Volume 211 — Federal Reporter

<p>In Error to the District Court of the United States for the Western District of Tennessee; Jno. E. McCall, Judge.</p> <p>Action by Mollie Moseley and others against the Railway Mail Association. Judgment for plaintiffs, and defendant brings error. Affirmed.</p>

<p>1. Baileoads (§ 229*)—Safety Appliance Act—Constbuotion—Equipment of Cabs—“On its Line.”</p> <p>The Safety Appliance Act of March 2, 1893, c. 196, § 2, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), which mates it unlawful for a railroad engaged in interstate commerce to use “on its line” any car not equipped with automatic couplers, etc., applies to cars being moved in switching operations, in which, in fact, the greater part of the coupling and uncoupling of cars is done.</p> <p>[Ed. Note.—For other cases, see Bailroads, Cent. Dig. § 748; Dec. Dig. § 229.*]</p> <p>2. Baileoads (§ 229*)—Safety Appliance Act—Equipment of Cabs.</p> <p>It is not a defense to an action for violation of such provision by using a ear with a defective and inoperative coupler that the car to which it was coupled was in perfect condition, and that the two could have been uncoupled without the necessity of going between them.</p> <p>[Ed. Note.—For other cases, see Bailroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>3. Baileoads (§ 229*)—Safety Appliance Act—Action fob Violation—Defenses.</p> <p>To bring a railroad company within the protection of Act April 14, 1910, c. 160, § 4, 36 Stat. 299 (U. S. Comp. St. Supp. 1911, p. 1328)', which provides .that, where a car shall have been properly equipped, but the equipment shall become defective while being used, it may be hauled from the'place where it is'first discovered “to the nearest available point where such car can be repaired without liability for the penalties * * * if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point,” it must be shown, not only that the repairs could not have been made where the defect was discovered, but that the movement of the car was for the purpose of making the repairs.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>4. Railroads (§ 229*)—Safety Appliance Act—Action for Violation—Defenses.</p> <p>It is not the duty of a government inspector, on discovering that a railroad company is using a defective car in violation of the statute, to notify the company of such fact.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>5. Railroads (§ 229*)—Safety Appliance Act—Train Brake Provisions— Construction.</p> <p>The provisions of the Safety Appliance Act of March 2, 1893, c. 196, § 1, 27 Stat. 531 (II. S. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, § 2, 32 Stat. 943 (U. S. Comp. St. Supp. 1911, p. 1315), and supplemented by an order of the Interstate Commerce Commission, requiring that in any train operated by power or train brakes at least 75 per cent, of the cars shall be so equipped that their brakes can be operated by the engineer, do not apply to switching operations, and the movement by a switching crew of defendant railroad company of a' string of cars from one terminal yard to another in the same city, for distribution of the ears into outgoing trains, in accordance with the practice in the modem system of freight terminals, was a switching operation, although the distance between the yards was two miles and the cars were moved over a main line track also used hy other roads.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*</p> <p>Duties of railroad companies to furnish safe appliances, see note to. Felton v. Bullard, 37 C. C. A. 8.]</p> <p>6. Words and Phrases—“Train.”</p> <p>The word “train” covers any string of ears hauled by an engine.</p> <p>[Ed. Note.—For' other definitions, see Words and Phrases, vol. 8, pp. 7056, 7057, 7818.]</p> <p>Hook, Circuit Judge, dissenting in part.</p>

<p>1. Judgment (§ 17*)—Process to Sustain—Substituted Service.</p> <p>Personal service of process on a nonresident of Texas without that state as authorized by a statute of that state will support a judgment foreclosing a vendor’s lien on land owned by such nonresident within the state and ordering its seizure and sale, but not awarding any relief against such nonresident personally.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 25-33, 157, 422; Dec. Dig. § 17.*]</p> <p>2. Vendor and Purchaser (§ 277*)—Vendor’s Lien—Enforcement—Venue— Objections—Waiver.</p> <p>In view of Const. Tex. art. 5, § 8, and Rev. St. Tex. 1895, art. 1098, giving the District Court original jurisdiction in suits to enforce liens on land, article 1194, subd. 12, providing that a suit for the foreclosure of a mortgage or other lien may be brought in the county in which the property subject to the lien or -a part thereof may be situated, does not deprive the District Courts of jurisdiction of the subject-matter of suits to enforce liens on land situated in other counties, but only gives the defendant a privilege to be sued in the county in which the land is situated, which may be waived and is waived by defaulting or by appearing and consenting to judgment, notwithstanding the omission of any statutory provision authorizing a plea of privilege in such case; this not justifying the inference that no such plea is recognized.</p> <p>' [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig.. §§ 774, 775; Dee. Dig. § 277.*]</p> <p>3. Vendor and Purchaser (§ 285*)—Lien Foreclosure—Judgment.</p> <p>A judgment foreclosing a vendor’s lien was not void as to the nonresident owner who defaulted, because the vendor who indorsed the lien notes to plaintiff and was liable thereon voluntarily appeared and consented to the bringing of the suit in a county other than that in which the land was situated and to the entry of judgment, as plaintiff could have taken final judgment against the land without such appearance and consent by dismissing against such vendor, and such appearance and consent therefore did not affect the owner.</p> <p>[Ed. Note.—For other eases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.*]</p> <p>4. Constitutional Law (§ 42*)—Persons Entitled to Raise Constitutional Questions.</p> <p>Whether Rev. St. Tex. 1895,-art. 1230 et seq., providing for service of process on nonresidents and that a defendant so served shall be required to appear and answer in the same manner as if he had been personally served within the state in connection with article 1263, providing that, where a citation has been personally served at least ten days before the first day of the term at which it is returnable, defendant’s answer shall be filed on or before the second day of the return term, denies due process of law to nonresidents personally served outside the state because of the possibility that they might have only 12 days in which to appear and answer, will not be determined at the instance of a nonresident defendant who had ample time in which to appear and answer.</p> <p>[Ed. Note.—For other cases,, see Constitutional Law, Cent. Dig. §§ 39, 40; Dee. Dig. § 42.*]</p> <p>5. Vendor and Purchaser (§ 287*)—Foreclosure of Lien—Sale—Validity.</p> <p>At a sale under a judgment foreclosing a vendor’s lien on property worth $35,000 and subject to a prior lien of $9,000 or $10,000, plaintiff, who was a transferee of the lien notes, was prepared to bid $3,000, the approximate amount of the judgment, but was informed by -the vendor that he would pay plaintiff the difference between his bid and the judgment ; plaintiff’s interest in bidding being thereby taken away. Payment of the prior lien had been assumed by such vendor in the sale to the vem dee, and another purchase-money note for $15,000 given by the vendee had been postponed by the vendor’s agreement to the lien of plaintiff’s note, and, though one present at the sale who made inquiry was told of such liens by plaintiff, the vendor, or the sheriff in their presence and with their acquiescence, these facts were not explained to him, and, unexplained, the liens were such as to destroy his interest in the property. The land was sold to the original vendor for $676. Held, that the sale was collusive and fraudulent as to the vendee and should be set aside and the sheriff’s deed declared null and void because of such fraud and collusion.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 810-814; Dee. Dig. § 287.*]</p>

B. Sheppard, Judge. Action by L. Hilton-Green and another, as executors of C. L. Wiggins, deceased, against the Mutual Life Insurance Company of New York. Judgment for plaintiffs, and defendant brings error. This was an action to recover upon four policies of life insurance, issued by the plaintiff in error (defendant in the trial court) at one and the same time to the intestate.

Morrow, Judge. William Stewart was convicted of murder, and he brings error. The plaintiff in error, hereinafter designated the defendant, was jointly indicted with one John B. Goodwin for the crime of murder in the killing of one Fred Kibbe.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by James Daniels against-the City of Harper, Kan. Judgment for 'plaintiff, and defendant 'brings error.</p>

Geiger, Judge. Action by the National Pole Company against the Chicago & Northwestern Railway Company. Judgment (200 Fed. 185) for defendant, and plaintiff brings error.

Sloan, Judge. Application by Jim Hong for a writ of habeas corpus. Held: but alleging “that the said complaint and the said warrant aré fatally defective in that it appears from the face thereof that neither said complaint nor said warrant state any facts sufficient to constitute the offense of being unlawfully within the United States, nor are any facts stated from which it can appear that your…

ín Error to the District Court'of the United States for the District of Nevada; Edward S. Farrington, Judge. Action by A. S. Benner, as administrator of the estate of Clarence J. Benner, deceased, against the Truckee River General Electr-ic. Company. Judgment for plaintiff, and defendant brings error.

<p>1. Corporations (§ 560*) — Receiverships — Intervention — Motions — Evidence.</p> <p>Where, in a receivership suit against a corporation, a bondholder obtained ah order to show cause why he should not be permitted to intervene and move to reopen an order confirming a sale of the corporation’s property and to set such sale aside, the motion was to be decided upon the affidavits of both parties as well as upon anything relevant in the record of the cause, and the moving party’s affidavits were not to be taken as true.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*]</p> <p>2. Corporations (§ 560*)—Receiverships—Powers oe Receiver.</p> <p>The District Court had power to authorize the receiver of a corporation to borrow money with which to buy a mortgage on the corporation’s property prior to a corporate mortgage securing the bonds of the corporation, in order that the sale of the property might be had in that court instead of the state court, and the receiver was bound to hold such mortgage as security for the lenders of such borrowed money until they were repaid.</p> <p>[Ed. Note.—For other eases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*]</p> <p>■3. Corporations (§ 573*) — Reorganization — Sale of Property — Setting Aside.</p> <p>N., the holder of a bond for $1,000 of a corporation having outstanding bonds amounting to more than $1,200,000 and which was in the hands of a receiver, joined a small syndicate of bondholders whose object was to get control, for their own benefit, of a mortgage on the corporation’s property prior to a cqrporate mortgage securing such bonds, and who did purchase such mortgage. Thereafter a reorganization committee acting for all the bondholders and a committee representing such syndicate met and outlined a plan of reorganization for the equal benefit of both parties, involving the turning over of such mortgage to a new reorganization committee. A new reorganization agreement was executed by six of the seven managers of the syndicate. The reorganization committee arranged to borrow and loan to the receiver enough money to purchase such mortgage, and this was approved by the court and the mortgage assigned to' the receiver, the syndicate .returning to its subscribers the amounts paid by them . except 10 per cent, to cover the expenses of the managers. The new reorganization committee issued a series of notices to all bondholdejp, whieji N. received, asking contributions if they expected the property to be bought in for their benefit, but N. did not come into any plan for purchasing the property. The bondholders having failed to so contribute, a new plan was adopted for buying the property for the equal benefit of all bondholders who should come into the plan, and a copy of this plan was sent to every bondholder, including N., and the property was thereafter purchased by the parties to such plan. The sale was confirmed without objection after notice to the bondholders. The corporation had spent $700,000 on the property, and it was sold for $150,000; but unless a large sum was expended it had only the value of agricultural land. Held, that there was no such fraud, inadequacy of price, or change in the plan of reorganization outlined at the meeting of the reorganization committee and the committee representing the syndicate as entitled N. to have the confirmation of the sale reopened and the sale set aside, though he claimed that he did not understand the various notices sent him asking him to cooperate in the reorganization.</p> <p>[Ed. Note.—For other eases, see Corporations, Cent. Dig. §§ 2293-2296; Dec. Dig. § 573.*]</p>

Original Petition to Review and Revise in Matter of Law the Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge. In the matter of bankruptcy proceeding of the American Electric Telephone Company.

Otis Humphrey, Judge. Proceeding by the United States to deport Moy Guey Lum. An order of deportation was affirmed by the District Court, and defendant appeals. Appellant, who is a Chinese person, was ordered to be deported by the commissioner. Subsequently the District Court affirmed the order of deportation, which judgment is assigned as error. The cause is before us on appeal from that order.

<p>1. Insurance (§ 435*)—Liability Insurance—Liabilities Covered—^Contingent Liability.”</p> <p>Under a contract to indemnify plaintiff against loss arising solely from its contingent liability as owner for injuries to any person during the construction of a building, resulting from the negligence of any contractor or subcontractor, and containing an agreement that the work was to be done by contract at the risk of the contractor or subcontractors and. that assured had not and would not voluntarily assume any liability for loss on account of injuries by reason of the negligence of any contractor or subcontractor, the insurer was liable only for injuries for which plaintiff was contingently liable as owner, and not for injuries for which he was directly liable as doer or causer of the negligent act, since a “contingent liability” is one depending upon an uncertain event (citing Words and Phrases, vol. 2, p. 1501).</p> <p>[Ed. Note.—Eor other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.*]</p> <p>2. Insurance (§ 629*)—Actions—Declaration—Loss and Cause Thereof.</p> <p>In an action on a contract indemnifying the owner of a building from loss arising solely from its contingent liability as owner for injuries caused by the negligence of any contractor or subcontractor, a declaration, alleging that O. suffered injuries by reason of the construction of such building from which .he thereafter died, and that his administrator had sued such owner and others for damages for causing his death, failed to show that the owner was “contingently hable” for the injuries, since they might- have been due to the. fault of himself or of others for whose negligence he was not answerable as owner.</p> <p>[Ed. Note.—Eor other cases, see Insurance, Cent. Dig. §§ 1575-1580,1584r-1586, 1592, 1598; Dec. Dig. § 629.*]</p> <p>3. Insurance (§ 629*)—Actions—Declaration—Loss and Cause Thereof.</p> <p>In an action on a contract to indemnify plaintiff against loss arising from its contingent liability as owner of a building for injuries due to the negligence of any contractor or subcontractor, a declaration, alleging injuries caused by the construction of such building, for which insured and others were sued, without showing that insured was contingently hable therefor, and further alleging that the insurer assumed the obligation to defend the action and conducted the defense until after the trial thereof before a jury, that after the trial the insurer so carelessly and negligently conducted the defense as to cause the defendants other than insured to be discharged and relieved, and that after the trial the insurer abandoned the defense of the action and refused to defend it further, failed to show facts estopping the insurer from relying on its nonliability under the policy, except for injuries for which insured was contingently liable; since, if' insured and others were directly liable, there being no contribution or recovery over among the joint tort-feasors, the dismissal of such other defendants did not injure insured, and, it not being alleged that a verdict was returned or judgment entered against insured, it was not a violent supposition that the submission of the case was set aside and that insured came into charge of the defense de novo, and hence it did not appear that it was misled or injured by the insurer undertaking the defense of the action.</p> <p>[Ed. Note.—Eor other cases, see Insurance, Gent. Dig. §§ 1575-1580, 1584^-1586, 1592, 1598; Dec. Dig. § 629.*]</p>

Rudkin, Judge. Suit by the United States of America against the Multnomah Mining, Milling & Development Company, to cancel certain patents to-ground entered as mining claims. From a judgment for plaintiff, defendant appeals.

Appeals from the District Court of the United States for the Southern District of New York. Suit by William M. Fleitmann on behalf of himself and all other stockholders of the Consolidated Street Lighting Company who shall elect to come in and contribute to the expense of the action against the United Gas Improvement Company and others.

<p>1. Mines and Minekals (§ 34*)—Placee Claims—Patent—Rights Conveyed.</p> <p>Patents to placer claims issued by complainant’s grantors conveyed all the mineral therein, including veins or lodes not known to exist at the time of the respective application for the patent.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 81-86; Dec. Dig. § 34.*]</p> <p>2. Mines and Minerals (§ 16*) — Mineral Lode Location — Character op Ground.</p> <p>The fact that a lode claim is located is not proof that the ground on which it is located contains a vein or lode within Rev. St. § 2333 (U. S. Comp. St. .1901, p. 1433), providing for the location of lode mining claims on public land, since the mere location of an alleged vein or lode is not sufficient to prove that a vein or lode is known to ■ exist, which can only be established by" evidence of a discovery of mineral of sufficient value to justify expenditure of extraction.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 21-23; Dee. Dig. § 16.*]</p> <p>3. Mines and Minerals (§ 38*)—Mining Claims—Certificate of Location— Discovert—Presumptive Evidence.</p> <p>Where mining claims, have passed out of the hands of the original owners, have stood unchallenged for many years and have been developed to a considerable extent, the certificate of location, if in due form, is presumptive evidence of discovery and of valid location; but, in the absence of grounds for indulging such presumption, the location notice when recorded is only prima facie evidence of what the statute requires it to contain, and which is therein sufficiently set forth.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. § 38.*]</p>

<p>1. Contracts (§ 335*)—Building Contracts—Sufficiency of Complaint.</p> <p>In an action on a building contract, a complaint was not demurrable, though it showed a delay in completing the work, that by the contract $25 was to be paid as liquidated damages for each day’s delay, unless the contract time was extended by the architect on written request of the contractor, and that no such request had been made or extension granted, where it also showed an unpaid balance of the contract price exceeding such liquidated damages for the delay shown.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1664-1670; Dec. Dig. § 335.*]</p> <p>2. Appeal and Error (§ 907*) — Presumptions in Support of Judgment — Omission of Evidence from Record.</p> <p>Where, in an action on a building contract, a complaint showed a delay in completing the work, a provision in the contract for liquidated damages for each day’s delay unless it was extended by the architect on' written request of the contractor, and that no such request was made or extension granted, defendant pleaded a counterclaim for such liquidated dam* ages, and plaintiff in reply to the answer and in answer to the counterclaim pleaded a waiver of the condition with respect to the time of completion, that defendant had affirmatively requested that the work done after the stipulated time of completion should not be undertaken and proceeded with until after such date, and that defendant accepted the work as fully completed in accordance with the contract, it would he presumed, where the evidence was not in the record, that a motion to modify a judgment for the unpaid balance of the contract price by deducting such liquidated damages was properly overruled, since evidence of a waiver and acceptance might properly have been received under the issue made on the counterclaim, even if not admissible under the complaint, and, if received, it would not have been error for the trial court to treat the complaint as amended so as to allege waiver and acceptance.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dee. Dig. § 907.*]</p>

Suit by the Baltimore & Carolina Steamship Company of Baltimore City and others against William L. Blake and others. From a decree in favor of the libelants (203 Fed. 189), defendants appeal.

