Volume 212 — Federal Reporter

Young, Judge. In the matter of bankruptcy proceedings of John Francis Sweeney. On petition of Kirk Q. Bigham to restrain the South Side Trust Company from interfering with petitioner’s collection of the rents of certain premises. From an order denying the petition, plaintiff appeals.

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Suit by Nathan H. Truman against the Inhabitants of the Town of Harmony, Maine. From a decree in favor of complainant (205 Fed. 549) defendant appeals.</p>

Angelí, Judge. Suit in equity by Bliss Stebbins, Earl Card, and Richard S. Wood-liff against the Michigan Wheelbarrow & Truck Company and others. Decree for defendants, and complainants appeal.

<p>Appeal from the District Court ,of the United States for the District of Oregon; Chas. E. Wolverton, Judge.</p> <p>Suit in equity by the United States against W. J. Morrison, Finley Morrison, and the Sligh Furniture Company. Decree for the United States, and defendants appeal.</p>

Suit in admiralty by the United States against the Hamburg-Amer-ikanische Packetfahrt Actien Gesellschaft. Decree for defendant, and libelant appeals. This is an appeal taken by the United States from a final decree of the United States District Court for the Southern District of New York dismissing a libel.

Petition for Revision of Proceedings of the District Court of the United States for the Western District of North Carolina, at Ashe-ville, in Bankruptcy; James E. Boyd, Judge. In the matter of the Cherokee Tanning Extract Company, bankrupt. On petition by the Bank of Andrews and another to superintend and review an order requiring A. A. Fain, a receiver appointed by a state court, to turn over the property of the bankrupt to Vonno D. Gudger, receiver.

Pollock, Judge. Suit by the Nelson Land & Cattle Company against George H. Smith. From a judgment in favor of complainant, declaring all the notes sued on but one void in the hands of Smith for want of power in complainant to execute them, and granting judgment in favor of Smith on the one note, complainant appeals, and Smith prosecutes a cross-appeal.

Dyer, Judge. Suit by M. S. Kemmerer and another, a copartnership, doing business as the Whitney-Kemmerer Company, against the St. Louis Blast Furnace Company and others. From a decree denying relief, complainants appeal.

Reed, Judge. Action by Lu Verne D. Nelson, a minor, by Emma D. Nelson, his next friend, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Bill by the Central Railroad Company of New Jersey against the Mayor and Aldermen of Jersey City and another. From a decree in favor of complainant (199 Fed. 237), defendants appeal.</p>

Petition to Revise Order of the District Court of the United States íor the District of Utah; J. A. Marshall, .Judge. Petition by Sarah E. Alvord against T. D. Ryan, trustee in bankruptcy of Joseph E. Alvord, bankrupt, praying for a set-off of a claim against the judgment entered against her and another in the bankruptcy proceedings. Petition for set-off denied, and petition dismissed by the District Court, and she files petition to revise.

M. Smith, Judge. Action by R. Beale Davis, trustee in bankruptcy of the estate of-R. Crawley Jones, bankrupt, and others, against Claude M. Dean. Judgment for plaintiffs, and defendant appeals.

Petition to Revise Order of the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge. Petition by B. H. Drees against D. E. Waldron, administrator of the estate of Alexander Armstrong, deceased, and others, to vacate an order of discharge in bankruptcy. Petition denied, and petitioner presents petition to revise.

Cross-petitions to Superintend and Revise, in Matter of Law, Proceedings of the District Court.of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.

Rose, Judge. Action by Frank C. O’Brien against the North River Insurance Company of the City of New York. From a judgment for plaintiff for .less than the relief demanded, he brings error.

Youmans, Judge. Action by Joseph F. Crawford against the Fayetteville Dumber & Cement Company, a corporation, for personal injuries. Judgment for defendant, and plaintiff brings error.

<p>1. Factobs (§ 45*) — Reimbursement oe Factobs foe Payments to Buyers.</p> <p>An agent for a seller of cotton, under the rules of a cotton exchange by which he became a guarantor to the buyers, could recover from the seller only the .amount paid by him as guarantor to buyers pursuant to arbitration under the rules of the exchange,' and not the amount for which he had become liable but had not paid.</p> <p>[Ed. Note. — -For other cases, see Factors, Cent Dig. §§ 60, 63, 64; Dee. Dig. § 45.*]</p> <p>2. Arbitration and Award (§ 74*) — Vacation of Award by New Agreement.</p> <p>An award on the arbitration, under the rules of a cotton exchange, of disputes and controversies between a seller and buyers, was not waived or vacated by a subsequent agreement between the seller and its agent, who, under the rules of the exchange, was a guarantor to the buyers to submit the matters covered by the awards to another arbitration, which agreement was never "carried into effect; it being between different parties than those to the awards.</p> <p>[Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. § 342; Dec. Dig. § 74.*]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States against the Holland-America Dine. Judgment for defendant (205 Fed. 943), and the United States brings error.</p>

Boyd, Judge. Action by Harriet E. Betts and another against Ben W. Gahagan and others. There was a judgment for defendants, and plaintiffs bring error.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by M. A. Holcomb and another against the Eastern Óil Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action by May Baker Young against the order of United Commercial Travelers of America. There was a-judgment for plaintiff, and defendant brings error.</p>

Action by the United States, to the use of Frank Miller and others, against the Illinois Surety Company. Judgment for the usees, and defendant brings error.

<p>1. Banes and Banking (§ 234*) — National Banks — Organization.</p> <p>There is no right to organize and carry on the business of a national bank except on the conditions and in the manner prescribed by the acts of Congress regulating national banks (Rev. St. U. S. §§ 5134, 5190, 5191 [U. S. Comp. St. 1901, pp. 3454, 3486]; Act March 14, 1900, c. 41, 31 Stat. 48 [U. S. Comp. St. 1901, p. 3461]; Act May 1, 1886, c. 73, 24 Stat. 18 [U. S. Comp. St. 1901, p. 3462]; Act June 20, 1874, c. 343, 18 Stat. 123 [U. S. Comp. St. 1901, p. 3487]; Act March 3, 1887, c. 378, 24 Stat. 559 [U. S. Comp. St. 1901, p. 3490]), of which all must take notice.</p> <p>[Ed. Note.- — For other cases, see Banks and Banking, Cent. Dig. §§ 879-967, 970-1127; Dee. Dig. § 234.*]</p> <p>2. Banks and Banking (§ 235*) — National Banks — Control—Comptroller op Currency — Acts—Review.</p> <p>Acts of the Comptroller of the currency within the National Banking Law conferring on him extensive powers of control and visitation over national banks are not subject to review by the courts.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 879-887; Dec. Dig. § 235.*]</p> <p>3. Banks and Banking (§ 239*) — National Banks — Organization—Change of Location — Conditions—C.omptroller oe Curren'oy.</p> <p>The National Banking Acts require the Comptroller’s certificate of organization of a national bank to state the place where its operations are to be carried on, and declares that its business shall be transacted at an office or banking house at the place specified. The reserve required of a national bank in a nonreserve locality is but 15 per cent, of its deposits, while 25 per cent, is required in a reserve city. A national bank in a city of more than 50,000 is required to have a capital of $200,000, but with the approval of the Secretary of the Treasury, it may, in a place of 3,000 inhabitants or less, have a capital of $25,000. Such banks may change their place of business from one place to another in the same state not more than 30 miles distant with the approval of the Comptroller, but such change is not valid until the Comptroller has issued his certificate of approval. Held, that where a national bank located in a suburb outside the corporate limits of Oklahoma City, having a population of not to exceed 3,000; was chartered with a capital of $25,000, and, after the suburb had been included in the city, the Comptroller refused permission to move the bank’s place of business into the business section of the city unless it increased its capital to at least $200,000 and agreed to comply with the law regulating reserves in reserve cities, of which Oklahoma City was one, the alteration of the city’s boundaries did not entitle the bank to so remove without compliance with the Comptroller’s conditions, and, it having removed without fulfilling such .conditions, the Comptroller was entitled to maintain a suit for the forfeiture of. its charter.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 893; Dec. Dig. § 239.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit by the Triumph Electric Company against Louis H. Thullen. From an interlocutory decree, granting complainant a preliminary injunction (209 Fed. 938), defendant appeals.</p>

Campbell, Judge. John Archard was convicted of introducing liquor into what was formerly a part of the Indian Territory, and brings error.

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>Action by Annie M. Burke, as administratrix, against Hubert E. Larkin and another. Judgment for plaintiff, and defendants bring error.</p>

Van Valkenburgh, Judge. Suit by Sarah C. Williams, as administratrix of the estate of John Williams, deceased, and others, against Walter A. Childs and wife. Decree for complainants, and defendants appeal.

C, Niles, Judge. Suit by J. H. Moores against the K. C. Lumber Company. Judgment- for plaintiff, and defendant brings error. This suit was brought by the defendant in error, J. H. Moores, against the K. C. Lumber Company, plaintiff in error, to recover the value of trees cut and removed from a tract of land situated in Jackson county, Miss.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; John B. McPherson, Judge.</p> <p>Action by James E. Mowles against Edward D. Lorimer, otherwise known as E. D. Lorimer. Judgment for defendant, and plaintiff brings error.</p>

<p>Cotjkts (§ 385*) — Infringement—Unfair Competition.</p> <p>Where, in a suit for infringement of a trade-mark and for unlawful' competition, the court sustained pleas to the jurisdiction as to the-causes based on trade-mark and unfair competition, but allowed a replication to the plea as to the cause of action for infringement, as was authorized by old equity rule 33, then in force, the court was then authorized to try the issue on the plea and dismiss the bill by new equity rule 29 (198 Fed. xxvi, 15 C. C. A. xxvi), which decree was appealable to the Supreme Court, as provided by Judicial Code (Act March 3, 1911, c. 231, §§ 128, 238, 36 Stat. 1133, 1157 [U. S. Comp. St. Supp. 1911, pp.,193, 228]), and not to the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1022-1025, 1031; Dec. Dig. § 385.*</p> <p>Unfair competition, see note's to Scheuer v.' Muller, 20 C. C. A. 165 Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by George H. Wright against James H. Brownlee and another. From a decree for defendants (205 Fed. 526), plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the District of Delaware; Edward G. Bradford, Judge.</p> <p>Suit in equity by Joseph Á. Vincent against the Tonopah .-Mining Company and another. From a decree for complainant (207 Fed. 579), defendants appeal.</p>

<p>1. Patents (§ 167*) — Invention—Specifications—Disclosure.</p> <p>A patentee is bound to disclose his invention in his specifications and may not successfully claim infringement with reference to a matter not so disclosed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dee. Dig. § 167.*]</p> <p>2. Patents (§ 328*) — Validity—Ice Cream Cones.</p> <p>The Valvona patent, No. 701,776, for a mould for making biscuit-cups, held void for want of patentable invention.</p>

Anderson, Judge. Suit in equity by the Republic Rubber Company against the G. & J. Tire Company. From a decree dismissing the bill, complainant appeals. Appellant’s bill, charging appellee with having infringed claim 1 of patent No. 898,907,. September 15, 1908, to appellant as assignee of Mell, was dismissed for want of equity. Mell’s application was for improvements in tires, and his particular objects were to improve the road-gripping and anti-skidding qualities.

<p>1. Patents (§ 328*) — Validity—Infringement—Safety-Fuse.</p> <p>Sacks’ patent, No. 660,341, for an electric safety-fuse, consisting of a combination of elements the most important of which is a thin flat strip of metal disposed through an appreciable area and held between terminals within a tubular casing or cartridge containing a nonconducting substance in a powdered or granular form, claims 1, 2, 3, 5, and 6, held to involve a patentable invention, not anticipated, and infringed.</p> <p>2. Patents (§ 64*) — Anticipation.</p> <p>In order that a prior patent may anticipate a later one, it must do so without assistance from the patent alleged to be anticipated.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 79; Dee. Dig. § 64.*] .</p> <p>3. Patents (§ 328*) — Validity—Description.</p> <p>Sachs’ patent, No. 660,341, for a combination in a safety-fuse with a tubular case and a nonconducting filling material, of end terminals within the case of relatively ample conductivity, and a fuse-strip of thin flat metal of extended area connected to and between the terminals, was not void for concealment and indefiniteness, in that it did not describe or specify the particular nonconducting filling material; the invention not involving a new filling material, and the character of such material not being an essential element of the patent.</p>

<p>1. Patents (§ 26*) — Patentable Combination.</p> <p>In order that an invention constituting a combination of old elements may be patentable, the constituents must so enter into the combination that each qualifies the other.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*] .</p> <p>2. Patents (§ 328*) — Validity—Infringement—Safe Deposit Box Locks.</p> <p>' Borland patent, No. 940,300, for a safety deposit box lock, held valid, but not infringed by a double-nosed lock made under Roche patent, No. 860,940.</p>

<p>1. Patekts (§ 116*) — Validity—Desceiption.</p> <p>The Bormann patent No. 736,812, for solder, described the same as consisting “of an intimate mixture of finely powdered soft-solder (tin, alloy, or the like) triturated to a paste, a deoxidizing agent (e. g., zinc chloride, ammonium chloride, or both together) and a thickening body (such, for example, as cellulose) which bums easily and leaves no trace behind it.” Held, that the use of the word “to” in the phrase “triturated to a páste,” instead of “fpr,” did not render the description insufficient.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 168%; Dec. Dig. § 116.*]</p> <p>2. Patents (§ 328*) — Validity—Infringement.</p> <p>The Bormann patent No’. 736,812, claim 1, for a liquid soft-soldering mass, held to involve a patentable invention, not anticipated, valid, and infringed.</p>

<p>In Equity. Suit by Charles Brandt against the Louis K. Liggett Company for patent infringement.</p>

<p>Patents (§ 326*) — Ineeingement—Injunction—Contempt.</p> <p>Where, when suit was instituted against a corporation for infringement of complainant’s patent, V. was defendant’s general manager, but not an officer of the company, nor party to the suit, and prior to leaving the defendant’s employ he knew none of the details of the suit and had no control over it, and it did not appear' that his subsequent use of the alleged infringing machines was either by authority derived from the de-_ fendant company as its general servant or confederate, or a part of a* fraudulent or collusive attempt by the defendant to evade the injunction, V. was. not subject to attachment for contempt in using the infringing machine in violation of the injunction.</p> <p>[Ed. Note. — Por other cases, see Patents, Cent. Dig. §§T 613-619; Dec. Dig. § 326.*]</p>

In Equity. Suit by the Lovell-McConnell Manufacturing Company (formerly the Lovell-McConnell Manufacturing Company, the Hutchi-son Electric Horn Company, and Miller Reese Hutchison) against the Automobile Supply Manufacturing Company and Louis Rubes, its president. On final hearing.

