Volume 215 — Federal Reporter

This cause comes here on appeal from a final order and decree made in the District Court of the United States for the District of Connecticut on August 5, 1913 (207 Fed. 973), adjudging that George D. Howell is not a bankrupt, and that the petition for involuntary bankruptcy against him be dismissed.

Dietrich, Judge. Action at law by O. J. Thompson against the Cceur d’Alene Dumber Company. Judgment for plaintiff, and defendant brings error. O. J. Thompson, the plaintiff in the court below, is a citizen of the state of Idaho. The Cceur d’Alene Lumber Company, the defendant in the court below, is a corporation organized and existing under and by virtue of the laws of the state of Washington.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit in equity by the Missouri & North Arkansas Railroad Company against George W._ Bellamy and others. From an order granting a preliminary injunction, defendants appeal.</p>

J. Cochran, Judge. Action by Emma Gibson, as administratrix of the estate of James Gibson, deceased, against the Chesapeake & Ohio Railway Company and others. Judgment for defendant, and plaintiff brings error.

<p>Contracts (§ 176*)—Construction—Questions for Jurv.</p> <p>A contract by wbicb plaintiff agreed to sell to defendant certain securities to be paid for Tn cash and stock of a railroad company “as soon as”' 100 miles of tbe road of sucli company should have been built by defendant and his associates held so uncertain on its face as to whether the sale itself or only the time of payment was conditioned on the building of such road as to justify the court, in an action to recover the purchase price of the securities after the building of the road had been abandoned, in submitting the question to the jury on evidence of the relations of the parties and the surrounding circumstances.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1825; Dec. Dig. § 176.*]</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>Action at law by the Pennsylvania Steel Company against the Washington & Berkeley Bridge Company. Judgment for plaintiff, and defendant error.</p>

McCall, Judge. Actions at law by Estella Huggins and Albert Huggins, her husband, and by Albert Huggins against the Memphis Street Railway Company. Judgment for plaintiffs, and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of Harry B. Plollins and others, individually and as members of the firm of H. B. Hollins & Co., bankrupts. Petition by A. Leo Everett, receiver, to revise an order establishing a lien on certain securities in favor of John L. Hogeboom.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of bankruptcy proceedings of the Scofield Company. From an order declaring the Fidelity & Deposit Company of Maryland surety for the bankrupt under a bond to the United States, solely entitled to the fund of $46,327.55, held Seymour P. Thomas as trustee, he appeals.</p>

Wright, Judge. Action by Ugo Mariotti against the Eldorado Coal & Mining Company. Judgment for plaintiff, and defendant brings error.

<p>1. Post Office (§ 22*)—Transportation of Mails—Negligence of Servants—Liability of Carrier.</p> <p>A railroad in transporting the mails is not relieved from liability for the negligence of its servants because it is performing a public function, but is liable according to its contracts for any loss due to its corporate negligence or the negligence of any of its servants.-</p> <p>[Ed. Note.—Eor other cases, see Post Office, Cent. Dig. §§ 40, 41; Dee. Dig. § 22.*]</p> <p>2. Post Office (§ 22*)—Mail Matter—Property Rights.</p> <p>The United States has a property right in the mails, and may recover from any person to whom the mails are intrusted direct damages for loss or delay due to the bailee’s negligence, which would be the labor and time necessary in the effort to recover the various parcels and the disarrangement of the post office business, and also the value of the mail lost for the benefit of the owners, unless the contract negatives such liability.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 40, 41; Dec. Dig. § 22.*]</p> <p>3. Post Office (§ 22*)—Transportation of Mails—Government Contract —Nonmailable Matter—Diamonds.</p> <p>Since a government contract with a railroad company for t]ie transportation of mails only obligates the carrier to exercise due care in the transportation of legitimate mail matter, the government may not recover for loss of diamonds, which are nonmailable, due to the carrier’s alleged negligence.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 40, 41; Dec. Dig. § 22.*]</p> <p>4. Post Office (§ 22*)—Transportation of Mails—Loss—Government’s Liability to Owner.</p> <p>The government is not responsible to the owner of mail lost in transportation.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 40, 41; Dee. Dig. § 22.*]</p> <p>5. Post Office (§ 22*)—Tbansdobtation of Mails—Liability foe Loss— Goveksment’s Remedy.</p> <p>Post Office Regulation, § 1489, relating to the duties of railroads with respect to transportation of the mails, provides that fines may be imposed at tlio discretion of the Postmaster General for each of several delinquencies, including the suffering of mail to become wet, lost, injured, or destroyed, or conveying or keeping it in a place or manner that exposes it to depredation, loss, or injury. Held, that in the absence of a provision in the government’s contract with a railroad for transporting mails that the railroad company should bo liable for damage caused by injury to or loss of mails, the remedy by line provided by such regulation constituted an exclusive "remedy.</p> <p>I Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 40, 41; Dec. Dig. § 22.* j</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, judge.</p> <p>Action by the United States of America against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by Howard M. Stonebraker against John A. Hunter, County Treasurer of Osage County, Okl., and others. From a, decree dismissing the bill, plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Wheeling; Alston G. Dayton, Judge.</p> <p>Suit in equity by George W. Caldwell and Lester Drake, partners as Caldwell & Drake, against Henry Schmulbach. Decree for complainants, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Action by Robert J. Hill against Walter Forster and another, doing business as Forster, Hauser & Co. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by George S. Shultz against James A. Whitcomb. Judgment for plaintiff, and defendant brings error.</p>