Killits, Judge. In the matter of bankruptcy proceedings of Michael Donnelly. From an order (193 Fed. 755), adjudging Michael Donnelly a bankrupt and appointing a receiver and directing the assignee of a banking company to release to the trustee certain properties embraced in preferences found to have been made by the bankrupt to the company, an appeal was taken.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New Tork, which ordered the specific performance by defendant Shipman of a contract between him and the-… Held: had sufficient notice of Thompson’s right to put it on guard. The opinion of Judge Ohatfield will be found in 197 Fed. 750.

<p>1. Appeal and Error (§ 232*) — Instructions — Objections Not Raised at Trial.</p> <p>The Missouri Supreme Court having held that a recovery for wrongful death under Rev. St. Mo. 1909, § 5425, providing that the offending corporation shall forfeit and pay, as a penalty for every such person so dying, not less than $2,000, and not exceeding $10,000, in the discretion of the jury, was penal up to $2,000, hut was remedial and compensatory to .the extent of the amount allowed in excess of that sum, the trial court in an action for death charged that if the jury found for plaintiffs, they should assess their damages at not less than $2,000 nor more than $10,000. Defendant’s counsel excepted to the. expression “assess as damages,” on the ground that the court “has characterized the statute as compensatory, and that the amount rendered is as damages rather than a penalty,” at which time counsel were contending that the whole statutory recovery was penal. Held, that such objection was insufficient to sustain a contention .on a writ of error that the term “damages” did not properly express the double character of the recovery as determined by the state Supreme Court.</p> <p>[Ed. Note.—For other cases, 'see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426,1430, 1431; Dee. Dig. § 232.*]</p> <p>2. Appeal and Error (§ 1068*)—Review—Damages—Instructions—Preju-dice.</p> <p>The Missouri Supreme Court, having held that Rev. Stats. 1909, § 5425, providing for a recovery of not less than $2,000 nor more than $10,000, was penal up to $2,000 and remedial as to the balance and plaintiffs having recovered $4,000, defendant was not prejudiced by an instruction that if the jury found for plaintiff, they should assess their “damages” at not less than $2,000, nor more than $10,000, because the word “damages” did not properly characterize the dual character of the recovery.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p>

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 Joseph W. Strauss. On petition of Harry M. Spence to revise an order of the District Court reversing the order of the referee denying the trustee’s application to introduce certain testimony, and allowing the claim.

Suit by the International Curtis Marine Turbine Company and the Curtis Marine Turbine Company of the United States against William Cramp & Sons Ship & Engine Building Company. Decree for defendant was reversed on appeal (202 Fed. 932, 121 C. C. A. 290), and on certiorari to the Supreme Court the decree of the Circuit Court of Appeals was reversed (228 U. S. 650, 33 Sup.

<p>1. Patents (§ 311*)—Suits for Infringement—Special Defenses.</p> <p>Under Rev. St. § 4920 (U. S. Comp. St. 1901, p. 3394), which provides that the defendant, in a suit for infringement, may, on 30 days’ notice, prove certain special defenses under the general issue, or may plead such defenses and give proof thereof under like notice in the answer, such defenses not pleaded, and in the absence of the required notice will not be considered if objection is made, or where there is nothing to indicate that complainant has waived his right to notice. i</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 541, 542; Dec. Dig. § 311.*] ,</p> <p>2. Patents (§ .328*)—Validity and Infringement—Storage Battery.</p> <p>The Dodge patent, No. 1,000,330, for improvements in secondary or storage batteries, consisting of a wood separator, which has previously been treated as described in the specification, to deprive it of such of its constituents as would deleteriously attack lead when subjected to electrolytic action, while leaving those constituents which beneficially affect a negative pole plate, was not anticipated, discloses patentable invention, and is valid, also held infringed.</p> <p>3. Patents (§ 62*) — Evidence of Anticipation — Measure of Proof Required.</p> <p>When an unpatented device, the existence and use of which are proven only by oral testimony, is set up as a complete anticipation of a patent, the proof sustaining it must be clear, satisfactory, and beyond reasonable doubt.</p> <p>[Ed. Note.—For other Cases, see Patents, Cent. Dig. § 78; Dec. Dig. § 62.*] •</p>

<p>in Equity. Suit by the Illinois Surety Company against the City of Galion and others.</p>

<p>Aliens (§ 68*)—Naturalization Proceedings—Limitation.</p> <p>Under tlie Naturalization Law (Act June 29, 1906, c. 8592, § 4, 84 Stat. 596 [U. S. Comp. St. Supp. 1911, p. 529]), providing that to be admitted to citizenship an alien shall declare on oath his intention of becoming a citizen at least two years prior to his admission, provided that no alien who in conformity with the law in force at the date of his declaration has declared such intention shall be required to renew such declaration, and not less than two years or more than seven years after he has made sucb. declaration of intention sball make and file a petition in writing for admission to citizenship, signed in his own handwriting, provided that if he has filed his declaration before the passage of that act he shall not be required to sign it in his own handwriting, where aliens who had filed their declaration of intention to become citizens prior to the taking effect of that act for more than seven years after its taking effect filed no application for admission to citizenship, they could not be admitted without a new declaration of intention, since the petition can be made only under that law, and while the old declaration, if used in time, avoids the necessity for a new declaration, it has no greater effect or wider use than a declaration under the new law.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p>

At Law. Action by John Z. Lowe and others against the Swine-hart Tire & Rubber Company. On motions by defendant to dismiss, and by plaintiff for leave to enter judgment. The plaintiff began the action by attachment in the state court against the defendant, a foreign corporation.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Kalman Kalmanowitz and another. Proceeding by the trustees to recover certain assets from the wives of the bankrupts, and to compel the bankrupts to deliver the same to the trustees. Remanded for further proceedings.</p>

<p>Commerce (§ 33*)—Transportation Within State—Shipment op Adulterated or Misbranded Articles'—“Introduction.”</p> <p>The Insecticide Act of 1910 (Act April 26, 1910, c. 191, 36 Stat. 331 [U. S. Comp. St. Supp. 1911, p. 136S]), prohibiting the introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia of any insecticide, etc., which is adulterated or misbranded, and providing that any person who shall ship or deliver for shipment from any state to any other state any such article so adulterated or misbranded shall be guilty of a misdemeanor, was not violated by shipping and delivering a certain insecticide for shipment from a point in New York to another point in the same state by a railroad passing through other states en route to the destination, since “introduction” means the bringing into a state of the prohibited article in such a way that it may become a part of the general property in such state, and the mere passing of goods through the state en roiite to destination does not make them part of the general property of such states.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. § 33.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Eastern Tea & Coffee Company. Application by Rufus B. Sprague, trustee, etc., for the appointment of a receiver for the L. D. Márgolis Company.

In Equity. Suit by the St. Rouis, Iron Mountain & Southern Railway Company against George W. Bellamy ánd others, Railroad Commissioners of Arkansas, and others. On supplemental bill for injunction. This proceeding arose out of the Arkansas railroad rate eases which have been pending in this court for some time.

<p>At Law. Ejectment by Abraham R. Byrd against George Allen Hall and another. Judgment for defendants.</p>

<p>In Equity. Suit by the Valvoline Oil Company against the Havoline Oil Company and the Indian Refining Company of New York.</p>

Action by the American Sign Company against the Electro-Lens Sign Company, and others. On demurrer to defendant’s defense and counterclaim and ‘motion to strike.

<p>In Equity. Suit by the Pacific Gas & Electric Company against the City and County of San Francisco. On application of defendant to impound certain funds pendente lite.</p>

<p>1. Post Office (§ 4*)—Postmasters—Salary—Statutory Provisions.</p> <p>Under Act July 12, 1876, c. 179, § 5, 19 Stat. 80 (U. S. Comp. St. 1901,. p. 2609), dividing postmasters into four classes, and defining the second class as including all those whose annual salaries are between $2,000 and $3,000, and Act March 3, -1883, c. Í42, 22 Stat. 600 (U. S. Comp. St. 1901, p. 2619), providing that the respective compensation of postmasters of the-first, second, and third classes shall be annual salaries assigned in even . hundreds of dollars, t'o be ascertained and fixed from their respective-quarterly returns to the auditor at the rates therein specified, which are based on the gross receipts, and Rev. St. § 161 (U. S. Comp. St. 1901, p. SO), authorizing the Postmaster General to prescribe regulations not inconsistent with law for the governing of his department, the conduct of its officers and’ clerks, and the distribution and performance of its business, the Postmaster General had no authority to make a regulation that, in determining the gross receipts for the purpose of fixing a postmaster’s salary, unusual sales of stamps should not be included, and that a statement of such sales should not be made to the auditor, but to the First Assistant Postmaster General, since the regulation is not an attempt to define “gross receipts” nor to clear up an ambiguity in the statute or supply details, but in effect makes salaries dependent, not upon gross receipts returned to the auditor as provided by statute, but upon such part of such gross receipts as, in the opinion of some departmental official, is not unusual, or for use outside the district.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 3; Dec. Dig. § 4.*]</p> <p>2. Post Office (§ 4*)—Postmaster General—Regulations—Validity.</p> <p>That the validity of a regulation by the Postmaster General was unquestioned for a long time was of little force in determining its validity, where the only persons directly affected thereby were subordinate office holders, who would be very reluctant to attack the validity of a regulation made by their superior officer.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 3; Dec. Dig. § 4.*]</p> <p>3. Conspiracy (§ 33*)—Offenses—Conspiracy to Defraud Government.</p> <p>. A conspiracy to secure for a postmaster a larger salary by purchasing at his office large quantities of postage stamps for use outside the territory served by such office was not a conspiracy to defraud the United States, since, as the statute makes the postmaster’s salary dependent on the gross receipts, without excluding receipts from such sales, the postmaster was legally entitled to the salary which it was the object of the alleged conspiracy to secure, and a conspiracy to obtain by improper methods, what one is legally entitled to is not punishable as a conspiracy to defraud.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent Dig. § 60; Dec. Dig. § 33.*]</p> <p>4. Indictment and Information (§ 147*)—Demurrer—Grounds.</p> <p>Where an indictment charged a conspiracy by a postmaster and others, the object of which was that the postmaster should make false returns to the First Assistant Postmaster General for the purpose of fraudulently increasing his salary by failing to report, in the gross receipts required to be made monthly, large and irregular sales of postage stamps for use outside the district served by such post office, the fact that no such report of gross receipts as w_as described in the indictment was required of the postmaster did not render the indictment demurrable, since its allega-’ tions on demurrer would be taken as true.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 490-494; Dec. Dig. § 147.*]</p> <p>5. Post Office (§ 36*)—Offenses—Making False Return.</p> <p>The making of a false return by a postmaster by failing to report large and irregular sales of postage stamps for use outside the district served by his office, the receipts from which, under departmental regulations, would be excluded in fixing his salary if so reported, was not punishable under Or. Code, § 206 (Act March 4, 1909, c. 321, 35 Stat. 1128 [U. S. Comp. St. Supp. 1911, p. 1649]), providing that any postmaster or other person employed in the postal service, making or assisting in making a false return for the purpose of fraudulently increasing his compensation, shall be punished as therein provided, since, as under the statute such receipts should not be excluded, the purpose of the false return was to secure for the postmaster only what he was legally entitled to receive; and hence a conspiracy, the object of which was the making of such false return, was not punishable as a conspiracy to defraud the United States government.</p> <p>[Ed. Note.—Eor other cases, see Post Office, Gent. Dig. § 56; Dee. Dig. § 36.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings' of J. M. Barrell and others. On objection of trustee to allowance of claim of State Industrial Insurance Department as one entitled to priority.

<p>1. Bankruptcy (§ 166*)—Notice to Officer—Adverse Interest.</p> <p>Wbere a bankrupt was treasurer of a corporation, tbe fact that be knew bimself to be insolvent at tbe time be made a payment on certain indebtedness to tbe corporation did not charge it with knowledge of such fact.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dee. Dig. § 166.*]</p> <p>2. Corporations (§ 428*)—Knowledge of Officers—Notice. .</p> <p>Wbere the treasurer of a corporation informed its- president of bis insolvent condition prior to making an alleged preferential payment on bis indebtedness to tbe corporation, tbe knowledge of the president was imputable to tbe corporation. . ; .</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. § 428.*]</p> <p>3. Bankruptcy (§ 166*)—Preferences—Knowledge of Insolvency.</p> <p>Wbere a debtor of a corporation was insolvent at tbe time be made an alleged preferential payment to it, it was not necessary that tbe corporation’s president should have actual knowledge of tbe debtor’s insolvent condition in order that the payment should be recoverable as a preference, but it was enough if be bad reasonable cause to believe that such was tbe fact.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p> <p>4. Bankruptcy (§ 1<66*)—Preferences—Notice of Insolvency.</p> <p>Mere nonpayment of a debt on demand, or circumstances which create a mere suspicion or fear that tbe debtor may be insolvent, are insufficient to charge tbe creditor with notice of bis insolvency so as to render a payment on tbe debt prior to tbe debtor’s bankruptcy recoverable as a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255- . 258; Dec. Dig. § 166.*]</p> <p>5. Bankbtjptcy (§ 164*)—Pbeeebences—Notice oe Insolvency.</p> <p>A bankrupt, who was treasurer of a corporation, bad been indebted to-it for a considerable time to tbe amount of $384. Repeated demands bad been made on bim for payment, and be informed tbe corporation’s president that be was in financial difficulties. Tbe corporation bad never before declared more than 10 per cent, dividends, but after tbe treasurer’s bankruptcy schedules were prepared—but before they were filed—a meeting of tbe directors was held at which a dividend of 20 per cent, was. voted, with the understanding that tbe treasurer’s dividend be credited on bis account owing to tbe corporation. It was necessary that this be done in order to enable tbe corporation to pay tbe dividend, and immediately after the treasurer’s check was executed it was indorsed by bim and deposited to tbe corporation’s credit in partial payment of tbe treasurer’s debt. Held, sufficient to charge tbe corporation with knowledge that the payment would constitute a preference so as to render tbe same recoverable by tbe bankrupt’s trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 267; Dee. . Dig. § 164.*]</p>

<p>Action by the United States against the Pere Marquette Railroad Company. Judgment for the United States.</p>

In Admiralty. Claim by William Dougherty against the ThompsonRockhart Company for personal injuries to claimant as a seaman, and petition by respondent for a limitation of liability.

<p>At Law. Action by John W. Geraty against the Atlantic Coast Line Railroad Company and another. On demurrer to complaint. Sustained. \ • „</p>

In Bankruptcy. In the matter of bankruptcy proceedings of John N. Draper. Petition to review a referee’s decision holding that a certain insurance policy on the bankrupt’s life passed to the trustee as an asset of the estate.

<p>1. Clerks oe Courts (§ 75*)—Bonds—Conversion oe Funds.</p> <p>Where the books of a clerk showed a receipt.of certain costs, etc., and failed to show disbursement thereof, and, though there was evidence that the books were not accurately kept, the clerk admitted the conversion of “a few hundred dollars” subsequent to the giving of a bond to faithfully perform the duties of his office, the government, in the absence of proof of the actual amount converted, was entitled to recover $200 therefor, in. addition to a surplus admitted to have been retained, above his authorized compensation, and unpaid costs collected, but not paid over.</p> <p>[Ed Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 135-142; Dec. Dig. § 75.*] . .</p> <p>2. Limitation of Actions (§ 195*)—Funds—Conversion—Limitations—Bur-den of Proof.</p> <p>Where, in a suit on a bond of the clerk of a federal court to recover money received 'and converted, it was contended that the action was barred by limitations, the burden was on the defendant to show the date of the conversion.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Gent. Dig. §§ 711-716; Dec. Dig. § 195.*]</p>

<p>1. Aliens (§ 49*)—Bight to Enter—Public Charge—Deportation.</p> <p>In determining whether immigrants, who were unskilled laborers, seeking to enter the United States, were liable to become a charge on the public, the immigration authorities may consider the personal equation of each alien and the conditions which confront him.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 107; Dec. Dig. §•49.*]</p> <p>2. Aliens (§ 54*)—Bight to Enter—Determination.</p> <p>Whether an alien shall be admitted to the United States is a political question which Congress may dispose of as it chooses, and having provided by Act Feb. 20, 1907, c. 1134, § 25, 34 Stat. 906 (U. S. Comp. St. Supp. 1911, p. 515), that a decision of the proper immigration officers, if adverse to the admission of an alien, shall be final unless reversed on appeal to the Secretary of Labor, the decision cannot be reviewed by the courts when the prescribed procedure has been complied with.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

Proceeding in the matter pf Leopold Hammel and another, individually. and as copartners trading as L. Hammel &, Co. On application for allowance as attorney for the bankrupt. Allowance by special master modified. Application for allowance as attorney for the bankrupt in an involuntary case.

<p>At Law. Action by Clarence Moeller, a minor, against the Southern Pacific Company and others. On motion to remand to the state court.</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 Hills & Company, Limited, against Joseph Hoover and others. Judgment for defendants, and plaintiff brings error.</p>

A. Youmans, Judge. Bankruptcy proceeding against the W. O. Craig Manufacturing Company, in which J. O. Patterson claimed certain property, and the Triumph Electric Company filed its intervening petition, claiming the same property. From a decree (201 Fed. 548) dismissing the petition of intervener, it appeals and brings error.

Cushman, Judge. Action by Mary A. Meese and others against the Northern Pacific Railway Company to -recover for the alleged wrongful death of Benjamin Meese. From an order sustaining a demurrer to the complaint and dismissing the action (206 Fed. 222), plaintiffs bring error.