<p>1. Courts (§ 99*) — Law or Case.</p> <p>Where a discharge is denied to bankrupts on the ground that they have made a conveyance of their property with intent to defraud creditors, such determination will be regarded as the law of the case in an equity suit by their trustee to set aside such conveyance.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. § 99.*]</p> <p>2. Bankruptcy (§ 279*) — Fraudulent Conveyances — Vacation—Discharge.</p> <p>Since Bankr. Act July 1, 189S, e. 541, § 67e, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), only pronounces conveyances by bankrupts in fraud of creditors null and void when not made to purchasers in good faith and for a present consideration, it is possible that bankrupts may be denied a discharge-under section 14, because of their having conveyed property in fraud of creditors, and yet that the property so conveyed cannot be recovered by the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*]</p> <p>3. Bankruptcy (§ 180*) — Fraudulent Conveyances — Action by Trustee-Good Faith.</p> <p>In a suit by a bankrupt’s trustee to recover property alleged to have been conveyed by the bankrupt in fraud of creditors, the good faith of the transaction is to be measured by the same standard, of care that is applied to a creditor in accepting payments or transfers as payments from an insolvent debtor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 252, 253; Dec. Dig. § 180.*]</p> <p>4. Bankruptcy (§ 182*) — Fraudulent Conveyance — Good Faith — Evidence.</p> <p>Transactions known by a purchaser from a bankrupt to be out of the usual and ordinary course of business tend to negative good faith in determining whether they are void as in fraud of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 255-258; Dec. Dig. § 182.*]</p> <p>5. Bankruptcy (§ 182*) — Conveyances—Fraud—Recovery by Trustee.</p> <p>- Where the members of a partnership, with knowledge of their insolvent condition, transferred all their assets to a corporation organized for the purpose, to which certain of their personal friends and relatives contributed money to make a settlement with the bankrupts’ creditors, the transfer, not being made for a present fair consideration, was in fraud of creditors and voidable by the trustee in bankruptcy of the firm who was entitled to recover the property as against the trustee in bankruptcy of the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 255-258; Dec. Dig. § 182.*]</p> <p>6. Bankbttptcy (§ 279*) — Trustee—Assets—Proceeds of Insurance.</p> <p>Where members of a bankrupt firm transferred their assets to a corporation organized to take over the same, in fraud of creditors, and the corporation immediately insured the property, it had title and an insurable interest therein, and hence neither the insurance nor the proceeds thereof after loss were recoverable by the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-124; Dec. Dig. § 279.*]</p>

<p>1. Logs and Logging (§' 3*) — Mortgage of Standing Timber — Provision for Sinking Fund.</p> <p>A provision of a mortgage on standing timber, requiring the mortgagor to pay into a sinking fund provided for therein $2.50 per thousand feet of timber cut by the mortgagor, held to apply only to the timber described in the mortgage, and not to timber on another tract of land, which the mortgagor did not then own, but held, an option to purchase which it afterward exercised.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p> <p>2. REFORMATION OF INSTRUMENTS (§ 45*)-MORTGAGE-MUTUAL MISTAKE.</p> <p>The mortgagor held, on the evidence, entitled to the reformation of a mortgage by the insertion of a provision which was agreed upon between the parties, but omitted through mutual mistake.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. § 45.*]</p> <p>3. Estoppel (§ 78*) — Equitable Estoppel — Parol Agreement Made on Delivery of Bonds of Corporation.</p> <p>Holders of bonds of a corporation, delivered after their date, held es-topped, by an agreement made at the time of delivery, to claim interest except after the date agreed upon.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*] ,</p> <p>4. Deeds (§ 99*) — Construing Instruments Together — Deed and Contract Therefor.</p> <p>A deed executed pursuant to a prior written contract therefor, in so far as it covers matters dealt with by the contract, controls as the final agreement of the parties, but as to any matter of ambiguity, or referred to in and to be performed by the contract, but not covered by the deed, the contract may be referred to as governing the rights of the parties.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig, § 99.*]</p> <p>5. Deeds (§ 114*) — Construction—Property Conveyed.</p> <p>A deed by a lumber company to all of its property (except choses in action acquired and debts owing to it prior to April 1, 1911, etc.), “including all accounts, debts, claims, and demands for or on account of lumber sold since April 1, 1911,” held to entitle the purchaser to all such accounts and claims outstanding at the time of delivery of the deed, but not to cash previously .received for lumber sold after April 1st.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322, 326-329, 388; 'Dec. Dig. §;114.*]</p> <p>6. Corporations (§ 625*) — Dissolution—Liability of Stockholders.</p> <p>Where a corporation has been dissolved, and its assets distributed, an unpaid creditor, after establishing his claim, can recover from a stockholder only to the extent of assets received by the stockholder in the distribution.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2473; Dec. Dig. § 625.*]</p> <p>7. Logs and Logging (§ 2*) — Sale of Timber Land — Rights of Purchaser —Misrepresentation by Vendor.</p> <p>Officers of tvvo lumber companies, in good faith, supplied to a prospective buyer, who afterward did purchase, estimates of the quantity of timber on the property of the companies previously made by two cruisers, selected, one by the compánies, and the other by another intending purchaser. The contract of sale was not made until two months afterward, and the sale was not concluded for another two months, during all of which time the purchaser had full opportunity to examine the property. The deed recited that the property was the same recently cruised by such two persons, and stated their estimate, but contained no warranty or further representation of quantity. Held, that neither the vendors nor their officers were liable because of a deficiency in quantity below the cruiser’s estimate.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 1-5; Dec. Dig. § 2.*]</p> <p>8. Logs and Logging (§ 3*) — Conveyance of Standing Timber — Construction.</p> <p>A deed conveyed the standing timber on a tract of land, but expressly stated that the timber undertaken to be conveyed was the same conveyed to the grantor by a certain described and recorded deed. The latter deed was made expressly subject to the rights of third persons named, to whom a prior owner had conveyed all the timber, with the right to enter upon the land and cut and remove the same, with a warranty of the timber for the term of 20 years. Reid,: (1) That, under the rule of decision in South Carolina, the latter deed must be construed as conveying only so much of the timber as should be cut and removed within 20 years from its date; and (2) that the grantee in the latest subsequent deed took with notice that the timber conveyed to it was that remaining on the land at the expiration of such 20 years.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]</p>

In Equity. Action by John Casey against Charles I. Baker and others. On motion by plaintiff to remand the cause to the state court from which it was removed on the petition and motion of Edward N. Lacey, trustee in bankruptcy of Charles I. Baker.

<p>In Equity. Suit by the Paine Rumber Company, Rimited, and others, against Elbridge H. Neal and others.</p>

<p>1. Factors (§ 47*) — Lien—Possession.</p> <p>Tlie validity of- a factor’s lien is determined by the factor’s actual or constructive possession of the property.</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. §§ 65-71; Dec. Dig. § 47.*]</p> <p>2. Bankruptcy (§ 188*) — Factor’s Agreement — Validity—Lien.</p> <p>Where a factor’s agreement provided that, in considération of certain advances made and to be made by defendant, he was given possession of the bankrupts’ goods, accounts receivable, etc., was to have the whole future management of the business so long as the arrangement continued, and a percentage on sales, and immediately on taking possession he gave wide publicity to the same, informing commercial agencies, creditors, etc., placing signs about the premises conspicuously bearing his name as factor for the corporation, the contract was valid, and afforded him a lien for his advancements not only as against the goods then in possession of the bankrupts, but on those subsequently purchased.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 270, 286-289, 291-295; Dec. Dig. § 188.*}</p> <p>3. Bankruptcy (§ 279*) — Factor’s Agreement — Accounting.</p> <p>Where a factor’s agreement gave defendant entire possession and charge of the business of a corporation, together with a lien for advances on accounts receivable, stock, etc., the corporation’s trustee in bankruptcy was entitled to an accounting from defendant for all the merchandise consigned to him,, or its value, for the accounts collected for goods sold, and for the loans and advances made and to be made during the continuance of the agreement.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. § 279.*] '</p>

<p>Habeas corpus on petition of Felix Petkos to obtain relator’s release from custody under deportation warrant.</p>

<p>1. Evidence (§ 272*) — Declarations Against Interest — Automobile Accident — Control.</p> <p>Plaintiff having been run into and injured by the alleged negligence of defendant’s chauffeur in operating an automobile, defendant’s counsel stated to the jury that defendant denied that he owned the automobile and that the chauffeur was employed by him. Plaintiff testified without objection that defendant stated at the time of the accident that, if “the insurance company” did not make good the damage to the carriage, he would. Held, that evidence that defendant refused to sign a statement because he did not know what effect it might have on his relations with the “insurance company that covers me in this case” was admissible as a declaration against interest, from which the jury might infer that defendant was in such control of the automobile as would render him liable against which he had protected himself by insurance.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1105-1107; Dec. Dig. § 272.*]</p> <p>2. Appeal and Error (§ 1048*) — Rulings on Evidence — Prejudice.</p> <p>Where, in an action for injuries in a collision with defendant’s. automobile, he persistently disclaimed responsibility and denied that he had ever admitted liability and that plaintiff had considered him responsible or made any claim against him, he was not prejudiced by question asked him on cross-examination as to whether he did not know that plaintiff had sued him for $20,000, on the theory that the amount for which plaintiff sued should have been withheld from the jury; the court having charged that the jury must not consider the fact that defendant was insured, nor he influenced by the amount of damages claimed in plaintiff’s statement.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158 — 4160; Dec. Dig. § 1048.*]</p> <p>3. Damages (§ 130*) — Excessiveness—Pebsonal Injubies.</p> <p>Plaintiff, an unmarried woman, 49 years of age, of refinement and intelligence, physically vigorous and with a fondness for outdoor exercise, was run into and injured by defendant’s automobile. Her knees were so injured that she was confined to her bed for some weeks, obliged to use a crutch, and finally a cane, in order to walk, which she thereafter did with difficulty. There was a difference between medical experts as to the extent of the injuries, but there was ample evidence that they would continue for considerable time in the future, even if they were not permanent. Held, that a verdict allowing plaintiff $3,625, which included expenses for medical attendance and nursing, was not so excessive as to indicate that the jury were influenced by the fact that they were informed that plaintiff was suing for $20,000.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.*]</p>

<p>Petition for a writ of habeas corpus on behalf of Nora Joyce, by one Prout against George B. Billings.</p>

<p>Petition for writ of habeas corpus by W. C. Prout on behalf of Nora Joyce.</p>

<p>In Admiralty. Suit by Fred Benson, Harry W. Morse, Edward Jones, Wallace Stanners, and Charles Peterson against the schooner Edward R. West; the Slade Shipping Company, claimant.</p>

<p>1. Pbocess (§ 149*) — Evidence as to Service — Weight and Stteeicienct.</p> <p>In an action to cancel a sheriff’s deed as a cloud on the title, evidence held sufficient to show service of summons on the defendant in the action in which the land was sold under execution.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 202-205; Dec. Dig. § 149.*]</p> <p>2. Execution (§ 251*) — Sale—Opening ok Vacating — Pkaud.</p> <p>At an execution sale a tract of timber land divided into four lots and worth at least $3,500 was sold as a whole, though L. O. L. § 238, requires real property consisting of several known lots or parcels to be sold separately or otherwise as is likely to bring the highest price. It was purchased on behalf of the execution creditor’s attorney, with money furnished by him, by a person who subsequently deeded it to him, for $142.30, the amount necessary to satisfy the judgment and another judgment, as he had previously ascertained from the sheriff by direction of the attorney. The sheriff’s deed was issued 17 months after the sale and not promptly recorded, and the deed from the bidder to the attorney was not recorded. Purchasers from the execution debtor were permitted to pay the taxes for several years without any notice that the attorney claimed to be the owner. Held, that there was such fraud on the part'of the attorney in not directing the sheriff to sell but one lot and in concealing his identity in the transaction, evincing a purpose to obtain the entire tract for a nominal sum, as justified the setting aside of the sheriff’s deed.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 708-716; Dec. Dig. § 251.*]</p> <p>3. Execution (§ 228*) — Sale—Persons Who Mat Purchase.</p> <p>The attorney for execution creditors is not inhibited from purchasing at the sheriff’s sale; but, being an officer of the court, when his acts are questioned, he must show that they were fair and bona fide. .</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 642-647; Dec. Dig. § 228.*]</p> <p>4. Execution (§ 251*) — Sale—Opening or Vacating — Inadequacy oe Price.</p> <p>While inadequacy of price alone does not justify the setting aside of. a judicial sale, if it is great or such as to shock the conscience, slight circumstances impeaching the fairness of the transaction will justify setting it aside.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§' 708-716; Dec. Dig. § 251.*]</p> <p>5. Execution (§ 242*) — Sale—Confirmation—Conclusiveness.</p> <p>The statute of Oregon, providing that an order confirming a judicial sale shall be a' conclusive determination of the regularity of the proceedings in any other action, suit, or proceeding, does not cover a case of fraud unknown and undiscovered by an execution debtor who had constructive notice only of the sale and confirmation.</p> <p>[Ed. Note. — For other' cases, see Execution, Cent. Dig. §§ 669-672; Dec. Dig. § 242.*]</p> <p>6. Execution (§ 242*) — Statutory Provisions.</p> <p>Laws Or. 1913, p. 752, § 2, providing that all judicial sales of land heretofore made to satisfy judgments shall be valid and sufficient to sustain the sheriff’s deed if the money shall have been paid and the sale confirmed by the court, was not intended to cover a case of palpable fraud attending an execution sale.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 669-672; Dec. Dig. § 242.*]</p> <p>7. Execution (§ 255*) — Sale—Vacating—Conditions.</p> <p>The setting aside of a sheriff’s deed at an execution sale as a cloud on the title would be conditioned upon the repayment of the bid and of taxes paid by the purchaser with interest.</p> <p>[Ed. Note. — For. other cases, see Execution, Dec. Dig. § 255.*]</p>

<p>Seamen (§ 29*) — Death oe Seaman — Negligence.</p> <p>In a libel to recover compensation for the death of a seaman alleged to have been drowned by stepping into an open space between a barge and a wharf and falling into the water, as he was assisting in carrying timber from the barge to the wharf, evidence held insufficient to show negligence on the part of the steamship company by which decedent was employed.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 186, 188-194; Dee. Dig. § 29.*] ‘</p>

<p>In Equity. Suit by the Universal Film Manufacturing Company against S. Copperman and others on a copyright of a motion picture photo play. On final hearing.</p>

At Law. Action by George Calausky against the Lehigh Valley Coal Company. On motion by defendant to set aside a verdict for plaintiff, and for a new trial.

In Equity. Bill by Jacques Francis Henry Hennessy and others against the Wine Growers’ Association for injunction and accounting on the ground of unfair competition. Omfinal hearing.

In Bankruptcy. Proceedings against Wesley Johnson, in which the Rock Island Implement Company asserted title to certain property in the hands of the trustee. From an order of the referee denying the right to reclaim the property, the Implement Company appeals.

In Bankruptcy. Proceeding against H. B. Hollins & Co., bankrupts. Held: so that on the papers before me they are gone, and Landau is still indebted to the bankrupt estate in the sum of $375.92.

<p>1. Bankruptcy (§ 350*) — Claims—Priority—Rent.</p> <p>A provision in a lease tliat, if the lessee was sold out at sheriffs sale or in bankruptcy, etc., the rent for the balance of the term should at once become due and payable, as if made payable in advance, and should be first paid out of the proceeds of the sale, gave the lessor priority upon the lessee’s bankruptcy, under the Pennsylvania law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. § 350.*]</p> <p>2. Corporations (§ 448*) — Liability on Contracts op Promoters.</p> <p>C., doing business as the Q. Shoe Shop, executed a lease in that name and his own. The incorporation of the business under that name was then contemplated and was thereafter accomplished. The three stockholders, who were also directors, were C.’s wife, son, and son-in-law, and they, after employing C. as general manager, held no further meetings. C. continued the business, having full charge as before; no change being apparent or announced. The first month’s rent was paid by Mrs. C., who was repaid by the corporation, and it thereafter paid the monthly installments until bankruptcy became imminent. Held that, though the lease was never formally assigned to or accepted by the corporation, it was bound thereon, as C. was acting as its promoter and agent, and it could, and by its conduct did, ratify his unauthorized act. *</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.*]</p>

At Law. Action by the J. H. Hamlen & Sons Company against the Illinois Central Railroad Company.

<p>1. Trade-Marks and Trade-Names (§ 11*) — Patented Article.</p> <p>Where patented valves were manufactured and sold under the name “Jenkins valves” and the name became so associated with the patented article that it was the generic designation of the particular class of valves, plaintiff, as successor of the patentee, could not prevent the use of such name to designate similar valves manufactured by others after the patent had expired.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and • Trade-Names, Cent. Dig. § 15'; Dee. Dig. § 11.*]</p> <p>2. Trade-Marks and Trade-Names (§ 71*) — Designation of Patented Article — Expiration of Patent.</p> <p>Where, after the expiration of a patent on “Jenkins valves” defendant began to manufacture and sell similar valves under the same, name, it was bound to disclose, in connection with the name, the source of manufacture in such way as to prevent the public from believing that defendant’s valves were those of the successor of the patentee.</p> <p>. [Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. § 71.*]</p> <p>8. Trade-Marks and Trade-Names (§ 86*) — Unlawful Competition — Scope of Relief.</p> <p>Plaintiff succeeded to the rights of the patentee in the manufacture and sale of “Jenkins valves.” After the expiration of the patent, defendant began to manufacture and sell similar valves, which were put out under the name “Jenkins valve” or “Standard Jenkins valve,” and having on the opposite side of the globe of the valve the initials of defendant company. In 1901 plaintiff objected to defendant’s use of the word “Jenkins” in connection with its valve, and defendant offered to mark its valves with the further words, “Made by ICelly-Jones Co.,” but not on the same side of the valve with the words “Jenkins valve.” Plaintiff did not accede to this, but did not institute suit for unlawful competition until 10 years thereafter. Held, that while plaintiff was entitled to an injunction restraining defendant’s use of the word “Jenkins” as the name of the valve, except in conjunction on the same side with the words, “Made by ICelly-Jones Co.,” plaintiff’s laches barred its right to recover damages and costs.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. § 86.*]</p>

In Admiralty. In the matter of petition of the Floyd Italiano So-cieta di Navigazione, as owner of the steamship Florida, for limitation of liability. On motion by the United States for an order giving preference to its claim for cargo lost in collision. As the result of collision on the high seas between the Italian steamship Florida and the British steamship Republic, the latter vessel became a total loss.

