Volume 214 — Federal Reporter

C. Van Fleet, Judge. Action by Effie J. Gould Dunlevy against the New York Life Insurance Company and another. Judgment for plaintiff (204 Fed. 670), and defendants bring error. The plaintiff in error issued a policy of life insurance to one Joseph W. Gould. The defendant in error, the daughter of Gould, as assignee of the policy, recovered judgment thereon in the court helow.

Cush-man, Judge. ■ _ _ Action by Cyrus A. Mentzer. against the Northern Pacific Railway Company and another. Judgment for plaintiff, and defendants bring error. Cyrus A. Mentzer, tbe plaintiff in tbe court below, is a citizen of tbe state of Washington. Tbe Northern Pacific Railway Company is a corporation organized and existing under and by virtue of the laws of tbe state of Wisconsin.

Bean, Judge. Max G. Cohen was convicted of subornation of perjury, and he brings error. The plaintiff in error was convicted of subornation of perjury in advising and inducing one Esther Wood to testify falsely in a proceeding before a United States commissioner, wherein one Jake Gronich was arrested and held to answer for a violation of the White Slave Traffic Act.

' Appeal from the District Court of the United States for the Southern District of New York.

Dietrich, Judge. Suit by the Washington-Butte Mining Company against Louis Mason and others. Decree for complainant, and defendants appeal. The appellants herein were the defendants in the court below in a suit brought by the appellee to quiet its title to a portion of what is known as tne Butte & Boston placer mining claim. In its bill the appellee alleged that the appellants’ claim of estate or interest in said land was without right and invalid.

' In Error to the District Court of the United States for the Southern District of New York. This cause comes here upon writ of error to review a judgment of. the District Court, Southern District of New York, entered on the report of a referee, in which judgment the complaints of the several plaintiffs in error were dismissed. The defendant Robinson contracted with the United States to do certain interior work on the New York custom house at Bowling Green.

<p>Landlord and Tenant (§ 83*) — Lease — Renewal — Stipulations — Construction.</p> <p>Pending a suit by tenants to enforce specific performance of a covenant to renew a lease, it was stipulated that if the suit should be determined-adversely to the tenants, and it should ultimately be decided that they were not entitled to a renewal, except at the rate of $14,000 a year, and they failed to exercise their right of renewal, and for that reason lost it, they would quietly remove from the premises “at the expiration of 12 months from the service of a demand for such removal, and not before,” continuing to pay rent at the rate of $1,160.06 per month in advance until the date they vacated the premises on such demand, and in-consideration of the foregoing the landlord would waive all claims for damages, or double rent, against the tenants for holding over after February 1, 1908. The suit was decided in favor of the landlord July 12, 1909, and on July 13th following the tenants gave notice that they intended to vacate, and did vacate October 31st following, having paid rent in full up to that date at the rate of $14,000 per annum. Meld, that the stipulation should not be construed as an agreement that, in case of the tenants’ failure to maintain their contention, they would remain and pay rent at the rate of $14,000 in perpetuity, unless the landlord exercised its right to terminate the tenancy by notice, but rather as securing to the tenants a year after the decision, during which they might occupy the premises on paying full rental, and then surrender the same without liability, as a tenant holding over after the expiration of the term.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 263, 264, 266, 267, 269, 278, 295; Dee. Dig. § 83.*]</p>

<p>In Error to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Action for a penalty by the United States against the Great Northern Railway Company. Judgment dismissing the action, and the United States brings error.</p>

<p>1. Habeas Corpus (§ 109*) —Disposition op Petitioner — Authority op Federal Courts.</p> <p>Under Rev. St. § 761 (U. S. Comp. St. 1901, p. 594), which requires a federal court in a proceeding for a writ of habeas corpus “to dispose of the party as law and justice require,” on application by a prisoner for discharge on the ground that his sentence was illegal, it is proper for the court on so finding to direct his return to the court by which he was tried for a correction of the sentence.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 97, 98; Dee. Dig. § 109.*]</p> <p>2. Criminal Law (§ 193%, New, vol. 19 Key-No. Series) — Illegality op Sentence — Power op Court to Correct.</p> <p>The resentencing of a prisoner duly convicted of a crime, who has obtained his discharge on habeas corpus on the ground that his first sentence was illegal, is not subject to the objection that the defendant is put twice in jeopardy for the same offense.</p> <p>3. Criminal Law (§ 1002*) — Illegality op Sentence — Jurisdiction op Court to Correct at Subsequent Term.</p> <p>Where a defendant, duly convicted of a crime, obtains his discharge from, imprisonment on habeas corpus, on the ground that his sentence was illegal, the court has jurisdiction to impose a corrected sentence, although the term at which he was convicted and sentenced has passed. •</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2559%; Dec. Dig. § 1002.*]</p>

William J. Kahn was convicted of having made a false oath in a bankruptcy proceeding, in violation of Bankr. Act July 1, 1898, § 29, subd. “b” (2), and be brings error.

This cause comes here on appeal from' a decision of the District Court, Southern District of New York, sustaining a decision of the United States Commissioner, who found that defendant was a Chinese person of Chinese descent and a laborer, without certificate of residence, that he was unlawfully within the United States, and ordered that he be deported.

This cause comes here on appeal from a decree holding respondent liable for damages sustained by the scow Go Ahead in Tompkin’s Cove ■a little way below the Highlands of the Hudson river, after breaking loose from respondent’s tug Primrose, of which she was in tow.

T. Dooling, Judge. Suit in admiralty by A. Sjogren and others against the steamer Roanoke; the North Pacific Steamship Company, claimant. Decree for libelants, and claimant appeals.

Petition to Revise Order of the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge. Petition by F. L. Patten, as trustee in bankruptcy of John R. Sturgeon and Nancy A. Sturgeon, and others, to revise an order setting aside a homestead and an automobile as exempt property.

372) sustaining a tax of $7 per gross ton levied by the collector at the port of New York, September 1, 1909, upon the use by defendant of the yacht Allita, alleged to have been built in Canada. The tax was levied under the act of August 5, 1909 (36 Stat. 112). The United States also assigned error based upon the failure of the court to allow interest upon the amount of the tax.

<p>1. Contempt (§ 66*) — Appeal—Invited Eeeob.</p> <p>An order appointing a receiver for an alleged bankrupt was served upon a public auctioneer, to wbom tbe bankrupt bad transferred property to defraud her creditors, and a demand made that a sale thereof be stopped. The auctioneer threw the order on the floor with contemptuous expression as to the court, stating that he was not selling the goods of the bankrupt, but goods consigned to him for sale by other parties, and con-tinned the sale until served with an order to show cause why he should not be punished for contempt and directing him to turn over the goods to the receiver, whereupon he stopped the sale, allowed the receiver to put in keepers, submitted himself to the order of the court, and had not delivered any of the goods to the purchasers. He was thereafter adjudged guilty of a civil contempt, and a fine imposed, which he was ordered to pay by turning over the goods of the alleged bankrupt. Held, that, having submitted himself to the jurisdiction of the court, he could not complain that it had disposed of the matter summarily, instead of leaving the receiver to a plenary action.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 213-215, 223-237; Dec. Dig. § 66.*]</p> <p>2. Contempt (§ 2*) — Civil and Cbiminal Contempt.</p> <p>Such auctioneer was guilty of a criminal contempt against the dignity and authority of the court, but, not having disposed of any of the goods, was not guilty of a civil contempt.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig; §§ 1-3, 5, 7, 8; Dec. Dig. § 2.*</p> <p>Civil and criminal contempts distinguished, see note to Merchants’ S. & G. Co. v. Board of Trade, 120 C. C. A. 593.]</p>

<p>Corporations (§ 652*) — Foreign Corporations — Penalty for Violation of Statute — Conditions Precedent.</p> <p>Under Rev. St. Mo. 1899, § 1025, requiring foreign corporations to file a copy of their charter and a sworn statement of the proportion of their capital invested in Missouri with the Secretary of State and to pay into the state treasury certain incorporating taxes and fees as a prerequisite to a certificate from the Secretary of State authorizing them to do business, and section 1026 imposing a penalty of not less than $1,000 for neglect or failure to comply therewith, making it the duty of the Secretary of State, when advised of a violation, to report the fact to the prosecuting attorney of the county, and providing that the prosecuting attorney shall, as soon thereafter as practicable, institute proceedings to recover such penalty, a report by the Secretary of State is a condition precedent to an action by the prosecuting attorney.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2537, 2549; Dec. Dig. § 652.*</p> <p>Foreign corporations doing business in state, see notes to Wagner v. J. & G. Meakin, -33 C. C. A. 585; Ammons v. Brunswick-Balke Collender Co., 72 C. C. A. 622.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Replevin by the McKeen Motor Car Company against the People’s Electric Railway Company and another. Judgment for plaintiff on the pleadings, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from the District Court for the Southern District of New York by the Central Railroad Company of- New Jersey, as owner of the steam tug Flemington and car float No. 33. The decree adjudged the tug solely in fault for a collision which occurred October 12, 1910, between the steamer Marlborough, and the car float No. 33, which was being towed on the tug’s port side, the bow of the float extending beyond the bow of the tug. A decree was entered against the claimant of the Flemington for $2.561.28.</p>

This cause comes here upon appeal from a decision of the District Court, Southern District of New York, filed May 9, 1913, affirming a decision of United States Commissioner Shields, dated March 22, 1913, which held that defendant is a Chinese person not lawfully entitled to be and remain in the United States and ordered him to be deported.

This cause comes here on appeal from a judgment of the District Court, Western District of New York, entered upon the verdict, of a jury in favor of defendant in error, who was plaintiff below. The action was brought to recover the purchase price of a certain folding machine.

This cause comes here upon the application of James R. Watts, plaintiff in the action of Watts v. Weston, for a mandamus to require the District Court, Southern District of New York, to enter judgment in said action.

This cause comes here upon appeal from a decree dismissing a libel to recover for personal injuries sustained by a deck hand of the tug George Hill. His hand was caught between the bridle of a hawser he had passed to a barge and one of the bitts of the tug. As the strain came the bitt lifted a little and bent over out of perpendicular.

<p>Monopolies (§ 24*) — Agreement in Restraint op Trade — Injunction Right to Relief.</p> <p>Tlie carrying out of an agreement in violation of federal or state antitrust laws, or otherwise in restraint of trade, will not be enjoined at suit of a private party, not shown to have been the direct object of such agreement or to have suffered special damages.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 24.*]</p>

<p>Habeas Corpus (§ 113*) — Appeal—Briefs—Specification of Errors.</p> <p>While the court may át its option notice a plain error, notwithstanding the failure to comply with rule 24 of the Eighth circuit, requiring the briefs to contain a specification of errors, stating particularly in what the decree is claimed to be erroneous, it will not do so on appeal in a ha-beas corpus proceeding by an alien, ordered deported as having entered the country for an immoral purpose, where there is absolutely no effort to comply with the rule, no evidence can be found that the applicant entered the United States for an immoral purpose, and she is not repre= sented on thé appeal.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.*]</p>

<p>Shipping (§40*) — Charters—Termination of Time Charter — Redelivery— Waiver of Provision.</p> <p>Where the provision of a time charter party as to the place of redelivery creates an obligation of tbe charterer to the owner, the latter may waive it and resume possession at another port on expiration of the term, when it is to his advantage.</p> <p>[Ed. Note. — For othér cases, see Shipping, Dee. Dig. § 40.*]</p>

Action at law by Pauline Sanders and others against the Pineland Club and others. Judgment for plaintiffs, and defendants bring error.

. In Error to the District Court of the United States for the Second Division of the Northern District of California; William' C. Van Fleet, Judge. Action by the Searchlight Horn Company against Sherman-Clay & Co., a corporation, for infringement of letters patent No. 771,441, for a horn for phonographs or similar machines granted to Peter C. Nielsen October 4, 1904. Judgment for plaintiff, and defendant brings error.

<p>Patents (§ 297*) — Suit fob Infringement — Preliminary Injunction.</p> <p>In general the granting or refusing of a preliminary injunction in an infringement suit rests in the sound discretion of the court, but where the validity of the patent has been sustained, in a prior action at law, and Infringement is clear, the court has no discretion to refuse such an injunction.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Big. §§ 481-488; • Dee. Dig. § 297*</p> <p>Grounds for denial of preliminary injunctions in patent, infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p>

<p>1. Patents (§ 90*) — Anticipation—Prior Patents.</p> <p>A paper patent, if it fully describes an invention, whether a machine, device, or process, is as effective to show anticipation as a patent which describes an invention that has gone into extensive use, since a presumption of operativeness and of some utility attends the granting of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 113-120; Dec. Dig. § 90.*]</p> <p>2. Patents (§ 19*) — Invention—Change in Degree.</p> <p>To discover that a smaller quantity of a given material is required in a process than was before deemed necessary is not an invention or discovery, within the meaning of the patent laws, but is a change only in degree and not of kind, and is not patentable.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 19; Dec. Dig. 8 19.*]</p> <p>3. Patents' (§ 35*) — Evidence of Invention — Commercial Success.</p> <p>The fact that a patented device or process has gone.into extensive and successful use is of no value as evidence where the question of invention or patentability is free from doubt, and in any case its value depends largely upon the causes which produced it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 39; Dee. Dig. § 35.*]</p> <p>4. Patents (§ 328*) — Invention—Process of Ore Concentration.</p> <p>The Sulman, Picard, and Ballot patent, No. 835,120, for an improvement in ore concentration by the oil process, describes a process which differs in no essential from those in prior use and disclosed in prior patents, except that a smaller quantity of oiL is used, and is void for lack of patentable invention, in view of the prior art.</p>

This cause comes here upon appeal from a decree of the District Court, Western District of New York, holding defendant to be an in-fringer of United States letters patent No. 660,341, granted October 23, 1900, to Joseph Sachs for improvements in safety fuses. The opinion of the District Judge will be found in 212 Fed. 173.

In Equity. Suit by the Gill Engraving Company against William Doerr, individually and as business agent of the New York PhotoEngravers’ Union No.' 1, and others. On motion for an injunction pendente lite.

In Equity. Suit by the Montana Water Company against the. City of Billings to compel specific performance of a contract for municipal water supply and to enforce a renewal clause in the contract.