<p>1. Master and Servant (§ 296*) — Action for Injury to Servant — Negligence of Plaintiff.</p> <p>Plaintiff, who was a fireman on defendant’s railroad, was injured by the explosion of the water gauge on his engine which he was attempting to fix to prevent, leakage. He alleged and testified that the screen around the glass was improperly fastened with a nail and fell off when he removed the nail just prior to the explosion. The testimony showed without contradiction that,, had the screen been in place, plaintiff would not have been injured; that the glasses break from unaccountable causes; that when a glass becomes leaky the proper way to repair it is to first turn off the steam and water cocks, and drain the glass before removing the screen; and that plaintiff knew such facts. Held, that the refusal of a properly requested instruction, submitting the issue of plaintiff’s negligence and instructing the jury that if they found such negligence he could not recover, was error.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dee. Dig. § 296.*]</p> <p> (Per Shelby, Circuit Judge, Dissenting.) </p> <p>2. Jurisdiction of Federal Courts—Allegation of Citizenship.</p> <p>A petition, which alleges merely the state of plaintiff’s residence, is insufficient to show jurisdiction in a federal court on the ground of diversity of citizenship.</p> <p>3. Action for Injury to Servant—Employers’ Liability Act.</p> <p>In an action against a railroad company for injury to an employé while employed in interstate commerce, based on Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St Supp. 1911, p. 1322), section 3 of which expressly provides that contributory negligence shall.not bar a recovery and that plaintiff shall not be held guilty of contributory negligence in case the violation by defendant of any statute enacted for the safety of employes ■ contributed to the injury where the alleged negligence of defendant was in the use of a locomotive having on the boiler a defective and dangerous water glass, in violation of Act Feb. 17, 1911, c. 103, § 2, 36 Stat. 913 (U. S. Comp. St. Supp. 1911, p. 1333), the court could not properly instruct the jury to return a verdict for defendant in case they found that plaintiff was chargeable with contributory negligence.</p> <p>4. Action for Injury to Servant—Questions for Jury.</p> <p>In such case, the fact of the defective condition of the glass being clearly established, whether the negligence of defendant in permitting its use was the proximate cause of the injury was a question of fact for the jury.</p> <p>5. Sufficiency of Exceptions to Refusal of Instructions.</p> <p>A judgment cannot be reversed on a general exception to the refusal to give two requested instructions if either was properly refused.</p>

<p>■Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by'the American Piano Company against the Stix, Baer & Fuller Dry Goods Company and others. ■ -From an order granting a preliminary injunction, defendants appeal.</p> <p>William Knabe began the manufacture of the piano which has since become famous as the “Knabe” in the city of Baltimore, in 1837. Soon after he took his two sons, Ernest and William II into partnership under the firm name of “Wm. Knabe & Co.” The father died in 1864. The business was continued by members of his family under the same firm name; Ernest Knabe becoming the head of the firm. In 1889 the business was incorporated under the laws of Maryland, as “William Knabe & Company Manufacturing Company.” In 1908 the property of this company, including trade-marks, trade-name, and good will, was transferred to the complainant, the American Piano Company, which was organized for the purpose of taking over the business of the Knabe Company, and also that of Chickering & Sons, of Boston, and the Foster, Armstrong Company of Rochester.</p> <p>Ernest Knabe, Jr., and William Knabe III were the sons of Ernest Knabe above named, and grandsons of William Knabe, the founder of the business. These two men were taken into the factory in the late 80’s, when they were 18 years of age, and trained by their father in the business of piano making, and the traditions of the family. Ernest Knabe died in 1894. Soon thereafter Ernest, Jr., and William III bought out the interest of the other members of the family in the corporation and became its sole owners and its executive officers, and so continued until the transfer to complainant in 1908. At that .time they also became respectively president and vice president of complainant, and continued in that position until they retired from the company in 1911. They then went to Cincinnati, Ohio, organized a corporation under the laws of that state under the name of the Knabe Bros. Company, and engaged in the manufacture and sale of pianos.</p> <p>Soon after the Knabe Bros. Company began business, the appellee filed its bill in the District Court for the Southern District of Ohio, against it and its officers, and prayed for a preliminary injunction restraining them from using the name “Knabe” either singly or in combination, upon pianos, in advertisements or otherwise, in the piano business. To this bill the defendant filed a cross-bill asking certain relief against the complainant: Upon the bearing the court issued an injunction restraining the Knabe Bros. Company from, placing the words “Knabe Brothers” upon the fall-board or any conspicuous part of any piano manufactured or sold by them, but added the following language: “But this order shall not prevent Ernest J. Knabe, Jr., and William Knabe III from doing business under their own names or under the name of ‘Knabe Bros. Company,’ or from stating that the piano of their, or defendant’s manufacture, is made by, or under the supervision of Ernest J. Knabe, Jr., and William Knabe III.”</p> <p>The court further enjoined the complainant in the case from displaying any sign or placard “containing the statement that the Knabes of the present generation are still making the William Knabe Company piano, or are connected with the American Piano Company, or making any statement from which the inference of such connection may be fairly drawn. Although it may be permitted to state, if it so desire, that a grandson of William Knabe is still connected with the making of the ‘Knabe’ piano.” It further enjoined the complainant from “publishing that Ernest J. Knabe, Jr., or Wm. Knabe III have any connection with the American Piano Company.” '</p> <p>Controversies arose as to the rights of the defendants under this injunction, and upon a subsequent application the court, for the guidance of the parties, made an order requiring defendant to place on the fall-boards of its pianos the following language:</p> <p>“The Knabe Bros. Company.</p> <p>“This piano is not an Original ‘Knabe’ but is made under the supervision of E. J. and Wm. Knabe III, grandsons of the original Wm. Knabe I.”</p> <p>No appeal has been taken from this order.</p> <p>The appellant here, the defendant below, Stix, Baer & Fuller Dry Goods-Company, conducts a large department store in the City of St. Louis. In 1912, it entered into contract with the Knabe Bros. Company, to sell their pianos, and to make them the leader in that linfe of trade. In promoting this business it advertised extensively in the papers of St. Louis, and some other trade-journals. In December, 1912, the American Piano Company filed the present bill against the above-named appellant, and also against the Knabe Bros. Company and Ernest J. Knabe, Jr., and William Knabe III, setting forth the above facts and charging in particular that the advertisements were calculated to palm off defendant’s pianos as complainant’s, and also to cause the public to believe that defendants were the successors in business of the Baltimore concerns. Process was served upon the Stix, Baer & Fuller Co. alone, but the Knabe Bros. Company afterwards entered its appearance in the case and participated in its defense. The bill was supplemented by affidavits, and upon this showing complainant moved the trial court for a preliminary injunction. At the hearing counter affidavits were presented on behalf of the defendant. The trial court issued an injunction as prayed in the bill. It is general in its terms, enjoining the defendants “from making aiiy oral representation or using or permitting to be used in connection with the sale of pianos, in any catalogue, placard, circular, advertisement, or otherwise, descriptive of pianos manufactured by the Knabe Bros. Company, any statement or representation calculated to induce the public to believe that the pianos manufactured by the said defendant, the Knabe Bros. Company, and sold or offered for sale by said the Knabe Bros. Company, or said defendants, Stix, Baer & Fuller Dry Goods Company, are Knabe Pianos.” The court further found that the advertisements published by the Dry Goods Company were calculated to induce the forbidden belief on the pdrt of the public and enjoinéd the defendants “from again or further making, using or issuing the said advertisements in the same or substantially the same form.” The present appeal is brought to review that order.</p>

<p>1. Public Lands (§ 92*)—Grant of Railroad Right of Way—Date of Ao- . quisition of Rights.</p> <p>Under Act March 3, T875, e. 152, § 1, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), granting a right of way through the public lands to any duly organized railroad company which shall file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization, and section 4 providing that any company desiring the benefits of that act shall within 12 months after the location of any section of 20 miles of its road, or if upon unsurveyed lands within 12 months after the survey by the United States, file with the Register of the Land Office a profile of its road, and that, upon approval thereof by the Secretary of the Interior, it shall be noted upon the plats in his office, and that thereafter all such lands over which such right of way shall pass shall be disposed of subject thereto, where, though the maps showing the definite location of a line of railroad had not been approved when a homestead entry was ipade, they had been filed and proceedings for final approval were pending, the final approval subsequently made related back to the filing, and the lands acquired under the homestead entry were subject to such right of way.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dee. Dig. § 92.*]</p> <p>2. Public Lands (§ 92*)—Grant of Railroad Right of Way—Filing Maps —“Profile.”</p> <p>Under such sections, the maps filed by a railway company and approved were not insufficient, though they' did not show the elevations, depressions, and grades of the line where the regulations of .the General Land Office expressly declared that “profile,” as used in such act, was understood to intend a map of alignment or definite location.</p> <p>[Ed. Note.-—For other cases, see Public Lands, Gent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p> <p>3. Public Lands (§ 92*)—Grant of Railroad Right of Way—Abandonment.</p> <p>Where the successor of a railroad company, whose maps of its right of way across public lands had been filed and approved, revised the survey and location of the road and filed maps of such revision and amended definite location, showing a right of way, the center line of which, in crossing a particular lot, did not vary to exceed 20 feet from that of the old right of way, and was required by the Commissioner of the General Land Office to file a relinquishment under seal of all rights under the original approval of the maps filed by its predecessor, whereupon it filed a relinquishment of all its right to the right of way pertaining to the line of railway shown upon such maps, excepting and excluding, however, all of such right of way as was or might be situated within the limits of the right of way pertaining to the revised and relocated line of railway, after which the new maps were approved, the company did not abandon its rights acquired by the filing of the original maps to so much of the right of way "shown thereon as was within the right of way shown on the new maps.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p>

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered on a verdict of $12,500 in favor of defendant in error, who was plaintiff below.

<p>1. Executors and Administrators (§ 11*)—Probate Court—Administration oe Estate.</p> <p>Under Rev. St. 1909, Mo. §§ 9, 56, 112, providing for the appointment of administrators, the probate court of St. Louis, though a court of limited jurisdiction, had jurisdiction to grant letters of administration and to settle the estate of a decedent killed by an accident in that city, whose entire estate consisted of a claim for wrongful death against his employer.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 25; Dec. Dig. § 11.*]</p> <p>2. Executors and Administrators (§ 24*)—Appointment—Public Administrator—“Without Known Heirs.”</p> <p>Rev. St. 1909, Mo. § 302, declares that it shall be'the duty of the public administrator to take charge of the estates of all deceased person^ in his county when such persons die intestate, without any known heirs, and when money, property, papers, or other estate are left in a situation exposed to loss or damage, and no other person administers the same, and when any estate of any person who dies intestate in the county or elsewhere is left in the county liable to be injured, wasted, or lost, and when the intestate does not leave a known husband, widow, or heirs in the state. Held, that the words “without any known heirs” mean without any heirs known to the public, tbe probate court, or tbe public administrator ; and hence, where a decedent was killed, leaving a mother, brothers, and a sister, who, however, were not known to the public administrator, and a claim for wrongful death against defendant, and more than a fourth of the time limited for the enforcement of such claim expired without any effort being made to collect the same when the public'administrator took charge of the estate, and substantially half of the time had expired when the claim was settled by him, sufficient facts existed to entitle him to take charge of the estate.</p> <p>[Ed. Note.—Por other cases, see Executors and Administrators, Cent. Dig. §§ 132-140; Dec. Dig. § 24.*]</p> <p>3. Executors and Administrators (§ 29*) — Collateral Attack'—Administrator—Appointment.</p> <p>Where a public administrator was appointed to take charge of a decedent’s estate, and the court had authority to grant the petition, a subsequent application by decedent’s next of kin, to revoke the public administrator’s authority prospectively, and without any application to revoke the administrator’s authority to settle a claim for decedent’s wrongful death, or to revoke the settlement made under such authority, the application was a collateral attack on the probate court’s order of appointment, and, conferring authority to settle the claim, was therefore unsustainable.</p> <p>[Ed. Note.—Por other cases, see Executors and Administrators, Cent. Dig. §§ 177-182, 1411; Dec. Dig. § 29.*]</p> <p>4. Executors and Administrators (§ 271*)—Wrongful Death—Claim fob Damages:—Assets of Estate.</p> <p>A claim for damages for wrongful killing of decedent is not an asset of his estate, subject to the payment of debts.</p> <p>[Ed. Note.—Por other cases, see Executors and Administrators, Cent. Dig. §§ 1044-1051; Dec. Dig. § 271.*]</p> <p>5. Executors and Administrators (§ 87*)—Bight to Sue—Compromise.</p> <p>An administrator or other person authorized to sue for damages for the death of another may, in general, compromise the claim without complying with statutes similar to Rev. St. 1909, Mo. § 242, providing that administrators, with the approval of the probate court, when unable to collect claims, may compromise the same, since such provisions are construed to refer to claims belonging to the estate proper, and not to the widow, heirs, etc., which claims may be compromised, not only without the consent of the beneficiaries, but against their affirmative protest.</p> <p>[Ed. Note.—Por other cases, see Executors and Administrators, Cent. Dig. §§ 323, 384-392; Dec. Dig. § 87.*] ' v</p>

<p>1u Master and Servant (§ 13*)—Operation oe Railroads—Hours oe Service Law—Movement oe Trains—“Movement”—“Employé.”</p> <p>Hours of Service Law (Act Cong. • March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]), prohibiting tbe employment of railroad employés longer than 16 Fours without relief, defines the term “employs” to mean a person actually engaged in or connected with the movement of any train. Held, that the word “movement,” as so used, is not restricted to the actual revolution of the wheels of a train or locomotive engaged in interstate commerce, and that a railroad fireman, acting as a locomotive watchman, while his train was tied up on a siding, was engaged in the movement of a train within the statute.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4615; vol. 3, pp. 2369-2377; vol. 8, p. 7649.]</p> <p>2. Master and Servant (§ 13*)—Operation oe Railroads—Employes—Hours - oe Service Law—Character oe Duty.</p> <p>Hours of Service Law (Act Cong. March 4, 1907, c, 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]) makes it unlawful for any earner to require or permit any employé to remain on duty for a longer period than 16 consecutive hours, etc. Held that, where, after a railroad fireman had been working for 16 hours as such, his train was tied up on a siding and he was compelled for 8 additional hours to remain on duty as watchman of his engine, during which time his duties were not essentially different in kind from those required of him in the operation of the engine, though lighter in degree, such change from fireman to watchman did not prevent his continued employment from constituting a violation of the statute.</p> <p>[Ed. Note.—For other cases, see Blaster and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*]</p>

Wright, Judge. Actions by the Royal Colliery Company against the Alwart Brothers Coal Company. Judgment for plaintiff in each case, and defendant ■brings error. Judgment in first case affirmed, and judgment in the second case reversed, and case remanded, with directions to grant a new trial.

Anderson, Judge. In the matter of bankruptcy proceedings of the Da Porte Carriage Company. From an order adjudging that the respondent was not a bankrupt and dismissing the petition, the Dackawanna Deather Company and others, petitioning creditors, appeal.

<p>In Error to District Court of the United States for the Western District of Virginia, at Charlottesville; Henry Clay McDowell, Judge.</p> <p>Action by L. Skipwith against the Albemarle Soapstone Company. Judgment for plaintiff, and defendant brings error.</p>

Foster, Judge. In the matter of bankruptcy proceedings of Antonio Música & Son. Ancillary proceedings by Ezra P. Prentice, as receiver, and others, to recover money and property belonging to the bankrupts’ estate. From decree granting the relief prayed (205 Fed. 413), Antonio Música and others appeal.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Frank Filasto and Joseph Ribuffo were convicted of violating the White Slave Traffic Act, and they bring error.</p> <p>The following is the opinion of Hand, District Judge, denying defendant’s motion for a new trial, referred to in the opinion:</p> <p>The motion for a new trial in this case is^made upon the exceptions of the defendants to the ruling out of certain testimony upon the trial. The prosecution was for enticing one Candida Cavallucci, alias Annie Graeco, to go from New Tork to Paterson for the purpose of prostitution some time during the second week of January, 1912. The government rested its case upon the testimony of Annie, and of a prostitute named Maria Maura, who both swore that on the 1st of January, 1912, the defendant Filasto had urged upon Annie Graeco to go and live in a house of his in Paterson and engage in prostitution, and that on the same evening the other defendant had repeated, the request. About 10 days afterwards Annie did go to Paterson for that purpose, and lived there for nearly a year. At the time in question Annie Graeco lived in illicit relations with. Tony Maura, the brother of Maria Maura. Annie Graeco had been married some three years previously, but she swore that her husband had beaten her, and she had complained against him, and then he ran away to Italy. Annie Graeco conceded that she had been a prostitute from the time she went to Paterson until about some time toward the end of December, 1912, but denied that she had ever engaged in the practice before, especially in Bridgeport, about three years before, while living with Tony Maura. She conceded that she had lived in Bridgeport with Tony for a month while they ran a restaurant together. Upon Mr; Barra’s opening he stated that he would prove to the jury that Annie Grseco’s husband had gone to Italy be-' cause he had been threatened and assaulted with a razor by Tony Maura. I then stated that this was a collateral matter to the main issue, and that he was bound by the cross-examination of tbe woman. Counsel thereupon stated that he wished to prove that when Annie Graeco went to Bridgeport, about two or three years ago, §he had' lived there as a prostitute, which I also declined to allow him to prove. After the opening the defendant put in some testimony, and then the record shows that the following events took place, which are relied upon for a reversal:</p> <p>“Mr. Barra: I. call for the witness Musulla.</p> <p>“The Court: That is the husband?</p> <p>“Mr. Barra: Yes. I wish to prove he did not beat her and run away.</p> <p>“The Court: It is not material here.</p> <p>“Mr. Barra: Exception.</p> <p>“Mr. Barra: May I prove that Maura assaulted this man with a razor?</p> <p>.“The Court: No.</p> <p>“Nannine De Marco, a witness called on behalf of the defendant, being first duly sworn, testified as follows (through an interpreter):</p> <p>“Mr. Barra: This witness is called for the purpose of proving that the witness, Annie Grteco, was a prostitute in the city of Bridgeport, Conn.</p> <p>“The Court: No.</p> <p>“Mr. Barra: The court rules out the testimony, and the defendants duly except.”</p> <p>The exception to my direction on the opening and to the exclusion of this testimony is what the defendant complains of. It was undoubtedly a part of the defendants’ defense that it was Tony who had .induced the woman to go to Paterson to ply her trade. Undoubtedly she had practiced prostitution in a house of which the defendant Filasto was the owner, and from which the defendant Bibuffo collected rent, and it was amply proved, although it was denied, that both defendants knew what she was doing in the house. Not only that house, but three or more other houses, of the defendants were regularly used by prostitutes. • It was also proved that about the 1st of February Annie Grsaco and Tony and his sister lived together while she was plying her trade, though, as I understand it, they lived in a different house. It would have been relevant proof in the case to show that two or three years before Tony had put this woman into a house in Bridgeport, and lived from her earnings as a prostitute. This would have lent probability to the story that it was he and not the defendants who - in January induced her to go to Paterson, which was the issue of. the case. Possibly it might have been relevant also to prove that Tony had seduced her from her husband and assaulted him, so as to show the origin of Tony’s domination over her. If it had been urged upon the trial that Tony drove off the husband by violence, and so acquired domination over the witness, and that he had put her into ■a brothel in Bridgeport while he lived with her, I think I should have allowed the proo’f. However, nothing of the sort was suggested at the time. What the defendants offered to show was, first, that the woman had been a prostitute in Bridgeport, which she had denied upon her cross-examination. As to that I held, correctly as I think, that it only contradicted her on a collateral matter. It is true that one may impeach a witness by showing she is a prostitute, but she had already conceded that she was a prostitute, and it clearly added nothing to that impeachment to show that, not only was she a prostitute for the year preceding the trial, but that she had already been so three years before that. As to the testimony of the husband that Tony had assaulted him with a razor, it was only offered to contradict the witness’ story. It was not suggested that Tony had taken the woman from him by violence. The defendants did not therefore offer any proof, as they now suggest that Tony before January, 1912, had taken charge of this woman, and had induced or persuaded or coerced her in any way to live in a brothel, and had lived on- her earnings. The proffer of proof went no further than to show that during the time that Tony had lived with her she had been a prostitute in Bridgeport, and that he had had a fight with her husband and had cut him with a razor. The testimony therefore seems to me to have been irrelevant, and I see no reason for granting another trial because of the exceptions. ,</p> <p>The motion is denied.</p>

<p>Master and Servant (§ 137*)—Negligence.</p> <p>Where decedent, a track walker in defendant’s employ, was walking between defendant’s main track and a siding, in the clear, as defendant’s train approached him from the rear on the main track, and there was nothing to indicate to the fireman, who observed him for a quarter of a mile, that he intended to step on the track in front of the engine, as he did just prior to his being struck and killed, the fireman was not negligent in failing to signal the engineer to blow the whistle to attract decedent’s attention to the approaching train.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]</p>

Proceedings in the matter of Soloway & Katz and others, bankrupts.