In Equity. Suit by Knauth, Nachod & Kuhne against one Lovell, as-trustee in bankruptcy of Knight, Yancey & Co. On defendant’s motion to dismiss the bill. Suit in equity to follow money obtained by false pretenses into assets acquired or claimed by a trustee in bankruptcy of Knight, Yancey & Co. Motion by-the defendant trustee to dismiss the bill of complaint on objections in point of law contained in the answer.

<p>In Equity. Action by H. E. Baxter, as trustee in bankruptcy, of J. A. Harvey, against Bevill, Phillips & Co. and others. Judgment for defendants.</p>

<p>Terrence B. Shevlin and others were indicted for conspiracy. On demurrer to the indictment.</p>

<p>In Equity. Suit by Frank R. Williams against Robert T. McCartan, City Examiner of Stationary Engineers of Buffalo, and others.</p>

At Law. Action by A. E. Rouiller against the. A. & B. Schuster Company. On motion to strike, demurrers by complainant to defendant’s pleas in abatement, and demurrers by defendant to the complaint.

<p>Towage (§ 12*) — Stbanding oe Tow — Liability oe Tug.</p> <p>The stranding of a scow in tow alongside a tug, on a bar which was-out of the tug’s proper course, hold due in part to the fault of the tug and in part to the fault of the scowman who was employed by her owner, and not by the tug, and who as soon as the scow struck opened one or more of her pockets and allowed the mud to slip to the bar around the 'scow which prevented the tug from releasing her.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 24-26, 29; Dec. Dig. § 12.*]</p>

Hollister, Judge. Action by the Harrison Construction Company against the City of Ironton, Ohio. Judgment for plaintiff, and defendant brings error. In March; 1907, the city of Ironton and the Harrison Construction Company entered into a written contract by which the latter agreed to construct for the former a waterworks plant consisting of a battery of wells and a pipe line, all for a stated price.

In the matter of the Fechheimer Fishel Company, bankrupt. Held: dollar for dollar, equal amounts of bonds and of stock. By agreement, made part of the bonds, it was provided that “bonds” and stock should be inseparable and that on any sale of “bonds” an equal amount of stock should go with them.

, Judge. Action by A. C. Bedford, suing for the use and benefit of the American National Bank, his assignee, against J. Henry Miller, Incorporated. From a judgment for plaintiff, but for less than the relief demanded, resulting from an allowance of a set-off, plaintiff' brings error.

<p>1. Landlord and Tenant (§ 47*) — Game Preserve — Interference by Landlord.</p> <p>Where a tract of forest land, remote from a railroad, was leased to a club for fishing and hunting, subject to the owner’s right to prevent waste, farm, and conduct lumbering operations on the land, the owner was bound to exercise its rights reasonably and not arbitrarily and had no right to interfere with a ten-acre cleared tract around the clubhouse used for a garden and pasture.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 112, 118; Dec. Dig. § 47.*]</p> <p>2. Landlord and Tenant (§ 47*) — Use of Premises.</p> <p>Where certain forest land was leased to a club for hunting and fishing and the construction and use of certain camps and lodges thereon, subject to the landowners’ right to use the land as lumbermen, farmers, or grazers, evidence held insufficient to show a necessity, on the part of the owners to use a cleared ten-acre tract around the clubhouse for farming purposes, so as to entitle it to forbid the further use of such tract by the club.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 112, 113; Dec. Dig. § 47.*]</p> <p>3. Waters and Water Courses (§ 158%*) — Lease of Rights — Remedy of Lessee — Injunction.</p> <p>Where a lease of forest land for hunting and fishing authorized the lessee to construct and maintain a fish hatchery on the land, it was entitled to maintain a suit £or injunction restraining the landowner from polluting the streams as the result of conducting certain lumbering operations on the land.</p> <p>[Ed. Note.- — For other cases, see Waters and Water Courses, Cent. Dig. § 189; Dec. Dig. § 158%.*] i</p> <p>4. Landlord and Tenant (§ 134*) — Game Preserve — Taking Timbee — Repair op Buildings.</p> <p>. Where a lease of certain forest land for hunting and fishing for 50 years provided that the lessee might take tilhber from the land to build one or more camps or lodges, etc., the lessee was entitled to timber from the land to rebuild and repair the lodges so constructed.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 482-485; Dec. Dig. § 134.*]</p> <p>5. Landlobd and Tenant (§ 132*) — Enjoyment oe Premises — Interference by Landlord — Injunction.</p> <p>Where complainant held a lease of the hunting and fishing privileges of an extensive forest tract with the right to construct and maintain lodges, fish hatchery, etc., it was not barred of the right to an injunction to restrain the landowner from taking possession of all of the land except that covered by complainant’s clubhouse or from depriving it of the use of timber to keep its buildings in repair and from polluting the streams, on the ground that complainant had an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 460-464, 467-469, 1198; Dec. Dig. § 132.*]</p> <p>6 Injunction (§ 48*) — Threatened Trespass.</p> <p>The rule that one person cannot take the property of another without his consent, or continually trespass thereon and compel the owner to accept money in satisfaction, applies where the threatened trespass will result in depriving complainant of the enjoyment of a property right.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 101; Dec. Dig; § 48.*]</p>

Day, Judge. Action by the International Agricultural Corporation against August W. Stadler. Judgment for defendant, and plaintiff brings error. The plaintiff in error, whom we will call the plaintiff or the buyer, brought a suit at law, in the court below, against the defendant in error, hereafter called the defendant or the seller, to recover damages under the sale contract.

Appeals from the District Court of- the United States for the Western District of Tennessee; John E. McCall, Judge. Action by Isaac Levy against Solomon Folz, in which Elias Lowen-stein and others were garnisheed. Defendant Folz, having removed the cause to the federal court, moved to dismiss the principal suit because of his nonresidence, and because the garnishment had reached no property within the district.

<p>Appeal from the District Court of the United States for the Southern District of Texa's; Waller T. Burns, Judge.</p> <p>Suit in admiralty by J. E. Pearce against the steamship Jacob Duck-enbach; Edgar F. Luckenbach, claimant. Decree for libelant, and claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p> <p>Suit in admiralty by J. E. Pearce against Edgar F. Duckenbach, owneq of the steamship D. N. Duckenbach and others. Decree for libelant, and respondents appeal.</p>

Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in admiralty by Joseph Brown against Henry M. Carter and others. Decree for libelant, and both parties appeal.

Burns, Judge. Suit in admiralty for collision by Suderman & Dolson, owners of the tug Ima Hogg, against Frederick Deyland & Co., Dimited, owner of the steamship Alexandrian. Decree for respondent, and libelants appeal.

<p>1. BANKRUPTCY (§ 326*)-PREFERENCES — SET-OFF BY BANK.</p> <p>Under Bankr. Act (Act July 1, 1898, e. 541, 30 Stát. 565 [U. S. Comp. St. 1901, p. 3450]) § 68, providing that, in cases of mutual debts or credits between the estate of a bankrupt and a creditor, one debt shall set off against the other and the balance allowed or paid, section 60, subd. “a,” as amended by Act Feb. 5, 1903, c. 487, § 13 (U. S. Comp. St. Supp. 1911, p. 1506), relative to preferences, and subdivision “b,” as amended by Act June 25, 1910, c. 412, § 11 (U. S. Comp. St. Supp. 1911, p. 1506), which provides that a transfer, within four months before the filing of the petition, is voidable if the bankrupt be insolvent, the transfer operate as a preference, and the person receiving it had reasonable cause to believe that its enforcement would effect a preference, a bank within four months before the filing of the petition may apply a deposit by the bankrupt on a debt due it, though it knows of the bankrupt’s insolvency, where it has no reasonable 'cause to believe that a preference will be effected.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. §' 326.*]</p> <p>2. Bankruptcy (§ 326*) — Preferences—Set-Off by Bank.</p> <p>The right of a bank to apply a deposit on a debt due it within four' months before the filing of a petition in bankruptcy cannot be denied upon a mere suspicion or bare inference that it had reasonable cause to believe that a preference would be effected.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. § 326.*]</p> <p>3. Bankruptcy (§ 311*) — Preferences—Avoidance—Filing New Claim.</p> <p>Where the court in a bankruptcy proceeding found that the application of a deposit by' the bankrupt on a debt due a bank constituted a preference, its decree properly authorized the bank, upon payment of the deposit, to file a new or amended claim for the sums found to be preferences.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-500; Dee. Dig. § 311.*]</p> <p>4. BANKRUPTCY (§ 311*)-PREFERENCES-AVOIDANCE — OFFSETTING DIVIDEND.</p> <p>In a bankruptcy proceeding where a creditor has received a preference less than the amount of its claim, the court, instead of requiring the repayment thereof, may properly permit proof of the creditor’s claim, and. provide by its final decree for the deduction of the amount of the preference, with interest from the dividend due such creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-500; Dec. Dig. § 311.*]</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by Charles F. Hopewell against the Linscott Supply Company. Decree for complainant, and defendant appeals.</p>

<p>Patents (§ 328*) — Validity—Conduit eok Electric Wires — Infringement.</p> <p>The Speer patent, No. 693,916, for a conduit for electric wires, claims 2 and 6, held to involve inventive originality, not anticipated, and infringed by a conduit constructed by defendant under the Saylor patent, No. 1,049,771.</p>

Suit in equity by Heinrich L. J. Siemund against Joseph Enderlin,. Sri, and another, doing business as Joseph Enderlin, Jr., & Co. Decree for defendants (206 Fed. 283), and complainant appeals.

Maxey, Judge. Suit in equity by the Coca-Cola Company against Frederick Horst-man and Angelo Bassetti, doing business under the firm name of the Austin Bottling Works. Decree for defendants, and complainant apr peals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur E. Sanborn, Judge.</p> <p>Suit by the Stromberg Motor Devices Company against Leonard A. Parker. Decree for defendant, and complainant appeals.</p>

<p>In Equity. Suit by the Stromberg Motor Devices Company against the John A. Bender Company. On final hearing.</p>

<p>1. Patents (§' 172*) — Constbuction of Claims — Changes Made in Patent Office.</p> <p>Changes of expression in the claims in an application for a patent, made to overcome the examiner’s objections, which do not substantially change the meaning, will not defeat a meritorious patent, and it is entitled to a fair construction of the claims as allowed.</p> <p>[Ed. Note. — Eor other cases,- see Patents, Cent. Dig. § 247; Dec. Dig. § 172.*]</p> <p>2. Patents (§ 172*) — Constbuction—Effect of Cancellation of Claims.</p> <p>Patent claims must be read and interpreted with reference to claims which have been rejected by the Patent Office and to the prior arf, and cannot be construed to cover either what was canceled by the patentee or disclosed by prior devises or publications.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 247; Dec. Dig. § 172.*] '</p> <p>3. Patents (§ 328*) — Validity and Infringement — Electric Resistance Element.</p> <p>The Marsh patent, No. 811,859, for an electric resistance element or material consisting of an alloy of nickel and a metal of the chromium group, was not anticipated and is valid; also held, infringed by an alloy of the same metals, with the addition of iron and manganese in such small quantities as not to affect it as a resistance’ element.</p> <p>4. Words and Phrases — “Material”—“Element.”</p> <p>As used in the phrases “electric resistance material” and “electric, resistance element,” the words “material” and “element” are synonymous.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, p. 4404.]</p> <p>5. Words and Phrases — “Consist”—“Comprise.”</p> <p>The word “consist” is a more specific term than “comprise,” as it means to stand together’ to be composed of or made up of, while “comprise” means comprehend, include, contain, embrace; but the terms “consisting of a strip” and “comprising a strip,” as used in a patent claim, are synonymous.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, p. 1450; vol. 2, p. 1374.]</p> <p>6. Words and Phrases — “Formed Oe” — “Composed Oe.”</p> <p>"Formed of” and “composed of” are synonymous; they both mean consisting of.</p> <p>On Reargument.</p> <p>7. Patents (§ 165*) — Scope—Undisclosed Uses or Properties oe Invention.</p> <p>A patentee is entitled to all uses and properties of his discovery, whether known or disclosed or not.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>8. Patents (§ 314*) — Shit for Infringement — Evidence.</p> <p>Ex parte tests of electrical resistance materials to determine their similarity in the properties of resistance and durability under high temperatures, apparently fairly made, if not objected to on the hearing, may properly be considered on a question of infringement.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 550-553; Dec. Dig. § 314.*]</p>

<p>In Equity. Suit by the Coal & Coke By-Products Company against Alfred Ernst and others.</p>

<p>In Equity. Suit by Carl E. Hjarne against the American Voting Machine Company for patent infringement.</p>

<p>In, Equity. Suit by the' McClave-Brooks Company against the M. H. Treadwell Company and another for patent infringement.</p>

<p>Patents (§ 328*) — Validity and Infringement — Wire Mattress.</p> <p>Tlie Witzel reissue patent, No. 13,125 (original No. 921,494), for an improvement in spring or woven wire mattresses, consisting of a side guard to prevent the slipping or spreading of the upper mattress, was not anticipated, and discloses patentable invention, as well as utility as evidenced by the commercial success of the invention; also, held infringed.</p>

<p>In Equity. Bill by the Dual Tired Wheel Company against the American Locomotive Company.</p>

<p>Patents (§ 2S3*) — Suit fob Infringement — Counterclaim.-</p> <p>New equity rule 30 (33 Sup. Ct. xxvi) does not authorize the defendant in an infringement suit to plead in his answer as a counterclaim a cause of action for infringement of another unrelated patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-450, 452; Dec. Dig. § 283.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Montague & Gillet, Incorporated, bankrupts. Petition to review order of referee expunging a claim. Petition to review the order of a referee expunging a claim. The petitioner had a written contract as vice president of the bankrupt coporation at the rate of $1,800 per year for five years. He presented a claim for his future salary to the end of the term, which the referee expunged.

In Admiralty. In the matter of the petition of the Shipowners’ & Merchants’ Tugboat Company, as owner of the steamtugs Dauntless and Plercules, for limitation of liability. On motion for dismissal as to the HammOnd Dumber Company, damage claimant.

In Bankruptcy. In the matter of the Octave Mining Company, a bankrupt. Petition by I. E. Pluffman for a review of a decision of the referee rejecting a claim as a secured claim and allowing it as an unsecured claim.

<p>In the matter of L,. Nachman, bankrupt. On petition to review an order of the Referee denying the petition of the F. B. Q. Clothing Company.</p>

In Bankruptcy. Bankruptcy proceedings of the Radley Steel Construction Company. On motion to direct the Mutual Bank to pay over a deposit to the credit of the bankrupt.