<p>1, SUBROGATION (§ 23*) — ADVANCES TO PAY LlENS-EFFECT OF TAKING .MORTGAGE.</p> <p>While a mortgage on a vessel is not a maritime lien, and the holder is not entitled to share ratably with holders of such liens in the funds arising from a sale of the vessel, one who lends money to be used, and which is used, for the payment of claims secured by maritime liens, is not in the absence of laches deprived of the right fo be Subrogated to such a lien for the advance, which he would otherwise have, merely because he takes a mortgage or a note from the owner therefor.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.*]</p> <p>2. Maritime Liens (§ 44*) — Advances to Pay Liens — Presumption that Credit was Given to Vessel.</p> <p>Under Act June 23, 1910, c. 373, 36 Stat. 604 (U. S. Comp. St. Supp. 1911, p. 1191), which creates a presumption that the furnishing of repairs, supplies, or other necessaries to a vessel on the order of the owner, was on the credit of the vessel, the same presumption attaches to advances made to pay the claims of persons who have maritime liens for so furnishing, etc., and such presumption is not overcome by the fact that the owner’s note and a mortgage on the vessel are taken for the advances.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. 1 83; Dec. Dig. § 44.*] •</p>

<p>In Admiralty. Suit by John Gallaher against the steamboat Ciria-bria. On review of report of commissioner.</p>

<p>1. Patents (§ 17*) — Invention—Adjustability of Parts.</p> <p>The mere adjustability of parts does not constitute invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 16, 17: Dec. Dig. § 17.*]</p> <p>2. Patents (§ 328*) — Invention—Die for Making Lock Washers.</p> <p>The Barnett patent, No. 529,847, for a die for making lock washers, held void for lack of patentable invention.</p>

<p>In Equity. Suit by the United States against Phillip Mackey and others. On demurrers to bill and to a cross-bill between codefendants.</p>

<p>1. Constitutional Daw (§ 48*) — Statutes—Validity.</p> <p>A federal court will ■ declare an act of Congress unconstitutional only when the question is practically free from real doubt, and the mere fact that- the statute goes to the verge of the constitutional power is not enough, but it must appear clearly that it is beyond that power before a court will declare the act void.</p> <p>[Ed Note. — For other cases, see Constitutional Daw, Cent. Dig. § 46; Dec. Dig. § 48.*]</p> <p>2. States (§ 4*) — Police Power — Reserved Powers oe States.</p> <p>The states retain the police power which they, as sovereign nations, possessed prior to the adoption of the national Constitution, so far as such power pertains to the internal affairs of the states.</p> <p>[Ed. Noté. — For other cases, see States, Cent. Dig. § 2; Dec. Dig. § 4.*]</p> <p>3. United States (§ 5*) — Police Power.</p> <p>The United States possesses power analogous to the police power of the states which every sovereign nation possesses as to its own property, and power to carry into effect powers conferred on it by the Constitution.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 4; Dec. Dig. § 5.*]</p> <p>4. Game (§ 3%*) — Power to Protect Migratory Birds — Statutes—Validity.</p> <p>Act March 4, 1913, c. 145, 37 Stat. 847, protecting migratory birds and game, cannot be sustained as an exercise of the implied powers of the national government, though it is impossible for any state to enact laws for the protection of migratory wild game, and only the national government can do it with any fair degree of success.</p> <p>[Ed. Note. — For other cases, see Game, Cent. Dig. § 2; Dec. Dig. § 3%.*]</p> <p>5. Game (§ 3%*) — Migratory Birds — “Property of United States."</p> <p>Migratory birds are not, when on their usual migration, the property of the United States, within' Const, art. 4, § 3, subsec. 2, empowering Congress to adopt rules respecting the territory or other property of the United States, but they are the property of the states in .their sovereign capacity, as the representatives, and for the benefit of all their people in common, and Act March 4, 1913, c. Í45, 37 Stat. 847, protecting migratory birds, cannot be sustained as an exercise by Congress of tbe right to adopt regulations for its property.</p> <p>[Ed. Note. — For other cases, see Game, Cent. Dig. § 2; Dec. Dig. § 3%.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5729.]</p> <p>6. Game (§ 3%*) — Migratory Bieds — Protection.</p> <p>Act March 4, 1913, c. 145, 37 Stat. 847, protecting migratory birds and game, is invalid because not authorized expressly or by necessary implication by the Constitution.</p> <p>[Ed. Note. — For other cases, see Game, Cent. Dig. § 2; Dec. Dig. § 3%.*]</p> <p>On Rehearing.</p> <p>7. COMMEECE (§ 15*)-INTEESTATE COMMEECE-REGULATION-MlGEATOEY BIRDS.</p> <p>The act cannot be sustained as an exercise by Congress of the power to regulate interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ Dec. Dig. § 15.*) 17, 34, 35;</p>

<p>1. Gaming (§14*) — ¡Sales foe Future Delivery — Illegality.</p> <p>That a customer giving orders to a member of a cotton exchange for the purchase find" sale of cotton did not intend to deliver or accept deliveries of cotton, sold or bought while the rules of the exchange contemplated actual deliveries did not render the transaction a gambling transaction.</p> <p>[Ed. Note. — For other eases, see Gaming, Cent. Dig. ■§§ 25, 26; Dec. Dig. § 14.*] __</p> <p>2. Corporations (§ 410*) — Ultra Vires Acts — Speculations.</p> <p>Tlie acts of the president of a corporation organized to manufacture cotton goods, with power to engage in a general mercantile business in connection with its factory for thisale of general merchandise to its employes and others, in buying and selling in the name of the corporation cotton futures as a mere matter of speculation, are ultra vires, and the broker conducting the transactions has no claim against the corporation on account thereof.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1629-1632; Dec. Dig. § 410.*]</p>

<p>In Admiralty. Suit for salvage by the Bay State Fishing Company against the schooner Henry R. Tilton and cargo.</p>

At Law. Action by W. M. Morris and others against the Southern Ice Company. Verdict for plaintiffs, and defendant moves for a new trial.

In Admiralty. Suit by Henry P. Winter and others, doing business under the firm name of Winter & Smillie, against the steamship Koranna and the Bucknall Steamship Lines, Limited.

<p>At Law. Action by the Standard Roller Bearing Company against Louis J. Bergdoll. On motion for judgment for want of a sufficient affidavit of defense.</p>

Hollister, Judge. Application by the Cincinnati Railway Supply Company for an order requiring J. F. Hartlieb and others, as trustees in bankruptcy of the Platt Iron Works Company, to pay claimant the purchase price of certain materials alleged to have been sold to the bankrupt on terms cash on delivery and not paid for, though manufactured. From a judgment denying such relief, claimant appeals.

<p>Appeal from the District Court of the United States for the District of South Dakota; Jas. D. Elliott, Judge.</p> <p>Complaints by Wells Fargo & Co. and by James C. Fargo, individually and as president of the American Express Company, to enjoin George G. Johnson, as Treasurer of the State of South Dakota, from collecting certain taxes. From decrees dismissing the complaints (205 Fed. 60), plaintiffs appeal.</p>

<p>I. Corporations (§ 182*) — Property—Rights of Stockholders.</p> <p>Where a partnership engaged in operating a distillery formed a corporation and became its sole stockholders transferring the property of the firm to it, 'they had no title to whisky subsequently manufactured by the corporation.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 686-690; Dec. Dig. § 182.*]</p> <p>2. Bankruptcy (§ 140*) — Trustee—Rights as to Pledged Property — Validity.</p> <p>The owners of all the stock in a distilling corporation contracted to sell the same to N. and, in order to facilitate his performance of the contract, allowed him to enter on the corporation’s premises and take part in the management of the business. Without haying been elected president of the corporation, he obtained money from a bank on notes executed by him as president and pledged, as collateral security, warehouse receipts for whisky distilled by and belonging to the corporation. Failing to comply with his contract, the stockholders of the corporation executed another contract to sell their stock to a New Jersey corporation organized by N., after which he was duly elected president of the original corporation and as such gave a new note in its name to the bank and repledged the warehouse receipts as security therefor. Held, that the pledge was valid as against the trustee in bankruptcy of the original corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*</p> <p>Rights and liabilities of pledgees of stock, see note to Frater v. Old Nat. Bank, 42 O. O. A. 135.] '</p> <p>3. Bankruptcy (§ 293*) — Administration of Estate — Jurisdiction.</p> <p>Where, on the bankruptcy of a corporation organized to operate a distillery, it was the owner of certain whisky represented by warehouse receipts pledged to a bank subject to the pledge, the bankruptcy court had jurisdiction to determine the rights of the bankrupt and of the pledgee to dispose of claims 'of stockholders, and such jurisdiction was not affected by a subsequent sale of the whisky and the substitution'of the proceeds in its place.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. § 293.*]</p>

This cause comes here upon appeal from an order made by the District Court of the United States for the Eastern District of New York, denying motions made by the plaintiffs in error (intervening plaintiffs below) for judgment against the defendants in error (who were defendants below), for reason of the failure of the defendants to appear or answer.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of bankruptcy proceedings of Lloyd G. McCrum. A petition of Alfred C. Coxe, Jr., bankrupt’s trustee, to compel Oscar L. Telling to deliver over property in his possession, was denied on the ground that the District Court had no jurisdiction by summary proceedings to compel such delivery. On petition to revise such order of denial.

Dietrich, Judge. Suit by the City of Pocatello against James A. Murray, doing business under the name of the Pocatello Water Company. Decree for complainant, and defendant appeals.

Petition to Revise an Order of the District Court of the United -States for the Southern District of New York. On November 9, 1911, one Edward C. Vick commenced an action in the Supreme Court.of the state of New York to recover from the Federal Biscuit •Company the sum of $5,300, the amount due him as commissions on the sale of stock of the biscuit company. In that action a writ of attachment was granted Vick against the property of the biscuit company.

<p>1 BANKRUPTCY (§ 467*)-PROVABLE CLAIMS — OFFICER OP BANKRUPT CORPORATION.</p> <p>The finding of a referee, confirmed by the District Court, allowing the claim of an officer of a corporation against its estate in bankruptcy, affirmed. ,</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec: Dig. § 467.*]</p> <p>2. Bankruptcy (§ 360*) — Allowance of Claims — Effect of Receipt of Preference or Fraudulent Conveyance.</p> <p>Under the provisions of Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443), as amended by Act Feb. 5, 1903, c. 487, § 12, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1503), that claims of creditors who have received voidable preferences, or to whom conveyances, transfers, assignments, or incumbrances, void or voidable under section 67e, have been made or given, “shall not be allowed unless such creditors shall surrender such preferences, conveyances,” etc., and of section 65a, that “dividends of an equal per cent, shall be declared and paid on all allowed claims except such as have priority or are secured,” the fact that a creditor received a conveyance of property from a bankrupt with intent to hinder, delay, or defraud other creditors, does not authorize the court, after he has reconveyed such property to the trustee and his claim has been allowed, to postpone its payment until other creditors have been paid in full.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 547; Dee. Dig. § 360.*]</p>

E. Wolverton, Judge. Bill by R. D. Sabin, as trustee in bankruptcy of the Italian Restaurant Company, against the Meier & Frank Company, to determine the trustee’s right in certain personal property in its possession, to remove a cloud on such title, and to restrain defendant from levying on the property, or in any manner interfering, therewith, and from prosecuting certain suits to recover the same. Judgment for complainant, and defendant appeals.

Petition to Revise Order and Judgment of, and Appeal from, the District Court of the United States for the District of Oregon. In' the matter of bankruptcy proceedings of the Rohrbacher Automatic Air Pump Company.

<p>1. Appeal and Error (§ 671*) — Record—Matters Presented for Review.</p> <p>Where the evidence was not in the record, the referee’s findings were neither confirmed, rejected, nor modified, nor the exceptions thereto or to his conclusions of law passed upon, and it was impossible to tell from the record whether the judgment was based solely on the pleadings, on the pleadings and the report of the referee; or involved also a consideration of the evidence, the merits of the case could not be reviewed.</p> <p>[Ed. Note. — 'For other eases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. § 671.*]</p> <p>2. Appeal and Error (§ 209*) — Reservation oe Grounds oe Review — Sueei-oiencv oe Evidence.</p> <p>When an action at law is tried by the court upon a written waiver of a jury, the sufficiency of the evidence to support the judgment will not be reviewed, in the absence of a request by the complaining party at the close of the evidence, for a finding or judgment in his favor or special findings by the trial court.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1290-1298, 1300, 1303; Dec. Dig. § 209.*]</p> <p>3. Appeal and Error (§ 848*) — Review—Sueeioiency oe Findings to Support Judgment.</p> <p>When a jury has- been waived in writing, and the findings of the referee have been confirmed by the trial court as reported or as modified by it, the sufficiency of the facts'found to warrant the judgment will be reviewed as though the findings were wholly made by the trial court</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3372-3376; Dec. Dig. § 848.*]</p> <p>4. Courts (§ 352*) — United States Courts — Procedure—Conformity to State Practice.</p> <p>When there is a written waiver of a jury, and the cause has been referred to a referee under the authority of a state statute, the referee, and the trial court should follow the local practice and modes of proceeding as near as may be in accordance with the Conformity Act.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 926-932; Dee. Dig. § 352.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>5. Reference (§ 99*) — Findings of Referee — Concltjsiveness.</p> <p>Under Gen. St. Kan. 1909, § 5894 (Code Civ. Proc. § 300), providing that a trial before referees is conducted in the same manner as a trial by the court, and that the report stands as the decision of the court and judgment may be entered thereon, and that, when the referee is to report the facts, the report has the effect of a special verdict, the referee’s findings of fact, as reported, stand beyond question except when and to the extent assailed by one or both of the parties.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 148-156; Dee. Dig. § 99.*]</p> <p>6. Reference (§ 100*) — Report—Exceptions—Procedure.</p> <p>Under Gen. St. Kan. 1909, § 5894 (Code Civ. Proe. § 300), providing that a trial before a referee is conducted in the same manner as a trial by the court, and that the referee must state the facts found and the conclusions of law separately, and section 5891 (section 297) providing relative to trials by the court that, if requested, the court shall state in writing the conclusions of fact found separately from the conclusions of law, the trial court should have considered the exceptions to the referee’s findings and conclusions and should have confirmed, rejected, or modified the findings or recommitted the questions involved to the referee.</p> <p>[Ed. Note. — For other cases, see Reference, Cent. Dig. §§ 157-168; Dec. Dig. § 100:*]</p>