Appeal and Cross-Appeal from the District Court of the United States for the Northern District of Georgia; Wm. T. Newman, Judge. Suit by Miriam Drennen against Frank A. Heard and another, executors of W. D. Tillman, deceased. From the decree (198 Fed. 414), plaintiff appeals, and defendants file cross-appeal.

<p>Appeal from the District Court of the United States for the Eastern, District of Louisiana.</p> <p>Intervening libel by the Gulf Refining Company of Louisiana against the Lower Coast Transportation Company, as owner of the vessel Grover Cleveland. Decree for intervener, and respondent appeals.</p>

Foster, Judge. Bankruptcy proceeding against Dreuil & Co. On a petition by the Canal-Louisiana Bank & Trust Company, judgment was rendered in its favor (205 Fed. 568), and the Commercial National Bank of New Orleans appeals and petitions for a revision.

Carpenter, Judge. Action by Alice M. Aiken Bronk against the Charles H. Scott Company. Judgment for defendant, and complainant appeals. This is an appeal from a decree dismissing for want of equity appellant’s bill charging appellee with having infringed patent No. 899,196, September 2, 1908, issued to appellant for a sanitary protector.

Proceeding in the matter of the D. C. Clark Shoe Company, bankrupt. On petition to review an order of the referee allowing the Haim of the United Shoe Machinery Company.

<p>1. Removal of Causes (§ 12*)—Right to Remove—Residence of Parties.</p> <p>Under the rule that where federal jurisdiction is founded on diversity of citizenship a suit must be brought in the district of the residence of either plaintiff or defendant, a suit commenced in a state court in a federal district, in which neither the plaintiff nor the defendant resides, cannot be removed to the district court of such district by the nonresident defendant on the ground of diverse citizenship.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. § 12.*]</p> <p>2. Removal of Causes (§ 12*)—“Proper District.”</p> <p>Where a suit is commenced in a state court in a federal district in which neither the plaintiff nor the defendant resides, the “proper district” to which defendant is entitled to remove the cause for diversity of citizen- • ship is the district in which he resides, and in which the federal court would have had jurisdiction had the suit been originally brought there.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. § 12.*]</p>

<p>1. Removal op Causes (§ 61*)—Separable Controversy—Determination.</p> <p>Where an action is brought in the state court against several defendants, one of whom is of diverse citizenship, whether the suit involves a separable controversy as to such defendants so as to be removable to the federal court must be determined from the state of the pleadings and record at the time of the application for removal, and cannot be affected by facts otherwise disclosed.</p> <p>[Ed. Note.—Por other cases, see Removal of Causes, Cent Dig.. § 115; Dec. Dig. § 61.*]</p> <p>2. Removal op Causes (§ 52*)—Separable Controversy—Cause oe Action.</p> <p>Plaintiff brought suit against several defendants jointly to quiet plaintiff’s title to the waters of a natural stream, alleging that plaintiff was rightfully in possession and entitled to the use for irrigation of a certain quantity of water constituting the flow of certain water courses, etc., and that defendants claim an estate or interest in the waters and in the use thereof, without right, etc., praying that the rights of the parties be settled by decree. Held, that under the theory of the complaint, plaintiff was entitled to join the several defendants as provided by Code Civ. Proc. Cal. § 379, and, having done so, one of the defendants • of diverse citizenship was not entitled to remove the cause to the federal court on the ground that the suit, as to it, involved a separable controversy, in that such defendant’s interest was in fact separate and distinct from those of its codefendants.</p> <p>[Ed. Note.—Eor other cases, see Removal of Causes, Cent. Dig. §§ 102, 103, 105; Dec. Dig. § 52.*]</p>

<p>In Bankruptcy. Proceeding against the Bausch Picture Frame & Moulding Company. On application by receiver of bankrupt for discharge and allowance of commissions.</p>

<p>L Eminent Domain (§ 230*)—Proceedings to Assess Compensation—Costs and Fees—Contracts.</p> <p>The parties to a proceeding to assess the compensation to be made for property taken by a city, commenced while the law required payment for the commissioners’ services to be made by the parties, could contract with the commissioners for the payment of reasonable compensation,</p> <p>[Ed. Note.—F.or other cases, see Eminent Domain, Cent. Dig. § 584; Dec. Dig. § 230.*]</p> <p>2. Eminent Domain (§ 230*)—Proceedings to Assess Compensation—Costs and Fees—Contracts.</p> <p>Assumed that, under a contract by the parties to a proceeding to assess compensation for property taken by a city to pay the commissioners reasonable compensation for their services, where it was the established custom that such compensation should be paid in the first instance by the prevailing party and apportioned between the parties as might be eventually determined, the prevailing party who paid such compensation had a right to reimbursement from the other party to the-extent of its share.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 584; Dec. Dig. § 230.*]</p> <p>8. Eminent Domain (§ 243*)—Res Judicata—Matters Concluded.</p> <p>A proceeding to assess the compensation for property taken by a eity was sent back by the Massachusetts full court for hearing on the amount to which the petitioner was entitled by its payment of the costs charged by the commissioners and came on for hearing before a single justice. Pending the proceeding the compensation of commissioners in such cases was by statute made chargeable to the county, and at the hearing the counsel for the parties agreed that if $8,750 could be allowed the commissioners from the county treasury as compensation the parties would adjust the rest of the commissioners’ bill between themselves, and the .court decreed payment of such amount by the county. The city repudiated the agreement of its counsel, and a decree was made vacating the first decree and recommitting the report to the commissioners to report the amount of their compensation to be paid by the parties, which decree, on an appeal by the city from the decree “ordering that the report * * * be recommitted,” was reversed on the ground that in the absence of a contract, as to which no evidence was taken, though the parties had contracted to pay the commissioners reasonable compensation, the compensation was to be fixed by the court and paid by the county. Held, that the decree ordering payment of $8,750 by the county was not coriclusive that such amount was reasonable compensation under the contract.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 551, 627-629,700; Dec. Dig. § 243.*]</p> <p>4. Eminent Domain (§ 263*)—Appeal—Reversal—Effect.</p> <p>The reversal of such second decree affected only the part appealed from, and the part of such decree vacating the prior decree was not reversed.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Gent. Dig. § 687; Dec. Dig. § 263.*]</p> <p>5. Judgment (§ 956*)—Conclusiveness—Matters Concluded—Evidence.</p> <p>The opinion accompanying the reversal of a decree may be looked at to determine on what grounds the reversal was made and to what extent the decree below was affected.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1822-1825; Dec Dig. § 956.*]</p> <p>6. Eminent Domain (§ 230*)—Proceedings to Assess Compensation—Fees— Payment Under Duress.</p> <p>In a proceeding to assess compensation for property taken by a city, the payment of the commissioners’ fees by the prevailing party, before the report was filed, was not made under duress, since the court could have made enforceable orders directing the commissioners to submit or file tbeir report and settling their compensation, and such party was therefore not compelled to pay such fees to obtain the, filing of the report.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 581; Dec. Dig. § 230.*]</p> <p>7. Payment (§ 85*)—Recovery Back—Payment Under Mistake.</p> <p>Where by statute the fees of the commissioners in a proceeding to assess compensation for property taken by a city were chargeable to tbe county, a belief by the prevailing party and the commissioners, at the time of the payment thereof by such party, that it was bound to pay them and that it would be reimbursed for a part thereof by the other party, was not such a mistake of fact as entitled such party to recover back tbe fee so paid, where the commissioners could not then have recovered the fees from the county or the other party.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 272-281; Dec. Dig. § 85.*]</p>

In Admiralty. Libels in admiralty by Willig & Ebert and others, as owners and in behalf of others having an interest in the cargo of the Norwegian ship Glenlui, against the Norwegian steamship Noreuga, and by the Actreselskabet Norge Mexico Gulf Linjen, a Norway corporation owning such steamship, on behalf of the officers and crew thereof, against the Glenlui and her cargo. Decree for libelant in first suit; other libel dismissed.

<p>Information by the United States against One Hundred and Fifty Cases of Fruit Puddine..</p>

<p>1. Bankruptcy (§ 288*)—Recovery oe Property—Adverse Claims—Summary Proceedings.</p> <p>Whether a bankrupt’s trustee may maintain summary proceedings, against the bankrupt and. his wife to recover money and property, claimed by her, as a part of the bankrupt’s estate, over her protest that she is entitled to be proceeded against in a plenary action, depends on whether she has a bona fide claim of ownership or whether it clearly appears that she is holding the money as a mere agent of the bankrupt</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. | 288.*]</p> <p>2. Bankruptcy (§ 288*)—Property oe Bankrupt—Recovery—Adverse Claim.</p> <p>Between April 21, 1913, and the following November the bankrupt gave to his wife $3,970.38, which she deposited to her own credit. By November 10th she had checked against the account so that only $684.47 remained. A bankruptcy adjudication was passed on November" 11th, after which the wife further withdrew $449.93, but on December 2d added to her credit $28,4.64. It also appeared that, shortly after the marriage of the parties in 1906, the bankrupt delivered most of his earnings to his wife with the understanding that she should pay the family expenses, and that any money she saved out of it should be her own property, and that from such savings she bought certain building association stock, which had always been in her name. Held, that the wife, as to the stock and the money deposited in the bank, except the balance of $284.64 remaining, had a bona fide adverse claim which she was entitled to have tried in a plenary suit as against tlie husband’s trustee in bankruptcy, notwithstanding Ky. St. § 1907, providing that every gift made by a debtor without a valuable consideration shall be void as to all his then existing creditors, etc.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. § 288.*]</p>

Habeas corpus, on petition of Albert H. Young and another, to secure their discharge from arrest under deportation warrant.

<p>1. Bankruptcy (§ 279*)—Preferences—Recovery.</p> <p>A preference by a bankrupt is voidable by tbe trustee who may recover tbe property or its value.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p> <p>2. Bankruptcy (§ 279*) — Preferences — Recovery—Persons Entitled to Sue.</p> <p>No person other than the bankrupt’s trustee may maintain an action to recover property, or its value, transferred by the bankrupt, either in fraud of creditors, or as a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p> <p>3. Bankruptcy (§ 257*) — Preferences — Right to Avoid — Assignment by Trustee.</p> <p>A trustee’s right to recover property transferred by the bankrupt as a preference is not assignable.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 356, 357; Dec. Dig. § 257.*]</p> <p>4. Equity (§ 197*)—Parties—Cross-Bill—Right to File.</p> <p>One not a party to a suit in equity cannot file or join in a cross-bill or other ple'ading to the merits, until he becomes a party by some recognized mode of equity procedure.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 455-459; Dec. Dig. § 197.*]</p> <p>5. Action (§ 1*)—“Cause of Action.”</p> <p>A cause of action is a matter for which an action may be brought. It is the matter of a complaint or claim on which a given action is grounded, whether legally maintainable or not. '</p> <p>[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 1-7, 85; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1015-1019; vol. 8, p. 7598.]</p> <p>6. Bankruptcy (§ 302*)—Action by Trustee—Cross-Bill—Right to File.</p> <p>A bankrupts’ trustee sued to set aside a certain alleged preferential transfer of certain cotton by the bankrupts to L. & Co., whereupon cross-complainants intervened and filed a cross-bill seeking to impress a trust in their favor on various properties and certain cotton in the hands of the trustee. The cross-bill also prayed that the transfer of the bankrupts to L. & Co. be adjudicated invalid, and that the cross-complainants be subrogated to any right, title, and interest which the trustee may have in any and all cotton, bonds, and other property into which it was claimed the cross-complainants’ money may have been converted, and that they be subrogated to any rights which the trustee may have under such bonds. Held, that the cross-bill alleged matters not pertinent to the original bill, and since it sought no relief against the original complainants, it was without equity.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 456, 457; Dec. Dig. § 302.*]</p> <p>7. Equity (§ 195*)—“Cross-Bill.”</p> <p>A “cross-bill” is one brought by a defendant in a suit against the complainant in the same suit, or against the other defendants in the same suit, or against both, touching the matters in question in the original bill.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 446-449; Dee. Dig. § 195.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1758-1761; vol. 8, p. 7624.]</p> <p>8. Equity (§ 195*)—Cross-Bill—Contents.</p> <p>Since a cross-bill is auxiliary to the original suit and dependent on it, such bill may not introduce new and distinct matters not embraced in the original bill, as they cannot be properly litigated in that suit, but constitute the subject-matter of an original, independent suit.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 446-449; Dec. Dig. § 195.*]</p>

In Equity. Action by the Bureau of National Literature against B. R. Sells and others. On motion to dismiss bill. Denied on condition that plaintiff move for leave to amend.

Sessions, Judge. The Tyomies'Publishing Company, John Nummivuori, and another were convicted of sending improper matter through the mails, in violation of Pen. Code, § 211, and they bring error.

<p>In Error to the District Court of the United States for the Western District of Missouri; A. S. Van Valkenburgh, Judge.</p> <p>Action by William J. Thompkins against the Missouri, Kansas & Texas Railway Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by'Caroline Henriette Gamier against Tekla Rossmann. From a decree for plaintiff (195 Red. 175), defendant appeals.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Michigan; Henry M. Swan, Judge. Suit by the Knickerbocker Trust Company against the Detroit, Toledo & Ironton Railroad Company. From two certain decrees and an order of confirmation entered on behalf of other interveners, Frederick J. Disman and others appeal.

Cotteral, Judge. Petition by Plarry F. Tripp, trustee in bankruptcy for the estate of S. C. English, bankrupt, praying a re-examination of a fee received by Charles Mitschrich. The court reversed the action of the referee, holding that he had jurisdiction and that the fee was excessive, and the trustee appeals.

Carpenter, Judge. ' ■' Action by Wilber H. Traver against Alexander Maitland. Judgment for plaintiff, and defendant brings error.

Young, Judge. Action at law by Charles C. Murray, receiver of the Cosmopolitan National Bank of Pittsburgh, against the Washington & Canonsburg Railway Company. Judgment for plaintiff, and defendant brings error.

Burns, Judge. Action at law by the United States against the Trinity and Brazos Valley Railway Company. Judgment for defendant on the second count of the petition, and plaintiff brings error.

» In Error to the District Court of' the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge. Action by Peter B. Loomis against the People’s Construction Company and the Title Guaranty & Trust Company. Judgment for defendants, and plaintiff brings error.-

Sessions, Judge. Suit in equity by Adolph M. Holstein, doing business under the name of the Syracuse Ornamental Company, against the Zeeland Ornamental Company. Decree for defendant, and complainant appeals. The following is the opinion of the District Court by 'Sessions, District Judge: Complainant is the owner of two patents (Nos. 683,425 and 779,651), relating to claimed improvements in the art, process, and method of manufacturing cloth or fabric-covered ornaments.

Willard, Judge. Suit in equity by Claude A. P. Turner against Morris E. Moore and Edward J. Scriver, partners under the name of Moore & Scriver. Decree for defendants, and complainant appeals.