<p>1. Monopolies (§ 31*) — Indictment — Restraint oe Trade — Price Agreement.</p> <p>An indictment alleging that the defendants, who bought 86 per cent, of the milk sold in specified country districts by the producers there for shipment to Boston and vicinity and Worcester, engaged in an unlawful combination in undue restraint of trade by agreeing upon the prices which they would pay for milk at the cpuntry points, thereby eliminating competition as to price between the defendants, held to show a combination which was prima facie unreasonably extensive and therefore illegal.</p> <p>[Ed. Note. — Por other cases, see Monopolies, Gent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>2. Monopolies (§ 31*) — Combination in Restraint op Interstate Trade— Indictment.</p> <p>An indictment, which charges a combination in restraint of interstate trade in milk, and which alleges that defendants combined to eliminate competition between themselves as to the price of milk purchased for resale in Boston and Worcester, and that the milk purchased by them was purchased in Maine, Vermont, New Hampshire, Connecticut, and Massachusetts, is not defective for failing to allege a restraint of interstate trade in milt, merely because it does not allege what proportion of tbe milt purchased under the combination came from outside Massachusetts, since the milk purchased in Massachusetts was purchased for the purpose of adding .it to milk forming a part of interstate commerce.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>3. Monopolies (§ 29*) — Anti-Tbtjst Act — Reasonable Restbaint of Competition Defined.</p> <p>Under the Sherman Anti-Trust Act (Act July 2, 1890, e. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), there must be not only a restraint of trade, but an undue restraint to support a conviction for combining in restraint of trade, and, to make a restraint unreasonable, it must appear either that the normal volume of interstate trade has been interfered with by artificial agencies affecting to a substantial degree, and to the disadvantage of the public, the price or supply of the commodity, which is the subject of the restraint, or that by means of a combination the price or supply of the commodity is or may be affected to a substantial extent to the disadvantage of producers or purchasers thereby operating to a material degree to the injury of the public, or that there has been a direct and intentional interference with the transportation of commodities in interstate commerce.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 19; Dee. Dig. § 29.*]</p> <p>4. Monopolies (§ 31*) — Anti-Tbust Act — Ceiminal Offenses — Limitations on Right op Collective Babgaining.</p> <p>Three classes of persons consisting of different individuals were under the control of the individual members of each class. They formed a combination by agreeing to offer and pay no more than a specified price for milk for resale in interstate commerce. The several persons were not guilty of any illegal purpose or of any oppressive methods, and, except as to price, they were free to compete with each other. The price of milk to the producers was lowbred by reason of the combination, but to what extent was not shown. Eighty-six per cent, of the business of buying milk sold in designated, localities for resale elsewhere after interstate transportation was in their hands. Held, that whether the combination was an unreasonable restraint of interstate trade, in violation of the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), was for the jury.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p> <p>5. Monopolies (§ 29*) — Acts Constituting “Monopoly.”</p> <p>A “monopoly” at common law, and under the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), implies a control of goods or service which the public desires, and an attempt to monopolize is an attempt to obtain control of an industry by means which prevent others from engaging in fair competition.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. § 29.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4570-4574.]</p> <p>6. Monopolies (§ 8*) — “Restbaint of Trade.”</p> <p>While there can be no monopoly which is not an unreasonable restraint of trade, there may be unreasonable restraints of trade which are not monopolies.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 8.*]</p> <p>7. Monopolies (§ 29*) — Acts Constituting Monopoly.</p> <p>Persons engaged in the business of buying milk and selling it at retail in designated localities formed a combination whereby they agreed not to offer or pay more than a specified price for milk purchased by them for resale.' It did not appear that the combination in any way enlarged their control of the business, either by forcing down the price at which they bought, so that they could undersell competitors in the selling market or otherwise. The agreement was made with the intent to wrong the public and to oppress and limit the rights of milk producers by depriving them of the higher price of milk which would have resulted from free competition. They did not dominate or control the markets in which they sold their milk purchased pursuant to the combination. Held, that they were' not guilty of attempting to monopolize trade in milk in violation of the Sherman Anti-Trust Act.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. § 29.*]</p> <p>8. Monopolies (§ 31*) — Conspiracy in Bestbaint op Tbade — Elements.</p> <p>An indictment charging a conspiracy in restraint of trade in violation of the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) must allege facts warranting a finding that the restraint was unreasonable, and an indictment charging a conspiracy in restraint of trade in milk, which does not show the percentage of milk bought by defendants for shipment and sale in designated markets, nor allege facts from which it could be inferred that defendants either controlled or were dominating factors in any branch of the milk business, was demurrable for failing to allege an unreasonable restraint of trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*]</p>

At Law. Action by R. M. Cobban against F. A. Hyde. Judgment for plaintiff. This is an action to recover on two promissory notes executed by defendant to plaintiff, dated December 31, 1909, one for $2,500, payable one year after date, and the other for $5,100, payable two years after date, with provision in each for attorney’s fees for collection in the event of action being necessary.

<p>Mandamus by the United States, by its Attorney General, against the Louisville & Nashville Railroad Company.</p>

In Bankruptcy. Petition for the involuntary bankruptcy of George H. Muir. On exceptions to the report of the special master, the said George H. Muir was adjudicated a bankrupt.

In Equity. Suit by John W. Schofield, as receiver of the Merchants’ National Bank of Seattle, against Charles H. Baker and another. In June, 1895, the defendant Baker was appointed receiver of the Merchants’ National Bank of Seattle, in which capacity he served until April, 1899, when he was succeeded by A. W. Frater, who served until February, 1913, at which time the plaintiff was appointed as receiver.

Prosecution by the United States against Joseph E. Rhodes and others for alleged conspiracy to conceal property of certain bankrupts. On demurrer to indictment.

<p>Joseph E. Rhodes and John J. Rhodes were indicted for perjury in violation of Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1111 [U. S. Comp. St. Supp. 1911, p. 1625]) § 125. On demurrer to indictment.</p>

<p>In Equity. Suit by N. Coy against the Title Guarantee & Trust Company, a corporation, and others. Petitions in intervention by Multnomah County for an order requiring the receiver to pay state and municipal taxes assessed against the corporation on personal property for the years 1908 to 1911, inclusive, with penalties and interest.</p>

<p>In Admiralty. Suit by Gust Pondahn against the schooner C. S. Holmes. On exceptions to amended libel.</p>

<p>In Equity. Suit by the Sheridan State Bank against Lee Rowell, trustee in bankruptcy of Ida L. Myers and others.</p>

<p>1. Penalties (§ 3*) — Railroads (§ 483*) — Pires—Injuey to Individuals— Dama&es — “Penalty Otherwise Provided.”</p> <p>Mont. Rev. Codes, § 4310, requires railroad operators to keep their rights of Way free from dead grass or -combustible material, failing which they are made liable for damages from fire from operating the road, and section 8524 declares that every railroad operator who fails to perform any of the duties required by law with reference to railroads, the penalty for which is not otherwise provided, is punishable by a fine. Held, that the damages given to individuals injured by such failure are compensatory only, and so are not a “penalty otherwise provided” for within section 8524.</p> <p>[Ed. Note. — For other cases, see Penalties, Cent. Dig. § 3; Dec. Dig. § 3 ;* Railroads, Cent. Dig. §§ 1737-1739; Dee. Dig. § 483.*]</p> <p>2. Contracts (§§ 103, 137*) — Violation of Daw — Validity—Public Policy.</p> <p>A provision of a contract to exempt another from liability for violation of law is contrary to public policy and void, and if the provision is not severable, it avoids the entire contract.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 468-470, 701-712; Dec. Dig. §§ 103, 137.*]</p> <p>3. Railroads (§470*) — Right of Way — Combustible Materials — Statutes.</p> <p>Mont. Rev. Codes, §§ 4310, 8524, requiring railroad operators to keep their rights of way free from combustible materials, and providing a penalty and also a liability for damages resulting from fire from operation of the road, are for the benefit of all going on the right of way for purposes of, or incidental to, transportation and of all off the right of way who may be injured by the railroad’s failure to perform the duty imposed, but does not extend to trespassers or tenants on the right of way who take the same as they find it, or subject to the terms of their occupancy.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1666; Dec. Dig. § 470.*]</p> <p>4. Contracts (§ 141*) — Construction—Validity.</p> <p>Where a contract is fairly open to two constructions, one lawful, and the other unlawful, the former will be preferred and will prevail, unless it appears that there was an intent to make, or that there was actually made, an illegal contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 461, 1760, 1761, 1785; Dec. Dig. § 141.*]</p> <p>5. Railroads (§ 469*) — Leases—Construction—‘Fires—Exemption from Liability.</p> <p>A lease of a portion of a railroad’s right of way provided that the lessee assumed all risk of loss, damage, or destruction to buildings or'contents, or to any other property brought upon or in proximity. to the leased premises, without regard to whether such loss was occasioned by a fire or sparks from locomotive engines, or other causes incident to or arising from the movement of locomotives, or whether it was the result of negligence or misconduct of any person in the service of the company. Held, that the lease should be construed as exempting from liability from fire incident to or arising from railway operation, and not from fires due to the railroad company’s violation of Mont. Rev. Codes, § 4310, making it the duty of railroad operators to keep their rights of way free from combustible material, and imposing a liability for damages from fire resulting therefrom, and hence it was no defense to an action for loss occasioned by a failure of the railroad company to keep its right of way free from combustible materials.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1665; Dec. Dig. § 469.*]</p>

In Admiralty. Suit for collision by Sherman Hager, as master and owner of the schooner Annie Hodges, against the tug Prudence arid the barge Dorothy.

<p>Collision (§ 113*) — Injuby to Seaman — Right to Damages.</p> <p>A seaman injured in a collision is entitled to recover full damages against other vessels in fault, notwithstanding the contributory fault of the vessel on which he was employed. ,</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 239-242; Dec. Dig. § 113.*]</p>

In Bankruptcy. In the matter of John S. Harrington and others, bankrupts. On petition to review an order of the referee dismissing a petition of the Flanders Motor Company.

<p>In Admiralty. Libel by James A. Thompson against the sailing schooner Fred E. Sander, her engines, etc. On exceptions to amended libel.</p>

<p>1. Bankruptcy (§ 166*) — Acts op — Elements—Intent to Prefer.</p> <p>There must be an intent on the part of the alleged bankrupt to prefer, in order that an alleged preferential transfer shall constitute an act of bankruptcy.</p> <p>[Éd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p> <p>2. Bankruptcy (§ 166*) — Acts of — Preferences—Intent to Prefer — Creditors’ Committee.</p> <p>Where, after a committee of creditors had been appointed, and the alleged bankrupt agreed to conduct its business under their “joint direction,” loans were obtained with their consent from a trust company with which the bankrupt did business, upon notes which permitted the application of the surplus security upon antecedent indebtedness, to secure which loans accounts due the bankrupt were pledged which liquidated to an amount averaging 12y2 per cent, more than the amount loaned, such transfers were not made by the bankrupt with intent to prefer the trust company, and the creditors, having given their approval thereto through such managing committee, were estopped to claim that the transfers constituted an act of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings against the Freeman Cotting Coat Company. On motions to dismiss intervening petitions.</p>

<p>1. Shipping (§ 13*) — Clearing—Foreign Shipping — Health and Quarantine Regulations.</p> <p>Where a steamship after clearing from Yokohama, where it received all proper health and clearance papers, for Boston and New York, put into Kobe, Japan, and thereafter touched at a number of other Asiatic ports, at all of which other ports she received proper health and clearance papers, she did not clear from Kobe for a United States port within Act Feb. 15, 1893, c. 114, § 2, 27 Stat. 450 '(U. S. Comp. St. 1901, p. 3313), requiring vessels at any foreign port clearing for any port or place in the United States to obtain a bill of health from.the United States Consul or medical officer, and imposing a penalty for clearing and sailing without such bill of health and entering any port of the United States, in view of the old and technical meaning of the word “clearing” as applied to shipping, which had long been recognized and established in the statutes of the United States prior to the act in question.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 26, 27: Dec. Dig. § 13.*].</p> <p>2. Statutes (§ 241*) — Rule of Construction — Penal Statutes.</p> <p>Penal statutes are to be strictly construed, and their language is to be given its usual meaning, unless it is very plain that Congress intended otherwise.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]</p> <p>6. Shipping (§ 16*) — Actions for Penalties — Amendment oe Information.</p> <p>In a quasi criminal case, by information to recover a penalty for clearing for a port of the United States without a bill of health, where the offense had not in any way endangered health at the United States ports, an amendment of the information after the ease had been fully heard would not be allowed.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 30-44; Dec. Dig. § 16.*]</p>

<p>States (§ 191*) — Actions—Enjoining Enforcement of Statutes.</p> <p>A suit against the Attorney General of a state to restrain him from enforcing a statute on the ground that it is unconstitutional is in effect a suit against the state, where the Attorney General is not charged with any duty to enforce the statute, and has not threatened presently to enforce it, and a preliminary injunction will be denied.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.*]</p>

<p>Petition for naturalization by Moses Reo Urdang.</p>

<p>In Admiralty. Suit by A. P. Lathrop against the freights of the American bark John Ena; J. H. Welsford & Co., Limited, interveners.</p>

<p>1. Street Railroads .(§ 117*) — Persons on Track — Contributory Negligence.</p> <p>Where the evidence warranted a finding that plaintiff’s intestate, while intoxicated, started to cross defendant’s street car track, and, when on the track, suddenly fell forward and struck his head rendering him unconscious, and that he lay in that condition for several minutes before a car approached, which struck and injured him, held, that whether plaintiff’s intestate was guilty of contributory negligence was a question for the jury.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. §' 117.*]</p> <p>2. Street Railroads (§ 117*) — Injuries to Travelers — Negligence—Question for Jury.</p> <p>In an action for injuries to plaintiff’s intestate by being struck by an approaching car after he had fallen unconscious on the track several minutes before the car approached, and the evidence warranted a finding that it was possible for the motorman to see him lying on the track for a distance within which the car could easily have been stopped if properly operated, whether defendant was negligent held for the jury.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] '</p> <p>3. Evidence (§ 268*) — Personal Injuries — Mental Suffering — Fear—Apprehension.</p> <p>In an .action for injuries.to an unskilled laborer who had lost a hand and a foot in a street railway accident, evidence, that while he was in the hospital he stated that if he bad not lost his foot he could still have made a living, was properly admitted to show mental suffering, since fear, worry, and apprehension are typical sorts of mental suffering, and it is natural that a person under such circumstances should suffer from anxiety and apprehension over his inability to earn his livelihood in the future.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1061, 1062; Dec. Dig. § 268.*]</p> <p>4. Damages (§ 48*) — Personal Injuries — Mental Pain.</p> <p>Mental pain should be considered by the jury upon the question of damages ; it being an independent element, separate and apart from the physical suffering and injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 100-103, 255; Dec. Dig. § 48.*]</p>

<p>In Admiralty. Suit by the Mobile Barge Company against the Mobile Towing & Wrecking Company and the tug Dawn. On exceptions to libel for misjoinder.</p>

<p>In Admiralty. Suit by Parrott & Co., a corporation, against the British bark Dolbardorn Castle.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Boress Wise and the community composed of Boress Wise and his wife. On objections to cost bill, after a denial of an adjudication on an involuntary petition.</p>

<p>T. Army and Navy (§ 47*) — Courts-BIartial—Review.</p> <p>Civil courts Rave no appellate jurisdiction to review the proceedings of courts-martial.</p> <p>[Ed. Note. — For other eases, see Army and Navy, Cent. Dig. §§ 93-95; Dec. Dig. § 47.*]</p> <p>2. Army and Navy (§ 47*) — Courts-BIartial—Review by Civil Courts.</p> <p>Civil courts will not interfere with the judgments of courts-martial, if it appears that they have jurisdiction of the person and subject-matter.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 93-95; Dec. Dig. § 47.*]</p> <p>3. Army and Navy (§ 47*) — Courts-Martial—Review by Civil Courts.</p> <p>Errors of procedure in military courts can be corrected only by the proper military authorities.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 93-95; Dec. Dig. § 47.*]</p> <p>4. Habeas Corpus (§ 30*) — Right to Relief — Courts-Martial—Errors of Procedure.</p> <p>That a court-martial trying a naval officer permitted the judge advocate to be present for a- short time during a closed session of the court, in express violation of Act July 27, 1892, c. 272, § 2, 27 Stat. 277 (U. S. Comp. St. 1901, p. 965), though a disregard of the defendant’s legal rights, was nevertheless an error in procedure only, and was therefore not ground for a writ of habeas corpus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*]</p>

<p>Petition for a writ of habeas corpus by Simon Sitner.</p>

<p>1. Aliens (§ 54*) — Detention and Return of Immigrants.</p> <p>' The assumption by a board of special inquiry that it was absolutely bound by the medical certificate in determining whether an alien should be-excluded as a feeble-minded person was such a fundamental error of law as prevented a fair hearing.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p> <p>2. Aliens (§ 54*) — Detention and Return of Immigrants.</p> <p>In a hearing on the merits of a habeas corpus proceeding by an alien, excluded by a board of special inquiry, evidence held to show that such alien was not a feeble-minded person nor liable on account of feeble-mindedness to become a public charge.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]</p>

<p>Master and Servant (§ 17*) — Railroads—Hours of Service Daw — Unavoidable Accident.</p> <p>Where a railroad company’s violation of the Hours of Service Law (Act March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]) resulted from a train being required to take impure water from a creek, due to heavy switching while the train was being run over a temporary logging road, causing the injectors, which were in good order, to fail to work properly, such delay was the result of an unavoidable accident which could not have been foreseen and prevented by the use of ordinary care, and hence the company was not liable for a penalty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. •§ 17.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings against Harry Bach and others. On motion to dissolve a restraining order.</p>

<p>In Error to the District Court of the,United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>The Grand Rapids & Indiana Railway Company was convicted of rebating, and it brings error.</p>

Sessions, Judge. The Nichols & Cox Lumber Company was convicted of accepting and receiving a rebate on an interstate shipment of lumber, and brings error.

