Jersey, but there was no allegation as to defendant’s citizenship except that he was the tax assessor of Vernon parish, Ra., diverse citizenship was not shown within the rule that it must appear by positive averment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 876-881, 887; Dec. Dig. § 322.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.1</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Charles A. Willard, Judge.</p> <p>Action by Halvor Engemoen against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment was rendered for defendant notwithstanding a verdict for plaintiff, and plaintiff brings er.ror.</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p> <p>Proceeding in the matter of Maria E. Caponigri, bankrupt. On petition by Walter Cook, Jr., as trustee, to revise an order denying a motion to confirm the report of a special master, and relieving the purchaser at public auction of the right, title, and interest of the bankrupt in certain property in the borough of Brooklyn, city of New York.</p>

In Admiralty. Suit by J. W. Wilson against the Manhattan Canning Company. On exceptions to findings and conclusions of commissioner. Exceptions overruled, and decree for libelant.

In Bankruptcy. In the matter of bankruptcy proceedings of Edward M. Morse. On a motion to vacate a stay of sale in foreclosure proceedings and to strike from the files a certain affidavit attached and referred to in the petition of creditors filed against the alleged bankrupt.

In Equity. Suit by the St. Louis & San Francisco Railroad Company against John T. Barker, Attorney General, and John M. Atkinson, John Kennish, Frank Wightman, H. B. Shaw, and W. F. Woerner, constituting the Public Service Commission, of the State of Missouri, heard with seventeen other cases against the same defendants.

<p>Petition by Pyt Gytl, Tonyj Senkiw, Aleska Plyta, Wasyl Tabazc-ka, and Piotr Czulinski for writ of habeas corpus.</p>

<p>At Law. Action by Joseph Murray and Mary Elizabeth Murray against the Southern Bell Telephone & Telegraph Company and Forest McDuffie. On motion to remand to state court.</p>

<p>At Law. Action by the Eliot National Bank against James D. Gill, Collector of Internal Revenue.</p>

<p>1. Bankbuptcy (§ 198*) — Liens—Attachment—Dissolution—Pbesebvation foe Benefit op Estate.</p> <p>Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 (II. S. Comp. St. 1901, p. 3450), provides that all levies, attachments, or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a bankruptcy petition shall be null and void in case he is adjudicated a bankrupt, unless the court shall order the lien preserved for the benefit of the estate, etc. Held,, that such section dissolves all .attachments obtained within four months before the beginning of the proceeding if it results in an adjudication, though the lien obtained by the levy may be preserved for the benefit of the estate, subject to the exception that the section does not impair the title obtained by a bona fide purchaser for value who shall have acquired the property without notice or reasonable cause for inquiry.</p> <p>[Ed.' Note. — rFor other cases, see Bankruptcy, Cent. Dig. §§ 289, 296-316; Dec. Dig. § 198.*]</p> <p>2. Bankkuptcy (§ 203*) — Claims—Liens—Validity.</p> <p>Where a bankrupt within four months prior to adjudication borrowed funds from claimant bank with which to liquidate the bankrupt’s pay roll, and in good faith pledged certain accounts receivable as security for the loan, the bank taking under circumstances entitling it to the position of a purchaser for value without notice or reasonable cause for inquiry, as provided by Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), was entitled to the benefit of its security as against the lien of an attachment levied after the assignment, and sought to be preserved for the benefit of the estate.</p> <p>[Ed. Note.- — For other eases, see Bankruptcy, Dee. Dig. § 203.*]</p>

<p>In Equity. Suit by William Smith against Mary M. Smith, as executrix of the will of John M. Smith, deceased.</p>