<p>1. Patents (§ 328*)—Validity—Track for Hay-Carrier.</p> <p>The Taylor patent, No. 486,812, for a track for hay-carriers, claim 1, held void as covering a broad combination of which the patentee never claimed under oath to be the originator or inventor.</p> <p>2. Patents (§ 102*)—Proceedings to Obtain—Amendment of Application.</p> <p>An amendment of a patent application introducing a claim not contained in the original application and embodying a construction not specified nor claimed therein must be verified by the supplementary oath of the applicant in the terms prescribed by Rev. St § 4892 (U. S. Comp. St. 1901, p. 3384).</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 142; Dec. Dig. § 102.*]</p>

<p>In Equity. Suit by the Bucher & Gibbs Plow Company against the International Plarvester Company of America. On final hearing.</p>

<p>1. Patents (§ 283*)—Suit for Infringement—Defenses.</p> <p>One wlio has copied the very device of a patent cannot deny its utility when sued for infringement.</p> <p>[Ed. Note.-—For other eases, see Patents, Cent. -Dig. §§ 448-450, 452; Dec. Dig. §' 283.*]</p> <p>2. Patents (§ 328*)—Validity and Infringement—Fish Bait or Lure.</p> <p>The Rhodes patent, No. 777,488, for a fish bait or lure, discloses patentable novelty, and is valid. Also, held infringed by a device made by de-, fendant, copied from that commercially made and sold by compláinant, which, although an improvement on that shown in the drawings of the patent, embodied the patented combination, with equivalent elements, though some were changed in form.</p>

<p>Patents (§ 328*)—Infringement—Culvert.</p> <p>The Carter patent, No. 777,714, for a culvert, claim 1, must be narrowly construed in view of the prior art, and as so construed held not infringed.</p>

B. Witmer, Judge. Bankruptcy proceeding against the Rocky Glen Water Company. A rule to show cause issued on application of M. J. O’Toole was made absolute, and E. S. Williams appeals.

<p>Application by George Dow for naturalization. Denied. Order affirmed on rehearing in 213 Fed.-.</p>

Steve Tadish and others were indicted for introducing intoxicating liquor into Indian country, and on the trial moved for a directed verdict.

Contempt proceedings by the United States against George Burdick and William L. Curtin. Respondents adjudged guilty of contempt, and judgment of fine and imprisonment imposed. This case comes up upon the presentment of a grand jury for contempt. The respondents, the city editor and a reporter of the New York Tribune, refused to answer questions regarding the sources of their information which was the basis of certain articles in that newspaper regarding customs frauds.

<p>Application by the United States to punish Louis Appel for criminal contempt.</p>

<p>1. Courts (§ 102*) —Federal' Courts—Composition—Validity of Municipal . Ordinance—“State Statute.”</p> <p>An ordinance of' a municipality the constitutionality of which is assailed is not a statute of a state within Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]) § 266, providing that no interlocutory injunction restraining the enforcement of a state statute shall be granted by any judge of a United ’States District Court on the ground of unconstitutionality'of the statute, unless the application shall be presented to a district judge, and shall be heard by three judges, of whom at least one shall be a Justice of the Supreme Court or Circuit, Judge, and the other two may be Circuit or District Judges, etc.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 351, 352; Dec. Dig. § 102.*]</p> <p>2. Courts (§ 369*)—Federal Courts—Rules oe Decision—Decision oe State Court.</p> <p>Where state legislation is assailed in the federal courts as impairing the obligation of contract, the determination by the state courts that there is no contractual right to be impaired is not conclusive on the federal courts, but they will determine for themselves whether contractual rights exist, and whether such rights, if they exist, are impaired by the legislation attacked.</p> <p>[Ed. Note.—For other cases, see Courts, Dee. Dig. § 369.*]</p> <p>3. Courts (§ 369*)—Federal Courts—State Court Decisions.</p> <p>Where state legislation is assailed as violative of the contract clause of ’ the federal Constitution and the state courts have upheld the existence of contract rights, such decisions will be followed in the federal courts.</p> <p>[Ed. Note.—For other cases, see Courts, Dec. Dig. § 369.*]</p> <p>4. Courts (§ 365*)—Federal Courts—Rules oe Decision—Municipal Corporation—Powers—State Decisions.</p> <p>The charter power of a municipal corporation under the laws of the state creating it is a matter for the determination of the state courts, which determination will be followed in the federal courts, unless the construction conflicts with the proper enforcement of the right guaranteed by the laws of the United States.</p> <p>[Ed. Note.—For other cases, see Courts, Cent, Dig. §§ 950, 952, 955, 969-971; Dec. Dig. § 365.*]</p> <p>5. Municipal Corporations (§ 226*)—Powers—Welfare Clause—Contract for Water. ’</p> <p>Where a municipal corporation was authorized to enact ordinances for ■ the good order and welfare of the city, it was authorized to contract with third persons or corporations to furnish water for the city and its inhabitants.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§"■ 645-650; Dec. Dig. § 226.*]</p> <p>6. Constitutional Law. (§ 135*)—Waters and Water Courses (§ 203*)—Mu-nicipal Supply—Rates.</p> <p>A municipal ordinance, granting the right to a water company to furnish water to the city and its inhabitants, provided a flat rate for domestic consumption in dwellings, etc. only varying with the size of each building, and for all other purposes prescribed a meter rate measured by actual consumption, varying in price with the amount of daily consumption. Another provision “further ordained” that from July 1, 1888, the domestic rate should never exceed the schedule of flat rates specified, and that the company should have the right to charge for water by measurement at rates not exceeding the average rates named below, “measured water to be charged as follows,” followed by a schedule of meter rates per thousand gallons consumed and the schedule of annual rents for the meters themselves. Reid, that such provision was not intended to prescribe maximum rates, but fixed the rates that water company was entitled to charge during the life of the contract, which right was protected by the contract clause of the federal Constitution.</p> <p>[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 380-387; Dec. Dig. § 135;* Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. § 203.*]</p> <p>7. Waters and Water Courses (§ 203*) — Water Rates — Regulation — Power.</p> <p>In the absence of statutory authority at the time a city entered into a contract with a water company to furnish water to the city and its citizens, authorizing the city to regulate rates, the city had no such power.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§.289-299; Dec. Dig. § 203.*]</p> <p>8. Waters and Water Courses (§ 203*)—Municipal Water Supply—Contract—Rates—Term.</p> <p>A contract between a city and a waterworks company, fixing absolute rates to be charged by the water company, held to authorize the company to charge the rates prescribed for 30 years.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. § 203.*]</p> <p>9. Municipal Corporations (§ 108*)—“Grant of Franchise”—Ordinance-Referendum.</p> <p>Where a city had contracted with a water company to furnish water to the city and its citizens at specified rates for 30 years, a subsequent ordinance, modifying the original contract and establishing rates different from those originally specified, constituted a municipal grant of a franchise within a provision of the city’s charter requiring such ordinances to be ratified by a vote of the people, and hence, the people having voted adversely thereon, it never became operative.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 108.*]</p>

In Equity. Suit by the Central Trust Company of New York against the Wheeling & Lake Erie Railroad-Company and others, consolidated with suit of the National Car Wheel Company against the same defendants. Final hearing on original and cross-bills.-

Suit by the Adler Goldman Commission Company and another against F. S. Williams and others. On motion to dismiss the bill. This is a bill to set aside certain conveyances of real estate made by the defendant F S. Williams to his eodefendants, one of whom is his wife and the other his stepson, alleged to have been made for the purpose of defrauding the plaintiffs, his creditors.

Charles F. Munday and another were indicted for conspiracy to defraud the United States by illegally obtaining title to 40 contiguous tracts of coal land in the District of Alaska, aggregating 6,087 acres collectively, known as the Stracey Group, and averred to be of the value of $10,000,000. On objection to indictment.

<p>1. Towage (§ 15*)—Action foe Breach of Oonteact—Btjbden of Proof.</p> <p>A contract to tow does not impose either an obligation to insure or the liability of a common carrier, but requires only that the service shall be performed with that degree of caution and skill which prudent navigators usually employed in similar cases, and the burden of showing a breach by negligence or unskillful performance to the injury of the tow rests upon the party alleging it.</p> <p>[Ed. Note.—Eor other cases, see Towage, Cent. Dig. §§ 30-38; Dec. Dig. § 15.*]</p> <p>2. Towage (§ 11*)—In juey to Tow—Liability of Tug.</p> <p>Where a tug and tow jointly participate in the control and management of the tow, each party is responsible for his own negligence, resulting in injury to the tow.'</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 11-23; Dec, Dig. § 11.*]</p> <p>3. Towage (§ 11»)—Injuey to Tow—Liability of Tug.</p> <p>• An injury to a steamer by striking against a pierhead while being towed by the stern into the mouth of a river, in a customary manner at night, held not due to any fault of the tug, but to the fault and inattention of the mate of the steamer, who was stationed at the stern as a lookout, and who, if he had observed the swing toward the pier and had caused the starting of the engines forward, could readily have stopped the steamer.</p> <p>[Ed. Note.—For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p>

In Equity. Suit by Harvey Sheeler against G. W. Alexander and Orion Alexander, partners as G. W. Alexander & Son, and the Lake Shore Sawmill & Lumber Company. On motion by complainant to strike defendant’s petition for rehearing from the files.

<p>1. Courts (§ 271*)—'Naturalization—Certifícate—Cancellation—Juris-diction—“Beside. ’ ’</p> <p>Judicial Code (March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 150]) § 51, provides that with certain exceptions no person shall be arrested in one district for trial.in another in any civil action before a district court, and with certain exceptions that 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 where jurisdiction is founded only on diversity of citizenship, suit shall be brought only in the district of the residence of either plaintiff or defendant. Section 52 declares that when a state contains more than one district, every suit not of a local nature, in the district court, against a single defendant, inhabitant of such state, must be brought in the district where he resides. Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (U. S. Oomp. St. Supp. 1911, p. 537) provides for the institutioh of proceedings to cancel citizenship certificates fraudulently or illegally procured to be brought in the district of citizen’s last residence. Held, that the word ‘‘‘reside” as used in section 15, whether requiring a domicile or mere abode, contemplates at least a choice on the part of the naturalized citizen, to wit, a voluntary sojourning on his part; and hence a federal court of a district in which a naturalized citizen was incarcerated in a federal penitentiary, other than that in which he had previously resided, had no jurisdiction to cancel his certificate of naturalization.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 810; Dee. Dig. § 271.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6147-6150; vol. 8, p. 7787.]</p> <p>2. Courts (§ 270*)---Federal Courts—“Inhabitant”—“Resident”—“Citizen.”</p> <p>The words “inhabitant,” “resident,” and “eitizén,” as used in Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp.' St. Supp. 1911, p. 150]) §§ 51, 52, specifying the federal districts in which suits may be instituted in federal courts, contemplate the same condition, and all include the idea of domicile.</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. § 810; Dec. Dig. § 270*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3594--3604; vol. 8, p. 7687; vol. 7, pp. 6161-6166; vol. 8, p. 7788; vol. 2, pp. 1164-1174; vol. 8, pp. 7602, 7603.]</p>

<p>Time (§ 9*)—Exclusion of East Day.</p> <p>Naturalization Law (Act June 29,1906, c. 3592, 34 Stat. 596 [U. S. Comp. St. Supp. 1911, p. 529j) § 4, provides that, not less tban two, nor more than seven, years after an alien has made his declaration of intention, he shall make and file a petition in writing for naturalization. Held that the day of the date of the declaration should be excluded in computing the seven-year period, and hence a petition for naturalization filed on the seventh anniversary of that date was in time.</p> <p>[Ed. Note.—For other cases, see Time, Cent. Dig. §§ 11-32; Dee. Dig.. § 9.*]</p>

<p>In Admiralty. Suit by William L. Evans against the steamship At-' lantic City.</p>

<p>At Law. Action by Howard V. Stratton against David N. Hughes. On motion to set aside service of process.</p>

<p>Aliens (§ 62*)—Naturalization—Disqualification.</p> <p>An alien who for 12 or 15 years habitually violated the election laws by voting, with knowledge that he was not qualified, was not attached to . the principles of the Constitution and well disposed to the good order and happiness of the United States, within Act June 29, 1906, c. 3592, § 4, subsee. 4, 34 Stat. 596 (U. S. Comp. St. Supp. 1911, p. 529), requiring proof that an applicant for citizenship has resided continuously within the United States for' at least five years, and within the state or territory for at least one year, during which time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness thereof, and hence naturalization would be denied.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 123-125; Dec. Dig. § 62.*]</p>

<p>1. Mechanics’ Liens (§.113*)—Subcontractors’ Rights—Notice to uwner —Nature of Remedy.</p> <p>Code Civ. Proe. Cal. § 1184, provides that a subcontractor may give to the reputed owner a written notice that he has performed labor or furnished material, or both, to the contractor, and, such notice being given, it shall be the duty of the person who contracted with the contractor to withhold sufficient money to answer the claim and any lien that may be filed thereafter, etc. Meld, that the remedy so provided was disconnected from and additional to the subcontractor’s right to a lien on the structure; the notice operating as an assignment pro tanto of that which is due or to become due the contractors, which amount is sequestered as though under garnishment.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent; Dig. § 148; Dec. Dig. § 113.*]</p> <p>2. Mechanics’ Liens (§ 114*)—Subcontractors—Notice to Owner—Effect.</p> <p>Notice by a subcontractor to the owner to withhold money due the contractor to pay the claim of the subcontractor, as authorized by Code Civ. Proc. Cal. § 1184, does not affect claims that have previously become due and have been transferred by the contractor for value.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 149; Dec. Dig. § 114.*]</p> <p>3. Municipal Corporations (§ 1001*) — Claims — Presentation — Charter Provisions—Application.</p> <p>City Charter of San Francisco, art. 2, c. 1, § 19, provides that all demands payable out of the treasury must be approved by the board of supervisors before they can be approved by the auditor, or paid by the treasurer, and that all demands for more than $200 shall be presented also to the mayor for his approval, and all resolutions directing the payment of money other than salaries or wages amounting to $500 shall be published, etc. Meld, that such provisions had no application to payments due under a contract with the board of public works for the construction of a public improvement.</p> <p>[Ed. Note.—For other eases, see Municipal Corporations, Cent. Dig. § 2173; Dec. Dig. § 1001.*]</p> <p>4. Municipal Corporations (§ 373*)—Public Improvements—Contracts— Progress Payments.</p> <p>AYhere a contract for the construction of a sewer for a municipal corporation provided that the contractor should not either legally or equitably assign any of the money payable under the contract or his claim thereto, without the consent of the board of public works, a progress payment under the contract was not assignable without such' consent as against the rights of a subcontractor to sequester the same by notice to the city, as authorized by Code Civ. Proc. Cal. § 1184.</p> <p>[Ed. Note.—Eor other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. § 373.*]</p>

<p>1. Master and Servant (§ 265*)—Injuries to Employ#—Burden op Proop.</p> <p>In an action for damages for negligence, brought by an employs or party as to whom the rule of res ipsa loquitur does not apply, the burden is primarily on plaintiff to establish the negligence charged, which cannot be inferred merely from the fact of injury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p> <p>2. Trial (§ 141*)—Questions op Law or Fact—Direction op Verdict.</p> <p>It is the duty of the trial judge to direct a verdict at the close of the evidence, whenever it is wholly undisputed -or but a single inference, can be drawn therefrom by reasonable men, so that the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition thereto.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*]</p> <p>3. Negligence (§ 136*)—Questions op Law or Fact—Submission op Case to Jury.</p> <p>‘ The test to be applied in determining whether it is the duty of the court to submit a question of negligence to the jury is not how the preponderance of the testimony may be in the court’s opinion, but whether the evidence is sufficient to sustain an inference by the jury, since, if different inferences may fairly be drawn from the evidence by reasonable men, the jury, and not the judge, should be permitted to draw that inference.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>4. Evidence (§ 595*)—Weight—Inferences.</p> <p>While a jury may not guess or conjecture as to possible explanations to account for a result, when such conjecture or explanation is not supported by any reasonable inference from the testimony in the ease, yet when the cause of the occurrence cannot be shown by positive testimony, the jury may draw inferences from circumstances contemporaneous with or surrounding the occurrence; the only question being whether such circumstances afford any reasonable ground on which a jury in the exercise of its functions can draw an inference.</p> <p>[Ed. Note.—For other cases, see Evidence,. Cent. Dig. §§ 2444, 2445; Dee. Dig. § 595.*]</p> <p>5. Negligence (§ 136*)—Trial—Question por Court or Jury.</p> <p>An action for negligent injury is not to be lightly taken from the jury, since ordinarily negligence is so far a question of fact as to be properly submitted to and determined by the jury as the triers of the facts.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>6. Trial (§ 18*)—Trial Judge—Duty.</p> <p>A trial judge is primarily responsible for the just outcome of a trial.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 37, 42%; Dec. Dig. § 18.*]</p> <p>7. Appeal and Error (§ 927*)—Peremptory Instruction—Denial—Review.</p> <p>Action of the trial judge in declining to give a peremptory instruction for a verdict one way or another will not be reversed on appeal, unless clearly improper.</p> <p>[Ed. Note.—For other cases, see Appeal and. Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]</p> <p>8. Master and Servant (§ 286*)—Injury—Evidence—Question por Jury.</p> <p>In an action for death of an engineer, caused by the squeezing of his engine between another engine, much larger in size, in front and a loaded coal train in the rear, evidence held to authorize submission to the jury of the question of the railroad company’s negligence in placing decedent’s small engine in such position.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1050; Dec. Dig. § 286.*1</p> <p>Dayton, District Judge, dissenting.</p>

<p>In Error to the District Court of 'the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.</p> <p>Action by Richard Hoskinson, as administrator of Alexander Tho-burn, deceased, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Action by Guiseppe Curzi, an infant, by Raffaele Grilli, his guardian ad litem, against the Alpha Portland Cement Company. Judgment for plaintiff, and defendant brings error. This was an action brought to recover from an employer for an injury suffered by his employs. The plaintiff at the time of the injury complained of was 18 years of age and was in the employment of the defendant in a cement mill owned and operated by the latter at Martin’s Creek in Pennsylvania.

Burns, Judge. Action by S. Samuels & Co. against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant brings error. Prior to May, 1909, no shipment of cotton linters had ever moved to Houston, Tex., from points in the state of Arkansas on the line of railroad operated by the plaintiff in error. Shipments of this character generally went to manufacturing points in the Middle West; and there was a small export movement .through New Orleans.