Suit in equity by the Investment Registry, Limited, against the Chicago & Milwaukee Electric Railroad Company and others. Held: and owned, in the years 1909 and 1910, and previously thereto, a large number of bonds of the Chicago & Milwaukee Electric Railroad Company (the Wisconsin corporation), forming a part of said $10,000,000 issue of bonds, and aggregating between $3,000,000 and $4,000,000 face value, and also a small quantity of the bonds of the Chicago…

Henry Kaufman was convicted of aiding and abetting the Daisy Shirt Company, a bankrupt corporation, to conceal its assets from its trustee, and he brings error. The plaintiff in error, Henry Kaufman, hereinafter referred to as the “defendant,” was president of the Daisy Shirt Company, a corporation organized under the laws of the state of New York, and was in charge of the company.

<p>1. Insurance (§ 683*) — Reinsurance—Liability or Reinsurer.</p> <p>An insurer against loss from theft to the extent of three-fourths of the loss was reinsured by plaintiff for five years for the excess over 250,000 francs, for which it might become liable on account of any one embezzlement. It was agreed that plaintiff should procure reinsurance for 90 per cent, of the risk, and the reinsurers were to countersign the policy and accept itb articles, though plaintiff remained liable to the original insurer. The gross premium paid by the original insurer was divided in proportion to the percentage of their several risks among the various insurers, one of whom was defendant, which reinsured two-tenths of plaintiff’s risk. Defendant received its proportionate share of the gross premiums for three years, its policy being canceled at the end. of three years by consent, subject to losses incurred prior to that time, and the share of the risk reinsured by it was reinsured for the rest of the five years by another company for the same annual premium. An employs of insured embezzled sums, three-fourths of which at the date of such cancellation aggregated less than 250,000 francs, but during the period of plaintiff’s liability aggregated more than that amount. Held, that defendant was not liable for its proportionate share of the amount embezzled before the cancellation, as there being no excess over 250,000 francs, neither it nor plaintiff was liable at the date of the cancellation, and no subsequent embezzlement could charge defendant with liability, and its liability did not depend upon the extent of the liability of the other reinsurers, or whether they were liable.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1816; Dec. Dig. § 683.*]</p> <p>2. CONTRACTS (§ 152*) — Construction—Unanticipated Contingencies.</p> <p>Where the parties to a contract fail to provide for a contingency wliich afterwards happens because of their failure to contemplate its possibility, the agreement must be interpreted as written, and the language employed given its natural and commonly understood meaning.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.*]</p> <p>3. Principal and Surety (§ 59*) — Liability op Surety.</p> <p>The liability of a surety cannot be enlarged by implication.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 103, 103% ; Dec. Dig. § 59.*]</p> <p>Woods, Circuit Judge, dissenting.</p>

In Errór to the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. Action by John J. Dash.er against the Hocking Mining Company. Judgment for defendant, and plaintiff brings error.

Writ of error to review a judgment entered in the District Court for the Southern District of New York. The plaintiff is a corporation organized under the laws of the state of Tennessee. The defendant is a resident of the city and state of New York and president of Lawrence Barnum & Co., a corporation organized under the laws of the state of New York.

J. Cochran, Judge. Action by E. E. Trivette, as administrator of the estate of Albert Huffman, deceased, against the Chesapeake & Ohio Railroad Company and another. Judgment for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Action by Leona O’Donnell, by John D. Loell, her next friend, against the Escanaba Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p>

Action by Mary J. Tibbetts, as administratrix of the estate of Frank Tibbetts, deceased, against the Odell Manufacturing Company. Judgment for plaintiff, and defendant brings error.

Boyd, Judge. Action by J. W. Cogdill, as administrator of C. W. Cogdill, deceased, against the Whiting Manufacturing Company. Judgment for defendant, and plaintiff brings error. The plaintiff in error instituted this action in the superior court of Swain county, N. C., and the same was by appropriate proceedings removed by the defendant in error, a nonresident corporation, into the United States District Court for the "Western District of North Carolina.

Cotteral, Judge. Suit in equity by the Armstrong-Byrd Music Company, a corporation, against H. G. Eastman, as postmaster of Oklahoma City, Old., and others. Decree for complainant, and defendants appeal.

<p> (Syllabus by the Court.) </p> <p>1. Indians (§ 13*) — Commission to Five Civilized Tribes — Jurisdiction— Judgments — Conclusiveness.</p> <p>The Commission to the Five Civilized Tribes was a quasi judicial tribunal empowered to determine who should be enrolled as citizens and freedmen of those tribes, what lands should be allotted to each, and in what way, and its adjudication of those questions and of every issue of law and fact it was necessary for it to determine in order to decide them is conclusive and impervious to collateral attack.</p> <p>But its decision, recital, or report regarding issues whose determination was not indispensable to enable it to decide who. should be enrolled, what land should be allotted to those enrolled, and how, is, in the absence of special legislation such as the Act of May 27, 1908, c. 199,. 35 Stat. 313, without judicial or other conclusive effect.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13.*]</p> <p>2. Indians (§ 13*) — Statutes (§ 267*) — Retroactive Operation — Five Civilized Tribes — Enrollment—Record oe Ages.</p> <p>The Commission had no jurisdiction in making its enrollment of the citizens and freedmen of the tribes to determine and conclusively adjudge their respective ages.</p> <p>In the determination of rights which accrued and of the effect of transactions concluded prior to May 27, 1908, the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman enrolled thereon.</p> <p>[Ed. Nóte. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. § 13;* Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.*]</p>

Suit in admiralty for collision by Albert Bleakly and others, owners of Scow 74, against the steamer Express, the New York, New Haven & Hartford Railroad Company, claimant, with the steam tug S. L. Crosby, the Cornell Steamboat Company, claimant, impleaded. Decree against the Express alone, and her claimant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur C. Denison and Clarence W. Sessions, Judges.</p> <p>Suits for collision by Frank M. Osborne and- others,- owners of the steamer John W. Moore, and the St. Paul Fire & Marine Insurance Company against the steamer Edward Y. Townsend, the Cambria Steamship Company, claimant, and by the Pittsburgh Steamship Company as owner of the steamer Queen City against the Townsend and the Moore, and by Jerrainy McIntyre, administratrix of the estate of Duncan McIntyre, deceased, against all three vessels. Decree against the Townsend alone (189 Fed. 653), and her claimant appeals.</p>

<p>1. Shipping (§ 136*) — Liability for Injury to Cargo — Harter Act.</p> <p>Befor'e a vessel owner can avail himself of the provision of section 3 of Harter Act of February 13, 1893, c. 105, § 3, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946), exempting him from liability for loss or damage to cargo from faults or errors in navigation or in the management of the vessel, he must show that the vessel was seaworthy at the commencement of the voyage, or that he exercised due diligence to make her so, which is made a condition, precedent to such exemption.</p> <p>[Ed. Note. — For’ other cases, see Shipping, Cent. Dig. § 492; Dec. Dig. § 136.*]</p> <p>2. Shipping (§ 136*) — Liability fob Injury to Cargo — Harter Act — Diligence to Make Vessel Seaworthy.</p> <p>In exercising the degree of care and diligence imposed on an owner to make his vessel seaworthy by Harter Act Feb. 13, 1893, c. 105, § 3, 27 Stat. 445 (U. S. Comp. St. 1901, p. 2946), he will be required to take such precautions as are reasonably adequate for the protection of the cargo against known perils, or which reasonable foresight may have anticipated.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent.'Dig. § 492; Dec. Dig. § 136.*</p> <p>Statutory exemptions of shipowners from liability, see notes to Nord-Deutscher Lloyd v. Insurance Co. of North America, 49 O. Ci A. 11; llalli V. New York & T. S. S. Co., 83 C. C.' A. 294.]</p> <p>3. Shipping (§ 138*) — Liability fob Injury to Cargo — Harter Act — Seaworthiness.</p> <p>A steamer carrying a cargo of wheat in bulk on the Great Lakes had a lamp room situated directly over the cargo, in which was a 60-gallon tank of kerosene in daily use. The room was lined with zinc, and the sheets on the floor and for a distance up the sides were soldered together so as to be liquid tight. The floor sloped down toward one corner where the opening through which an exhaust pipe came up was also made tight, but a live steam pipe for use for fire protection, put in later, was left with an open space around it unprotected. A seaman in cleaning the oil tank apparently loosened a seam in the bottom causing it to leak, and the oil ran through the space around the steam pipe causing damage to a part of the cargo. Held, that the danger of injury to grain from the leaving of such opening in the floor was so obvious, as evidenced in part by the care originally taken to make the floor tight, that the owner could not be said to have exercised due diligence to make the vessel seaworthy for such a cargo, even though other vessels of her class were similarly constructed, and she had been passed by inspectors and surveyors and given a good rating, and that, conceding that the negligence of "the seaman was the proximate cause of the damage and was a fault or error in the management of the vessel, the owner was not exempted from liability by Harter Act Feb. 13, 1893, c. 105, § 3, 27 Stat. 445 (U. S. Oomp. St. 1901, p. 2946). •</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 492; Dec. Dig. § 138.*]</p>

Otis Humphrey, Judge. In the matter of bankruptcy proceedings of the Federal Contracting Company, bankrupt. From an order adjudging that a chattel mortgage, executed by the bankrupt to the Fairbanks Steam Shovel Company, was invalid as against William V. Wills, trustee in bankruptcy, the Fairbanks Steam Shovel Company appeals.

<p>1. Acknowledgment (§ 61*) — Certifícate—Defects—Evidence.</p> <p>Where chattel mortgages, given by a corporation having its principal office and residence, in the First district of the municipal court of Cook county, weré acknowledged before a clerk “of the municipal court in the -district, in the county of Cook,” or before “clerk of the municipal court of the First district in the county of Cook,” the irregularities in the acknowledgments, tested by the requirements in Illinois Mortgage Act (Hurd’s Rev. St. 1913, c. 95), § 2, providing that in counties hhving a population of more than 200,000, chattel mortgages shall be acknowledged before a clerk of the municipal court in the district in which the mortgagor resides, could be remedied by evidence, and, when so remedied, the acknowledgments were in accordance with the statute.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 336-344; Dec. Dig. § 61.*]</p> <p>2. Corporations (§ 440*) — Powers—Right to Borrow Monet.</p> <p>A corporation, organized for pecuniary profit under Hurd’s Rev. St. Ill. 1913, c. 32, § 1 et seq., has power to borrow money and execute a mortgage to secure the same.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1775-1777; Dee. Dig. § 440.*]</p> <p>3. Bankruptcy (§ 464*) — Appeal—Questions Reviewable.</p> <p>Where no error was assigned to the action of the district court in bankruptcy on a petition in intervention, the action was not before the Circuit Court of Appeals on appeal.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 464.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

Otis Humphrey, Judge. In the matter of bankruptcy proceedings of the Federal Contracting Company, bankrupt. From an order of the District Court in favor of Neat, Condit &.Grout, William Y. Wills, trustee in bankruptcy, appeals.

Swan and Clarence W. Sessions, Judges. Suit for collision by the Davidson Steamship Company, owner of the barge Chieftain, against the steamer Troy; the Western Transit Company, claimant. Decree for libelant, and claimant appeals.

Action by the Western Development Company against John W. Mc-Kinnon, as stockholders’ agent, etc., of the Bank of North America. Judgment for plaintiff, and defendant brings error.

<p>1. Collision (§ 98*) — Rules for Preventing — Slip Whistle.</p> <p>Inland Navigation Rules, art. 18, rule 5 (Act June 7, 1897, c. 4, 30 Stat. 96 [U. S. Comp. St. 1901, p. 2882]), Which provides that, when.steam vessels are moved from their docks or berths and other boats are liable to pass from any direction toward them, they shall give the same signal as in case of vessels meeting at a bend (one long blast) does not fix any precise time at which the signal shall be given, and whether or not it should be given when the vessel starts to move apparently depends on circumstances, as the depth of the slip or the presence of other obstructing vessels.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. §§ 208-210; Dec. Dig. § 98.*] ; .</p> <p>2. Collision (§ 96*)' — Leaving and Entering Slip.</p> <p>A decree affirmed which, on testimony given in open court, found a steam lighter solely in fault for a collision with another lighter in tow alongside a tug, near the entrance to a slip from which she was backing.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. §96.*]</p> <p>3. Evidence (§ 601*) — Course,of Tide.</p> <p>That the current of a tidal river is flowing downstream is not conclusive that there is at the time an ebb tide, since the tide will be flooding at the bottom of the river for some time while the .current is still running down on the surface.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 2425-2429; Dec. Dig. § 601.*]</p>

Suit in admiralty by the Lehigh Valley Transportation Company, owner of -the steel barge Buffalo, against the Knickerbocker Steam Towage Company. Decree for libelant, and respondent appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by the United States against the Atlantic Fruit Company. Judgment for defendant, and the United States brings error.</p>

<p>1. Logs and Logging (§ 10*) — “Scaler.”</p> <p>The term “sealer,” as used in the contract for certain logging operations, means an expert employed to determine the number of board feet and the percentage of unsound timber in logs.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 19-28; Dec. Dig. § 10.*]</p> <p>2. Logs and Logging (§ 10*) — Contract—Decision of Scaler.</p> <p>Where a log scaler is agreed on by the parties to a logging contract, his report is binding on both, though there is no stipulation to that effect in the contract, unless it is set aside for fraud or obvious mathematical errors.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent Dig. §§ 19-2S; Dec. Dig. § 10.*] ' ?</p> <p>3. Logs and Logging (§ 10.*) — Contract—Measurement of-Logs — Report of Scaler.</p> <p>Where a logging contract provided that the timber was to be sealed sound by a specified rule, the scaler furnished and paid by defendant and boarded by plaintiff, it would be construed to mean that any scaler furnished and paid by defendant and boarded by plaintiff was a scaler mutually agreed on, whose reports would be conclusive against both parties, unless shown to be fraudulent or to contain obvious mathematical errors.</p> <p>[Ed. Note. — For other eases, see Logs and Logging, Cent. Dig. §§ 19-28; Dec. Dig. § 10.*]</p>

<p>1. Master and Servant (§ 72*) — Contract of Employment — Promise op Bonus — Consideration.</p> <p>Where plaintiff was not legally bound to continue in defendant’s employ to the end of the season, defendant’s promise, alleged to have been made in May, 1910, that he would give him a bonus equal to his salary, to begin January 1, and end December 31, 1910, was not nudum pactum.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 87. 88; Dec. Dig. § 72.*]</p> <p>2. Evidence (§ 130*) — Relevancy—Res Inter Alios Acta.</p> <p>Where, in an action by defendant’s general superintendent to recover an alleged bonus, defendant denied ever having contracted to pay plaintiff a bonus, but admitted promising to raise the wages of the foremen on the work and pay them a bonus, evidence of plaintiff’s conversations with the foremen when he told them their wages would be raised and a bonus paid, and testimony of one of the foremen of his conversations with plaintiff on the subject, was res inter alios acta, and inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 403;, Dec. Dig. § 130.*]</p>

<p>Towage (§ 11*) — Swamping oe Tow — Liability oe Tug.</p> <p>A tug, proceeding with a tow of 6 boats in three tiers from New York to New Haven, when off Stratford Point, owing to increasing seas, turned and sought harbor in Bridgeport. After turning, the open barge Derby, loaded with coal, shipped water through her open hatchways and sank. Held, on the evidence that the tug was not in fault; the tow being properly made up, the construction of ’the barge one not unusual, and there being no weather conditions previously which apparently rendered it necessary to seek shelter.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p>

<p>Patents (§ 324*) — Suit foe Infringement — Reopening oe Case.</p> <p>After the affirmance of a decree finding validity and infringement by the appellate court, such'court may on motion remand the record to permit the defendant to petition for a reopening of the case and leave to introduce new evidence of prior devices, on affidavits indicating that such testimony is material and may be important on the question of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 000-606; Dec. Dig. § 324.*]</p>

Brown, J udge. Suit in equity- by the W. H. Coe Manufacturing Company and others- against the American Roll Gold Leaf Company and others. Decree for complainants, and defendants appeal.