<p>1. Bankruptcy (§ 460*) — Appeal prom Adjudication — Parties—Dismissal..</p> <p>Where, after a motion to dismiss an appeal from a bankruptcy adjudication because the bankrupt was not joined as a party, he voluntarily entered his appearance, waiving notice of the' appeal, and in terms submitted himself to the jurisdiction of the court as fully as though he had' been duly and formally .cited, and also waived time for filing the brief and other proceedings, he thereby became a party to all intents and purposes as though originally joined, and the motion to dismiss would be denied.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 919; Dec. Dig. § 460.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43-C. C. A. 9.]</p> <p>2. Bankruptcy (§ 60*) — Acts op Bankrupt — Appointment op Receiver. .</p> <p>Bankr. Act July 1, 1898, c. 541, § 3a, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 1903, e. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1911, p. 1493), provides that acts of bankruptcy by a person shall consist of his having (4) made a general assignment for his creditors, or, being insolvent, applied for a receiver or trustee for his property, or, because of insolvency, a receiver or trustee has been placed in charge of his property under the laws of the state: Meld that, where an alleged bankrupt was insolvent in fact at the time he presented a petition for the appointment of a receiver for his property in order to prevent the cancellation of a contract for the sale of an electric plant, such act constituted an act of bankruptcy, regardless of the fact that his purpose in making such application was not to liquidate his assets and distribute them among his creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig., § 60.*]</p>

Action by Martin Burke against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error. The defendant herein was the plaintiff below, and the plaintiff herein was the defendant below, and they will heteafter be so referred to.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This case comes here on appeal from a decree of the District Court, Eastern District of New York, holding libelant’s ferry boat Albany solely in fault for a collision between herself and the scow Rosaleen. The Albany alone suffered damage from the collision. The scow was at the time chartered (the charter constituting a demise) to the Moran Towing Company which was brought in on petition by the owner of the scow.</p>

<p>On motion for rehearing.</p>

C. Van Fleet, Judge. Suit by the Searchlight Horn Company against the Pacific Phonograph Company for infringement of letters patent No. 771,441, for a horn for phonographs or similar machines granted to Peter C. Nielson October 4, 1904. From an order granting a preliminary injunction, defendant appeals.

<p>Patents (§ 328*) — Validity and Inebingement- — Screen eob Showing Moving PICTURES.</p> <p>The Rembusch patent, No. 937,550, for a screen for use in exhibiting moving pictures and stereopticon views, and consisting of a sheet of plate glass having its back silvered and its front, whereon the picture is thrown by a lantern, ground, was not anticipated by the use- in the sign art of mirrors having letters or designs etched or ground on their front, nor is . it invalid because of the English patent to Zechmann for a similar article; the evidence showing that Rembusch’s invention was perfected prior to the issuance of the English patent or the filing of the specification describing the same. Also field infringed.</p>

<p>In Equity. Bill by James J. McLoughlin, trustee, against Louis Knop., Civil Sheriff, and others.</p>

<p>Bankruptcy (§ 273*)' — Administration op Estate — Deposits op Funds op Estate — Exemptions—Waiver.</p> <p>Where a trustee in bankruptcy, depositing the bankrupt’s money to his own account or his firm’s account, paid to the bankrupt the amount set apart as exempt under Civ. Code Ga. 1910, § 3413, as soon as set apart by the referee, creditors of the bankrupt, holding waivers ineffectual as waivers of the right to an exemption, could not require the trustee to deposit all moneys received as trustee in a bankruptcy depository, and not to disburse any money except on checks approved by the referee, and thereby require the trustee to redeposit the money paid out in good faith, though, where an exemption is set apart and money is ordered, paid, it ought to remain long enough in the hands of the trustee to allow claimants an opportunity to be heard.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 347; Dec. Dig. § 273.*]</p>

<p>In Admiralty. Suit for collision by H. L. Heyliger, master of the schooner E. Starr Jones, against the steamship Brand, with cross-suit by Edward Ballestad, master of the Brand, against the schooner.</p>

At Law. Action by A. F. Kendrick against Columbus Roberts. There was a verdict for plaintiff, and defendant appealed and executed a supersedeas bond, which was approved.

<p>Chattel Mortgages (§ 87*) — Recording—Peace oe Recording.</p> <p>Under Code Ga. § 3259, requiring chattel mortgages on property located in some other county than that of the mortgagor’s residence to be recorded in such county in addition to the record thereof in the county of the mortgagor’s residence, and section 3262, providing that a mortgage recorded in an improper office, or so defectively recorded as not to give notice to a prudent inquirer, shall not be held notice to subsequent bona fide purchasers or younger liens, but that a mere formal mistake in the record, shall not vitiate it, where a resident of G. county purchased a mule in B. county, and gave a note and chattel mortgage, which was also signed by a resident of B. county because the seller was unwilling to sell to the buyer on credit, the recording of the mortgage in B. county was a substantial compliance with the statute, and was sufficient to give notice to a prudent purchaser. ;</p> <p>[Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 162-165; Dec. Dig. § 87.*]</p>

<p>Shipping (§ 24*) — Sale op Vessel — Requisites and Validity.</p> <p>A bill of sale or other writing is not necessary to transfer title to a vessel ; but when the parties to the sale contemplate an immediate transfer of title, which is followed by possession by the buyer, such transfer takes place without payment of the purchase price. ■</p> <p>(Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 50, 81-83, 88, 89, 92; Dec. Dig. § 24.*]</p>

<p>In Equity. Suit by Lizzie Hudson Collier against the Imp Films Company. On demurrer to the bill.</p>

In Equity. Suit by the Rail & River Coal Company against Wallace D. Yaple and others, as members of and constituting the Industrial Commission of Ohio. On application for an interlocutory injunction.

<p>At Law. Action by the United States against Peter J. Rogde, H. W. Kittredge and Fanny Pearson, as heirs and devisees of Alfred B. Kittredge, deceased, Thomas McKeon, Peter F. Thompson, William E. Baker, Plerman C. Freese, George W. Abbott, Francis Hyde, and Porter P. Peck.</p>

<p>In Admiralty. Suit by William S. Bartley, as owner of the scow Bartley Brothers, against the Borough Development Company.</p>

<p>1. Maritime Liens (§ 29*) — Repairs—Suit to Enforce Lien.</p> <p>The owner of a fishing schooner held bound by the approval of an account for repairs on a gas engine by her agent, who contracted for and superintended the work, where such approval was given after the engine had been tried and broken down subsequent to. the repairs and without complaint as to the work done.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 48; Dec. Dig. § 29.*]</p> <p>2. Maritime Liens (§ 65*) — Repairs—Agreement for Lien.</p> <p>Evidence considered, and held sufficient to establish the claim of a ■ libelant that repairs on a vessel in her home port were made on the credit of the vessel, and that such was the understanding of both libelant and the owner.</p> <p>[Ed. Noté. — For other cases, see Maritime Liens, Cent. Dig. § 103; Dec. Dig. § 65.*]</p> <p>3. Maritime Liens (§ 27*) — Repairs—Right to Lien.</p> <p>That part of the work connected with the installation of an engine on a vessel was done upon the engine-while it was still on shore does not deprive the one doing the work of Ms right to a maritime lien therefor.</p> <p>[Ed. Note. — For other cases, see Maritime Liens,, Cent. Dig. §§ 41-45; Dec. Dig. § 27.*]</p> <p>4. Maritime Liens (§ 61*) — Repairs—Suit to Enforce Lien.</p> <p>A general agreement by one making repairs on a vessel to wait a stated time for payment does not deprive him of the right to file a libel before that time to enforce his lien, where the vessel is about to be removed from the jurisdiction; and in any event the premature commencement of the suit, where the owner was not damaged thereby, would affect only the matter of costs.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 99; Dec. Dig. § 61.*]</p> <p>5. Maritime Liens (§ 29*) — Repairs—Right to Lien — Authority to Bind Vessel.</p> <p>Facts considered, and held not such as to put one making repairs on a vessel on inquiry as. to the authority of the person contracting for the repairs, who was an agreed purchaser of a part interest and in possession, to bind the vessel therefor under the provisions of Act June 23, 1910, c. 373, § 3, 36 Stat. 605 (ü. S. Comp. St. Supp. 1911, p. 1192).</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 48; Dec. Dig. § 29.*]</p>

In Admiralty. Suit by the Barkentine Lahaina Company, owner of the barkentine Lahaina, against the tug Defender, Pacific Transportation Company, claimant, the launch Fearless, Alma Smith, claimant, and the Quinalt Lumber Company. On exceptions to petition of Pacific Transportation Company for limitation of liability.

<p>CRIMINAL Law (§ 101*) — Federal Courts — Divisions op Districts — Trans-iter op Criminal Cases.</p> <p>Tile provision of Judicial Code (Act March 3, 1911, c. 231, § 53, 36 Stat. 1101 [U. S. Comp. St. Supp. 1911. p. 150]), that “when a judicial district contains more than one division * * * all prosecutions for crimes or offenses shall he had within the division of such districts where the same were committed, unless the court or the judge thereof, upon the application of the defendant, shall order the cause to be transferred for prosecution to another division of the district,” applies only to districts having statutory divisions; and in a district having no such divisions, but which, on account of there being different places fixed for holding court, the court has by rule divided into so-called divisions for convenience in drawing juries, etc., the court has discretionary power to transfer a criminal cause from one place of holding .court to another without the consent of the defendant.</p> <p>(Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 199-205; Dec. Dig. § 101.*]</p>

<p>In Admiralty. Suit by Everett W. Leonard, master of the schooner Abenaki, against the William G. Barker Company.</p>

<p>1. Shipping (§ 47*) — Charters—Time por Discharging.</p> <p>• Under a provision of a charter party that lay days for loading and discharging shall be “commencing from the time the captain reports himself ready to receive or discharge, customary dispatch and usual conditions at ports of loading and discharge,” the stipulation as to the time of the commencement of the lay days for discharging must be given effect; apd such time cannot be postponed after the captain has reported himself ready, because of a custom of the port for vessels to await their turn lor a. berth; but, after their commencement, the further provisions as to customary dispatch and usual conditions govern.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 182, 183; Dec. Dig. § 47.*]</p> <p>2. Shipping (§ 47*) — Cuartees—Time por Discharging.</p> <p>Under a provision of a charter party for discharge of a cargo of lumber according to the customary dispatch and usual conditions at the port, the vessel has the right, after commencing, to discharge continuously at the customary rate per day, and to have wharf room for piling the lumber supplied so that she may do so.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 182, 183; Dec. Dig. § 47.*]</p>

<p>Seamen (§ 29*) — Personal Injuries — Liability of Vessel Owner — Defective Appliance — Relation to Vessel.</p> <p>Libelant was permitted by the master to ride on a scow which was-being towed down the river from Philadelphia, and, while she was docking at her destination,. he was injured, as alleged, by reason of a defective appliance on the vessel. The scow was without motive power, and the master was authorized to hire but one other person as a deck hand, which-he had already done, and the deck hand was with him. He was also forbidden to take any other person on board, and the owners did not know that he had done so. Held, that libelant was not in the service of the-boat, and the owners were under no obligation to look after his safety nor liable for his injury.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188-194; Dee. Dig. § 29.*]</p>

<p>L Bankruptcy (§ 136*) — Compelling. Transfers by Bankrupt to Trustee— Sufficiency of Evidence.</p> <p>In a proceeding in bankruptcy in which the bankrupt was ordered by the referee to pay a specified sum to the trustee, evidence Jleld to support the finding that the bankrupt had in his possession or under his control the amount so ordered paid.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*],</p> <p>2. Bankruptcy (§ 467*) — Review of Proceedings — Questions of Fact.</p> <p>Where the referee in bankruptcy and the District Court are in accord upon the facts, their conclusions will not be lightly disturbed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*]</p> <p>3. Bankruptcy (§ 136*) — Compelling Transfer by Bankrupt to Trustee.</p> <p>The referee in bankruptcy, in a proceeding by the trustee to compel a bankrupt to turn over money in his possession or under his control, should in the first instance have merely found that such money was in his possession or under his control at the date of bankruptcy, leaving its subsequent disposition for inquiry under such further proceedings as might be taken.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p>

<p>1. Principal and Surety (§ 100*) — Discharge of Surety — Change in Duty of Principal.</p> <p>Changes in the specifications for work to be done by a contractor in straightening a river channel, which were minor in character, and neither added to the expense nor delayed the work, did not release the surety on the contractor’s bond from liability.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. § 100.*]</p> <p>2. Damages (§ 78*) — Stipulation for Liquidated Damages — Validity—Delay in Performance of Contract.</p> <p>A drainage district contracted for the straightening of a river channel, which was an essential part of the work in the construction of a drainage system. The contract required the work to' be completed by a stated time, otherwise the district might declare a forfeiture and relet or otherwise complete the work. On failure of the contractor .to complete it in time, an agreement for an extension was made and a bond given conditioned that, if not completed within the extended time, the sum of $30 per day from the time of the making of the agreement until completion should be paid by the contractor as liquidated damages. The amount of the damage which would result was uncertain, depending upon weather conditions. Held, that such stipulation was not for a penalty but was valid and enforceable.</p> <p>[Ed. Note. — For other cases, see Damages, Gent. Dig. §§ 157-163; Dec. Dig. § 78.*]</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohl-saat, Judge.</p> <p>Action by Neis O. Hultberg against Peter H. Anderson and others. Contempt proceedings by Neis O. Hultberg against Axel Chytraus. From an order dismissing a rule to show cause why defendant Chy-traus should not be punished for contempt, Hultberg appeals.</p> <p>This appeal is brought from an order of the District Court, entered in an ancillary proceeding in aid of taking testimony on behalf of the appellant before a special examiner, appointed in an equity suit pending in the District Court of the United States for the District of Kansas. The order in question denies an application to punish the appellee, as a witness before the examiner, for contempt of court in refusing to answer questions which the District Court had required him to answer, in an order theretofore made on certification of prior proceedings in the examination of such witness..</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Bottle-Labeling Machine:</p> <p>Tlie Gaynor patent, No. -705,832, for a labeling macbine for affixing labels to bottles and similar articles, claim 1, while broad in its terms, must be limited to avoid anticipation in the prior art to the specific features pointed out in the specification; as so'construed, held, not infringed by a machine constructed in accordance with the Ermold patents, Nos. 923,501 and 950,259.</p> <p>2. Patents (§ 328*) — Validity and Infringement — Bottle-Labeling Machine.</p> <p>The Woodland patents, No. 937,403 and No. 941,178, for labeling machines for affixing labels to bottles and similar articles, so far as relate to the claims which disclose patentable invention, are very narrow and limited, covering only specific improvements in an advanced and highly developed art; as so construed, held not infringed by machines constructed in accordance with the Ermold-patents,'Nos. 923,501 and 950,259.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by the Kryptok Company against the Stead Lens Company. Decree for complainant, and defendant appeals.</p>

<p>Patents (§ 828*) — Furnace Grate — Claim—Construction—Infringement.</p> <p>Meissner Patent, No. 529,286, for a furnace grate, claim 5, is: “In a furnace, the combination, with a sloping fire-bed, of an upward-swinging grate and a downward-swinging grate, the upward-swinging grate being pivoted at the foot of the fire-bed and normally projecting toward the downward-swinging grate; the latter grate being pivoted at its rear end, and means for operating both grates, substantially as set forth.” Held that, since such claim necessarily embodies means which operate “both grates” to make it a workable combination, it could not be construed as though the swinging grates were the only elements therein, and hence was not infringed by a structure having swinging grates operating separately and independently.</p>

Suit in equity by the General Electric Company against the American Brass & Copper Company. Decree for defendant, and complainant appeals. Held: valid and infringed in General Electric Co. v. Freeman in the District of New Jersey. The decision of Judge Cross was filed May 15, 1911, and is reported in 190 Fed. 34.