Appeals from the District Court of the United States for, the Eastern District of Texas; Gordon Russell, Judge. Suits in admiralty by Simon Bo'rison and others and by T. S. Reed, trustee, owner of the tug Viva, and others, in which A. Rummler, intervened, against the barge Shenango, and by said Reed and others in personam against the J. M. Guffey Petroleum Company and another. Decree for libelants, and respondents appeal.

Suits in equity by the Samson Cordage Works against the Puritan Cordage Mills. Complainant appeals from decree for defendant in. first case, and order denying preliminary injunction in second case. Decree (194 Fed. 573) affirmed, and order (197 Fed. 205) reversed.

<p>Appeal from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>. Suit by the Autosales Gum & Chocolate Company against the H. E. Winterton Gum Company. Decree-for complainant, and defendant appeals.</p>

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 the Yorkville Coal Company. Petition by Joseph Tarrulli and another to revise an order directing the delivery of certain wagons by petitioners to the trustee.

<p>1. Negligence (§ 136*)—Actions fob Injuries—Questions foe Juey.</p> <p>In an. action for injuries to an employs of á seller-of oil, wbo went upon the buyer’s tank for the purpose of measuring the oil before and after delivery, and fell by reason of the insecure fastening of a manhole cover, evidence held to make a question for the jury as to his negligence.</p> <p>■ [Ed. Note.—Eor other eases, see Negligence, Cent. Dig. §§ 277-353: Dec. Dig. § 136.*]</p> <p>2. Negligence (§ 32*)—Condition of Premises-t-Care Required as to Invitees.</p> <p>An employs of a seller of oil, which was being pumped from its barge directly into the buyer’s tank, who, as was customary, went upon the tank in company with the buyer’s representative to measure the oil through a manhole before and after delivery, was not a trespasser, or even a licensee, but was there by invitation implied by law, where one enters on the premises of another to carry out a purpose which is to the common advantage or to the common interest of the owner and himself, and it was the duty of the owner to exercise ordinary care.and prudence to keep the premises in a safe and suitable condition so that he would not be exposed unnecessarily or unreasonably to danger.</p> <p>[Ed. Note.—Eor other cases, see Negligence, Cent. Dig. §§■ 42-44; Dec. Dig. §32.*]</p> <p>3. Negligence (§ 32*)—Condition of Premises—Care Required as to Invitees.</p> <p>An employe of a seller of oil which was being pumped into the buyer’s tank went upon the tank in company with the buyer’s representative to measure the oil through a manhole before and after delivery. There was a manhole in the roof about six -inches from the edge of the tank, and directly in front of the ladder, the cover of which' was insecurely. fastened. • The buyer’s representative, having been frequently on the tank, reached across the cover and took hold of the flange in climbing on to the roof,' but the seller’s employé, not knowing that the cover was insecurely fastened, took hold of the handle of the cover and fell when the cover came off. Held, that the implied invitation to such employé was not, as claimed, an invitation to take hold of the manhole by the flange or collar only, and not by the handle of the cover.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 42-44; Dee. Dig. § 32.*] '</p> <p>4. Negligence (§ 65*)—Liability—Contributory Negligence.</p> <p>A person injured through another’s negligence cannot recover if his own negligence contributed to the injury, and his negligence may be of a negative character, such as lack of vigilance, but to defeat a recovery, it must amount to a want of ordinary care, as the law does not require him to exercise extraordinary care or the utmost possible caution.</p> <p>[Ed. Note.—For other eases, see Negligence, Cent. Dig. §§ 83,- 94; Dee. Dig. § 65.*]</p> <p>5. Negligence (§ 67*)—Liability—Contributory Negligence.</p> <p>A person has a right to presume that every other person will perform his duty, and, in the absence of reasonable ground to tbink otherwise, it is not negligence to assume that one is not exposed to danger which can come only from another’s negligence.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 90, 91; Dec. Dig. § 67.*]</p> <p>6; Negligence (§ 136*)—Actions—Question for Jury.</p> <p>If at the close of plaintiff’s case there is evidence upon which the jury might find for plaintiff, defendant’s negligence, should be submitted to the jury even though the great preponderance of the testimony is with defendant, as there are few questions within the range of judicial inquiry which are regarded as more peculiarly and exclusively within the province of a jury than those of negligence.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent.- Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>7. Negligence (§ 136*)—Actions—Question for Jury.</p> <p>Where the facts are such that there is room for difference of opinion between reasonable men as to whether or not negligence should be inferred, the right to draw, the inference is for the jury.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p>

Habeas corpus by the United States, on relation of Hans Bauder, against Byron H. Uhl, Acting Commissioner of Immigration'at the Port of New York, and others. From an order dismissing the writ, the relator appeals.

Killits, Judge. Action at law by Bertha G. Kimball against the Detroit, Monroe & Toledo Short Line Railway. Judgment for plaintiff, and defendant brings error. Mrs. Kimball, who was the plaintiff below, alleged serious physical injury suffered in a collision while she was a passenger on a railroad of the plaintiff in error, a Michigan corporation.

<p>1. Appeal and Error (§ 1017*)—Review—Conclusiveness of Findings.</p> <p>Where a finding hy a referee in bankruptcy that a mortgagee had reasonable cause to believe that the enforcement .of his mortgage would ef-. feet a preference was based on facts and circumstances stipulated in writing for submission of the issues, the rule as to the persuasive force of findings was inapplicable.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3911, 3961, 3996-4005; Dec. Dig. § 1017.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Bankruptcy (§ 165*)—Preferences—Burden of Proof.</p> <p>Under Bankr. Act July 1, 1898, c. 541, §' 60b, 30 Stat. 562 (U. S. Coinp. St. 1901, p. 3445), as amended by Act June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1506), providing that if, at the time of a transfer by a bankrupt within four months before the filing of petition, the bankrupt be insolvent, and the transfer then operate as a preference, and the person receiving it shall have reasonable cause to believe that its enforcement would effect a preference, it shall be voidable by the trustee, insolvency and reasonable cause for belief on the part of the transferee that enforcement would effect a preference must be proved as facts.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. § 165.*]</p> <p>3. Bankruptcy (§ 165*)—Voidable Preferences—Statutory Provisions.</p> <p>Such section as so amended does not make all transfers to creditors within the statutory period voidable per se whenever bankruptcy ensues and the transfer effects a preference.</p> <p>[Ed. Note..—Eor other cases, see Bankruptcy, Cent. Dig. §§' 259, 260, 266; Dec. Dig. § 165.*]</p> <p>4. Bankruptcy (§ 166*)—Voidable “Preference”—Statutory Provisions.</p> <p>A “preference,” as used iu such section as so amended, is one made and accepted to evade the rule provided by that act for equal distribution among the creditors of the bankrupt, and there must be a reasonable cause for belief that such preference will be effected; the preference over unsecured creditors necessarily obtained by a mortgagee not being the preference intended.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. §§■ 250-253, 255-258; Dec. Dig. § 166:*</p> <p>Eor other definitions, see Words and Phrases, vol.' 6, pp. 5498, 5499; vol. 8, p. 7759.]</p>

Action by Archie T. Black, trustee in bankruptcy of the estate of Antonio Marzano, against the Sheppard-Strassheim Company! Erom a decree of the District Court in favor of plaintiff, defendant appeals.

Action by James P. Corry against the O. W. Kerr Company. Judgment for plaintiff, and defendant brings error.

Appeals from the District Court of the United States for the Eastern District of New York. These causes come here upon appeal to review decrees of the District Court, Eastern District of New York, holding certain claims of three patents to be valid and infringed by defendants.

<p>1. Patents (§ 328*)—Validity and Infbingement—Flying Machine.</p> <p>The Wright patent, No. 821,393, for a flying machine, is valid, covers an invention of a pioneer character, and is entitled to a liberal construction; also held infringed.</p> <p>2. Patents (§ 235*)—Inebingement—Machine.</p> <p>A machine that infringes part of the time is an infringement, although it may at other times be so operated as not to infringe.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. § 371; Dec. Dig. § 235.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by Thomas Conley against George P. Thomas. Decree for defendant, and complainant appeals.</p>

This cause comes here upon appeal from a decree of the District Court, Western District of' New York, granting injunction and accounting in a suit for infringement of a patent. The patent is number 924,546 issued June 8, 1909, to W L- R. Emmet for improvements in turbines. The opinion of Judge Hazel which very fully sets forth the facts will be found in 211 Fed. 658.

<p>1. Patents (§ 27*)—Invention—Adapting Old Device to New Use.</p> <p>Under tlie patent law the inventive faculty resides in the reduction of an idea to practice as distinguished from merely making mechanical alterations, and whenever an old device is put to a new use, and such use produces a new result, a question of fact arises as to whether such adaptation would occur to a person of ordinary mechanical skill.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*</p> <p>Reduction of invention to practical use or operation as affecting patentability, see note to Excelsior Supply Co. v. Weed Chain Tire Grip Co., 113 C. C. A. 7.]</p> <p>2. Patents (§ 160*)—Invention—Drawings as Evidence.</p> <p>Invention is not to be ascertained from the drawings of a patent alone.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 234, 235; Dec. Dig. § 160.*]</p> <p>3. Patents (§ 36*)—Invention—Evidence.</p> <p>In a patent suit, doubts as to invention may be overcome by the attitude of defendant in the patent office in claiming invention for his structure and declaring interference with the patent in suit.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 40; Dec. Dig. § 36.*]</p> <p>4. Patents (§ 328*)—Validity and Infringement—Steam: Turbine.</p> <p>The Emmet patent, No. 924,546, for a steam turbine, relating specially to a sectional covering for the vanes of an axial-flow turbine secured to the outer ends of the vanes by tenons made integral therewith, was not anticipated, discloses invention, and is valid; also held infringed.</p>

<p>Patents (§ 328*)—Validity and Infringement—Brake Shoe Mechanism.</p> <p>The Price patent, No. 818,639, for a brake shoe mechanism, discloses patentable novelty and invention only in the element of an automatically operated turnbuekle used in the combination to hold the brake shoe in contact with the wheel. As so construed, held not infringed.</p>

<p>1. Patents (§ 26*)—Invention—New Combination oe Old Elements.</p> <p>A new combination of old elements which by their co-operative action produce a more beneficial result amounts to invention, which is not negatived by the fact that such co-operation requires the mediation of an operator.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p> <p>2. Patents (§ 36*)—Evidence oe Invention—Commercial Success.</p> <p>That a patented device went into immediate and successful use is evidence of invention, as is also the fact that a new combination of old elements in an apparatus greatly increased its efficiency.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 40; Dec. Dig. § 36.*]</p> <p>3. Patents (§ 178*)—Construction—Description oe Preferred Form of Device.</p> <p>Where a claim of a patent contains a description of only one form of a thing which would perform the same office in other forms, the court will apply the general rule that the description covers all equivalent forms, and the form, described will be treated only as the one preferred.</p> <p>[Ed. Note.—For other eases, see Patents, Cent Dig. § 254% § 178.*] Dec. Dig.</p> <p>4. Patents (§ 328*)—Validity and Infringement—Water Gas Apparatus.</p> <p>The Rusby patent No. 857,760, for a water gas apparatus, held not anticipated, valid, and infringed.</p> <p>5. Patents (§ 328*)—-Invention—Water Gas Apparatus.</p> <p>The Dickey patent No. 940,925 for a water gas apparatus held void for lack of invention.</p>

<p>In Equity. Suit 'by the Ohio Varnish Company against the Glidden Varnish Company. On final hearing.</p>

<p>1. Public Lands (§ 13*)—Timber Out from Public Domain—Right of Possession.</p> <p>An action by the United States to recover the value of timber cut from the public domain is essentially in trover, and cannot be sustained unless plaintiff shows a general or special property in the timber cut and a right to the possession thereof at the commencement of the action.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 16-18; Dec. Dig. § 13.*]</p> <p>2. Public Lands (§ 88*)—Railroad Grant—Relinquishment—Cutting Timber—Rights of United States.</p> <p>Act July 1,1898, c. 546, 30 Stat. 620, provides for the relinquishment and exchange of certain lands within the Northern Pacific grant and declares that all right, title,. and interest of the railroad company or its grantees in land relinquished shall revert to the United States, and such tracts shall be treated in the same manner as if no rights thereto had ever vested in the railroad grantee. Held, that such provision refers to the title and the treatment of the land after relinquishment, and does not vest in the government title to the land or timber growing thereon, or right to possession prior to relinquishment, or any right of action that the railroad company may have had for timber taken from the land by a trespasser while the land was included in the grant prior to relinquishment.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 235, 266-269; Dec. Dig. § 88.*]</p>

<p>Aliens (§ 65*)—Naturalization—Qualification—Residence.</p> <p>Under Rev. St. § 2166 (U. S. Comp. St. 1901, p. 1331), providing that any alien who may enlist in the United States Army and be honorably discharged shall be admitted to citizenship without any previous declaration of his intention to become such, and that he shall not be required to prov^ more than one year’s residence within the United States previous to his application, and Naturalization Act June 29, 1906, c. 3592, § 4, pars. 2, 4, 34 Stat. 596 (U. S. Comp. St. Supp. 1911, p. 529), requiring proof that-applicants for citizenship have resided in the United States for at least five years and in the state for at least one year immediately preceding the filing of the petition, an honorably discharged soldier need not have been a resident of the state for one year; section 2166 not having been expressly or impliedly repealed by the Naturalization Law.</p> <p>[Ed. Note.—-For other cases, see Aliens, Cent. Dig. § 129; Dec. Dig. § 65.*]</p>

<p>Towage (§ 11*)—Injuby to Tow—Liability of Tug.</p> <p>An injury to a steamer by striking against the abutment of a bridge while being towed through the draw held not due to any fault of the tug but to the fault of the master of the steamer in failing to comply with the direction of the master of the tug to put a man with a line on shore to hold steamer straight while passing through the draw. ' ,</p> <p>[Ed. Note.—Eor other eases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p>

In Admiralty. Libels by Wilhelm Wilhelmsen against the German bark Thielbek and the Port of Portland, and by Knohr & Burchard against the Norwegian steamship Thode Fagelund. On exceptions to the answer of the Port of Portland.

<p>Judgment (§ 646*)—Preferences of Bankrupt—Adjudication of Referee— CONCEUSIVENESS.</p> <p>Where, in a bankruptcy proceeding, the trustee filed objections to a claim on the ground that the claimant had received a preference which came on for hearing before the referee before whom the claimant introduced evidence, and the referee made an order, judgment, and decree adjudging that a payment to such claimant constituted a voidable preference, and disallowing his claim until the surrender by him of the amount of the preference, no review of which was taken, such adjudication was conclusive as to the fact of preference, in an action by the trustee to recover back the preferential payment, since, while the referee could not have assumed jurisdiction in the first instance over the question of preference, the claimant, having litigated that question and acquiesced in the referee’s findings and judgment, was concluded thereby.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1159; Dec. Dig: § 646.*]</p>

<p>In Equity. Suit by the Equitable Trust Company of New York against the National Bank of Commerce in St. Louis.</p>

Bill of interpleader by the Union Pacific Railroad Company against James Belek and others to determine the persons entitled to a reward. Fund awarded to particular claimants.

<p>1. Constitutional Law (§ 121*)—Obligation of Conteacts—Law Ihpaieing.</p> <p>A municipal ordinance, the effect of which is merely to deny liability on a contract or to declare the repudiation thereof, and which prescribes no antagonistic rights or duties, is not legislation impairing its obligation in violation of the contract clause of the Constitution, although the contract repudiated is valid and binding.</p> <p>[Ed. Note.—Por other cases, see Constitutional Law, Cent. Dig. §§ 285, 304-311, 342-348; Dee. Dig. § 121.*]</p> <p>2. Constitutional Law (§ 135*)—Injunction (§ 59*)—Subjects of Relief— Enfoeoehent of Municipal Oedinances.</p> <p>A city ordinance merely repealing, a prior ordinance which purported to make effective a contract between the city and a telephone company fixing rates to be charged by the company to subscribers for a term of years, on the ground that the contract was ultra vires and invalid, without substituting, other rates or restricting the right of the company to fix rates, or prescribing any steps to be taken by the city thereunder, did not impair the obligation of the contract, and a court of equity has no power to grant injunctive relief against it.</p> <p>[Ed. Note.—Por other cases, see Constitutional Law, Cent. Dig. §§ 380-387; Dec. Dig. § 135;* Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.*]</p> <p>8. Injunction (§ 59*)—Subjects of Relief—Enfobcement of Conteact.</p> <p>A court of equity is without jurisdiction to grant an injunction restraining individual subscribers of a telephone company from refusing to pay rates fixed by a contract between the company and the city.</p> <p>[Ed. Note.—Por other cases, see Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.*]</p>

At Law. Action by August Bay against the Merrill & Ring Lumber ■Company. On motion for a new trial after nonsuit. Plaintiff cites the following authorities: Colasurdo v. Central Ry. (C. C.) 180 Fed. 832; The Daniel Ball v. U. S., 10 Wall. 557, 19 L. Ed. 999; El Paso Ry. v. Gutierrez, 215 U. S. 88, 30 Sup. Ct. 21, 54 L. Ed. 106; Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879; Pedersen v. Delaware, etc., Ry., 229 U. S. 146, 33 Sup.

<p>1. Trial (§ 139*)—Questions oe Law and Fact—Direction oe Nonsuit.</p> <p>It is the duty of a federal court to direct a nonsuit when tbe evidence is not sufficient to sustain a verdict.</p> <p>[Ed. Note.—For other cases, see Trial, Cent Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.*]</p> <p>2. Commerce (§ 27*)—Injuries to Servant—Employers’ Liability Act-Commerce.</p> <p>Defendant railroad company carried logs from tbe forests in Washington to Puget Sound, where part of them were sold to various mills and1 the remainder taken to defendant milling company where they were manufactured. The lumber was piled in a yard, about 20 per cent, sold in the local market, and the remainder shipped to various points in and out of the state. .Held, that, since continuity of movement is essential in determining whether a commodity is started in interstate commerce, the logs, during transportation from the forest to Puget Sound, in which plaintiff was employed,, were not being transported in interstate commerce, and hence the railroad company in so transporting them was not liable for injuries to plaintiff'under Federal 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>

Actions by the United States of America against the Chicago Junction Railway Company. Judgment for defendant in each case.