Otis Humphrey, Judge. Bill in equity by the Moline Plow Company against the Rock Island Plow Company, for infringement of the Uindgren disk harrow patent, No. 799,012. From a decree dismissing the bill, complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The decree of the District Court of the United States (212 Fed. 447) for the Southern District of New York held valid and infringed claims 7, 10, 13, 14, 19, 20, 21, 22, 23, and 24 of reissued letters patent No. 13,125 to Charles J. Witzel for improvements in wire mattresses. The original patent. No. 921,494, was dated May 11, 1909. The application for the reissue was filed June 12, 1909, and the patent was reissued June 28, 1910.</p>

Day, Judge. Bill in equity by the Whitehead & Hoag Company against Conrad J. Kortz. From a decree dismissing the bill, complainant appeals. This was the usual infringement bill, based upon claim 1 of patent No. 653,296, issued July 10, 1900, to the Whitehead & Hoag Company, as assignee of William Hornich, Jr. It pertains to what is intended essentially as an advertising device.

<p>Appeal from the District Couft of the United States, for the Eastern Division of the Northern District of Illinois; Arthur D. Sanborn, Judge-__</p> <p>Suit in equity by the Wisconsin Furniture Company against J. Blurh-berg. Decree for defendant, and complainant appeals.</p> <p>Appellant, assignee of the Klein patent. No. 602,509, April 19, Í898, for an extension table, filed its bill to enjoin appellee from infringing the two claims of that patent.</p> <p>The drawings are as follows:</p> <p> </p> <p> </p> <p>In the specification applicant described his invention in these words:</p> <p>“The objects of my invention are: First, to secure sucb a balance of the respective parts that the joints will not cramp or bind, and that the table may be easily extended or shortened by a single person; second, to cheapen the construction by reducing the number and variety of parts used in tbe construction of the table.</p> <p>“In the following description reference is had to the accompanying drawings, in which:</p> <p>“Figure 1 is a top view, showing one of my tables in an extended position, the table shown being .of small size. Fig. 2 is a similar view,' showing my invention applied to a medium-sized table. Fig. 3 is a third top view, showing my invention applied to tables of large size. Fig. 4 is a cross-section drawn on line XX of Fig. 3.</p> <p>“Like parts are identified by the same reference letters throughout the several views.</p> <p>“Referring to Fig. 1, it will be observed that the legs A (shown in dotted lines) are secured directly to the respective cross-rails B and that the latter are connected by guide-bars G, which are rigidly attached at each end to the* cross-rails. The permanent top boards D are. secured to the slide-bars E, which are dovetailed to the bar O, those of the left-hand top board’being arranged to slide upon the outer sides of the bars 0 and those of the right-hand top board being arranged on the inner side of the bars 0. It will be observed that the slides have a bearing in the guide-bars equal to the width of the top board, and as the latter are extended independently of the legs there is no tendency to cramp or bind the slides.</p> <p>“In Fig. 2 the construction is the same as that of Fig. 1 with the exception that I have substituted for the guide-bars 0 of Fig. 1 the double guide-bars FF, which are dovetailed together and arranged to slide upon each other, thus permitting the legs to be separated also. In this form the weight of the top boards extended• beyond the legs counterbalances, the weight of the center portion, as the slides E of the top boards extend inwardly upon the guide-bars FF to a considerable distance, and thus aid in supporting the latter,</p> <p>“In Fig. 3 I show a further modification of my invention intended especially for tables of largest size. The four center legs A are connected by the cross-rails B and guide-bars O in the same manner as is shown in Fig. 1. Two additional pairs of legs A'A' are also provided, having cross-rails B', to which are attached-the slide-bars Q-G-, running on the bars 0, and which also serve as guide-bars for the slide-bars E E of the top boards. When this table is foldéd, the legs A and A' are brought together, as shown in Fig. 4.”</p> <p>The claims are as follows’:</p> <p>“1. In an extension-table, the combination with the table-legs connected in pairs by cross-rails, of the horizontal connecting guide-bars uniting the pairs of table-legs, and a pair of permanent top boards adapted to meet when the table is closed, and provided with bars rigidly attached thereto and slidably engaging the connecting guide-bars between the cross-rails, whereby the top sections are-permitted to move independently of the legs, substantially as de-scrib.ed.</p> <p>“2. In an extension-table, the combination of a central set of four legs rigidly united by connecting cross-rails and fixed horizontal guide-bars, movable legs connected in pairs by cross-rails and provided with sliding guide-bars engaged - by the fixed guide-bars of the central legs, and a pair of permanent top boards adapted to meet when the table is closed, and having bars rigidly attached thereto and slidably engaging said sliding guide-bars, whereby the outer legs are permitted to move independently of the central legs, and the top boards independently of any'of the legs, substantially as described.”</p> <p>. After appellee had closed his proofs, appellant during its rebuttal withdrew claim 1 from the contest. ’ •</p> <p>Appellee’s alleged infringing table has for its center support, not the four center legs A of Figure 3, but a single leg fastened at the middle of a-single piece of bridging at the middle point of the central pair of slide-bars.</p> <p>On the hearing of the proofs the trial court held that appellee’s table did not infringe claim 2 of the patent, and this appeal resulted.</p>

In Equity. Suit for patent infringement by the Seeger Refrigerator Company against the American Car & Foundry Company. A decree for complainant having been rendered, the case was referred to a master to state and report an account of profits.

<p>At Raw. Action by the Klock Produce Company against Millard T. Hartson, as Collector of Internal Revenue for the District of Washington. On motion for a new trial.</p>

<p>1. Shipping (§ 115*) — Carriage oe Goods — Liability eoe Nondelivery.</p> <p>The failure of an importer, who had paid the duty on perishable goods billed to arrive on a designated vessel to adjust with the customs officers on the arrival of a part of the goods on a later vessel, and the failure to remove the later arriving goods within a reasonable time, were an abandonment of the goods, defeating a claim for nondelivery, though a bill of lading was not delivered.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 433; Dec. Dig. § 115.*]</p> <p>2. Shipping (§ 120*) — Oaueiage op Goods — Liability fob Loss.</p> <p>Where imported goods were so negligently confused by being mixed with other shipments of a like character that the consignee could not find and remove all his goods, the carrier was liable for the loss sustained by the condemnation of the goods by the health department.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 226, 440-448, 466; Dec. Dig. § 120.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Waters-Colver Company. Application by one McElroy to examine the minutes of his testimony taken before the referee under Bankr. Act, § 21a. On application to review.

In Bankruptcy. In the matter of bankruptcy proceedings of Joseph L. Beahn. 'On application for an order to compel the bankrupt to surrender a liquor license. Referred back to referee, with instructions to take further evidence.

<p>1. Bankruptcy (§ 211*) — Administration op Estate — Possession of Goods —Replevin.</p> <p>Property in the possession of a bankrupt’s trustee and alleged to belong to the estate is under the control of the bankruptcy court, and cannot be taken on a writ of replevin without the bankruptcy court’s consent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 321, 323; Dec. Dig. § 211.*]</p> <p>2. Bankruptcy (§ 211*) — Administration of Estate — Claim to Property— Replevin.</p> <p>Where personal property in the hands of a bankrupt’s trustee is claimed by him and also by another, the bankruptcy court will not grant permission to the latter to institute replevin proceedings against the trustee to recover the property; a simple, speedy, arid inexpensive procedure having been provided for the trial of such claims in bankruptcy.</p> <p>[Ed. Note. — For .other cases, see Bankruptcy, Gent. Dig. §'§ 321, 323; Dec. Dig. § 211.*]</p>

<p>Bankruptcy (§ 226*) — Report op Referee — Recommendations.</p> <p>Where any matter is referred to a referee in bankruptcy to find the facts, it is proper for him in his report to state his conclusions on the facts found.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 226.*]</p>

At Law. Action by E. H. Sawyer against Hugo Osterhaus and Henry T. Mayo. Trial to court, and judgment for defendants. This is an action of ejectment to recover the possession of a tract of land in .the county of Solano in this state.

In Equity. Suit by the Mississippi Valley Trust Company and another against the Washington Northern Railroad Company and others.

<p>1. Bankruptcy (§ 408*) — Refusal of Discharge — False Statements to Obtain Credit.</p> <p>Under Bankruptcy Act July 1, 1898, c. 641, § 14, 30 Stat. 650 (U. S. Comp. St. 1901, p. 3427), as amended by Act June 25, 1910, e. 412, § 6, 36 Stat, 839 (U. S. Comp. St. Supp. 1911, p. 1496) authorizing the discharge of a bankrupt unless he has obtained property on credit upon a materially false statement in writing, made to any person or his representatives for the purpose of obtaining credit from such person, a false statement to a mercantile agency does not prevent a discharge, in the absence of any showing that the agency was a representative of any creditor, or that the representation to the agency was communicated to or relied upon by any creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-736, 759, 762, 763; Dec. Dig. § 408.*)</p> <p>2. Bankruptcy (§ 405*) — Refusal op Discharge — False Statements to Obtain Credit.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 14, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427) as amended by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (U. S. Comp. St. Supp. 1911, p. 1496», relative to refusing a discharge because of false statements made to obtain credit, creditors may object to the discharge of a bankrupt because of a false statement made to another creditor, who does not object to the discharge for the purpose of obtaining credit from the nonobjecting creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 709-711; Dec. Dig. § 405.*]</p> <p>3. Bankruptcy (§ 413*) — Objections to Discharge — Verification.</p> <p>Where the specifications of objections to a bankrupt’s discharge were filed October 20th, and no objection was made to the sufficiency of the verification until the beginning of the taking of testimony before a special master on December 2d, when it was agreed that the objection should be made to the district judge, and the testimony was taken and briefs were filed up to and including December 6th, upon which day the president of one of the objecting creditors verified the specifications, his verification was in time, and it was immaterial whether the original verification was sufficient.</p> <p>[Ed. Note. — For other cases, see Bankruptcy Cent. Dig. §§ 712-718, 725, 727; Dee. Dig. § 413.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Wenatchee Heights Orchard Company. On petition to review orders of the referee with reference to certain claims for damages against the bankrupt for failure to furnish water for irrigation to the holders of certain orchard contracts, and for the payment of taxes.

<p>In Admiralty. Suit by Walter D. Visger, Walter S. Visger, and Kenneth Visger, by his guardian ad litem, against the steamer Cas-tenet, to recover seaman’s wages.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of A. J. Shon. On respondent’s application for taxation of costs in his favor, so as to include an allowance for counsel fees.

<p>In Admiralty. Suit for collision by the Mannheim Insurance Company and others, assignees, against the steamship Metis.</p>

Killits, Judge. Proceeding for the disbarment of Charles A. Thatcher, an attorney at law, from practicing in the federal courts. From a judgment in favor of the United States, respondent appeals and brings error.

<p>1. Covenants (§ 70*) — Covenants Running with the Land — Equitable Chabge — Personal Covenants.</p> <p>A contract for the sale and purchase of several mining properties called for a payment of $100,000 when the deed should be delivered, and for a percentage of the net earnings of mining operations until the vendor had received in the aggregate $1,000,000. The purchaser assigned the contract, and his assignee obtained a deed conveying unqualified title, and he at the same time executed a contract calling for quarterly payments to the vendor of a percentage of net profits of mining operations until the vendor had received in the aggregate the $1,000,000. Both contracts wefe made binding on the successors and assigns of the parties. The contracts were not recorded. Held, that the covenants to pay a percentage of the “net proceeds from the operation of said mining properties after deducting the cost of mining, necessary development work (but not including purchase of new machinery), transportation, sampling, treatment and smelting, plant superintendence, and all proper charges incidental thereto,” did not run with the land, but were merely personal, and did not create an equitable charge on the land, and a purchaser from the assignee, pursuant to order of the bankruptcy court on the bankruptcy of the assignee, with notice of the agreements, was not bound to operate the properties and pay the vendor the percentage of the net profits.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 70, 71; Dec. Dig. § 70.*]</p> <p>2. Vendor and Purchaser (§ 265*) — Vendor’s Lien — Covenants Running with the Land — Subsequent Purchaser.</p> <p>Where an agreement of a purchaser of mining properties to pay a percentage of the net profits of operations of the properties until the vendor was paid a specified aggregate sum was not a legal covenant running with the land, or an agreement expressly charging the land, equity could not intervene on the ground of a vendor’s lien for the unpaid price of the land, and so charge a subsequent purchaser with liability to operate the properties and pay the percentage of net profits.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*]</p> <p>3. Courts (§ 365*) — Controlling Decisions — Decisions oe State Courts.</p> <p>The decision of the highest court of Arizona -that there is no implied lien for unpaid purchase money must be given effect by the federal courts in determining whether real estate located in Arizona is subject to a lien for the unpaid price, and no lien can arise at law or in equity from the mere fact that there is a document in writing evidencing an agreement to pay a further price for land situated in Arizona, but to create such lien the amount of the price due must Be expressly charged on the land.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dee. Dig. § 365.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>4. Bankruptcy (§ 268*) — Trustee in Bankruptcy — Title—Purchaser.</p> <p>Since a trustee in bankruptcy takes the property, of the bankrupt with all the equities impressed on it .by the bankrupt and with the equities ifi the bankrupt’s favor, a purchaser from the bankrupt assumes no obligation not enforceable against the bankrupt.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 872-379; Dec. Dig. § 268.*]</p> <p>Aldrich, District Judge, dissenting.</p>

Appeal and Cross-Appeal from the Circuit Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Suit in equity by the Hattiesburg Lumber Company against Frpd Herrick. From the decree, both parties appeal.

<p>1. Railroads (§ 254*) — Equipment op Trains — Penalties—Evidence.</p> <p>The testimony of a witness that each of three groups of classificatiotracts at a railroad terminal constituted a yard threw no light on the question whether the whole triangle formed by such three yards constituted unitedly a single terminal classification yard, so that the movement of trains between them was not subject to Act March 2, 1893, c. 196, § 1, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), relative to the running of trains without a sufficient númber of cars so equipped with power or train brakes that the engineer could control its speed withoiit the brakemen using hand brakes.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. §.254*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Eel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Trial (§ 139*) — Direction op. Verdict — When Justified.</p> <p>When the evidence, with all the inferences that the jury could justifiably draw therefrom, is insufficient to support a verdict for plaintiff and such a verdict would be set aside, the court should direct a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dee. Dig. § 139.*]</p> <p>3. Railroads (§ 229*)- — Equipment op Trains — Statutory Provisions.</p> <p>Where three railroad yards at a terminal, though at some distance from each other, because of natural barriers and the tracks of another railroad, were interdependent on each other, each supplementing and necessary to complete the partial switching done in the others, and all forming a combination switching system topographically indispensable to the handling of incoming and outgoing trains, the movement of trains from one to the other was a switching operation, and not subject to Act March 2, 1893, c. 196, § 1, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), relative to running trains without a sufficient number of cars equipped with power or train brakes.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>4. Railroads (§ 229*) — Equipment op Trains — Statutory Provisions.</p> <p>Act March 2, 1893, c. 196,' 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), and Act March 2, 1903, e. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1911, p. 1314), relative to air brakes on cars used in interstate commerce, have two distinct objects in view, namely, to compel railroads to have their cars equipped with such brakes under all circumstances, and to compel the use of air brake equipped ears under certain circumstances; and these duties are separate and distinct.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>5. Railroads (§ 229*) — Equipment op Trains — Statutory Provisions.</p> <p>Act March 2,1893, c. 196, ü1, 27 Stat. 531 (U. S. Comp. St. 1901, .p. 3174), making it unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive not equipped with a power driving wheel brake and appliances for operating the train-brake system, or to run any train withojit a sufficient number of cars so equipped with power or train brakes that the engineer can control its speed without the use of hand brakes, does not compel the coupling of air brakes in switching operations, in view of the use of terms usually applied to road, as contrasted with switching operations, and the impracticability or impossibility of carrying on switching operations if it applied thereto.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p>

Suit in admiralty by Frederick E. Hasler and others against the West India Steamship Company. Decree for libelants, and respondent appeals. On June 17, 1910, Hasler, Leitch & Co., chartered owners of the steamship M. C. Holm, entered into a charter party with the West India Steamship Company; the agreement being concluded in New York City.