<p>1. BANKRUPTCY (§ 314*)-PROVABLE CLAIMS-NOTES GIVEN FOB CORPORATE Stock.</p> <p>A transfer of corporate stock not stamped as required by Tax Law N. Y. (Consol. Laws, c. 60) § 270, as re-enacted by Laws 1910, c. 38, is not void, although under section 278 no action can be maintained' thereon and notes given for the stock are valid and provable in bankruptcy., [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 469-473, 478, 483-487, 489, 490; Dec. Dig. § 314.*]</p> <p>2. Bankruptcy (§ 407*) — Discharge—Obtaining Property by False Statement — “Obtaining Property on Crebit.”</p> <p>A transfer of corporate stpck to a bankrupt for which he gave his notes secured by a pledge of the stock and a further agreement by the.seller'to extend the time for payment of a debt of the corporation then due, with no additional security except the bankrupt’s promise to pay the debt, constituted an obtaining of property on credit by the bankrupt within the meaning of Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp.. 1911, p. 1496), and, where it was induced by a materially false statement in writing made by .the bankrupt; as to his financial ability, is a bar to his discharge. .</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*]</p>

<p>1. Insurance (§ 478*) — Marine’ Insurance — Construction op Policy — Warranty Against Particular Average — “On Fire” — “Burned.”</p> <p>A clause in a marine policy on cargo, “warranted free from particular average unless the vessel or craft or the interest insured be stranded, sunk or on fire,” is not to be construed as equivalent to the older form in which the word “burned” was used instead of “on fire,” and, in the light of tlie rule that such contracts are to be construed most favorably to the insured if some structural part of the vessel was actually on fire, it is sufficient to open the warranty clause.</p> <p>[Ed. Note.- — For other cases, see Insurance, Cent, Dig. §§ 1230-1238; Dec. Dig. § 478.*]</p> <p>2. Insurance (§ 415*)r — Action on Marine Policy — Defenses.</p> <p>To an action on a marine policy on cargo which covered “the risk of craft and/or raft to and from the vessel,” it is not a defense that a lighter employed to land the cargo, on which a loss occurred, was not seaworthy.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1111; Dec. Dig. § 415.*]</p> <p>3. Insurance (§ 402*) — Risks and Cause op Loss — Marine Policy.</p> <p>There is no implied warranty in a policy, on cargo that the goods are - seaworthy for the -voyage, and, where the vessel was seaworthy when the voyage commenced and the cargo was in good condition when received, the insurer is liable for a loss during the voyage from external causes.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1088-1090, 1093, 1103-1105; Dec. Dig. § 402.*]</p>

<p>Divorce (§ 324*) — Decree — Support op Children — Liability pob Necessaries.</p> <p>A decree, divorcing plaintiff from defendant, gave her the custody of their infant child and adjudged that he pay plaintiff $100 a month until February 1, 1909, and $108.33 for five years thereafter, out of which the child was also to be cared for, but declared that, in the event of plaintiff’s marriage, the alimony should from that day cease, but defendant should not be thereby relieved from his liability, to support the child. Held, that plaintiff having remarried and having expended certain sums in Ohio, Indiana, Illinois, and Virginia for necessaries furnished the child, she was entitled to recover reimbursement therefor pursuant to such decree under the laws of each of such states.</p> <p>[Ed. Note. — For other eases, see Divorce, Cent. Dig. § 826; Dec. Dig. § an *</p>

In Bankruptcy. In the matter of bankruptcy proceedings of H. B. Hollins & Co. On petition of John L. Hogeboom for the application of the proceeds of certain collaterals to the payment of the bankrupt’s drafts. This is a motion to confirm the report of a special master. The petition was filed against a receiver in bankruptcy and is stated.at length below.

<p>Courts (§ 346*,:) — Service by Publication — Attachment—Federal Courts.</p> <p>Jud. Code, § 51 (Act March 3, 191R c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 150]), provides that no civil suit shall be brought before either of the courts of the United States against any person by original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded on diversity of citizenship, snit shall he brought only in the district of the residence of either the plaintiff or the defendant. Rev. St. § 915 (U. S. Oomp. St. 1901, p. 684), declares that in common-law causes in the circuit and district courts plaintiff shall be entitled to similar remedies, by attachment or other process against the defendant’s property, which are now provided by the laws of the state in which the court is held, and that such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in. force in the states where they are held in relation to attachments and other process. Seld that, though Gen. Code Ohio, § 11292, provides for the issuance of foreign attachments on the ground that the defendant is a nonresident, yet, it having been determined that personal service on the defendant is necessary to institute a suit in the federal courts, jurisdiction cannot be acquired by a federal court, of a defendant who is a nonresident of the state and district, by an attachment of his property within the division and district and a publication of the summons in accordance with the state law.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 918; Dec. Dig. § 846.*]</p>

James C. Weber was indicted for having in possession an .obligation, after the similitude of an obligation or security issued under authority of the United States, with intent to sell and use the same. On demurrer to indictment.