<p>1. Trade-Marks and Trade-Names (§ 58*) — Infringement.</p> <p>Where plaintiff’s registered trade-mark placed on metal curtain fasteners for carriages and automobiles was merely a circle surrounding the letter “M.,” and it appeared that while complainant claimed to have used the mark since 1909 it had filled certain special orders for large customers with goods marked by a circle without the “M.” or with a circle and dot in its place, it was not entitled to restrain defendant’s alleged infringement of the mark by the use of a circle and dot.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 66, 67; Dec. Dig. § 58.*]</p> <p>2; Patents (§ 828*) — Validity—Patentable Novelty.</p> <p>Murphy patent, No. 858,206, for curtain fasteners for carriages and automobiles, consisting of a rotatable head with two grooves separated by sharp radiating ridges formed by grooves, the other of the two parts having a convex portion adapted to engage and fit into the grooves so as to hold the head in place when turned, held invalid for want of patentable novelty. ' ■</p> <p>3. Patents (§ 26*) — Invention—Application of Old Device to New Combination.</p> <p>Invention may lie in the application of an old device to a use in combination with another old device, where the result forms a complete device of itself, and where the novelty is found in the application of the two devices as parts of one producing a new result or the old result in a new way.</p> <p>[Ed. Note. — Por other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. § 26.*]</p> <p>4. Trade-Marks and Trade-Names (§ 68*)— Trade-Names — Unlawful Competition.</p> <p>Where complainant’s patent for a curtain fastener for carriages and automobiles was invalid, and complainant had permitted other manufacturers to place exactly similar devices on. the market without distinguishing labels and without any means of warning the public that the. idea belonged to complainant, it could not maintain the suit for unlawful competition in the sale of similar fasteners in absence of proof that they were sold as and for complainant’s fasteners.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 79; Dec. Dig. § 68.*]</p>

<p>1. Patents (§ 129*) — Suit eoe Infringement — Estoppel to Dent Validitt op Patent.</p> <p>Knowledge by a corporation of the ownership of a patent by an as-signee of the patentee is not alone sufficient to estop it from contracting with such patentee for the use of a later improvement made by him, or for his services, or from denying the validity or narrowing the scope of the earlier patent when sued for its infringement by an article made by it under a patent to another.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182%-186: Dec. Dig. § 129.*]</p> <p>2. Patents (§ 328*) — Validity and Infringement.</p> <p>The Forsyth patent, No. 862,897, for a process of making expanded sheet metal and for the product is of narrow scope and as so construed, held, not infringed.</p>

<p>PATENTS (~ 32S*)_V~&I~InITY AND INTRINGEMENT-PASSENGER CAR.</p> <p>The Rowntree patent, No. 935,929, for a passenger car of the so-called "pay as you enter" type held void for lack of invention àsto claims 3, 4, 5, and 6, and not infringed as to claims 7 to 16, inclusive.</p>

<p>In Equity. Suit by Treibacher Chemische Werke Gesellschaft mit Beschránkter Haftung against the Roessler & Hasslacher Chemical Company, for infringement of patent 837,017 to Welsbach, issued November 27, 1906. On final hearing.</p>

<p>In Equity. Suit by the Treibacher Chemische Werke Gesellschaft mit Beschránkter Haftung against the Wolf Safety Lamp Company of America, Incorporated. On motion for preliminary injunction.</p>

<p>1. Cancellation of Instruments (§ 35*) — Conveyance of Park — Parties.</p> <p>■In a suit by purchasers of lots in a platted tract, divided into lots, streets, and parks, who bought on the faith that no obstructions would be permitted in the parks, to set aside a subsequent conveyance of a parcel located in the parks, the present owners of the unsold part of the tract and the municipality within which the parks are located should be made parties, or the purchasers should request them to become parties because they cannot-represent the public.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 55-64; Dec. Dig. § 35.*]</p> <p>2. Injunction (§ 114*) — Conveyance of Park — Right to Sue.</p> <p>A purchaser of lots in a tract platted into lots, streets, and parks must, to obtain injunctive relief to set aside a conveyance of a part of the parks, show some special injury to his property not suffered by property owners generally, and a purchaser of a lot located at a considerable distance from a park has no appurtenant rights in and to the park, except such as are given to all property owners in that vicinity, several of whom have erected buildings between him and the park.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. § 114.*]</p> <p>3. Dedication (§ 47*) — Parks—Rights Acquired — Actions—Parties.</p> <p>A purchaser of lots adjacent to a park in a tract platted and divided by the vendor into lots, streets, and parks has rights in the park and in its preservation for park purposes, but he has no such rights in a park subsequently established, and where a subsequent purchaser of parcels in the existing and new parks has no intention of building or otherwise disturbing the land in the old park, but only intends to build in the new one, the first purchaser is not entitled to equitable relief.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. § 113; Dee Dig. § 47.*]</p> <p>4. Dedication (§ 47*) — Rights Acquired — Actions—Parties.</p> <p>Where the owner of a tract platted into lots, streets, and parks, and purchasers of lots, constructed and maintained for several years a stairway from a street across a park to the shore of a lake until the grantee of the unsold property constructed on other land a stairway, a purchaser could not enforce in equity, as against a third person claiming to own the land on which the new stairway was constructed, any right in the new stairway, and, if the removal of the stairway caused injury either to the owner of the unsold tract or to the public generally, the injury must be prevented at the suit of the proper parties and not at the instance of the purchaser alone.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. § 113; Dec. Dig. § 47.*]</p>

Action by Thomas Dixon, Jr., against the Corinne Runkel Stock Company and others to recover damages for infringement of copyright. On motion to vacate an attachment.

<p>Injhe matter of the petition of Harry Kendall Thaw for writ of habeas corpus.</p>

In Equity. Suit by the Pennsylvania Company against the United States, in which the Interstate Commerce Commission and the Buffalo, Rochester & Pittsburgh Railway Company intervene. On motion for preliminary injunction. Upon motion for interlocutory injunction.

Deportation proceedings by the United States against Horn Lim,. against Quan Wah, against Lou Chu, against Lee Chee, and against Wong Bit Hing. From orders of deportation, defendants appeal.

<p>1. Injunction (§ 158*) — Interlocutory Injunction — Decision—Finality.</p> <p>A decision either way on.-a motion for an interlocutory injunction is an exercise of discretion and is not final, and the court may, on a subsequent application, reach a different conclusion on the same or more convincing evidence.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § '341; Dee. Dig. § 158.*]</p> <p>2. Injunction (§ 158*) — Interlocutory Injunction — Successive Motions.</p> <p>The renewal of a motion for an interlocutory injunction on grounds, or on evidence which should have been presented on the first application, will be discouraged, and an application once refused will not be at a later stage granted, save in a clear ease.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 341; Dec. Dig. § 158.*]</p> <p>3. Injunction (§ 138*) — Interlocutory Injunction — Successive Motions.</p> <p>Where a motion by a railroad company against a state railroad commission for an interlocutory injunction to restrain the enforcement of rates ordered by the commission was denied on the ground that the supporting affidavits stated only conclusions of law, a subsequent motion rested in the discretion of the court, in the absence of anything to show bad faith on the part of the company.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 341; Dec. Dig. §' 158.*]</p> <p>4. Carriers (§ 12*) — Regulation—Rates—Presumptions.</p> <p>That a railroad company has for a considerable time voluntarily maintained a given rate is evidence of the-reasonableness thereof, and supports an order of a state railroad commission fixing that rate as lawful, unless the rate so maintained was special to meet some special situation, like water competition, or other special conditions.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>6. Carriers (§ 12*) — Regulation—Rates—Presumptions.</p> <p>Where a railroad company maintained low rates for grain inward bound to distillers to build up the distilling business, and thereby receive a high-class return traffic, and the company maintained the same rates for a long time after the reason for their establishment had ceased to exist, the rates were prima facie reasonable, and an order of a state railroad commission fixing the rates for all grain inward bound as lawful was sustained by evidence, for the commission was not bound to assume that an equivalent result would not follow as to outward-bound flour from grain inbound to millers, or as to all the reverse traffic which would normally result directly or indirectly from grain moving in one direction, and the burden was on the company to prove that the rates were unreasonable, before it could complain.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 7-11, 15-20; Dec. Dig. § 12.*]</p> <p>6. Carriers (§ 18*) — Regulation—(Rates—Presumptions.</p> <p>Where a state railroad commission established as reasonable, for all grain inward bound, rates maintained by a railroad company for grain inward bound to distillers for the development of the distilling business, and thereby receive a high-class return traffic, and the company, at the hearing before the commission, declined to exercise its privilege of showing that it would suffer loss by the application of the rates, the court, on the application of the company, could not set aside the order of the commission and enjoin the enforcement of the rates on mere probability that the return traffic would not be as profitable as the products of distillers had been.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. § 18.*]</p> <p>7. Courts (§ 366*) — Controlling Decisions — 'Construction oe State Statutes.</p> <p>The construction by the highest court of a state of a state statute defining the,powers of a state railroad commission is binding on a federal court in determining the powers of the commission.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dee. Dig. § 366.*]</p> <p>8. Injunction (§ 26*) — Multiplicity oe Actions at Daw.</p> <p>Where an order of a state railroad commission requires a railroad company to make reparation by the payment of specified sums to 19 separate shippers, and the commission and shippers intend to bring but one suit, the railroad company was not entitled to injunctive relief against the enforcement of the order of reparation.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54^61; Dec. Dig. § 26.*]</p> <p>9. Carriers (§ 18*) — Establishment oe New Rates — Orders.</p> <p>Where the court restrained the enforcement of rates fixed by a state railroad commission on condition that the carrier should pay into court month by month all the freight charges which had been collected in excess of the rates fixed by the commission, and that the payments should be refunded on it being finally determined that thfe excess was not lawfully collected, otherwise returned to the carrier, the court would not modify the order so far as it had been executed, but it could modify it as to its future effect.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§• 13, 16-18, 20, 24; Dec. Dig. § 18.*]</p> <p>10. Carriers (§ 18*) — Establishment oe Rates — -Orders oe State Railroad Commission — Injunction.</p> <p>Where a railroad company, attacking orders of a state railroad commission fixing rates, will lose but little pending an appeal to the Supreme Court, if the rates are enforced pending the appeal, the trial court will not restrain the enforcement of the order fixing the rates but will leave that matter to the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. § 18.*]</p>

<p>In Equity. Suit by J. A. Barbre and N. M. Coons against R. E. Hood.</p>

In Bankruptcy. In the matter of Harris & Bacherig, bankrupts. On review of order of referee.

<p>At Law. Action by the Miller Pasteurizing Machine Company against Thomas Conway, Jr. On motion for a new trial.</p>

In Bankruptcy. In the matter of the bankruptcy proceedings of Ruth Heyman, individually and trading as the Heyman Company. On certificate of a referee to review an order requiring the bankrupt to surrender certain concealed property. The findings of Edward E. Hoffman, referee, are as follows: To the Honorable the Judges of the District Court: This matter was heard before me on March 21, 1914.

■In Equity. Suit, by John S. Alexander and others against the Fidelity Trust Company, as executor,- etc., and others. On motion to •dismiss for laches alleged by way of answer.

<p>Railroads (§ 254*) — Safety Appliance Act — Construction—Air Brakes— ' Couplers — Switching Operation.</p> <p>It is no defense to an alleged violation of the Safety Appliance Act (Act March 2, .1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), requiring carriers engaged in interstate commerce to have at least 85 per cent, of the cars in a train equipped with air brakes so that they may be operated by the engineer, and also requiring all cars used in interstate commerce to be equipped with operating, automatic couplers, that the cars and train in question were only being moved in switching operations.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Hawley Down Draft Furnace Company. On petition of review of a referee’s order denying the petition of the National Trust & Credit Company for an order directing the trustee to pay over a specified sum of money collected on accounts of the bankrupt assigned to petitioner.

In Bankruptcy. In the matter of the bankruptcy proceedings of Harris D. Crumling. On petitions of Charlotte Crumling and U. G. Dissinger for review of a referee’s orders allowing Charlotte Crumling on a claim $2,075, instead of $6,200, as claimed, and disallowing the claim of Dissinger.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Farmers’ Store & Supply Company. Petitions of the Morris Grocery ■Company and another to revise orders of the referee declaring that petitioners were accountable in dividend payments for certain alleged .preferences.</p>

Criminal prosecution by the United States against Philip Rubin and others. On motion by defendants for an order for inspection of the grand jury minutes.

<p>Application of Hermann Wildberger to be admitted to citizenship.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Bell Engraving Company, Incorporated. On certificate of the referee to review an order for the payment to H. H. Pakradooni of $1,131.84 as a preferred rent claim.