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit in equity by Judd E. Carpenter against M. J. & M. & M., Consolidated, Ethel D. Company, Maricopa 36 Oil Company, Wellman Oil Company, Cliff Oil Company, M. & T. Oil Company, Associated Transportation Company, Standard Oil Company, Associated Oil Company, all corporations, and Emily E. Graham, as executrix of the estate of F. M. Graham, deceased, R. E. Graham, George E. Whitaker, William F. Phillips, Mary A. Bonynge, W. A. Bonynge, W. C-Price, John Doe, Richard Roe, and others. Decree for defendants, and complainant appeals.</p> <p>Suit in equity by the plaintiff that the defendants be decreed to hold the title to an undivided one-sixth of certain described lands in Kern county, Cal., in trust for the use and benefit of the plaintiff; that defendants be directed to execute a deed of said land to plaintiff; that defendants account to 'che plaintiff for all the petroleum and natural gas extracted and removed by the defendants from said premises; and that, pending litigation, a receiver be appointed to take and receive all the rents, issues, and profits of said lands, and for an injunction, pending litigation, restraining the defendants from taking or extracting oil from said land, or from selling any oil now on said land.</p> <p>On August 1, 1888, one S. Davis, a citizen and resident of the city of Sacramento, Cal., filed'in the office of the Surveyor General of that state an application to purchase from the state certain school lands belonging to the state, described as section 36, township 12 north, range 24 west, San Bernar-dino base and meridian, containing 640 acres, situate in the county of Kern, in said state of California. The price of the land was $1.25 per acre, making a total of $800. The application to purchase was approved by the Surveyor General of the state on February 1, 1889, and a certificate of said approval was on that date issued and delivered to Davis. On February 15, 1889, Davis paid to the treasurer of Kern county, on account of said purchase price, the sum of 25 cents per acre, amounting to $160, together with interest in advance at the rate of 7 per cent, per annum on the unpaid balance of $640 from the date of the approval of the purchase to the 1st day of the following January. The interest amounted to $41.07, making a total payment of $201.07, leaving' unpaid the principal sum of $640. On March 20,1889, the Register of the Land Office of the state of California issued to said Davis a certificate of purchase for said section of land. On April 1, 1890, Davis sold and assigned all of his right, title and interest in and to said certificate of purchase, and all of his right, title, and interest in and to the land described in said certificate, to one Charles H. Gilman. No notice of this assignment appears to have been filed with the county recorder of Kern county or the register of the Land Office, as required by law.</p> <p>The annual installment of interest on the Davis certificate of purchase, due and payable in advance on the 1st day of January in each year, being unpaid and delinquent for the years 1890, 1891, and 1892, the district attorney of the county of XCern, state of California, on August 25, 1892, brought suit in the superior court of that county to foreclose the interest of said Davis in and to the certificate of purchase issued to him by the Register of said Land Office on March 20, 1889, and in and to the land described therein, on account of the delinquency and nonpayment of the balance of the purchase price of said land, and the unpaid interest thereon, amounting in the aggregate to $774.40. On the day the complaint was filed, a summons was issued which was placed in the hands of the sheriff of Kern county on August 27, 1892, and the latter, on August 30, 1892, made return that “after due search and diligent inquiry” he had been “unable to find the within named defendant, S. Davis, in XCeTn county.” On September 6, 1S92, an affidavit for an order of publication was filed, and an order for the service of summons by publication was made and entered therein by the court. On December 19, 1892, an affidavit of publication of the summons was filed, showing that the summons had been published “in the Kern county Echo,” a newspaper published in said Kern county, for ten consecutive weeks, as required by law. On December 27, 1892, the default of the defendant Davis was entered by the court, and thereupon a decree was entered in said action wherein the court found that the defendant had been regularly served with process as required by law and had failed to appear and answer the complaint therein, that the legal time for answering had expired, and the default of the defendant had been duly . entered according to law; and thereupon the court adjudged and decreed that all the interest of the said defendant Davis in and to the certificate of purchase theretofore issued to him by the state of California, and all his right, title, and interest in and to the land therein described, be foreclosed and forever canceled, and thenceforth rendered null, void, and of no force, validity, or effect whatsoever, and that all persons claiming under said defendant subsequent to the execution of said certificate of purchase, either as purchaser,-incumbrancer, or otherwise, having liens upon said land, be forever barred and foreclosed of all right, claim, or equity of redemption in and to said certificate of purchase of said land, and every part thereof.</p> <p>On January 4, 1893, a certified copy of this judgment was filed in the office of the Register of the State Land Office, and on January 16, 1893, a certified copy of said judgment was filed in the office of the county recorder of Kern county, Oal.</p> <p>On January 22, 1899, Mary A. Bonynge, one of the appellees in this case, made application to the State Land Office to purchase from the state the land described in the Davis certificate and in the foreclosure judgment. This application was approved by the Surveyor General of the state, and on- January 23, 1900, a certificate of purchase for said land was issued to her. On July 25, 1900, Thomas L. Moran, who had made application to purchase the south half of said section 36, commenced an action in .the superior court of Kern cqunty against Mary A. Bonynge, claiming the right to have the respective rights of the parties to purchase said land determined by the court. On December 7, 1900, Charles H. Gilman (to whom Davis on April 1,-1890, had assigned the certificate of purchase to the land in controversy) assigned to one Fred W. Lake an undivided one-half interest and to one H. H. Snow an undivided one-fourth interest in and to the Davis certificate of purchase. Lake on October 1, 1900, had acquired knowledge of the. judgment of foreclosure entered in the superior court of Kern county, with respect to the land described in the Davis certificate, and this knowledge he had communicated to Davis and Gilman at that time. On December 14, 1900, the latter appeared in the superior court of Kern county and moved the court to set aside and vacate and annul the judgment entered on December 27, 1892, and quash the service of summons in said case, on the ground that the judgment was void and was entered without authority of law, for the reason that the court never acquired jurisdiction over the person of ihe defendant and- had acquired no jurisdiction to render any judgment against him in the case; that no service of summons issued in said case, either actual or constructive, was ever made upon said defendant; that the affidavit and order of publication of summons made and filed therein did not comply with the laws of the state; that all the proceedings had and done against the defendant were null and void and of no legal force or effect whatever. On December 31, 1900, the motion-was granted, and the court made its order purporting to annul, vacate, and set aside its judgment entered on DecemBer 27, 1892. On the day this order was made by the court in the case of People v. Davis (143 Cal. 673, 77 Pac. 651), the court made an order in the ease of Moran v. Bonynge (157 Oal. 295, 107 • Pac. 312), granting Gilman, Snow, and Lake leave to file a complaint in intervention in that case, and such complaint in intervention was thereupon filed. On October 21, 1901, the district attorney of Kern county gave notice that he would move the court to set aside the order made' in People v. Davis on December 31, 1900, purporting to vacate and annul the judgment of December 27, 1892, which motion was granted on December 11, 1901. From this order an appeal was taken by Lake, as the successor in interest of Davis, to the Supreme Court of the state of California, where the order of the superior court was affirmed, the Supreme Court holding that a judgment which was not void upon its face could not be vacated upon motion after the lapse of one year, as provided in section 473 of the Code of Civil Procedure of the state of California; that the question whether a judgment was or was not void upon its face was to be determined from an inspection*6f the judgment roll under the statute in force at the time of the entry of the judgment; that by such inspection the court found that the judgment was not void upon its face, since under the statute, as it then stood, the affidavit and order of publication of the summons were not part of the judgment roll; and that their sufficiency would be conclusively presumed in favor of the validity of the judgment. People v. Davis, 143 Cal. 673, 77 Pac. 651.</p> <p>On December 28, 1Í107, Gilman, Lake, and Snow filed an amended complaint in intervention in Moran v. Bonynge, to which the defendants demurred, and the demurrers were sustained without leave to further amend. On May 19, 1908, a judgment was entered in said action awarding the right to purchase the land in controversy to Mary A. Bonynge. From this judgment Gilman, Lake, and Snow appealed to the Supreme Court of the state of California, and that court affirmed the judgment of the lower court on February 7, 1910, holding that the complaint in intervention did not state facts sufficient to entitle the plaintiffs to a judgment in their favor. Moran v. Bonynge, 157 Cal. 295, 107 Pac. 312.</p> <p>On January 25, 1909, the state of California issued a patent for said section 36 to Mary A. Bonynge. Under this patent the defendants derive their title to the land in controversy. On March 1, 1909, Lake and Snow commenced an action in the superior court of Kern county against Mary A. Bonynge and John Doe to obtain a judgment declaring that the defendants held the naked legal title to the lands conveyed by the state to Mary A. Bonynge, in trust for the plaintiffs. In the complaint it was alleged that on December 7, 1900, Gilman sold and transferred to tbe plaintiff Snow an undivided one-fourth interest in and to the Davis certificate, and had sold and transferred to the plaintiff Lake, on the same date, an undivided one-half interest in and to said certificate. The plaintiffs asked, in addition to a decree in their favor, that the court should make such decree to protect the heirs, devisees, and collateral kindred of Charles H. Gilman (who it was alleged had died intestate in San Francisco, Cal., on January 17, 1909), as might be consistent with equity. To this complaint Mary A. Bonynge and W. A. Bonynge filed their answer, and on .June 1, 1909, judgment was entered in said action in favor of the defendants. The plaintiffs Lake and Snow appealed to the Supreme Court of the state from the last-mentioned judgment, and that court affirmed the judgment of the superior court, holding, in an elaborate opinion, that the judgment rendered by the Supreme Court on the appeal in People v. Davis, 143 Cal. 673, 77 Pac. 651, was res judicata on the subject of the validity of the original judgment and conclusive against collateral attack. Lake v. Bonynge, 161 Cal. 120, 118 Pac. 535. In the brief for appellant we are informed that a writ of error has been granted in this case by the Supreme Court of the United States; and that the case is now pending in the latter court.</p> <p>Charles H. Gilman died intestate on January 17, 1909, in the city and county of San Francisco, leaving him surviving as his heirs at law six children, to wit, Eunice May Gilman, Ruby Hagerdon, Mabel Corey, Pearl Alisky, James Monroe Gilman, and Cordelia Thompson. At the time of his death said Charles H. Gilman claimed to be the o'wner and holder of an undivided one-fourth interest in and to the certificate of purchase issued to Davis by the state of California. Thereafter four of said children, to wit, James Monroe Gilman, Pearl Alisky, Eunice May Gilman, and Ruby Hagerdofi, made, executed, and delivered a deed of conveyance of all their right, title, and interest in and to said certificate of purchase, and in and to the land covered thereby, as the heirs at law of said Charles H. Gilman, deceased, to one W. G. Deal, and by a decree of distribution entered in said estate an undivided one-sixth interest in and to the certificate of purchase, and in and to the land covered thereby, was distributed to said W. G. Deal. On August 9, 1910, said W. G. Deal sold, transferred, and assigned all his right, title, and interest in and to the certificate of purchase, and in and to the land covered thereby, to the plaintiff herein, Judd E. Carpenter.</p> <p>The present suit in equity was commenced on December 30, 1911, by the plaintiff, Judd E. Carpenter, a citizen of the state of New York, claiming'to hold a one-sixth interest in and to the certificate of purchase issued to Davis, and in and to the land covered thereby, against the defendants, all citizens of the state of California, as the assignees of Mary A. Bonynge. The bill of complaint sets up the various proceedings and conveyances hereinabove recited, whereby the plaintiff claimed to have become the owner and holder of ah undivided one-sixth interest in and to the certificate of purchase'issued to Davis. The prayer of the complaint is that it be decreed 4that the said defendants hold the title to an undivided one-sixth of said section 36 ip. trust for the use, benefit, and enjoyment of the plaintiff; that the defendants, and each of them, be directed and commanded to execute a deed of conveyance sufficient in form to convey an undivided one-sixth of said land to the plaintiff ; that the defendants account to said plaintiff for all oil, petroleum, and natural gas extracted and removed by the defendants from said premises; and that an injunction be issued restraining the defendants, and each of them, pending this action, from taking or extracting oil from said land, or from selling any oil now on said land which was taken from said land.</p> <p>The defendants demurred to the complaint on the ground that the plaintiff was without equity, and that his claim of right was barred by laches and by the statute of limitations of the state of California, and that this action is barred by the proceedings in the various suits in which the title to the land in controversy has been litigated and determined, as above recited.</p> <p>A decree was entered in the court below sustaining the joint and several demurrers of the defendants to the bill of complaint, and dismissing said suit, from which decree the plaintiff has appealed to this court.</p>

Tuttle, Judge. In the matter of bankruptcy proceedings of the National Pressed Brick Company. From an order of the District Court confirming the findings of the referee, disallowing the claim of Thomas W. Newton, and allowing the claims of the Michigan Chemical Company and others, Newton appeals.

L. Sanborn, Judge. Action by Joseph H. Winter and another against Joseph D. Bostwick and another, as administrators of the estate of Joseph M. Bostwick, deceased, and others. From a decree in favor of defendants, complainants appeal.

<p>Appeal frem the District Court of the United States for the Southern Division of the Eastern District of Michigan; Loyal E. Knappen, Judge.</p> <p>Suit in equity by Frank P. D’Arcy against the Jackson Cushion 'Spring Company. Decree for defendant, and complainant appeals.</p>

This cause comes here upon cross-appeals from a decree of the District Court, Southern District of New York, in a suit for specific performance of contracts to transfer to complainant certain patents, applications, and inventions. The main contract, which is all that need be here discussed, is dated September 13, 1902. It is a contract of employment between Larson, party of the first part, and Hoyt, Woodin, Stokes, and Jones, parties of the second part.