<p>Negligence (§ 25*)—Dangerous Premises—Reasonable Care.</p> <p>Plaintiff, while walking down a main railroad track to the place where passenger trains stopped, intending to board such a train as a passenger, reached a point where she would have to walk past a coal tipple discharging- coal through a chute into ears below, and met one of defendant’s foremen, of whom she inquired if it was safe for her to pass the tipple, to which he replied in the affirmative. She passed on, walking along the ties on the outer edge of the main track, and was injured by a lump of coal that bounded over from the railroad car then being loaded, which struck her on the limb. The distance between the main line railroad track and the side track on which the car was being loaded was 18 feet from center to center. Held, that reasonable care did not require defendant to build a guard fence or wall between the tracks, nor to stop loading the car while plaintiff was passing the tipple, and that the proximate cause of the injury was pure accident, and not the result of actionable negligence.</p> <p>[Ed. Note.—For other eases, see Negligence, Cent. Dig. §§ 35-38; Dec. Dig. § 25.*]</p>

<p>1. Brokers (§ 85*)—Actions eor Compensation—Evidence—Reasonable Value op Services.</p> <p>In an action for compensation for negotiating a sale of a pump for installation in a building, where the existence of some contract was adjudicated and where there was no evidence tending to show any contract other than that claimed by plaintiff, by which he was to receive the difference between the price quoted to him by defendant and the selling price, evidence as to the reasonable value of his services was not pertinent, and was properly excluded.</p> <p>[Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 106-115; Dee. Dig. § 85.*]</p> <p>2. Judgment (§ 622*)—Conclusiveness—Matters Concluded.</p> <p>A judgment of the New York Municipal Court, allowing so much of a counterclaim as was within the jurisdiction of that court, was conclusive, in a subsequent action for the balance of the counterclaim, that the person making the contract upon which the counterclaim was based had authority to do so, that it was a binding contract, and that the refusal of the plaintiff in the municipal court action to perform the contract was unjustified and amounted to a breach.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1136; Dec. Dig. § 622.*]</p>

<p>Municipal Corporations (§ 352*)—Public Improvements—Contract-* ■ Breach—Remedy.</p> <p>Where a contract for the construction of a municipal sewer provided that a failure on the contractor’s part to comply with any of the conditions should he deemed a breach of the contract, and authorized the city’s board of public works to declare the contract terminated whether any alternative right was provided or not, declaring how the contract might be terminated, and that on such termination the contractor should forfeit the sums due him under the contract and he and his sureties should be liable for all damages caused to the city by reason of his failure to perform such provisions, did not make a termination of the contract the city’s exclusive remedy for the contractor’s breach, nor did it affect a further provision that the contractor without the consent of the board of public works should not be entitled, either legally or equitably, to assign any of the moneys payable under the contract or his claim thereto.</p> <p>[Ed. Note.-—For other cases, see Municipal Corporations, Cent. Dig. § 883; Dec. Dig. § 332.*]</p>