In Equity. Suit by the Wilkes-Barre & Wyoming Valley Traction Company against G. T. Davis, Collector, to recover a corporation tax paid under protest. On rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal from the District Court of the United States for Division No. 1 of the Northern District of California; M. T. Dooling, Judge.</p> <p>Suit in admiralty by-Ed. Schmidt against the Pacific Mail Steamship Company. Decree for libelant, and respondent appeals.</p>

Appeals from the District Court of the United States for the District of Montana; George M. Bourqüin, Judge. Suits in equity by the United States against William Connor and against Ida Connor (consolidated). Decrees for the United States, and defendants appeal.

H. Munger, Judge. Suit by Royal P. Drake, as trustee in bankruptcy of the estate of Patrick E. McKillip against Harry D. Burgoyne and another. From the decree, both parties appeal. These are appeals from a decree granting to a second mortgagee who paid prior mortgages, subrogation to the rights of the prior mortgagee as against •the mortgagor, and denying a creditor deprived of a voidable preference permission to prove his claim as a general creditor.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Olin Wellborn, Judge.</p> <p>Suit in equity by Fred Stebler against the Riverside Heights Orange Growers’ Association and George D. Parker. From a temporary restraining order, made on petition of defendants, enjoining the prosecution by complainant of other suits for infringement of the Gamble reissue patent, No. 12,297, for a fruit grader, complainant appeals.</p> <p>On May 24, 1910, the plaintiff filed his bill of complaint in the court below wherein he alleged, among other things, that there had been duly issued to him and to one Austin A. Gamble, by the United States of America, reissue patent No. 12,297, for a fruit grader; that subsequent thereto Austin A. Gamble had sold, transferred, and assigned to the plaintiff all his right, title, and interest in and to the letters patent and that the plaintiff was the sole and exclusive owner thereof; that notwithstanding the issuance of the letters patent, the defendants, without the consent of the plaintiff, and in violation of the letters patent owned by him, had made and used, and had sold to others to be used, fruit graders embracing and containing the invention described, claimed, and patented in the letters patent owned by the plaintiff. The plaintiff ashed for an injunction, restraining and prohibiting the defendants from further infringing upon the letters patent owned by him, and, further, that the defendants be decreed to account for and pay over unto the plaintiff all damages suffered by him by reason of the infringement of his patent and also all profits realized by the defendants by reason 'of such infringement. The defendants answering denied the validity of the plaintiff’s patent and denied infringement, and in an amendment to the answer they alleged that the device manufactured, sold, and used by the defendants was made under and in accordance with the invention embodied in United States letters patent No. 997,468, granted to George D. Parker under date of July 11, 1911, for an improved fruit sizer or grader. Such proceedings' were thereupon had in the- court below that on September 30, 1912, a final decree was entered tfierein, wherein it was ordered and decreed that the plaintiff’s bill be dismissed, that cohrt holding that claims 1 and 10 of the patent issued to the plaintiff (the only claims involved in the suit) were valid in law, but that they had not been infringed by the defendants.</p> <p>An appeal to this court was taken by the plaintiff from the judgment entered against him in the court below, and by a decree entered herein on June 12, 1913; the judgment of the court below was reversed, and the cause remanded, with instructions to grant the relief prayed for in the plaintiff’s bill. Stebler v. Riverside Heights Orange Growers’ Ass’n, 205 Fed. 735, 124 C. O. A. 29.</p> <p>Thereafter a petition for a writ of certiorari was presented by the defendants to the Supreme Court of the United States. The petition was denied.</p> <p>On November 7, 1913, pursuant to the mandate of this court, an interlocutory decree was entered in the court below vacating and setting aside the judgment dismissing the plaintiff’s bill theretofore entered in that court. By the interlocutory decree it was ordered that the plaintiff recover of the defendants, and each of them, the profits, gains, and advantages which the de-, fendants, and each of them, had derived, received, or made by reason of the infringement of the plaintiff’s patent, and that the plaintiff recover from the defendants, and from each of them, any and all damages which the plaintiff had sustained or should sustain by reason of the infringement ’ by the defendants, or either of them. The interlocutory decree further provided that the cause be referred to a master to take and state the account of such gains, profits, and advantages, and to assess such damages, and to report .thereon with all convenient speed. The defendants, together with their agents, clerks, and employés, were required by the interlocutory decree to attend before the master from time to time, and to produce before him such books and papers as he might require.</p> <p>No proceedings appear to have been taken by the plaintiff pursuant to this decree.</p> <p>On November 25, 1913, the defendants filed a petition in the court below setting forth the various proceedings hereinabove set forth, and alleging that subsequent to the rendition of the decree of this court, and before the entry of the interlocutory decree in the court below in compliance therewith, the plaintiff had instituted in the lower court 27 suits in equity, based upon the reissue patent owned by him, against various defendants particularly set forth in the petition, as infringing users of fruit graders which had been manufactured and sold by the defendants prior'to the entry of the interlocutory decree in the court below. It was further alleged in the petition that all of the defendants in the suits were customers of the defendants, and that the acts of infringement complained of in and sought to be enjoined by the suits, were the use by the defendants therein of fruit graders manufactured by the defendants herein and sold by them to the defendants named in the suits mentioned in the petition; that all of such machines were subject to the accounting against the defendants to be had under the interlocutory decree entered in the court below; that the plaintiff had threatened to bring many similar suits against the customers of the defendants and that unless restrained by the court the plaintiff would bring and prosecute such suits; that the defendants were financially able to respond to any judgment which might be rendered against them on the accounting ordered in this suit, and, that inasmuch as all of the machines complained of in the suits were made and sold by them, they were all subject to the accounting ordered by the interlocutory decree entered in thé court below; that the plaintiff was a manufacturer and seller of the patented machines, and was not a user of the same, and that he derived his profit from his patent solely by the manufacture and by the unconditional sale direct to the users of the patented machines; that, upon the satisfaction by the defendants of any judgment that might be finally rendered against them upon the accounting to be had herein, the infringing machines manufactured and sold by them to their customers would be released from the patent monopoly and the defendants in the various suits instituted and threatened to be instituted by the plaintiff would not be liable to the plaintiff; that if the plaintiff was not restrained by the court from continuing the prosecution of the suits set forth in the petition, and from bringing other suits'of like nature against the customers of the defendants, irreparable injury and damage would result to the defendants by the loss to them of their customers, who, pn account of the harassment, annoyance, and expense occasioned by the acts of the plaintiff, would cease to patronize them in their general business, and in the purchase of other machinery for packing houses, of various kinds and natures, in which the petitioners were dealers. The relief prayed for was that the plaintiff be enjoined from further prosecuting the suits set forth in the petition, and from bringing any additional suits of like nature, against the customers of the defendants, for the infringement of the letters patent owned by the plaintiff; the injunction order to be continued until the rendition of the judgment of the court below upon the master’s report on the accounting ordered herein.</p> <p>On February 18, 1914, an order was entered in the court below adjudging and decreeing that the defendants’ motion that the plaintiff be enjoined and restrained from any further prosecution of those certain suits set forth in .the petition, and from bringing any other suit or suits against users of machines manufactured in substantial accordance with letters patent of the United States No. 997,468, be allowed.</p> <p>The present appeal is prosecuted from the last-mentioned order.</p>

Appeals from the District Court of the United States for the Eastern Division of the. Northern District of Illinois; Christian C. Kohl-saat, Judge. Suits by Arthur H. Cole, administrator with the will annexed of Donald Eraser, deceased, against Grace Fraser and others. From decrees for complainant and interveners, defendant Grace Fraser alone appeals in one case, and she and defendant E. F. Mann both appeal in the other case.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>In the matter of the Yaryan Naval Stores Company, bankrupt. On appeal from order of adjudication.</p>

Amidon, Judge. Bill by the United States against John B. Stoddard. Judgment for the United States, and defendant appeals. This was a bill in equity, brought by the United States under the provisions of the act of Congress approved February 25, 1885 (23 Stat. 321, c. 149 [U. S. Comp. St. 1901, p. 1524]), to enjoin the defendant, the appellant here, from obstructing the free transit over and through certain public lands of the United States.

<p>'Trade-Marks and Trade-Names (§ 95*) — Unfair Competition — Imitation.</p> <p>Where complainant had obtained an injunction restraining B. from making and selling toy animals copied from complainant’s models, and defendant purchased such animals from B. for resale, complainant was entitled to an injunction restraining defendant from selling such toys until it was established by proof that the animals so sold by defendant had not been copied from complainant’s models.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108; Dec. Dig. § 95.*</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros.. 30 C. C. A. 376.]</p>

<p>Collision (§ 93*) — Steam Vessels Crossing — Starboard Hand Rule.</p> <p>A decree finding a tug solely in fault for a collision between ber tow and a crossing ferryboat in East River affirmed, where the starboard hand rule applied and it was the duty of the tug to keep out of the way.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 194, 195; Dec. Dig. § 93.*]</p>

<p>Collision (§ 110*) — Stranding or Tow — Proximate Cause.</p> <p>The stranding of a barge, which was one of three in a tow, after she had been cast off by the barge ahead, because of a slight collision with a schooner, so as to permit the schooner to pass through the tow, held due to the fault of her own master in not properly anchoring, as directed by the tug, and not to the collision.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. § 233; Dec. Dig. § 110.*]</p>

Appeals from the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge. Suit in equity by the Emerson & Norris Company against the Simpson Bros. Corporation. From a decree awarding, damages and costs, both parties appeal. Affirmed.

This cause comes here upon writ of error to review a judgment of the District Court, Eastern District of New York in favor of defendant in error, which was defendant below. The opinion of Judge Veeder will he found in 214 Fed. 402.

Orr, Judge. Bill in equity by the Elliott Company against the Ragonda Manufacturing Company for patent infringement. Decree for complainant {205 Fed. 152), and defendant appeals.

<p>Appeal from the District Court of the United States for the Western.District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Bill by the Lagonda Manufacturing Company against the Elliott Company. From a decree (205 Fed. 149) dismissing the bill, complainant appeals.</p>

<p>Patents (§ 328*) — Validity and Infringement — Shaft Hanger.</p> <p>The Wood patent, No. 790,609, for a shaft hanger, construed, and held not infringed.</p>

<p>Patents (§ 328*) — Validity and -Inekingement — Tin Plate Cleaning Machine.</p> <p>The Taliaferro and Reynard patent, No. 709,184, for a tin-plate-cleaning machine, was not anticipated and discloses invention; the prior art not disclosing the elements of the claims combined in an organized machine operating upon the principle of the patented machine. Also held, infringed.</p>

<p>Patents (§ 328*) — Validity and Inebingement — Fubnace.</p> <p>The Daley patent, No. 644,664, for an underfeed furnace, held valid and infringed, on a motion for preliminary injunction.</p>

In Equity. Suit by the Kentucky Coal & Timber Development Company against the Kentucky Union Company and others, in which J. M. Noble and Louisa H. Goodlett intervene by cross-bill. On final hearing.

In Equity. Suit by the United States against Lee Wilson & Co., a corporation. On final hearing.

Max M. Hart and others were indicted for conspiracy to commit a crime against the United States-and for misuse of the mails in aid of a scheme to defraud. On an order to show cause why John H. Gleason, United States attorney for the Northern district of New York, should not be required and directed to deliver to defendant Max M. Hart certain documents relating to his transactions with the other defendants, etc., delivered by Hart to Gleason prior to indictment.

Petition by John Anderson for admission to citizenship. The petitioner, John Anderson, an alien, filed his declaration of intention-on October 15, 1886, and on November 8, 1913, he filed his petition praying: the issuance to him of letters of citizenship.

In Equity. Suit by the Pacific Telephone & Telegraph Company against the Wright-Dickinson Hotel Company and others. On application for an interlocutory injunction. The plaintiff, the Pacific Telephone and Telegraph Company, hereinafter to be called the “Pacific Company,” owns and operates telephone and telegraph lines in a number of the Pacific Coast states, including California, Oregon, and Washington, and it also owns and operates a telephone system in the city of Portland.

<p>Bankruptcy (§ 407*) — Discharge—Objections—Transfer to Defraud Creditors — Bulk Sales Law.</p> <p>Where a bankrupt, within four months prior to the filing of a petition in bankruptcy, transferred a stock of merchandise within the Bulk Sales Act (Pub. Laws R. I. 1909, c. 387), without complying with the provisions of such act, requiring five days’ previous notice to every creditor disclosed in a required list, and to avoid making such list he made an affidavit that he had no creditors in connection with his dry goods business, which was false, as well known by him when made, such facts were sufficient to sustain an objection to his discharge on the ground that within four months he had transferred his property with intent to defraud creditors.</p> <p>[Ed. Note. — For other cases, see ,Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*]</p>

<p>1. Pledges (§ 66'*) — Foeeolosuee—-Sale.</p> <p>Under Voorhies’ Rev. Civ. Code La. art. 3165 (3132), p. 558, providing for the foreclosure of pledges, the pledgee of certain bonds was authorized to sell the same on the New Orleans Stock Exchange without ap-praisement, advertisement, or notice, and to purchase the bonds itself at a fair price.</p> <p>[Ed. Note. — For other cases, see Pledges,' Cent. Dig. §§ 152-183; Dec. Dig. § 56.*]</p> <p>2. Pledges (§ 56*) — Pledgee—Sale oe Secubities — Trustee to Sell.</p> <p>Though a pledgee of securities was authorized to sell them without ap-praisement, advertisement, or notice, and to purchase itself at a fail-price, it nevertheless occupied a fiduciary relation to the pledge as- a trustee to sell, with the duty to exercise its right of sale for the benefit of both the pledgor and itself.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. '§§ 152-183; Dec. Dig. § 56.*]</p> <p>3. Pledges (§ 56*) — Foreclosue—Sale.</p> <p>In selling certain bonds on foreclosure of a pledge, the pledgee was required to conduct the sale fairly, in good faith, and with due regard to the rights of the pledgor, exercising reasonable diligence to secure a just price and conserve the - interests of the pledgor in so far as consistent with its own protection, especially when at the same time it exercised its right of purchasing at its own sale.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 152-183; Dec. Dig. § 56.*]</p> <p>4. Pledges (§ 56*) — Foeeolosuee—Invalid 8-ale — Eeeect—Action to Re-coves Debt — Equitable Set-Oee.</p> <p>Where a pledgee of bonds to secure a note sold the bonds as pledgee, with the intention of exercising the privilege of purchasing at its own sale and for the avowed purpose of acquiring ownership, and carried out such purpose through the co-operation of its selling and purchasing brokers, and with such a lack of publicity and failure to give information as to enable it to acquire the bonds under color of such sale at 2 per cent, of their face value and about 4 per cent, of the amount of its debt, though willing, if necessary, to bid the full amount of the debt in order to acquire them, it was liable to account for the full value of the bonds at the time of the sale by way of equitable set-off in a suit subsequently brought to recover the balance of the debt for which the bonds were pledged, which set-off was available to a surety on the note as against a purchaser thereof with notice after maturity.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent.- Dig. §§ 152-183; Dec. Dig. § 56.*]</p> <p>5. Pledges (§ 31*) — Peincipal and Surety (§ 114*) — Foeeolosuee—Wbong-eul Sale — Oonveesion—Liability oe Sueety.</p> <p>Where a pledgee of bonds transferred to secure a note wrongfully sold the same to foreclose the pledge for a small per cent, of their value, purchasing them at its own sale, and thereafter transferred the note and the bonds to a syndicate, using the bonds to purchase the property by which they were secured on foreclosure of the mortgage, there was a conversion of the bonds, and no action could be maintained by the purchaser of the note secured by the bonds against a surety thereon; it appearing that the real value of the bonds exceeded the debt for which they were pledged.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 86-88; Dec. Dig. § 31;* Principal and Surety, Cent. Dig. § 63; Dec. Dig. § 114.*]</p>

Dayton, Judge. Suit by the Hitchman Coal & Coke Company against John Mitchell and others individually to restrain them from attempting to organize complainant’s mine workers and to induce them to join a union known as the United Mine Workers of America. From a decree in favor of complainant granting a permanent injunction (202 Fed. 512), defendants appeal. Reversed, with instructions to dismiss.