<p>In Error to the District Court of the United States for the Eastern District of Kentucky;-Andrew M. J. Cochran, Judge.</p> <p>Action by the First National Bank of Aurora, Ind., against E. H. Taylor, Jr., & Sons, Incorporated. Judgment for plaintiff, and defendant brings error.</p> <p>This was an action at law to recover moneys alleged to be due from E. H. Taylor, Jr., & Sons, Incorporated (called defendant herein). Judgment was entered upon an instructed verdict, and defendant brings error. The instructed verdict is so far dependent upon the issues presented by the pleadings as to require a fuller statement of the pleadings than is usual, in order .to show, not only what the issues were, but how they arose.</p> <p>The first cause of action as stated in an amended petition was for a balance of $6,244.56; with certain interest alleged to be due upon a promissory note of defendant dated August 18, 1910, executed and delivered at Frankfort, Ky., payable in four months to the order of the Samuel Wymond Cooperage Company, for $26,240, at the Farmers’ Bank in Frankfort. It is alleged that the Cooperage Company indorsed and transferred this note to the plaintiff below, the First National Bank of Aurora, Ind. (herein called plaintiff or bank), before maturity, for valuable consideration, and that payments were subsequently made to plaintiff by the defendant; one on December 15, 1910, of $6,214.82, and another on October 5, 1911, of $13,780.62. In the second cause of action it was alleged that on September 7, 1910, the' defendant executed and delivered at Frankfort another promissory note to the Cooperage Company, payable to its order, for $6,560, in four' months after date at the Farmers’ Bank before mentioned, that this note was likewise indorsed and transferred by the Cooperage Company to the plaintiff before maturity for valuable consideration, and that no part of the note had been paid.</p> <p>The material parts of the answer, comprising three paragraphs, are, in substance, as follows: The. first admits execution and delivery of both notes and the correctness of 'the sums alleged to have been paid on the first one; but payment is sought to be avoided through alleged defenses and also set-off and counterclaim against the Cooperage Company, all of which are alleged to be maintainable against the plaintiff. It is denied that the notes were executed or delivered at Frankfort, and it is alleged that this was done at Aurora, Ind.; and the authority of Wymond, as secretary and treasurer of the Cooperage Company, to indorse and assign the notes to the bank is denied for want of knowledge. It is alleged that at the time the bank acquired the notes the Cooperage Company was largely indebted to it, and that the notes were simply passed to its credit upon such pre-existing indebtedness; that the transfer of the notes to the bank was made in the state of Indiana, and, under a certain statute of that state set out in the answer, the bank acquired no better titles to or rights under the notes than the Cooperage Company itself possessed.</p> <p>In the second paragraph it is alleged that the defendant in 1907 began a series of contracts with the Cooperage Company for the manufacture and delivery of large numbers of whisky barrels, and continued the same until shortly before the bankruptcy of that company in November, 1910; that it was provided by these contracts that no barrels were to be paid for until they were manufactured, and either stored in Aurora for account of the defendant, or delivered to it at Frankfort; that during this period the bank was the financial backer of the Cooperage Company, the president of that company being also the president of the bank and a director in each corporation, and Wymond, the secretary and treasurer of the Cooperage Company, being likewise a director in each corporation; that in order to aid the Cooperage Company further, it was agreed between it, the bank, and the defendant that the latter should deliver its “temporary notes” to the Cooperage Company in advance of the manufacture of the barrels, but that they were not to be paid until the barrels were actually manufactured and stored or delivered at Frankfort as stated; that the first note (for $26,240), although given to take up certain of these temporary notes, was in reality for the purchase price of barrels theretofore delivered to defendant during the season 1910-1911, to wit, 8,000 barrels; that on September 7, 1910, the defendant contracted with the Cooperage Comxiany for 4,000 additional barrels, and delivered to the company two temporary notes of that date, each for $6,560, payable, according to their terms, one in three and the other in four months, but that they were not in fact to be payable until the barrels were manufactured and stored or delivered, when they were to be taken up by regular notes or acceptances; that one of these notes is the one sued on in the second cause of action; that, although there was a total failure of consideration therefor, the other note was presented for payment, with representation on the part of the bank that the barrels had been manufactured and stored; that the bank knew, and the defendant did not know, that this representation was untrue; that, believing it would either get the barrels for which the note was given, or could withhold a like sum against its unmatured paper then held by plaintiff, it páid the note, and “pleads the same as a set-off and counterclaim” against the balance “apparently” due on the first note.</p> <p>In the third paragraph defendant refers to and makes part thereof the averments of its first and second paragraphs, and says, in further answer to the second cause of action, that the bank and the Cooperage Company knew, as early as the date of the note therein sued on (September 7, 1910). that the Cooperage Company was insolvent and wholly unable to manufacture the barrels for the amount of the two notes, and also knew the barrels would' not be manufactured, but concealed these facts from defendant.</p> <p>The first paragraph of the reply denies as follows: That either of the notes sued on was executed or delivered at Aurora; that either was not indorsed by the payee; that the Cooperage Company at the time of indorsement was largely indebted to the bank; that the proceeds of the notes were passed to the credit of the Cooperage Company upon any .pre-existing indebtedness; or that the bank parted with nothing of value in the' transaction. The second and third paragraphs of the reply are in terms answers to the set-off and counterclaim stated in the second and third paragraphs of defendant’s answer. Plaintiff, there admits that defendant and the Cooperage Company contracted through a course of years for the manufacture and delivery of large numbers of whisky barrels, including the contract of September 7, 1910, for 4,000 barrels, for which the two notes of that date were given, and one of which was paid and the other sued on; but plaintiff denies that an agreement was ever made concerning the giving of temporary notes, and plaintiff further and specifically denies the other averments relating to the set-off and counterclaim.</p> <p>In the fourth paragraph of its reply, plaintiff alleges that on December 13. 1910, at defendant’s request, and on its promise to pay at a later specified time, it granted an extension of time upon the second note sued on, according to a written memorandum then signed by the parties and set out in this paragraph of the reply; that this resulted in postponing payment of the second note ($6,560) from the date of its maturity (January 7, 1911) till February 20, 1911; that on February 17, 1911, at defendant’s request, and on its promise to pay at a later time agreed on, plaintiff further extended the time for payment of the second note in suit from February 20th, as fixed by the first extension, until March 2, 1911; that defendant refused-and still refuses to pay such second note in suit; that on the faith of these new promises of defendant the plaintiff did not make demand or protest against the Cooperage Company as indorser or its trustee in bankruptcy. Defendant moved to strike the fourth paragraph from plaintiff’s reply, and also demurred to the same, and both were overruled. Plaintiff then filed a rejoinder to this paragraph, admitting the execution of the memorandum of December 13, 1910, but- alleging, in substance, that it was induced to sign the same through representations of plaintiff’s president that the Cooperage Company “was still in condition that it could probably resume business and manufacture the barrels,” and further that plaintiff’s attorneys advised defendant that the execution of the memorandum would not prejudice its rights, and defendant denied that plaintiff failed to protest the notes on the faith of such promises, and said that it, defendant, called plaintiff’s attention to the necessity of proving such claim, and on its refusal to do so defendant made proof of the claim against the bankrupt’s estate in such a way as to give either plaintiff or defendant the benefit of such proof “according to the result of the issue in this case.” The rejoinder contains no denial of the second extension. Plaintiff demurred to the rejoinder, and the court sustained the demurrer. The parties then announcing readiness for trial, the plaintiff introduced “evidence * * * of the transfer and ownership of the notes sued on”; and, this being all the evidence offered by the plaintiff, it was agreed in open court that it “showed such ownership and transfer of said notes to the plaintiff.” The defendant announcing that it had no testimony to offer, the court directed a verdict as stated.</p>

Campbell, Judge. Petition for habeas corpus by S. D. Harper against Grant 'Victor, United States Marshal for the Eastern District of Oklahoma, and others. From an order denying the petition, petitioner appeals.

<p>In Error to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Action by the Federal Union Surety Company against F. T. Gron-vold. Judgment for plaintiff, and defendant brings error.</p>

Iii Error to the District Court of the United States- for the District of South Dakota; James D. Elliot, Judge. Action at law hy Anton Martinson against J. B. Nelson. Judgment for plaintiff, and defendant brings error.

This cause comes here on appeal from a decree of the District Court, District of Vermont, adjudging that the transfer of a stock of goods from the bankrupt to defendant was null and void and giving judgment to plaintiff against defendant for $1,430.57 with interest and costs. 201 Fed. 155.

This cause comes here on appeal from a decree of the District Court, Eastern District of New York, denying the application of the bankrupt for a discharge. The opinion of the District Judge will be found in 203 Fed. 170.

This cause comes here upon appeal from an order of the District Court, Southern District of New York, denying a motion for a preliminary injunction.. The application was for an injunction restraining defendant from “interfering with the plaintiff’s advertising contracts and from issuing advertisements threatening infringement suits against dealers, agents, or users” of plaintiff’s auto-horn.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by-the United States against Giacinto Cantini to set aside a certificate of naturalization. From a decree in favor of defendant (199 Fed. 857), the United States appeals.</p>

Young, Judge. In the matter of bankruptcy proceedings of the National Lumber Company. Action by W. B. Fell, as the bankrupt’s trustee, against the People’s Bank of McKeesport. Judgment for plaintiff, and defendant bank' brings error.

This cause comes here upon appeal from an order of the District Court, Southern District of New York, enjoining defendant from publishing a photograph. The suit is brought under the provisions of the Copyright Act. One Rochlitz, an artist, posed a model in the nude, and therefrom produced a photograph, which he named the “Grace of Youth.” A copyright was obtained therefor; all the artist’s rights being sold and assigned to complainants.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. This cause comes here upon petition to revise an order of the District Court, Eastern District of New York, which denied an application for an order directing the trustee in bankruptcy to pay to the late sheriff of Kings county $160 which was due to two caretakers of the bankrupt’s property, a stock of jewelry.

This cause comes here upon appeal from a judgment of the District Court, Eastern District of New York, dismissing the complaint. The action was brought to recover damages, for alleged negligence, causing the death of plaintiffs’ testator. The deceased sustained his injuries while on the high seas on board the steamship Lapland, bound from Europe to New York. The steamer was owned by a Belgian corporation, was registered in Belgium, and flew the flag of that country.

<p>Appeal from the District Court of the United States for the District of-Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit in equity by Maurice U. Knight against Henry P. Rieger, John Drobisch, Raura Praeger, Christian B. Ohrenschall, and Henry P. Rieger & Co., Incorporated. Decree for defendants (203 Fed. 49), and complainant appeals.</p>

<p>1. Patents (§ 163*) — Infringement—Defenses—Lack of Invention — Estop-pel.-</p> <p>Where complainant obtained its patent sued on from defendants, the fact that defendants were estopped to claim that the patent was. void for lack of invention did not preclude them from contending for as narrow a construction of the language as the claims would warrant and the conditions of the prior art might require.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 238; Dec. Dig. § 163.*]</p> <p>2. Patents (§ 328*) — Infringement—Plunger Elevators — Construction.</p> <p>The Larson patent, No. 963,905, for a plunger hydraulic elevator, claim 2, calls for the combination, with a cylinder, plunger, and stuffing box of a hydraulic ‘elevator, of' a guiding means for the lower end of the plunger, and a “reduced” connection between the guiding means and the end of the plunger, whereby water is allowed to escape through the stuffing box. Claim 3 is for the combination, with a cylinder, plunger, and stuffing box of a hydraulic elevator, of a guiding means for the lower end of the plunger; the same having a reduced connection to the guid-' ing means. Meld that, in view of the state of the art, the “reduced” connection in such claims must be confined bo that shown by the patent, to wit, one which no longer fills the area of the aperture through the stuffing box, as the plunger proper does, and, as so construed, the patent was not infringed by a device permitting the water to escape through the stuffing box, because the connection of the plunger’s cylinder itself passed through the box, and the water in the plunger extension passed from a plane below the box to a plane above it, which method was old in the art.</p>

States for the Southern District of New York. Suit in equity by the Standard Electric Works against the Manhattan Electrical Supply Company. Decree for defendant, and complainant appeals. The following is the opinion of the District Court by Hand, District Judge: I do not see why in the present case the defendant has not supplied the very link which alone was absent in the case against the Eureka Vibrator Company.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill of complaint in a suit brought for infringement of patent. The patent is number 633,772, granted September 26, 1899, for an Automatic Switch Breaker to Wright and Alborg, assignors to complainant.

This cause comes here upon appeal to review a decree of the District Court, Southern District of New York, holding a patent to be valid and infringed as to its first four claims. The patent is No. 743,206, issued November 3, 1903, to August Weber for an incandescent light socket. The opinion of the District Judge will be found in 204 Fed. 79.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding a patent valid and infringed. The patent is No. 916,812, issued March 30, 1909, to August Weber and others' for an “Incandescent Electric Ramp Socket.” The claims sustained are numbers 1, 2, 3, 8, 13, and 14. The opinion of the District Judge will be found in 204 Fed. 79.

<p>In Equity. Suit by the Read Machinery Company against John Jaburg and Hugo Jaburg. On final hearing.</p>

This is a motion for a preliminary injunction to restrain defendant from selling machines alleged to be infringements of United States patent to Henry Robinson, No. 809,582, issued January 9, 1906, fof “Machine for Peeling Vegetables.”

<p>Collision (§ 95*) — Tow and Anchored Baege — Improper Navigation op Tow.</p> <p>In drilling to remove a rock in the bottom of the Hudson river about 600 feet northwest from the piers át the Battery, the contractor built a platform for the workmen, and beside it anchored a barge for use as their quarters and for storage purposes. As a tow of coal barges was passing up on the east side of the drill barge, on a strong ebb tide, it was met by another tow coming down in charge of the tug Senator Rice; the tows passing starboard to starboard. A collision occurred between the tows which forced one of the boats of up-bound tow against the drill barge, and the platform was broken and material lost. Held, that the collision was due solely to the fault of the Senator Rice in attempting with such a tow and at that stage of the tide to pass between the platform and the piers, instead of to the westward, when it was her duty to pass any meeting tow port to port.</p> <p>[Ed. Note. — Eor other eases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. § 95.*]</p>

<p>Navigable Waters (§ 20*) — Bridges Maintained by City — Liability bob OBSTRUCTIONS TO NAVIGATION.</p> <p>A city having general authority to build and maintain bridges over navigable streams is liable in a court of admiralty for an injury to a vessel while being ’properly navigated under such a bridge, caused by a timber used in the construction of an abutment and left projecting under water, where it cannot be seen, without being protected or marked, and where it constituted a dangerous obstruction to navigation.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 73-99; Dec. Dig. § 20.*</p> <p>Obstruction of navigable waters, jurisdiction of federal courts, see note to Bailey v. Mosher, 11 C. C. A. 318.]</p>

<p>In Admiralty. Suit by Bernard & Samsel, managing owners of the tug Augusta, as bailees, etc., against the City of Philadelphia.</p>

In Admiralty. Suit for collision by the Bush Terminal Company against the steam lighter James D. Morgan and the steam ferryboat New Brunswick, impleaded.

<p>1. COURTS (§ 367*)-FEDERAL COURTS-AUTHORITY OF STATE DECISION.</p> <p>A federal court is not bound by the decision of the highest court of a state as to the construction--of a particular deed, where the law of the state on the question involved was not settled at the time the deed was executed and jjie rights of the parties accrued, but under the rule of comity it will lean toward a concurrence with the state decision.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. § 367.*]</p> <p>2. Deeds (§ 128*) — Trusts (§ 114*) — Construction—Rule in Shelley’s Case — Executory Trust.</p> <p>A man conveyed a tract of land in South Carolina' to his son, to hold one-half of the same, however, in trust for the use and benefit of a grand-. son of the grantor during his natural life, and then convey to the appointee by will of the grandson, or, failing such appointment, to his heirs in fee simple. The son died intestate, and the grandson sold and conveyed the land by deed of general warranty, afterward dying intestate. Hold, concurring with the Supreme Court of the state, that the trust upon which the deed'was made was executory, the trustee being required to convey the land on the death of the life tenant, and the rule in Shelley’s Case, although in force in the state, did not apply, and that the deed of the grandson, so far as it related to the one-half held under the trust, conveyed only his life estate.</p> <p>[E;d. Note. — For other cases, see Deeds, - Cent. Dig. §§ 413-415, 419-421, 427; Dec. Dig. § 128 ;* Trusts, Cent. Dig. § 164; Dec. Dig. § 114.*]</p> <p>3. Remainders (I 17*) — Suit by Remaindermen — ^imitations.</p> <p>Limitation does not begin to run against a suit by remaindermen to recover property from grantees of the life tenant until the death of the life tenant, although his deed purported to convey the entire estate.</p> <p>[Ed. Note. — For other cases, see Remainders, Cent. Dig. §§ 12-17; Dec. Dig. § 17.*]</p>

In Equity. Suit by the Chicago, Rock Island & Pacific Railway Company against N. S. Ketchum, D. J. Palmer, and Clifford Thorne, as members of the Board of Iowa Railroad Commissioners, George-Cosson, as Attorney General of Iowa, and J. H. Henderson, as Commerce Counsel for said state, with seven other cases. On motions for preliminary injunction.

<p>Action by the United States of America against the Atchison, Topeka & Santa Fé Railway Company, to recover for violation of the Hours of Service Law. Judgment for defendant on the first three counts of the complaint, and for the United States on the remaining counts.</p>

At Law. Action by the Ball Engineering Company against J. G. White & Co. On motion to recommit report of committee, on plaintiff’s demurrer to the remonstrance filed to the report of the committee, and on motion by plaintiff to accept such report.

<p>COLLISION (§ 105*) —Steamship -and Tow Meeting — Violation of Narrow Channel Bule — Length of Hawser, etc.</p> <p>A collision in the Elizabeth river at night between a steamship passing out from Norfolk and car float in tow of a tug coming up the river held due solely to the fault of the steamship, which, as the free vessel, was bound to keep out of the way, in that she was in the west side of the channel, in violation of article 25 of the Inland Rules (Act June 7, 1S97, c. 4, 30 Stat. 101 [ü. S. Comp. St. 1901, p. 2883]), and that, although when the passing signals were exchanged the red light of the car float, which had sagged to the eastward because of the wind, was to the starboard of the steamship’s course, she kept her speed of 12 miles an hour until it was too late to avoid the collision. The tug held not in fault because of using too- long a hawser, which did not result in obstructing the channel nor otherwise contribute to the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 105.*]</p>

<p>Collision (§ 71*) — Anchored Vessels — Insecure Anchorage.</p> <p>A steamship, light and having an unusually high free board, and a whaleback barge loaded with coal, were anchored near each other on the west side of Elizabeth river, where they had been for two days, the barge anchoring last. Both vessels were tailing downstream with an ebb tide when a very strong wind, came up from the northwest, driving the steamship back against the tide, where she came into collision with the barge which was not affected by the wind. Held, on the evidence, that the barge on anchoring left sufficient room for the other vessel, and that the collision arose through the fault of the steamship in putting out only one anchor, which dragged, and in any event in not dropping another when the storm came up.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p>

In Admiralty. Suit for collision by one Harris against the steam yacht Sisilina; Strauss, claimant. On motion by libelant for examination of witnesses before trial. The suit was brought to recover damages for the death of libelant’s intestate by drowning, resulting from a collision in the St. Lawrence river between the motor launch Frost King and the respondent’s steam yacht Sisilina.