<p>Bankruptcy (§ 140*)—Personal Property—Bankers’ Title—Advances to Pay fob Goods—Delivery on Trust Receipt. . ,</p> <p>Where a banker’s agent, in accordance with custom, furnished credit to importers to purchase silk, taking title in the name of the banker, and after importation the silk, through intermediate transfers, on consignment came to a bankrupt, a corporation engaged in manufacturing silk ribbons, the bankrupt never having paid the consignor, and the banker’s advances never having been paid, and it never having transferred its title, the paramount title still remained in it, and it was entitled to recover the silk from the bankrupt’s trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent Dig. §§ 198, 199, 219, 225; Dec. Dig. § 140.*] '</p>

Gn writ of error to the District Court of the United States for thé Eastern District of New York to review a judgment for costs in favor of the defendant, entered upon the verdict of a jury which found the defendant free from negligence in causing the injuries received by the plaintiff while riding upon a freight elevator on the premises of the defendant.

In the matter of bankruptcy proceedings of Halstead' & Co. From an order reversing a referee’s order, allowing in part the claim of James E. Ware & Son (204 Fed. 115), they appeal.

<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 of the United States for the Southern District of New York holding the tug Tittle in_ fault for damages sustained by the libelant’s boat No. 23, while being towed from Elizabethport, N. J., to Ninety-Sixth street, East River. The damages were fixed at $1,01 T</p>

ew York confirming a report of the special master allowing the claim of the United Surety Company against the receivers of the Elmore & Hamilton Contracting Company for $1,876.32 for premiums which the contracting company agreed to pay the surety company in consideration of its agreement to guarantee the bond which the construction company gave to the state of New York.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against Abraham Glickstein. Judgment of conviction, and defendant brings error.</p>

<p>Railroads (§ 376*)—Persons on Track—Discovery—Duty to Stop Train.</p> <p>Where decedent was discovered on the track by defendant’s brakeman on the approaching train at the full distance ahead for which physical objects permitted a view of the track, and every possible means to stop the train was not immediately taken as required by Shannon’s Code, Tenn. §§ 1574-1576, and decedent was struck and killed, the railroad company was liable.</p> <p>[Ed. Note.—For other eases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376*</p> <p>Care required of railroads as to trespassers on or near tracks, see note to Louisville & N. R. Co. v. Womack, 97 C. C. A. 566.]</p>

Appeals from the District Court of the United States for the Southern District of New York. ' Suits in admiralty by the Thames Towboat Company against the scow Louisa for salvage services, and by James F. McGuire, owner of the Louisa, against the Thames Towboat Company for negligent stranding of the scow. Decree for the Towboat Company, and McGuire appeals.

<p>1. Carriers (§ 27*)—Interstate Commerce—Freight Charges—Regulation —“Transportation. ’ ’</p> <p>The Interstate Commerce Act (Feb. 4, 1887, c. 104, 24 Stat. 879 (U. S. Comp. St. 1901, p. 3154) having defined transportation to include all services in connection with refrigeration or ic-ing of property transported, an interstate carrier, by holding itself out voluntarily to ice car load shipments, brought itself within the supervisory and regulatory provisions of the act with respect to the reasonableness, certainty, and publicity of rates charged for icing services, arid hence was not entitled to recover the value of such services on an express or implied contract, independent of rates made, published, and filed.</p> <p>[Ed. Note.—For other eases, see Carriers, Cent. Dig. §§ 73, 74, 94; Dec. Dig. § 27.*</p> <p>Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & G. R. Co., 61 C. C. A. 414.</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7075, 7076.J</p> <p>2. Carriers (§ 30*)—Rates—Icing Charges.</p> <p>An interstate carrier published and filed with the Interstate Commerce Commission a tariff sheet, covering icing charges, providing that the carrier, when requested, would furnish refrigeration, charging therefor the “actual cost including labor, but not less than $2.50 per ton of 2000 lbs.” Held, though the provision for charging the actual cost was void for uncertainty, such invalidity did not invalidate the balance of the rate, and hence the carrier was entitled to charge $2.50 per short ton.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. i 30.*]</p>