<p>Injunction (§ 101*) — Strikers—Aid to Strikers.</p> <p>An injunction may be properly granted restraining members of a trade union from using violence, intimidation, and coercion to induce employés to join the union and to strike, but they may not be lawfully restrained from using persuasion and other peaceable methods to that end, or from aiding striking employés by furnishing them money from a relief fund.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 174, 175; Dec. Dig. § 101.*</p> <p>Restraining boycotts, strikes, and other combinations by employés interfering with commerce or business, see note to Shine v. Fox Bros. Mfg. Co., 86 C. C. A. 313.]</p>

<p>1. Mastee and Servant (§§ 205, 217*) — Liability for Injuries — Reliance on Master.</p> <p>An employé is not obliged to examine into his employer’s methods of transacting business, and, in the absence of notice to the contrary, may assume that reasonable care will be used in furnishing appliances necessary to carry on the business.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549, 574-600; Dec. Dig. §§ 205, 217.*]</p> <p>2. Master and Servant (§ 107*) — Liability for Injuries — Place Rendered Unsafe by Work.</p> <p>A master is not liable for injuries resulting from a place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he has discharged his primary duty of providing a reasonably safe place.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]</p> <p>3. Master and Servant (§§ 101, 102*) — Liability for Injuries — Duty to-Furnish Safe Place.</p> <p>The duty of providing a reasonably safe place to work is a continuing one, discharged only when the master furnishes arid maintains a place of that character.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]</p> <p>4. Master and Servant (§§ 101, 102*) — Liability for Injuries — Duty to-Furnish Safe Place.</p> <p>Where workmen are engaged in a business more or less hazardous, it Is the master’s duty to exercise reasonable care not to expose them to-danger from an unsafe place, where the place may be made safe by due-skill and care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent.' Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]</p> <p>5. Master and Servant (§ 219*) — Liability for Injuries — Assumption of Risk.</p> <p>A servant, entering into and continuing in a hazardous employment, assumes the risks of the service and those apparent to ordinary observation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610— 624; Dee. Dig. § 219 *]</p> <p>6. Master and Servant (§ 226*) — Liability for Injuries — Assumption of Risk.</p> <p>A servant does not assume the risk of negligence of the master in performing his duty of providing a safe place.</p> <p>• TEd. Note. — For other cases, see Master and Servant, Cpnt. Dig. §§ 659-667; Dec. Dig. § 226.*]</p> <p>7. Master and Servant (§ .217*) — Liability for Injuries — Assumption of-Risk.</p> <p>An employé who enters into the employment or continues therein with knowledge of the methods employed in the business, and the manner of' inspection, and with knowledge that such inspection is inadequate, assumes tile risk of clangers arising from such methods of business, and such inadequate manner of inspection.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>8. MASTER AND SERVANT (§ 217*)-LIABILITY FOE INJURIES-ASSUMPTION OF Risk.</p> <p>Where an employé, engaged in drilling holes for blasting purposes, and injured when his drill struck an unexploded charge in another hole, or so close thereto as to explode it, had been engage.d in mining for seven years, and in his employer’s service for almost a year, knew that shots were liable not to be exploded, was present when the so-called inspection of the ground where he was ordered to drill was made, knew that it was the only kind of inspection ever made, and that it was inadequate to discover unexploded holes, and knew that unexploded holes were dangerous and would be set off by coining in or near them, he assumed the risk of injury from the employer’s failure to make a proper inspection to discover the unexploded holes.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-GOO; Dec. Dig. § 217*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>Shelby, Circuit Judge, dissenting.</p>

<p>1. Railroads (§ 270*) — Defective Railroad Bridges — Injuries to Employes of Other Railroads — Cause of Action-Elements — Ownership.</p> <p>In an action against a railroad company and a bridge company for injuries to an employé of another railroad company, operating trains over the bridge, for injuries resulting in his death due to an alleged defect in the bridge, the burden was on plaintiff to show that such defendants owned or controlled the bridge.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 865; Dec. Dig. § 270.*]</p> <p>2. Railroads (§ 268*) — Defective Bridges — Injuries — Pleading — Not Guilty.</p> <p>In an action for death of a brakeman by being struck by a low timber on a bridge as he was passing over it, the ownership of the bridge by certain of the defendants, other than the railroad company by which decedent was employed, was properly put in issue by their plea of not guilty.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 861-864; Dec. Dig. § 268.*]</p> <p>3. Master and Servant (§ 113*) — Injuries to Servant — Operation of Railroad — Telltales.</p> <p>Where it was claimed that decedent, a freight brakeman, was struck by a low timber on a bridge as his train had nearly crossed the bridge, the absence of telltales to warn him of his 'approach to the bridge did not, under the facts of this case, constitute actionable negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 213, 224-227; Dec. Dig. § 113.*]</p> <p>4. Trial (§ 193*) — Instructions—Questions of Fact.</p> <p>Expressions of opinion concerning the tendency of certain portions of the evidence by the trial judge was not error, where he admonished the jury that all questions of fact were to be determined by it, independently of anything said by the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193.*]</p> <p>5. New Trial (§ 98*) — Grounds—Credibility of Witness.</p> <p>Denial of a new trial on an affidavit that a witness had been unduly influenced as to a portion of his testimony was not error, where the exclusion of the witness’ entire testimony would not have affected the result.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 199, 200: Dec. Dig. § 98.*]</p>

This cause comes here on appeal from a decree of the District Court, Southern District of New York, holding the tugs Arrow and McAllis-ter both in fault for a collision between a car float in tow of the Mc-Allister and a coal barge in tow of the Arrow. Judge Holt’s opinion was delivered orally at the close of the trial and is not reported.

M. Morton, Jr., Judge. Action by John J. Egan, as administrator of the estate of Thomas P. Sweeney, deceased, against the Middlesex & Boston Street Railway Company. Judgment for plaintiff (212 Fed. 562), and defendant brings error.

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Action by the Ohio City Dumber Company and others against the Chicago & Erie Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Contracts (§ 94*) — Validity—Fraud.</p> <p>In order that promissory representations, made as an inducement to a contract, shall invalidate such contract and entitle the other party to its cancellation, there must be an element of bad faith, an intention to deceive, or a recklessness or extravagance of statement, that is scarcely to be distinguished from bad faith.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. § 94.*]</p> <p>2. Contracts (§ 94*) — Validity—Fraud.</p> <p>Defendant corporation was organized by men of standing and means to promote the building of a commercial harbor and summer resort on the New Jersey coast. It bought land, laid out and improved streets, and projected the making of a harbor for ocean vessels with docks connected with railroad terminals, and the building of a large hotel. Upon representations that such improvements were to be made, complainant contracted for the purchase of a lot in the plan. The' representations were made in good faith, and defendant expended several million dollars in carrying them out, and they had not been abandoned. The harbor was partially dredged, the hotel built, and the government constructed jetties. Held, that the fact that the project had not been as completely or rapidly developed as expected or represented did not entitle complainant to a cancellation of his contract, and to. recover the money paid thereon.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. § 94.*]</p>

Appeal, from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Dandis, Judge. Suit by Charles C. Wolf against the American Trust & Savings Bank and others to redeem certain collaterals. From a decree denying complainant’s right to redeem said collaterals on paying the amount of the pledged indebtedness to defendants, plaintiff appeals.

<p>1. Courts (§ 354*) — Rules of Court — Issuance of Writs.</p> <p>Under Circuit Court rule 2, providing that actions by writ shall be entered within the first two days of the return term, and not afterwards, unless by agreement of the parties or by order of court on such notice as the court may direct, enacted pursuant to Rev. St. § 918 (U. S. Comp. St. 1901, p. 685), authorizing the Circuit Court to make rules directing the returning of writs and processes, a plaintiff, causing the issuance of a writ of attachment on October 14th made returnable on December 6th following, while the court had under statute two terms commencing on me last Tuesday of February and on the third Tuesday of October, is not entitled as a matter of right to have his writ entered while the October' term is in session; and, in the absence of an agreement of the parties or order of the court authorizing its entry at that term, the clerk may refuse to enter it on the records of the court and to enter judgment for plaintiff.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 934; Dec. Dig. § 354.*]</p> <p>2. Courts (§ 354*) — Rules of Court — Entry of Writs.</p> <p>A plaintiff, to obtain a default judgment, must comply with the statute and the rules of court, and until a writ is duly entered in court and the time has elapsed within which defendant should appear, no default or judgment by default can lawfully be entered against him.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 934; Dec. Dig. § 354.*]</p>

Suit by William B. Chambers, administrator, against Myra B. Martin, executrix, who filed a cross-bill. From a decree denying the relief prayed for in the cross-bill, cross-complainant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>On writ of error to the District Court for the Southern District of New York to review a judgment entered upon a verdict directed by the court in favor of the defendant. 208 Fed. 381. Both parties moved for the direction of a verdict.</p> <p>The parties will be referred to as they appear on the record of the District Court, as plaintiff and defendant.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding respondent liable for damages sustained by a scow which, when being towed through Pelham Bridge, struck on an obstruction in the channel. Respondent was at and prior to the time of the accident engaged in removing an old bridge and its abutments at the place in question.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steamship Thode Fagelund solely responsible for damages sustained by libelant’s barge U. H. Pflug, through being crushed by the steamship as the latter entered the slip between Pier 36 and Commercial (or Commerce) Wharf, Atlantic Basin, Brooklyn.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by William X. Barrell against the Fitchburg Duck Mills. Decree for complainant, and defendant appeals.</p>

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York. The suit was brought under section 4915, Rev. Stat. U. S. (U. S. Comp. St. 1901, p. 3992), praying that a patent be issued to complainant for the device covered by claims 9, 10 and 11 of United States letters patent No. 904,370 for a disk strain-insulator, granted November 17, 1908, to defendant, Stein-berger.

In Equity. Suits by the Motion Picture Patents Company against Carl Laemmle and the Independent Moving Pictures Company of America, and against the'Imp Films Company and Carl Laemmle. On 'final hearing. Decrees for complainant against the corporation defendants, and dismissed as to defendant Laemmle.

<p>Patents (§ 328*) — Validity and' Infringement — Furnace.</p> <p>The Daley patent, No. 644,664, for an underfeed furnace, discloses patentable improvements over the furnaces of the prior patents to Jones & Garden, and is valid; also held infringed.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Process of Cleaning Rubber.</p> <p>The Cowen patent, No. 642,814, for a process of cleaning rubber, or any similar or analogous substance, by reducing it to a plastic condition and forcing it under pressure through a strainer to remove foreign substances, is void for lack of patentable invention in view Of prior patents for machines for forcing clay in a plastic condition through a strainer for the same purpose.</p> <p>2. Patents (§ 328*) — Validity and Infringemenis-Machine for Cleaning Rubber.</p> <p>The Cowen patent, No. 642,813, for a machine for cleaning rubber by forcing it in a plastic condition through a strainer, is limited to the described construction and arrangement of straining devices. As so construed, held not infringed.</p>

<p>Tbusts (§ 56*) — Validity—Capacity op Ceeatoe — Laches—Delay in Bringing Suit.</p> <p>A bill to set aside an agreement made by a decedent disposing of Ms property in trust for the benefit of himself and his wife during their lives and of his descendants after their deaths, on the ground of his age and mental incapacity when it was executed, filed by an adult daughter 14 years after the .agreement was executed and had gone into operation, and nearly 10 years after his death, held, to disclose such laches on the part of complainant as to bar the right to relief in equity.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 76; Dec. Dig. § 56.*]</p>

<p>Petition by Anthony Joseph for letters of citizenship.</p>

<p>In Equity. Suit by the Bellevue Mills Company and another against the Baltimore Trust Company.</p>

In Equity. Suit by the Van Deman & Lewis Company and others against John W. Rast, as Tax Collector for Duval county, Ela., and others. On motion for a temporary injunction.

<p>1. Collision (§ 71*) — Drifting and Moored Vessels — -Unsafe Anchorage.</p> <p>A yacht anchored, for the night in Bar Harbor, with a southeast storm threatening. During the evening the wind rose, and she dragged her anchors and finally came into collision with libelant’s launch, which was lying at moorings., with no one aboard, and by direction of the master the launch was cut loose and drifted on the shore and was wrecked. The master of the yacht did not know the harbor, but made no inquiries of nearby vessels, and anchored where the bottom was rocky and anchors would not hold. There was safe anchorage on the lee of the island, and the wind, which attained a velocity of some '40 miles, was not very unusual at the season. Held, that the master was in fault for not inquiring about the anchorage, and for cutting the launch loose without asking assistance from the shore or from other vessels, and the yacht could not avoid liability on the ground of inevitable accident.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p> <p>2. Collision , (§ 75*) — Moored Launch — Lights'and Watchman.</p> <p>It -was not a fault on the part of the launch, which was moored with other boats in shallow water and out of the usual track of moving vessels, that she did not carry lights nor have a watchman aboard; -there being no local regulation so requiring.</p> <p>[Ed. Note. — Eor other cases, see Collision, Cent. Dig. §§ 105-121, 207; Dec. Dig. § 75.*]</p>

In Equity. Suit by Ada M. Sydney against the Mugford Printing & Engraving Company and others. On motion to strike defendants’ equitable defense of set-off and counterclaim.