At Law. Action by FI. G. Baker & Bro. against one Pinkham, master of the British steamer West Point, John Doe and Richard Roe,owners of said steamer, and Strachan & Co., agents. On motion to-remand.

<p>1. Removal op Causes (§ 118*)—Amendment op Complaint—Jueisdictional. Pacts.</p> <p>Where a case is removed to a federal court, the complaint may be amended so that the citizenship of the parties and the jurisdictional amount in controversy shall appear on the face of the complaint.</p> <p>[Ed. Note.—-Por other cases, see Removal of Causes, Cent. Dig § 250; Dec. Dig. § 118.*]</p> <p>2. Bbokees (§ 82*)—Sale op Land—Action pob Commissions—Complaint— Demuebeb.</p> <p>A complaint alleged that plaintiff was employed to sell certain timber land for not less than $500,000, in which case he should receive 5 per cent, of that sum, and in addition all of the purchase price in excess thereof. It further charged that, as a result of negotiations had by plaintiff with a lumber company, the latter purchased “the said property,” and that the amount paid for the timber alone was $550,000, and the fee with the timber removed was worth $100,000; wherefore plaintiff sought to recover 5 per cent, on $500,000, $50,000, the excess of the sale price, and $100,000, the selling price of the land after the timber had been removed. Held, that the complaint should be construed as alleging a sale of the entire property for sums aggregating $650,000, and was therefore not demurrable as showing a failure of plaintiff to perform in that he sold the timber without the land.</p> <p>[Ed. Note.—Por other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.*]</p> <p>3. Judgment (§ 237*)—Paeties (§ 25*)—Joint Dependants—Failuee to Sebve. One.</p> <p>Code Civ. Proc. N. Y. § 1932, provides that where a complaint is against two or more defendants alleged to be jointly indebted, and the summons is served on one or more, but not on all, plaintiff may proceed against the defendants served unless the court otherwise directs, and may take final judgment against such defendants, which is conclusive of their liability, etc. Judicial Code, § 50 (Act March 3, 1911, c. 231, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911, p. 149]), provides that where there are several defendants, and one or more of them are neither inhabitants of nor found within the district and do not voluntarily appear, the court may entertain jurisdiction and proceed to trial and judgment between the parties who are properly before it, but the judgment shall not conclude or prejudice others not regularly served with process nor voluntarily appearing, and nonjoinder of parties who are not inhabitants of nor found within the district shall not constitute matter of abatement or objection. Relé that, under both provisions, plaintiff may make all of several joint debtors parties to the suit, though he can obtain service on only one of them, and may proceed and recover judgment against the one served without reference to the others.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 415, 418-421, 429; Dec. Dig. § 237;* Parties,'Cent. Dig. §§ 31, 36-40; Dec. Dig. § 25.*]</p>

Indictments were found against Harry Rosenstein and others collectively, and also individually. On demurrer to the individual indictments.

<p>Internal Revenue (§ 9*)—Corporation Tax Act—Net Income—Deduction —Taxes.</p> <p>Rev. St. Mo. 1909, § 11357, imposes a tax on bank shares, and section 11359 declares that the tax be paid in the first instance by the corporation, but it may recover the same from the owners or deduct it from dividends accruing- on the shares, and the amount is also made a lien on the shares and is payable'before a transfer of the shares can be made. Act Cong. Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1911, p. 946), imposes an internal revenue tax on the net incom'e of corporations above $5,000, subject to deduction of all sums paid by it within the year for taxes imposed under the authority of the United States or any state. Held, that taxes assessed on the corporate shares of a bank and paid by it under sections 11357,11359, were not taxes assessed against the bank which it was entitled to deduct in determining its net income for the assessment of corporation taxes under the Corporation Tax Act.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §f 13-28; Dec. Dig. § 9.*]</p>

At Law. Action by Ernest J. Robinson against the Western Assurance Company, on a policy of fire insurance. Verdict having been returned for plaintiff, defendant moves for a new trial.

<p>In Equity. Suit by the Goldsmith Silver Company against Llewellyn W. Savage.</p>

<p>In Admiralty. Suit for collision by G. A. Garretson and others, receivers of the Gilchrist Transportation Company, against the steamer Wm. H. Gilbert.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of William J. Parmeter. Application by the bankrupt’s trustee to review an order setting over to the bankrupt, as exempt, certain real property.

<p>In Equity. Suit by the National Cloak & Suit Company against Londy & Friend, to restrain defendants’ use of the word “National.”</p>

In Admiralty. Suit for collision by J. Joseph McTigue, owner of the barge Plymouth against the steamer Langham, with cross-libel by the owner of the Langham.

<p>New Trial (§ 42*)—Grounds—Deception by Juror as to Qualifications.</p> <p>Where a juror on his examination testified that he voluntarily left the employ of a company under the same management as defendant, that he had another position, that he thought it was to his advantage to take the other position, and that everything was entirely friendly when he left the employ, an affidavit, alleging that he was discharged for failure .to properly discharge his duties and did not resign voluntarily, but not alleging that the employer’s dissatisfaction was imparted to him, did not show such intentional deception on his part as required a new trial, since unwillingness is not, necessarily, imputable to an employé who is discharged.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 74r-79; Dec. Dig. § 42.*]</p>

<p>In Bankruptcy. In the matter of' bankruptcy proceedings of Louis Nadel. On application for a bankrupt’s discharge.</p>

Action by the United States against the Chicago, Rock Island & Pacific Railway Company to recover penalties for violation of the 28-hour law. The facts agreed to are as follows: On November 22, 1910, at 3:30 p. m., defendant railway company received five cars of cattle at Selma, Iowa, billed to Philadelphia routed over its lines to Chicago; thence over the Illinois Central Railroad to Kankakee, Ill. ; thence via the Big Pour and connecting lines to destination.

<p>1. Aliens (§ ' 44*)—Immigration Authorities—Hearing—Inspectors—Disqualification.</p> <p>An immigration inspector' was not disqualified to bear a deportation proceeding against relator, an alien, charged witb being found in a bouse of prostitution, because be participated in a so-called raid of tbe bouse in wbicb petitioner was found, and bad sucb personal knowledge of tbe facts as was so acquired.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 102-104; Dec. Dig. § 44.*]</p> <p>2. Aliens (§ 54*)—Deportation—Hearing—Record.</p> <p>Where, in proceedings to deport relator for being found in a bouse of prostitution after entering tbe United States, it was conceded that she was found in a raid on a bouse that was reputed to be a rendezvous for harlots, she was not prejudiced by tbe failure of tbe inspector, who participated in tbe raid, to make a formal record statement of tbe matters within his own knowledge, by which be was influenced in directing deportation.</p> <p>[Ed. Note.—For other eases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

<p>At Law. Action by Lillian M. Green against the Delaware,- Lackawanna & Western Railroad Company. On motion to relieve plaintiff from filing a bill of particulars.</p>

In Equity. Suit by Henry E. Bogert and others, as executors of the will of Walter B. Lawrence, deceased, suing on behalf of themselves and other stockholders of the Houston & Texas Central Railway Company similarly situated who may come in and contribute to the expenses of the suit, against the Southern Pacific Company. On motion to dismiss.

<p>1. Bankruptcy (§ 15*)—Partnership—Adjudication—Jurisdiction.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, subd. 1, 30 Stat. 545 (U. S. Comp. St. 1901, p. 3420), giving the bankruptcy court jurisdiction to adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, and section 5c, providing that the court which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property, where the court had jurisdiction over all the partners of an alleged bankrupt firm, it had jurisdiction of the firm, though it had been organized less than three months.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 21; Dec. Dig. § 15.*]</p> <p>2. Bankruptcy (§ 90*)—Jurisdiction—Partnership—Issues.</p> <p>In bankruptcy proceedings against a partnership, the court has no-concern with any fraud through which a partner has been induced to enter the firm.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 124; Dec. Dig. § 90.*]</p> <p>3. Bankruptcy (§ 100*)—Adjudication—Application to Reopen.</p> <p>Where, in bankruptcy proceedings against a firm, petitioner, one of the partners, knew of the proceedings and selected an attorney in fact against that event, who appeared formally and filed an answer and later, on receiving notice of hearing before the master, deliberately chose to abandon the case, and the5 attorney at law who acted for the attorney in fact informed the attorney for the petitioning creditors that he did not intend to appear ^.nd that, the default should stand, petitioner was not entitled to have the adjudication reopened on the ground that it was entered by default or his excusable neglect.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§'-60, 131, 141-144; Dec. Dig. § 100.*]</p>

<p>Libel by the United States for the, condemnation o.f two hundred cases of- adulterated tomato catsup.</p>

In Admiralty. Suit by the Kittr edge-Waters Supply Company against the steamer Louis Dolive; the St. Tammany Steamship Company, claimant. On exceptions to petition of claimant to bring in new parties.

Holland, Judge. Actions at law by Henry E. Meeker, surviving partner of the firm of Plenry E. Meeker and Caroline H. Meeker, doing business under the trade-name of Meeker & Co., and by Henry E. Meeker, against the Lehigh Valley Railroad Company. Judgment for plaintiff in each case, and defendant brings error.

<p>1. Action on the Case (§ 4*)—Nature of Action—Construction of Declaration.</p> <p>A declaration, alleging a lease of ground by defendant to plaintiff, defendant’s wrongful entry thereon, and expulsion of plaintiff before the expiration of the term, and the subsequent continued exclusion of plaintiff during the remainder of the term with consequent damage to plaintiff, held to state a cause of action of trespass on the case under the Massachusetts practice in which plaintiff might recover indemnity for loss of the right to use and occupy the premises during the remainder of the term.</p> <p>[Ed. Note.—For other cases, see Action on the Case, Cent. Dig. §§ 42-46; Dec. Dig. § 4.*]</p> <p>2. Landlord and Tenant (§ 180*)—Wrongful Eviction—Evidence—Sufficiency.</p> <p>Evidence considered, in an action on the case to recover damages for the alleged wrongful entry upon and eviction of plaintiff from premises which it held as tenant, and held sufficient to establish plaintiff’s possession at the time of the entry.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 715-729; Dec. Dig. § 180.*]</p> <p>3. Estoppel (§ 68*)—Equitable Estoppel—Inconsistent Positions in Judicial Proceedings.</p> <p>Where, from the admitted facts in an action to recover damages for the alleged wrongful entry upon and eviction of plaintiff from certain premises of which it was tenant, it appeared that defendant had leased the‘premises to plaintiff for a term of five years, and that during such term and on the day alleged in the declaration defendant entered' upon and tooli possession of the premises for the expressed purpose of terminating the lease under its terms' for breach of a condition which plaintiff could only have committed if in possession, evidence relied upon by defendant to justify its entry held to estop it from claiming at the trial that plaintiff was not in possession when the re-entry was made.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. § 68.*]</p> <p>4. Evidence (§ 357*)—Copy of Letter—Competency.</p> <p>A copy of a letter not shown to have been sent or received held not admissible to prove a statement made therein which was at most only the opinion of the writer.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1492-1499; Dee. Dig. § 357.*]</p> <p>5. Evidence (§ 546*)—Competency of Experts—Discretion of Court.</p> <p>Upon the question of the value of the unexpired term of a lease for premises upon which plaintiff as tenant had built amusement chutes, it was within the discretion of the court to admit as expert testimony, to be considered with other testimony, the opinions of witnesses who, although not familiar with the value of real estate in the vicinity, were experienced in building and conducting such chutes as places of public amusement.</p> <p>[Bel. Note.—Bor other cases, see Evidence, Cent. Dig. § 2863; Dec. Dig. '§ 546.*]</p> <p>6. Landlord and Tenant (§ ISO*)—Admissibility of Evidence—Breach of Lease.</p> <p>Upon the question of the value of the nnexpired term of a lease of premises upon which chutes for public amusement purposes had been built and operated during the two previous seasons, it was not error to admit evidence tending to show the receipts, expenses, and net profits of the business during such seasons as an element to be considered by the jury.</p> <p>[Ed. Note.—Bor other cases, see Landlord and Tenant, Cent. Dig. §§ 715-729; Dec. Dig. § 180.*]</p> <p>7. Corporations (§> 559*)—Effect of Appointment of Receiver for Plaintiff-Pending Suits.</p> <p>The appointment of a receiver for a plaintiff corporation pending a suit did not abate the action, nor was it error to permit it to proceed in plaintiff’s name, where the receiver did not ask to intervene, and no motion was made to have him substituted.as plaintiff.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2241-2252, 2259;'Dec. Dig. § 559.*]</p>

Howard, Judge. Condemnation proceeding by the Postal Telegraph-Cable Company of Washington against the Northern Pacific Railway Company. To review the judgment, the petitioner brings error.

Appeal and Cross-Appeal from the District Court of the United States for the First Division of the Northern District of California; Frank S. Dietrich, Judge. Suit in admiralty for collision by the Southern Pacific Company, as owner of the car ferryboat Transit, against the barkentine Fullerton (the Mission Transportation & Refining Company, claimant), and cross-libel. Decree dismissing both libel and cross-libel, and both parties appeal.

Howard, Judge. Suit in admiralty for collision by the Inland Navigation Company, as owner of the steamship Telegraph, against the steamship Alameda; the Alaska Steamship Company, claimant. Decree for libelant, and claimant appeals.

C. Van Fleet, Judge. Action by the Modern Steel Structural Company against the American-Pacific Construction Company. Judgment for plaintiff, and defendant brings error. This is an action to recover damages for breach of an alleged contract for the fabrication and delivery of certain structural steel.

<p> (Syllabus by the Court.) </p> <p>1. Injunction (§ 128*)—Grounds — Maintenance of Action — Sufficiency of Evidence. ,</p> <p>In November, 1895, G. purchased a farm of 640 acres in Kansas, tools the title to himself, and in December, 1895, and January, 1896, placed his wife’s brother, B., who- was incompetent to support his wife and family, upon it. The court below found that before closing the negotiations for the purchase a parol agreement was made between A., the daughter of E., who was a stenographer in Chicago, that C. should purchase the farm, take the title in-his name, give E. and his wife a home thereon, the use of the farm and its income for their support during their lives, that A. should give up her position' as stenographer in Chicago, remove to and live upon the farm with her parents, that they should manage the farm, and that she should give to them, to their needs and interests, her personal care and attention during their lives, and that at their deaths C. would convey the farm to her. The court also found that A. went to the farm in January or February, 1895, and has ever since lived there and faithfully performed her part of the contract, that her father died there in January, 1907, and that she is still performing her part of her contract and caring for her paralytic mother and the farm.</p> <p>Held, the evidence 'sustains these findings, and the decree which enjoined the successors in interest of C. from maintaining an action of ejectment or any other claim against A. or the farm unless she fails to-care for her mother was just and equitable.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 278; Dec. Dig. § 128.*]</p> <p>2. Frauds, Statute of (§' 129*)—Parol Contract to Convey Land—Right to Enforce.</p> <p>The test of the familiar exception of a parol contract from the provision of the statute of frauds which makes a contract to convey land without a written contract or memorandum thereof signed by the party to be charged void is whether or not one of the parties to it has so changed his situation id reliance upon it that he cannot be restored to his original position and cannot be adequately compensated in damages at law so that its avoidance or breach will-cause irreparable injury. If a parol contract complies with this test, it may and should be sustained and enforced in equity. . ,</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dec. Dig. § 129.*]</p> <p>3. Frauds, Statute of (§ 129*)—Parol Contract to Convey Land—Validity.</p> <p>Neither possession of the real estate nor improvements thereon under the parol contract are indispensable to its validity. They are some hut not the only evidences of irreparable injury. There are others as effective, notably long and devoted service, and a radical change of occupation, location, and situation in order to render it, induced by the contract.</p> <p>[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311, 314, 318-320, 322, 325, 326; Dée. Dig. § 129.*]</p>

<p>1. Master and Servant (§ 264*)—Actions eor Injuries—Pleading—Contributory Negligence.</p> <p>A defendant which, in pleading contributory negligence, specifically set forth in what such negligence consisted was bound thereby.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>2. Master and Servant (§- 153*)—Liability eoe Injuries—Contributory Negligence.</p> <p>An employs, fresh from Russian Poland, would not, in the absence of any instruction after three months’ service, be presumed to know that, in loading iron on a truck, five standards should have been used on each side, though there were five holes for the standards, that a rolled plate about eight inches high should have been used against the standards instead of a piece of sheet iron three feet high, or that in piling the iron, it must be held back from the side of the truck to avoid bulging; these not being matters of common knowledge.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 314-317; Dec. Dig. § 153.*3</p> <p>3. Master and Servant (§ 159*)—Liability for Injuries—Negligence of Fellow Servant.</p> <p>The law with reference to fellow servants is a part of the law with reference to the assumption of risk.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 318-325; Dee. Dig. § 159.*]</p> <p>4. Master and Servant (§ 201*)—Liability for Injuries—Negligence of Fellow Servant.</p> <p>A master is liable where his negligence, in failing to provide and maintain a safe place, contributes to the injury of au employé, notwithstanding the concurring negligence of a fellow servant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*</p> <p>Concurrent negligence of master and fellow servant, See note to Maupin v. Texas & P. Ry. Co., 40 C. C. A. 236.]</p> <p>5. Master and Servant (§ 291*)—Actions for Injuries—Instructions— Conformity to Pleadings.</p> <p>A defendant, which specifically pleaded what it claimed constituted contributory negligence, was not entitled to an instruction that, if any act of plaintiff contributed to cause the injury, he could not recover.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*]</p> <p>Master and Servant (§ 296*)—Actions for Injuries—Instructions— Contributory Negligence.</p> <p>In an employe’s action for injuries caused by the sides of a truck giving way and permitting iron to fall upon him, an instruction that, if any act of his in loading the truck contributed to the injury, he could not recover was properly refused, as it did not require that such act should be negligent.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p> <p>?. Master and Servant (§' 294*)—Actions for Injuries—Instructions— Negligence of Fellow Servant.</p> <p>In an employé’s actión for injuries caused by iron rolling upon him from a truck, an instruction that if a fellow servant put two standards in place of five on the side of the truck, and if this caused the accident, plaintiff could not recover was properly refused, where the accident might have been caused by tbis in concurrence with the employer’s negligence.</p> <p>[Ed. Note.-*For other cases, see Master and Servant, Cent. Dig. §§ 1157, 1161, 1162-1167; Dec. Dig. § 294.*]</p> <p>8. Master and Servant (§ 105*)—Liability for Injuries—Defective Appliances.</p> <p>That a turntable in an employer’s plant was constructed in all respects as similar turntables used for the same purpose were usually and customarily constructed did not relieve it of liability for injuries due to defective construction.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.*]</p> <p>3. Master and Servant (§ 293*)—Actions for Injuries—Instructions.</p> <p>In an employé’s action for injuries claimed to have been caused by a jolt when a loaded truck was pushed from a track upon a turntable, where it was to be diverted to another track, an instruction that the absence of rails on the turntable could not justify a' recovery was properly refused, as, if there were no rails, it was more important that the depression of the turntable below the rails should not be substantially greater than the width of the flanges on the wheels of the truck, and the instruction would therefore have misled the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*]</p> <p>10. Master and Servant (§ 293*)—Actions for Injuries—Instructions.</p> <p>In an employé’s action for injuries claimed to be due to a jolt in pushing a loaded truck from a track upon a turntable, an instruction that the question was whether the turntable in its construction and make was so defective that, when the car .went upon it, it fell lower, and that the jolt or jar precipitated the iron on plaintiff, and that'it was for the jury to decide whether the turntable was défectively constructed, and whether, in running a heavily loaded truck upon it, it was liable to and did create a jar causing the iron to slip, did not, as claimed, authorize a finding that the turntable was defective in any particular.</p> <p>[Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*]</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Clinton W. Howard, Judge.</p> <p>Action by Stanley Brown against the Pacific Coast Coal Company. Judgment for plaintiff, and defendant brings errpr.</p>

<p>In Error to the District Court of the'‘United' States for the District of New Jersey) John Rellstab, Judge.</p> <p>Action by James F. Stewart against the Township of Riverside. Judgment for plaintiff, and defendant brings error.</p>

De Haven, Judge. ' _ _ Libel in admiralty for collision by the Globe Navigation Company against the steam tug Ada Warren; Daniel E. Morris, Louis A. Lloyd, and J. A. Maguire, trustees of the Warren Improvement Company, claimants. Decree for libelant, and claimants appeal.