<p>1. Aliens (§ 32*)—Deportation of Chinese—Appeal—Dismissal—Defects in Record.</p> <p>Where an appeal by a Chinese person from an order of deportation was allowed and perfected, and the record filed contained the orders and decree of the district court, an appeal would not be dismissed, though there was no bill of exceptions or certificate of the evidence, and the only ground of reversal urged was that the district judge erred in affirming the commissioner’s order of deportation.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 32*)—-Deportation of Chinese—Appeal—Record—Certificate of Evidence.</p> <p>On an appeal in a proceeding to deport a Chinese person, the evidence should be brought up by a certificate of evidence under equity rule 75 (198 Fed. xl, 115 C. C. A. xl) rather than by a common-law bill of exceptions.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p> <p>3. Aliens (§ 32*)—Deportation of Chinese—Appeal—Record—Questions— Denial.</p> <p>On appeal in a deportation proceeding, a motion for leave to bring up a duly authenticated certificate of the evidence long after the term at which the trial was had has ended will be denied, where there is no showing that a certificate of evidence authenticated by the judge will afford any stronger basis for attacking the order of deportation than is contained in the commissioner’s certificate which indicates that the order was properly made.</p> <p>[Ed. Note.—Eor other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p>

<p>Bankruptcy (§ 414*)—Discharge—Grounds fob Refusax —Giving False Testimony.</p> <p>An order denying discharge to a bankrupt on the ground that he intentionally refused to answer material questions on his examination held sustained by the evidence,</p> <p>[Ed. Note.—For "other cases, seo Bankruptcy, Cent Dig. §§ 720-722; Dec. Dig. § 414.*]</p>

<p>1. Libel and Slandeb (§ 82*)—Reference to Plaintiff—Pleading.</p> <p>Where an alleged libelous letter did not name plaintiff as the person intended to be libeled, a declaration, failing to charge that the recipient of the letter, or any other third person, understood the libelous matter to refer to plaintiff, was demurrable; it being insufficient to charge merely that defendant wrote and published the letter of and concerning plaintiff.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent Dig. §§ 187-197; Dec. Dig. § 82. *J</p> <p>2. Libel and Slandeb (§ 21*)—Elements of Injuby—Injuby to Reputation.</p> <p>Since the gist of an action for libel is not injury to plaintiff’s feelings, but damage to his reputation, it is insufficient to constitute a libel that plaintiff knew that he was the subject of the article, or that defendants know of whom they were writing, but it must appear on the face of the declaration that persons other than these must have reasonably understood that the article was written of and concerning plaintiff, and that the so-called libelous expressions referred to him.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 103; Dec. Dig. § 21.*]</p>

Appeals from the District Court of the United States for the District of Arizona; Richard E. Sloan, Judge. Suits in equity by the Mine & Smelter Supply Company against the Detroit Copper Mining Company of Arizona and the Arizona Copper Company. Decrees for complainant, and defendants appeal.

<p>Patents (§ 808*)—Suit fob Infringement—Preliminary Injunctions.</p> <p>Orders granting a preliminary injunction against infringement of the Eessenden patent, No. 918,306, for a method of wireless signaling, and subsequently modifying the same by suspending the injunction so far as related to transactions with the United States and private stations installed by defendant, on the giving of bonds by defendant, held, within the discretion of the court.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 504-506; Dec. Dig. § 308.*]</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohlsaat, Judge. .</p> <p>Suit in equity by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against the Diamond Rubber Company. Decree for defendant, and complainants appeal.</p> <p>Complainants-appellants on August 21, 1908, filed their bill of complaint in the usual form, charging defendant-appellee with infringement of patent No. 554675, issued to Arthur W. Grant, February 18, 1896, for improvements in rubber tire wheels. At the close of the prima facie case, and on the motion of the defendant-appellee, the trial judge entered an order dismissing the bill for want of equity. The propriety of that action is questioned by this appeal.</p>

District of New York. On appeal from a decree of the District Court for the Northern District of New York (205 Fed. 906) dismissing the bill of complaint with costs, in an action for infringement based upon letters patent No. 692,277 granted to Wilber P. Hall, February 4, 1902, for an incubator. The patent contains a single claim which sufficiently describes the invention for the purposes of this appeal.