<p>1. BANKRUPTCY (§ 166*) — PREFERENCES—KNOWLEDGE OE INSOLVENCY.</p> <p>In a suit by a bankrupt’s trustee against a bank to recover án alleged preference, evidence that the bankrupt’s checks had been protested prior to March, 1910, and also in October and November, before the mortgages constituting the alleged preferences were executed late in the latter month, was sufficient to put the bank on inquiry as to the bankrupt’s solvency.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p> <p>2. Bankruptcy (§ 166*) — Preferences—Insolvency—Reasonable Cause to Believe — Evidence.</p> <p>Where a bankrupt during 1910 had often overdrawn his bank account, and the bank knew he owned no real estate, and that his crops and animals were largely mortgaged, and in November, prior to the execution of certain mortgages'alleged to constitute preferences, the president of the bank ascertained that the bankrupt had forged the names of indorsers to certain of his notes discounted at the bank, such facts were sufficient to give the bank reasonable cause to believe that the bankrupt was insolvent.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dee. Dig. § 166.*]</p> <p>3. Chattel Mortgages (§ 47*) — Validity—Description.</p> <p>Where a mortgage described. the property as “3,500 bushels of marketable potatoes in the potato storehouse near the B. & A. R. R. Station at Winterport,” but pointed out no method of locating the potatoes in the storehouse, it was insufficient to transfer the title to the mortgagee as against subsequent mortgages' conveying the same property and bills of sale transferring the mortgagor’s equity of redemption.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 87, 88,’ 96-103; Dec. Dig. § 47.*]</p>

<p>In Admiralty. Suit by the Pacific Improvement Company against the Schubach-Hamilton Steamship Company.</p>

<p>1. Contracts (§ 350*)- — Actions—Sumticiency or Evidence.</p> <p>In an action involving a contract for the exclusive privilege of exhibiting certain moving picture films in certain states, which provided that, if such films were not passed by municipal authorities because of objectionable scenes which might be eliminated without materially injuring the production, the lessee should be required to accept them, evidence held to show that the “cut-outs” ordered by municipal authorities materially injured the production.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1819-1823; Dec. Dig. § 350.*]</p> <p>2. Contracts (§ 299*) — Breach—Delay in Acceptance.</p> <p>A contract, granting the exclusive privilege of exhibiting a series of moving picture films in certain states, provided that, if any of the films were not passed by the Chicago municipal authorities because of objectionable scenes which might be eliminated without material injury, the lessee should be required to accept them and might elect to accept them, notwithstanding the refusal of such authorities to license the exhibition thereof, but that if the authorities should refuse to permit the exhibition, and the lessee should refuse to accept the film, the lessor might sell to other parties. On April 14th, the Chicago authorities ordered certain “cut-outs” from one of such films, and on April 15th a set of the films with a memorandum of the “cut-out” requirements were delivered to the licensee, who, believing in good faith that the eliminations would materially injure the production, took the matter up with the deputy superintendent of police and was informed that a further investigation would be made. On April 17th, the licensor wired its attorneys in Chicago to see that the licensee accepted the films the following day at the latest, and on April 20th it granted rights to produce the films to another party. Held, that the facts showed a breach of the contract by the licensor, and not by the licensee, who apparently did everything to keep the contract in force’ that reasonable conduct would require.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1372-1381, 1394, 1395; Dec. Dig. § 299.*]</p> <p>3. Injunction (§ 59*) — Breach of Contract — -Equitable Belief.</p> <p>Where a manufacturer of moving picture films, which had granted an exclusive right to exhibit such films in certain territory, broke the contract by granting a right to exhibit the films to another party, the licensee had no adequate remedy at law and was entitled to equitable relief.</p> <p>[Ed. Note. — For other cases,. see Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.*]</p>

<p>In Bankruptcy. In the matter of Aaron Larkey and others, trading as Larkey Bros., alleged) bankrupts. On application of Jacob Konner and Gustav Mikola to have the receiver, the alleged bankrupts, and a subtenant surrender certain leased premises.</p>

<p>Application by Chooey Dee Ying for writ of habeas corpus.</p>

In Equity. Suit by the State of Maine Lumber Company and others against the Kingfield Company and others. On motion to- dissolve certain restraining orders.

<p>1. Towage (§ 11*) — Cake Required oe Tug.</p> <p>The captain of a towing tug is under the duty to observe weather conditions and to exercise ordinary prudence as to the conditions of his voyage, having in view the qualities of his tug and the character of his tow.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>2 Towage (§ 11*) — Loss oe Tow — Liability oe Tug.</p> <p>A tug which undertook to tow around Cape Cod a small lighter with a 5-foot side and a blunt flat bow, obviously not designed for sea service, held in fault and liable for the loss of the tow for proceeding over the shoals toward Vineyard Haven in the face of a choppy sea and a 25-mile wind instead of lying by for better weather.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig.. § 11.»]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Robert Lee McKee. On motion of the bankrupt to dismiss the proceedings.</p>

<p>In Bankruptcy. In the matter of W. A. Lummus, bankrupt. On application for a summary order to require Gus Coggins to deliver property to receivers. Denied.</p>

<p>Judgment (§ 585*) — Conclusiveness—Res Judicata — Issues.</p> <p>Complainant sued to set aside certain patents and a timber deed for fraud, and to have certain conveyances to H. set aside on tbe ground that be took with notice of tbe invalidity of the title of bis grantors. Complainant was successful in vacating tbe patents and timber deed, but was unsuccessful as to tbe conveyances to H., which were declared an equitable mortgage taken in good faith and entitled to protection. Thereafter complainant brought a new suit to procure the discharge of the mortgage lien by compelling the grantors of H. to pay the debt or by a foreclosure of the mortgage and sale of the land. Held, that the second suit was based on a different cause of action or claim from that set up in the first, and hence the judgment therein was not res judicata, but operated only as an estoppel between the parties as to points actually litigated and determined and was not conclusive as to other matters which might have been, but were not, litigated nor decided.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062-1064, 1067, 1073, 1084, 1085, 1092-1095, 1132; Dec. Dig. § 585.*]</p>

Hollister, Judge. Suit by the American Bonding Company of Baltimore against Charles C. Richardson and another. Judgment for defendánts, and complainant appeals. James Buck and the defendant, Richardson, were trustees under the will of Job M. Nash, deceased. James Buck misappropriated and embezzled upwards of $50,000 of the trust funds.

<p>Public Lands (§ 19*) — “Unlawful Inclosube of Public Lands” — Suit fob Injunction.</p> <p>Defendant cattle company constructed and maintained a fence about 40 miles long around 37,000 acres of land, 26,000 acres of which was public land. The remainder was mostly owned by defendant and practically surrounded that owned by the government. The fence was built entirely on such land, no part of it being on the government land, and there were nine openings in it, varying from 90 to 3,400 feet in length. It appeared from the evidence that the fence was not built with any intent to inclose the government land, nor to exclude the public from entering upon it for purposes of settlement, grazing, or other uses, but for the bona fide protection of defendant’s own lands. Held that, under such facts, the fence did not constitute an “unlawful inclósure of public lands,” within the meaning and intent of Act Feb. 25, 1885, c. 149, § 1, 23 Stat. 321 (U. S. Comp. St. 1901, p. 1524), and the United States was not entitled to an injunction to restrain its maintenance under section 2 of the act. '</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 25, 26; Dec. Dig. § 19.*]</p> <p>Hunt, Circuit Judge, dissenting.</p>

<p>1. Negligence (§ 136*) — Contributory Negligence — When Question for Jury.</p> <p>In an action for a personal injury based on the alleged negligence of defendant, where the evidence on the issue of contributory negligence is conflicting, it is a question for the jury.</p> <p>[Ed. Note. — For other cases, see Negligence,’ Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>2. Master and Servant (§ 332*) — Injuries to Third Persons — Liability— Questions for Jury.</p> <p>Defendant sold certain paper cutting machines to be erected by it in a printing office in another city, and sent an agent to install the same. Almost as soon as the last machine had been set up the agent started to return, but before his train had left was sent for by the purchaser because plaintiff, who was to operate one of the machines, could not make it work properly. HS returned, and the evidence as to what was done was in some conflict, but in explaining the operation of the machine.to the foreman, the agent moved the lever, which caused the cutter to fall, and plaintiff’s hand was caught and cut off. There was evidence for plaintiff that the machine had not been tested to its capacity, and was not in complete running order; that plaintiff was directed to do certain things, and that the agent himself made further adjustments. Held, that it was not error to submit to the jury the question whether the agent, when he moved the lever, was acting for defendant, and not for the purchaser, and within his authority as defendant’s agent.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]</p>

<p>1. Public Lands (§ 92*) — Railroad Right of Way — Title and Rights Un-dee CONGEESSIONAL GRANT.</p> <p>Under a congressional grant of right of way for a railroad through the public.lands, the land is acquired upon the implied condition that it be used for railroad purposes, and the rights of the company are limited to such use. It has no power to defeat the purpose of the grant by a voluntary alienation of the title, or by abandoning possession to an adverse claimant.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p> <p>2. Public Lands (§ 92*) — Geant cot Right of Way — Title of Raileoad Company.</p> <p>Under tlie Northern Pacific Land Grant Act July 2, 1864, c. 217, § 2, 13 Stat. 365, which granted to the company right of way through the public lands to the extent of 200 feet in width on each side of the railroad, title to such right of way passed to the company on the filing of the map of the definite location of its road, subject to reversion for non-use if the road was not constructed on such line, and where the line was located and built through an odd-numbered section of public lands, which subsequently passed to the company under section 3 of the grant, the company took title to the extent of the right of way under section 2, and not under section 3.</p> <p>[Ed. Note.- — For other cases, see Public Lands, Cent. Dig. §§ 276>-282; Dec. Dig. § 92.*]</p> <p>5. Public Lands (§ 92*) — Railroad Right of Way — Dedication as Street.</p> <p>The Northern Pacific Railroad Company laid out and platted an addition to the city of Spokane on an odd-numbered section of what was, when the road was built, public land, to which the company acquired title under the congressional grant. It designated on the plat a street named Railroad street extending along and on either side of its main track. Held that, having acquired title to all of the land embraced in the street as right of way under the grant, it could not by any act of dedication vest either the public or private persons with any interest therein which would prevent its use for any legitimate purpose connected with its railroad, and that it could not be enjoined from constructing an embankment through the street for the purpose of elevating its tracks in compliance with a city ordinance. ¿</p> <p>[Ed. Note. — For other cases, see Public Lands, Gent. Dig. §§ 276-282; Dec. Dig. § 92.*]</p>

<p>1. Descent and Distribution (§ 6*) — Common Daw — Primogeniture—Conditional Fee — Fee Tail.</p> <p>Since 1819 descent to surviving children and descendants in equal parts has been substituted for the English rule of primogeniture; the descendants of a deceased child taking the child’s share in equal parts, as provided by Jones & A. Ann. St. Ill. 1913, par. 4202.</p> <p>[Ed. Noté. — For other cases, see Descent and Distribution, Cent. Dig. §§ 28-32; Dec. Dig. § 6.*)</p> <p>2. Estates Tail (§ 2*) — Conditional Fee — Fee Tail.</p> <p>The statute de donis, a part of the English law adopted by Illinois, by which a conditional fee was converted into a fee tail, has been barred since 1827 from taking effect, and what would be a fee tail under the English law has been changed into a life estate in the donee, with remainder in fee to the next taker, as provided by Jones &' A. Ann. St. Ill. 1913, par. 2237.</p> <p>[Ed. Note. — For other cases, see Estates Tail, Cent. Dig. § 2; Dec. Dig. § 2.?]</p> <p>3. Deeds (§ 129*) — Estate Conveyed — Heies.</p> <p>Where land is conveyed to A. and his heirs, or the heirs of his body, the word “heirs” is descriptive of the quality of the estate given to A., and in the absence of a’contrary definition, clearly furnished by the donor, must be construed as intending an unending line of succession by inheritance, so that, though A. has a fee simple or fee tail, his capacity to enjoy the estate, if not alienated, is coterminous with his life.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 351, 360-365, 416-430, 434, 435; Dec. Dig. § 129.*]</p> <p>4. Deeds (§ 128*) — “Heies”—Rule in Shelley’s Case.'</p> <p>In Illinois, and in the United States generally, where the surviving children as tenants in common stand for the surviving eldest son, the word “heirs” may have different meanings, just as under the English law the singular, form, “heir,” might have different meanings, but, if there is no context, the word “heirs” must be held to indicate the indefinite succession by inheritance, and the rule in Shelley’s Case applies; but a context may demónstrate that the word was used as a description of purchasers who would constitute a new stock of descent.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 413-415, 419-421, 427; Dec. Dig. § 128*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678.]</p> <p>5. Deeds (§ 133*) — “Vested Remainder” — “Contingent Remainder.’”</p> <p>A remainder is vested when throughout its existence it stands ready to take effect in possession whenever and however the preceding estate determines, and - is contingent when it is limited on an event which may happen before or after or at the time of or after the termination of the particular estate.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 368-371; Dec. Dig. § 133.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7305-7307, 7827-7829; vol. 2, pp. 1503-1506; vol. 8, p. 7615.]</p> <p>6. Deeds (§ 133*) — Vested and Contingent Remainder — Heirs oe Body— Children.</p> <p>A deed conveyed property to H. and to S., his wife, during their natural life and the life of the survivor, and at the time of the death of the survivor to the heirs of the body of S., their heirs and assigns. Held, that the remainder given to the heirs of the body of S. was not vested, because it did not stand ready throughout its existence to take effect in possession whenever and however the preceding estate determined. The words “heirs of the body,” being intended to have their ordinary legal meaning, were not synonymous with “children”; and since the remainder to such heirs was contingent, an execution sale of the property under a judgment against them during the continuance of the life estate passed no title.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 368-371; Dec. Dig. § 133,*]</p> <p>7. Constitutional Law (§ 93*) — Vested Eights — Estate Conveyed — Subsequent Legislation — Rules of Decision.</p> <p>Where a deed, at the time it was executed, conferred on the bqirs of the grantees a contingent remainder in fee simple under the law then in force, the right could not be impaired or destroyed by subsequent legislation or subsequent decisions.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 176, 177, 181-185, 190-192, 194-200, 208, 213-224,' 236; Dee. Dig. § 93.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge.</p> <p>Petition by the Aluminum Castings Company against George Sona and another for violating a restraining order, etc., issued as the result, of a strike. There was a judgment finding defendants guilty and imposing punishment of imprisonment upon them, and they bring error.</p>

McCall, Judge. Action at law by C. L,. Smith, administrator of the estate of W. E. Smith, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the North-ern District of Ohio; William L. Day, Judge.</p> <p>Action by Clarence J. Cole against the Pennsylvania Company. Judgment for plaintiff, and defendant brings error.</p>

Killits, Judge. Action by Emma Niebel, administratrix of Charles N. Niebel, deceased, against the New York, Chicago & St. Louis Railroad Company. Judgment for plaintiff, and defendant brings error. The deceased, Niebel, was rear brakeman and flagman on» a freight train going east, on the night of November IS, 1911. Gulick was engineer of a freight following 10 minutes behind.