<p>Collision (§ 42*)—Steam Vessels Crossing—Failure to Keep Course.</p> <p>A 'decree affirmed wMch found, on conflicting testimony of many witnesses who testified in open court, that libelant’s steam lighter was solely in fault for a collision with a city ferryboat in Buttermilk Channel on the ground that, the vessels being on crossing courses with the lighter, the privileged vessel, she did not keep her course nor conform to the crossing agreement made with the ferryboat.</p> <p>. [Ed. Note.—For other eases,- see Collision, Cent. Dig. §’ 42; Dee. Dig. § 42.*]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, District Judge.</p> <p>Action by Anna Givens against the Pittsburgh Railways Company. Judgment for plaintiff, and defendant brings error.</p>

M.- Smith, Judge. Action by W. D. Sturgeon, revived after his death in the name of W. B. Thompson as executor, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by the United States of America against the Missouri Pacific Railway Company. Judgment for the United States, and defendant brings error.</p>

<p>1. Master and Servant (§ 13*)—Operation of Railroads—Hours of Service Law.</p> <p>Hours of Service Law (Act Cong. March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]), regulating the hours of service of employés on interstate railroads, is a remedial and not a criminal statute, enacted to promote the safety of employés and the traveling public by prohibiting hours of service which presumably result in impaired efficiency on the part of employés.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*]</p> <p>2. Master and Servant (§ 13*)—Employment—Regulation—Hours of Service Law.</p> <p>Hours of Service Law (Act Cong. Marcli 4, 1907, e. 2939, 34 Stat. 1416 [U. S. Comp. St. Supp. 1911, p. 1322]) § 2, provides that no operator, train dispatcher, or other employs who by the use of telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements, shall be permitted to remain on duty more than nine hours in any 24-hour period in towers, offices, places, and stations continuously operated night and day, nor for a longer period than 13 hours in offices and stations operated only during the daytime, except in case of emergency, etc. Sold, that no distinction is to be drawn between offices in which train orders originate and from which they are issued and local offices, which merely receive and deliver the orders so issued, and which may be closed during a substantial portion of each 24-hour ' period; and hence, where a local telegraph office was regularly kept open for business from 6:30 a. m. to 10:15 p. m. in each 24-hour period, it was an office continuously operated night and day and was therefore within the nine-hour requirement.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. § 13.*</p> <p>Hours of service of employés, see note to United States v. Houston Belt & T. Ry. Co., 125 C. C. A. 485.]</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. M. Smith, Judge.</p> <p>Action by the United States of America against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant'brings error.</p>

■ Actions by Julius Marqusee against the Insurance Company of North America and by Kline Bros. & Co. against the Liverpool & London & Globe Insurance Company, Limited. Judgment for defendant in each case, and plaintiffs bring error. The plaintiff is the assignee of Kline Bros. & Co., a Florida corporation. The defendant is a corporation organized under the laws of the state of Pennsylvania.

In the matter of bankruptcy proceedings of the Wright-Dana Hardware Company. From a decree (205 Fed. 335) allowing the claim of the Warren Paint Company, John A. Cantwell, as trustee, appeals. On appeal from a final decree of the United States District Court for the Northern District of New York allowing a claim of the Warren Paint Company at the sum of $3,529.82 against the Wright-Dana Hardware Company, bankrupt.

Dayton, Judge. In the matter of R. M. Smith & Co., bankrupts. From an order, in proceedings against the Union Trust & Deposit Company confirming the reduction by the referee of the claim of John W. Farnsworth,, special receiver of the Smith-Chapman Fumber Company, he appeals.

Willard, Judge. Sam H. Clark and C. H. Crockard were convicted of knowingly depositing with an express company an obscene, lewd, lascivious, or filthy book, and they bring error.

Meek, Judge. Action by the McSweeney Packing Company and others against E. H. Beshlin, trustee in bankruptcy of Robert S. Redfield & Co. From an order denying complainants’ application for an interlocutory injunction restraining defendant from enforcing a judgment against complainants pending final hearing of a bill to enforce specific performance of an agreement for settlement, complainants appeal.

Sanborn, Judge. Stockholder’s bill by William H. Nichols against the Waukesha Canning Company. From a decree dismissing the cross-bill of the First Savings & Trust Company as trustee, it appeals.

Suit by the British-American. Tobacco Company, Limited, against the British-American Cigar Stores Company, to restrain defendant’s use of the word “British” in its corporate name. From a decree dismissing the bill (206 Fed. 189), under equity rule 29 (198 Fed. xxvi), complainant appeals.

This-cause comes here upon appeal by the bankrupts from an.order of the District Court, Southern District of New York, sustaining a report of the Special Commissioner and denying application for discharge. No opinion was filed by the District Judge.

Chinese deportation proceedings by the United States against Dee You Wing. From a judgment of the District Court (208 Fed. 166), reversing an order of the United States Commissioner directing defendant’s deportation, the United States appeals.

Appeals from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. Suit in equity by the Coca-Cola Company against the Gay-Ola Company. From a decree in favor of complainant in a suit for unlawful competition, both parties appeal. .

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by the American Malting Company against George D. Mayo, trading as the Mayo Milling Company. Judgment for plaintiff, and defendant brings error.</p>

Petitions to Revise Order of the District Court of the United States for the Western District of New York. In the matter of Harold G. Meadows and another, as individuals and members of the firm of Meadows, Williams & Co.; bankrupts.

<p> (Syllabus by the Court.) </p> <p>1, Insurance (§ 646*)—Accident Insurance—Right oe Recovery—Burden of Proof.</p> <p>Under a policy, whereby tbe insurance company contracts that if death shall result to the insured from bodily injuries caused by an accident alone within 90 days from the date of the injuries it will pay on account thereof $5,009 in addition to specified weekly indemnity, and that if such injuries shall “immediately, wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within two hundred weeks from the date of the accident, result” in the death of the insured, the company will páy $5,000, it is indispensable to a recovery for a death occurring more than 90 days after the date of the bodily injuries caused by the accident that they should have immediately, wholly, and continuously disabled and prevented the insured from performing any of the duties of his occupation.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § 646.*</p> <p>Accident insurance—risk and causes of loss, see notes to National Acc. Society of City of New York v. Dolph, 38 C. C. A. 3; New Amsterdam Casualty Co. v. Shields, 85 C. C. A. 126.]</p> <p>2. Insurance (§ 146*)—Action on Policy—Construction.</p> <p>Where the terms of a contract are unambiguous and their meaning is plain, they must be heM to mean what they clearly express, and no room is left for construction. ’ *</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 292, 29A-298; Dec. Dig. § 146.*]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; James S. Young, District Judge.</p> <p>Action by M. Kucewicz against the Valley Camp Coal Company. Judgment for plaintiff, and defendant brings error.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Petition by Isadore Good against Joseph Kane, trustee in bankruptcy of the estate of Isadore Good, bankrupt, to revise an order of the referee, affirmed by the District Court, that petitioner turn over certain property, to the trustee.

Libel by Loren E. Huntley, individually and as trustee, against the Empire Engineering Corporation. From a decree for the libelant (189 Fed. 516), the respondent appeals.

This cause comes here upon appeal by plaintiff in error, who was plaintiff below, from a judgment of the District Court, Southern District of New York, dismissing the complaint. The action is for libel, and the complaint was demurred to on the grouncLfhat it did not state facts sufficient to constitute a cause of action.

Suit in admiralty for collision by the Knickerbocker Steam Tow-age Company, owner of the tug Baldwin, against the steamboat Hefidrik Hudson; the Hudson River Day Dine, claimant. Decree for libelant, and claimant appeals.

<p>Collision (§ 96*)—Vessels Passing and Coming Out oe Slip—Failure to Maintain Lookout.</p> <p>A tug passing up East River before daylight about 125 feet from the piers, with a car float alongside projecting ahead Í70 feet, helll solely in fault for a collision between her tow and a transfer tug, which backed out of a slip after giving a slip whistle, on the ground that she should hate heard such whistle and that she did not have a lookout on the float.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. § 96.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

<p>Aliens (§ 57*)—Deboktation—Time—Costs—Liability oe Steamship Company.</p> <p>Act Cong. Feb. 20, 1907, e. 1134, § 20, 34 Stat. 904 (U. S. Comp. St. Supp. 1911, p. 511), provides that any alien entering the United States in violation of law shall be deported at any time within three years after the date of his entry, from the port of entry, at the expense of the owners of the vessel or transportation line by which he came into the country, etc. jHeld that, where an alien was not tendered to the steamship line by which he entered the United States for deportation within the three-year period, the line was not bound to deport him without expense to the United States, though the reason why he was not deported within the time was that he was serving an indeterminate sentence in the state reformatory.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 114; Dec. Dig. § 57.*] ,</p>

Smith, Judge. Action by George F. Buell against the Kanawha Lumber Corporation. From a decree denying compensation as attorneys to P. A. Will-cox and another, copartners as Willcox & Willcox, from a fund previously directed paid to the Southern National Bank of Wilmington, N. C., and others, such attorneys appeal.

<p>Tbiai, (§ 212*)—Instructions—Preponderance oe Evidence.</p> <p>Where there was no such conflict in the evidence as to make material the number of witnesses testifying to any particular fact or facts, and the judge charged that where there was a conflict between the witnesses, it was the jury’s duty to resolve it so as to have all the witnesses speak the truth, if possible, otherwise they must accept the testimony of those the jury believed, and reject that of the others, but that they were not at liberty to reject the testimony of any witness arbitrarily, it was not error to refuse a request to charge defining the term “preponderance of evidence.”</p> <p>[Ed. Note.—For other cases, see Tria), Cent. Dig. §§ 501, 502: Dec. Dig. § 212.*]</p>

<p>Appeal and Error (§ 459*)—Supersedeas—Annulment—Grounds—Writ of Error—Filins.</p> <p>Where a writ of error was not sued out and lodged in the trial court within 60 days of the date of the judgment, plaintiff in error was not entitled to a supersedeas.</p> <p>[Ed. Note.—For other cases, see' Appeal and Error, Cent. Dig. §§ 2218-2221; Dec. Dig. § 459.*]</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Michel Tanenhaus, bankrupt. On petition by Frank J. Waldeyer as trustee, to review an order relative to the disbursement of a certain fund.

<p>In Error to the District Court of the United States for the North,ern District of Georgia; William T. Newman, Judge.</p> <p>Action between D. W. James and Waldo P. Clement and others. From a judgment in favor of the latter, James brings error.</p>

Suit in equity by Otto Bernz against Frederick J. Schaefer and another for patent infringement. Decree for defendants (205 Fed. 49), and complainant appeals.

<p>1. Patents (§ 66*)—Scope—Limitation by Prior Device.</p> <p>A patent does not cover a prior device, although it is within the terms of the patented device, and although its deviser did not appreciate its value for the purposes of the patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 66.*]</p> <p>2. Patents (§ 328*)—Validity and Infringement—Wire Rope.</p> <p>The Whyte patent, No. 952,161, for a nonrotating wire rope composed - of two layers of strands wound in opposite directions around a core, construed, and held valid and infringed.</p> <p>3. Words and Phrases—“Cross-Lay”—“Lay.”</p> <p>The “lay” of a strand of rope is the length of rope within which such strand malíes one complete turn. The winding of the outer strands in a reverse direction to the inner strands is called “cross-lay.”</p>

• This cause comes here upon appeal from a decree of' the District Court, Southern District of New York, dismissing the bill of complaint. The suit was brought for infringement of the claims of United States patent No. 795,059, granted July 18, 1905, to U. E. Ottofy, assignor to the American Street Flushing Machine Company, which company assigned the patent to the complainant.

Suit in equity by the Ambursen Hydraulic Construction Company against the Hydraulic Properties Company. Decree for defendant, and complainant appeals. On appeal from a decree of the District Court for the Southern District of New York dismissing the bill in an infringement suit based on reissued letters patent No. 12,246 granted to Nils Fredrick Ambursen for an'improvement in dams.

In Equity. Suit by Fred Stebler against the Riverside Heights ■Orange Growers’ Association and others. On motion by defendants to restrain prosecution of pending suits and the institution of others.

In Equity. Suits by the New York Trust Company, trustee, against the Bermuda-Atlantic Steamship Company, Limited, and by Charles A. Bruce and others against the Bermuda-Atlantic Steamship Company. On exceptions to report of special master.

<p>Deportation proceedings by the United States against Lim Yuen, Lam Gong, and Chan See Jock. Order directing defendants’ discharge.</p>

In Admiralty. Suit for collision by the Pittsburg & Erie Coal Company, owner of the schooner Sir C. T. Van Straubenzie against the steamer City of Erie (the Cleveland & Buffalo Transit Company, claimant), in which Annie Brown, administratrix, was intervening libelant. Decree dismissing both libel and intervening libel.

<p>In Equity. Suit by the Chautauqua School of Nursing against the National School of Nursing.</p>

<p>Customs Duties (§ 81*)—Fraudulent Undervaluation—Reliquidation—Findings of Collector—Effect.</p> <p>Act Cong. June 22, 1874, c. 391, § 21, 18 Stat. 190 (U. S. Comp. St. 1901, p. 1986), provides that where goods are entered, duty paid, and delivered to their owner, such settlement of duties, after the expiration of one year from the time of entry, in the absence of fraud, shall be final and conclusive on all parties. Held that, where duties on raw sugar had been liquidated and paid, the findings of a collector, Who succeeded in office the one regularly liquidating the duties, that such liquidation was fraudulent in that the sugar had been underweighed, was not conclusive of the question of fraud in an action by the United States against the importer to recover additional duties under a reliquidation occurring. more than a year after the entry.</p> <p>[Ed. Note.—For other eases, see Customs Duties, Cent. Dig. § 197; Dec. Dig. § 81.*]</p>

B. Sheppard, Judge. Action by the United States, for the use of E. S. Kennard and others, against the American Surety Company of Now York. Judgment for use plaintiffs, and defendant brings error.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Suit in equity by Walter R. Comfort against Walter Waldin. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri.</p>

<p>Appeal from the District Court of the United States for the District of Oregon; Charles E. Wolverton, Judge. Suit by the Minnesota & Oregon Land & Timber Company, a Minnesota corporation, and another, against the Hewitt Investment Company, to compel specific performance of an agreement for the sale of certain real property situated in Clatsop county, Or. From a decree in favor of complainants (201 Fed. 752), defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District, of Georgia; Emory Speer, Judge.</p>

<p>Appéal from the District Court of the United States for the Eastern District of Virginia,. at Norfolk;</p>

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty by the Munson Steamship Line against the Glasgow Navigation Company, Limited. On motion to file amended and supplemental libel and to take new proofs. Granted conditionally.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York. This cause comes here upon appeal from an order of the District Court, Northern District of New York, denying a motion made by defendant to dissolve a temporary restraining order enjoining defendant, pendente lite, from removing certain buildings and machinery from the mining premises of complainant.</p>

<p>In Error to the District Court' of the United States for the District of Colorado.</p>

Niles, Judge. Suit by E. W. Rector and another, surviving executors of Amelia W. Alcorn, and others, against May Yates Alcorn and another. From a decree dismissing the bill, complainants appeal.

<p>Appeal from District Court of the United States for the Eastern District of Louisiana;</p>

<p>Appeal from the District Court of the United States, for the Eastern District of Oklahoma.</p>

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of Oklahoma.</p>

<p>In Error to the District Court of the United States for the District of Colorado.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>In Error to the District Court of the United States for the Northern District of Georgia. '</p> <p>On motion to recall mandate and vacate order.</p>