In Bankruptcy. In the matter of bankruptcy proceedings of Harry Kramer and Michael Muchnick. Rule to attach the bankrupts for contempt in failing to pay over to the trustee certain funds alleged to have been retained by them and which they were ordered to pay over. Rule absolute.

In Bankruptcy. In the matter of bankruptcy proceedings of the Double Star Brick Company. Application of Thomas B. Fernandez to set aside adjudication. • An application is made by creditors for the vacation of an order adjudicating the Double Star Brick Company a bankrupt.

<p>1. Removal or Causes (§ 112*) — Proceedings After Removal — Objections to Process.</p> <p>Sufficiency oí process by which a suit has been commenced in a state court may be raised in a proper manner after removal to a federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 238; Dec. Dig. § 112.*]</p> <p>2. Process (§ 164*) — Defective Return — Correction by Amendment.</p> <p>Where process has been properly served, but the return of the officer is insufficient, the defect may be corrected by an affidavit of the officer showing the facts.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 176, 239-248; Dee. Dig. .§ 164.*]</p> <p>3. Process (§ 164*) — Return—Amendment.</p> <p>Gen. Code Ohio, § 11288, provides that in an action against a railroad company summons may be served on any regular ticket or freight agent of the company, etc. In such an action the sheriff’s return recited that he summoned the defendant by delivering to S., freight agent of the company, a true and certified copy of the writ, etc. Held that, though such return was defective for failure to state that the summons was served on the “regular” freight agent of defendant, such defect was cured by an affidavit of the officer that to his personal knowledge the person served was the regular freight agent of defendant railroad company, and that the word “regular” was not inserted in the return by oversight of the officer.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 176, 239-248; Dec. Dig. § 164.*]</p>

<p>Bankruptcy (§ 244*) — Depositions.—Authority op Bankruptcy Court.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 21b, 80 Stat. 55.2 .(U.-S. Comp. St. 1901, p. 3430), that “the right to take depositions in proceedings' under th^ act shall be determined and enjoyed according to the United States laws now in force or such as may be hereafter enacted relating to the taking of depositions except as herein provided,” confers on courts of bankruptcy the same powers in relation to the taking of depositions as are possessed by the federal courts in civil actions, and the proviso of section 41a, “that no person shall be required to attend as a witness before a referee at a place outside of the state of his residence and more 'than 100 miles from such place of residence;” does not limit the authority given by Rev. St. § 863 (U. S. Comp. St. 1901, p. 661), to take the deposition of any witness who lives at a greater distance from the place of trial than 100 miles, whether within or without the state.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 244.*]</p>

At Raw. Action by T. W. Withoft, trustee in bankruptcy of the Stone Canon Mercantile Company, against the Western Meat Company and others. The suit was brought by the plaintiff to recover damages for the alleged conversion of a stock of goods belonging to the bankrupt.

<p>At Law. Action by J. W. Smith and others against the Atchison, Topeka & Santa Fé Railway Company. On motion by plaintiffs to remand to the state court.</p>

<p>Aliens (§ 51*) — Deportation—Grounds.</p> <p>An alien employed as a cook in a bouse of prostitution is squarely within the provisions of Immigration Act (Act Feb. 20, 1907, c. 1134) § 3, 34 Stat. 899 (U. S. Comp. St. Supp. 1911, p. 502), providing that any alien who is “employed by, in and in connection with any house of prostitution” shall be deemed to be unlawfully within the United States and shall be deported.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 111; Dec. Dig. § 51.*]</p>