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Bill by L. L. Daugherty and another, partners, trading as Daugherty, McKey & Co., and others, against the E. D. George Lumber Company, Incorporated. From a decree directing that the assets of the defendant Lumber Company were liable for the debts of the Harding-Einley Company, pursuant to illegal consolidation proceedings, defendant appeals.</p>

<p>1. Master and Servant (§ ISO*) — Injuries to Servant — Duty oe Foremen.</p> <p>A foreman, having charge of and controlling workmen, is presumed to observe the presence or absence of proper safety appliances and to know the danger of working at rapidly revolving machinery without such appliances, and it is his duty to warn those working under his direction and control of dangers not obvious to them.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. § 150.*]</p> <p>2. Master and Servant (§ 258*) — Injuries to Servant — Negligence oe Master and Foreman — Joint Tort.</p> <p>In an action for injuries to an employe while operating a barking machine, the complaint alleged that plaintiff, an employe of defendant corporation, while “in charge of” and “working under the directions” of defendant’s foremen, owing to the negligence of defendant corporation and the foremen in failing to provide plaintiff with a reasonably safe place to work and reasonably safe and suitable machines, and in failing to give plaintiff proper warning and instruction as to the dangers, etc., while operating a machine not provided with a belt shifter, was injured, etc. Held, that the complaint alleged joint negligence on the part of the defendants, corporation, and the foremen.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]</p> <p>3. Master and Servant (§ 189*) — Injuries to Servant — Fellow Servant or Vice Principal.</p> <p>Whether one in charge of other servants is a fellow servant or vice principal depends on whether those acting under his orders have just reason to believe that neglect or disobedience of orders will be followed by dismissal.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.*</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>4. Removal oe 'Causes (§ 36*) — Diverse Citizenship — Joinder op Depend-ants — Fraudulent Joinder.</p> <p>Where, in an action otherwise removable for diversity of citizenship, a resident defendant is joined with a nonresident, the joinder, though fair on its face, may be shown by a petition for removal to be a fraudulent device to prevent a removal, but the showing must consist of a statement of facts rightly engendering such conclusion; a mere traverse of the allegations on which the liability of the resident defendant is rested, or to apply the epithet “fraudulent” to the joinder, being insufficient.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*]</p> <p>5. Removal op Causes (§ 47*) — Resident Dependants — Joinder—Bad FaitÍh.</p> <p>Where a complaint, ■ in a cause otherwise removable joins resident defendants, a statement-of a cause of action against the defendants jointly • is conclusive against the nonresident defendant’s right to remove the cause as against a petition to remove containing no statement of facts from which the court can draw a conclusion that the joinder is not only in bad faith but without right.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 92; Dec. Dig. § 47.*</p> <p>Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago & E. R. Co., 78 C. C. A. 362.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p> <p>Action by William E. Neal against W. C. McBride and the Silurian Oil Company. Judgment for plaintiff, and defendants bring error.</p>

Van Valkenburgh, Judge. James P. Wiggains was convicted of having in his possession an obligation or other security after the similitude of an obligation or other security issued under the authority of the United States with intent to sell or otherwise use the same,, and he brings error.

<p>In Error to the District Court of the United States for the Western District of Wisconsin; Arthur U. Sanborn, Judge.</p> <p>Action by William Storey against Carroll L. Storey. Judgment for plaintiff, and defendant brings error.-</p>

<p>Habeas Corpus (§ 111*) — Detention and Exclusion op Immigrants — Proceedings and Review — Discharge.</p> <p>Questions of fact as to the admissibility of an alien immigrant under Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898, as amended by Act March 26, 1910, c. 128, § 1, 36 Stat. 263 (U. S. Comp. St. Supp. 1911, p. 500), are to be determined by the immigration officers and not by the courts, and, when a court in habeas corpus proceedings has found that the petitioner has been ordered excluded without having been given a fair hearing on such a question, while it cannot reverse the decision and remand the case, it may and should make its order of discharge conditional, to become effective only in case the examining board fails to give the petitioner another and a fair hearing on competent evidence within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 100; Dee. Dig. § 111.*]</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Granville Rogers was convicted of illegally selling liquor to an Indian, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>This cause comes here upon appeal from an order of the District Court, Western District of New York, granting preliminary injunction. The suit is on two patents for improvements in bifocal lenses, No. 637,444, granted November 21, 1899, to John L. Borsch, and the other, No. 876,933, granted January 2l, 1908, to John D. Borsch, Jr.</p> <p>The following is the opinion of the District Court by</p> <p>HAZEL, District Judge. This action was brought tor infringement of letters patent, No. 637,444, granted to John L. Borsch, Sr., November 21, 1S99, and No. 876,933, granted to the complainant as assignee of John L. Borsch, Jr., both owned by the complainant and relating to improvements in bifocal lenses. In the Borsch, Sr., patent the bifocal lens was formed of two pieces of glass of dissimilar indices of refraction and of different size, the smaller being mounted in a recessed portion of the larger and, exposed upon one side thereof. In the Borsch, Jr., patent two lenses of different indices of refraction were united, the smaller to the larger, by welding or fusing to make an integral lens. The complainant claims that in this respect its lenses are constructed upon a new principle differing from that of prior structures with the result that the bifocals, though of different indices of refraction, are made integral, which imparts to them a smoothness of surface and desired invisibility of jointure.</p> <p>The defenses are invalidity, prior use, and noninfringement. But none of .such defenses is thought supported with such persuasiveness and cogency as to deter the granting of a preliminary injunction. It appears that both patents in suit were adjudicated and sustained after careful consideration by Judge Van Valkenburgh in the Western District of Missouri after a full and fair hearing at which a la:rge number of prior patents claimed to anticipate and limit the claims in suit were examined and differentiated, and the invention adjudged to be novel and useful, and the claims valid. Kryptok Oo. v. Stead Lens Oo. (D. O.) 207 Fed. 85. Such adjudication concededly carries with it a presumption in favor of the patents which must be overcome by satisfactory evidence. To this end reliance is principally placed upon the contention that the single claim of patent No. 637,444, if held valid, should have only a narrow construction. But this contention was before the court in the prior litigation, as indeed were all the prior patents and publications to which the defendants here attach importance, save the Dallmeyer patent, No. 61,812, which is claimed to be anticipatory of the Borsch, Sr., patent, but an examination of it convinces me that it has little bearing thereon. The Dallmeyer lenses are for use in photography, and are formed of two lenses of crown or plate glass with a flint glass lens cemented between them. Patents similar to the Dallmeyer patent were discussed by Judge Van Valken-burgh in his opinion, and further discussion in relation thereto is unnecessary. It would appear from Dr. Thompson’s address before the American Ophthal-mological Society that disclosure of the Borsch, Sr., patent was made anterior to the date of the application for patent, but as specific allusion was made in the address to the patentee as the inventor of the lens, it might perhaps aptly be claimed that such allusion supports complainant’s claim that Borsch, Sr., made his invention in suit some time before Dr. Thompson’s address, and that the patent may be antedated.</p> <p>The defense to the Borsch, Jr., patent is that, in view of the disclosures of the prior art, i. e., the patents to Kokocinski, Lazarus, and Newton, there was a lack of invention in fusing two pieces of glass together, but this question was also fully considered in the prior litigation, and nothing said in argument is conducive to additional consideration of such defenses at this time.</p> <p>It is also claimed that both inventions were in use prior to the patents in suit, and affidavits have been read in support of such claim, but as there has been no opportunity to cross-examine the affiants, such affidavits are- entitled to little weight on this motion.</p> <p>Infringement is shown prima facie by the fact that the defendants manufacture from lens blanks and sell bifocal lenses formed of two pieces of glass, the major portion recessed to receive the smaller portion, and secured together by fusing or grinding to produce an integral lens; each piece of glass or lens, according to the proofs, having different indices of refraction, and the exposure of the small-sized lens being identical with complainant’s as specified in claim 1 of patent No. 6,37,444, and also responding to claim 8 •of patent No. 876,933. Therefore, in view of the circumstances, and without, deeming it desirable to further discuss the various contentions, I think that a temporary injunction as prayed for ought to be granted, and a decree granting the same may be entered. So ordered. January 29, 1914;</p>

<p>1. Patents (§ 328*) — Validity and Infbingement — Machine fob'Peeling Vegetables.</p> <p>The Robinson patent, No. 809,582, for a machine for peeling vegetables, held not anticipated, valid, and infringed on a motion for preliminary injunction.</p> <p>2. Patents (§ 303*) — Suit fob Infbingement — Title of Complainant.</p> <p>In an infringement suit by an assignee, the defendant cannot raise technical objections to the title of complainant on a motion for preliminary injunction, where the validity of the assignment is not questioned by the assignor.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 496-498, 502, 503; Dec. Dig. § 303.*]</p>

<p>1. Monopolies (§ 12*) — Anti-Trust Act — Construction—Combination in RESTRAINT OE TRADE.</p> <p>A combination may be one in restraint of interstate trade and commerce, or to monopolize a part of such trade and commerce, in violation of Sherman Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St 1901, p. 3200), although such restraint or monopoly may not have been attempted to any harmful extent, but is potential only.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>2. Monopolies (§ 12*) — Restraint oe Tbade — Combination.</p> <p>The elimination of competition between competing concerns, if illegal, is equally so, whether effected by an agreement or by a consolidation.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>3. Monopolies (§ 12*) — Combinations in'“Restraint of Trade.”</p> <p>Suppression of competition by means of a combination, where the parties to it control a large portion of the interstate or foreign commerce in the article, and .where there is no obligation to form the combination arising out of the fact that they are losing money or the like, is an undue “restraint of trade.”</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6185, 6186.]</p> <p>4. Monopolies (§ 14*) — Combination in Restraint of Interstate Commerce.</p> <p>Defendant International Harvester Company was a consolidation of five harvester companies, which together produced from 80 to 85 per cent, of all the harvesting machinery sold in the United States. Some or all of them were prosperous, and there had previously been keen competition between them. One of the combining companies, of which defendant owned all the stock, was changed in name and made the sole selling agent for all of the products of the several plants. Defendant was not overcapitalized, and its methods of doing business were in general fair to competitors. It purchased all of the stock of another large harvester company, but permitted it to continue to do business and to advertise as an independent and competing concern. Held, that defendant was organized to eliminate competition between the combining companies, and was from the beginning a combination in restraint of interstate commerce, and to monopolize such commerce in harvesting machinery, and illegal, as in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Sfote. — For other cases, see Monopolies, Cent. Dig. § 11; Dec. Dig. § 14.*]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

In Bankruptcy. In the matter of John Martin, bankrupt. Held: and as affected by the several' judgments of the district court of McCulloch county, the business formerly owned by the bankrupt was conducted by trustees for the benefit of his creditors continuously from the 18th day of December, 1911, until the doors were closed in contemplation of the filing of the bankrupt’s petition herein.…

<p>1. Judgment (§ 460*) — Vacation—Equity Jurisdiction — Fraud—Accident —Mistake—Laches.</p> <p>Though equity has jurisdiction to vacate a judgment obtained through fraud, accident, or mistake, the defendant in the law action seeking such relief must show, on the face of his bill, that he had a good defense on the merits to the law action, which he was prevented from availing himself of by fraud, accident, or mistake, unmixed with negligence of himself or his agents, and that he was not guilty of laches.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.*]</p> <p>2. Judgment (§ 460*) — Vacation—Equity Suit — Merits.</p> <p>Where a bill to set aside a judgment alleged that the same was recovered by virtue of an improper stipulation entered into by complainant’s former attorney without authority, but did not show that complainant had a good defense on the'merits to the claim on which the judgment was recovered, it was fatally defective.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.*]</p> <p>8. Judgment (§,456*) — 'Vacation—Equity Jukisdiction — Laches.</p> <p>On March 4, 1908. defendant railroad company instituted an action at law against P. county to recover $16,686.61 for alleged excessive taxes paid under protest. The case was tried on September 9, 1911, and judgment recovered by the railroad company on which the county treasurer on October 15, 1912, paid an installment of $1,010.63. The tax in question was for the year 1905, and no steps were taken to set aside the judgment until September, 1913, when complainant sued in equity for the vacation' of the judgment. The amended bill showed that complainant had knowledge of the judgment as early as April or May, 1912. Held, that complainant was barred from equitable relief by laches.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dee. Dig. § 456.*]</p>

<p>Patents (§ 90*) — Pbiokity oe Invention — FoReign Patents.</p> <p>Where two joint domestic inventors filed an application for a patent while an application for -the same invention by a foreign inventor was pending, and a patent issued first to the foreign inventor, upon proof of the publication in the United States of a foreign patent on the invention to the foreign inventor before the date of filing of the application of the joint domestic inventors, held, that the invention by the foreign inventor antedates the patent to the domestic inventors.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 113-120; Dee. Dig. § 90.*]</p>