<p>Appeal from.the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit in equity by Geiger, Fiske & Koop, copartners doing business under the trade-name of the Louisville Drying Machinery Company, against the Grupe Drier & Boiler Company. From an order granting a preliminary, injunction, defendant appeals.</p>

<p>In Equity. Suit by the Hassam Paving Company and the Oregon Hassam Paving Company against the Consolidated Contract Company and the Pacific Coast Casualty Company. On final hearing.</p>

<p>In Equity. Suit by the Neva-Slip Shirt Waist Grip Company, Incorporated, against the Marcon Manufacturing Company, Incorporated. On final hearing.</p>

<p>Patents (§ 328*)—Invention—D-ie for Cutting Leather.</p> <p>The Gimson patent, No. 709,008, for a die for cutting out leather, held void for lach of patentable invention, in view of the prior art.</p>

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

<p>Shipping (§ 84*)—Liability foe Injury to Stevedore—Defective Equipment. »</p> <p>Libelant, when going down into the hold of a coal barge in the performance of his duty as timekeeper of stevedores engaged in discharging, fell and was injured by reason of the breaking of a rung of the stanchion ladder, which was a part of the permanent equipment of the vessel. While portable ladders were furnished by the barge, there was evidence that stevedores customarily used the stanchion ladders with the knowledge of the master. The rungs of such ladder had not been recently inspected, and some of them were broken off, and there was evidence tending to show that the one which was seized by libelant was bent and broke at an old fracture. Held, that under the circumstances it was the duty of the barge to keep the ladder in reasonable repair, and that it was liable for the injury.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dee. Dig. § 84.*]</p>

<p>In Bankruptcy. In the matter of John O’Brien, Jr., bankrupt. On petition of the TEolian Company for the reclamation of certain erty.</p>

<p>1. Removal of Causes (§ 84*)—Notice—Sufficiency.</p> <p>A notice of intent to file a removal petition served March 28, 1914, and stating that such petition and bond would be filed “on or before” April 2, 1914, was not fatally defective on the ground that the date of filing was uncertain.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 164; Dec. Dig. § 84.*]</p> <p>2. Removal of Causes (§ 89*)—Removal Proceedings—Petition and Bond —Sufficiency—Determination by State Court.</p> <p>Since defendant is entitled to file a petition and bond for removal of a cause regardless of any objection that plaintiff might interpose in the state court and the failure of that court to order removal will not prevent the federal court from acquiring jurisdiction, whether the petition and bond comply with tbe removal act is not for the final determination of the state court.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. § 89.*]</p> <p>3. Removal of Causes (§ 84*)—Removal Proceedings—Notice.</p> <p>While the requirement of Jud. Code, § 29 (Act March 3, 1911, c. 231, 36 Stat. 1095 [U. S. Comp. St. Supp. 1911, p. 142]), for the service of notice of intent to file a removal petition and bond is mandatory and jurisdictional in a limited sense, such requirement does not change the respective powers of the state and federal courts with reference to jurisdiction to ultimately determine the validity of removal proceedings.</p> <p>[Ed. Note.—For other eases, see Removal of Causes, Cent. Dig. § 164; Dec. Dig. § 84.*]</p> <p>4. Removal of Causes (§ 102*)—Proceedings—Attack.</p> <p>The sufficiency of removal proceedings may be attacked in the federal court on any ground available in tbe state court.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 218-220, 223, 224; Dec. Dig. § 102.*]</p> <p>5. Removal of Causes (§ 103*) — Removal Proceedings — Irregularities — Remand.</p> <p>Where a cause has been removed and is removable under the removal act, it will not be remanded for irregularities which can be remedied and which have worked no injury to the adverse party.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 221; Dec. Dig. § 103.*]</p>

In Bankruptcy. In the matter of Frank Balsier, bankrupt. On review of order of referee disallowing claim of the Pittsburgh Provision & Packing Company for preference. The money payable as the proceeds of a policy of insurance taken out by the bankrupt prior to bankruptcy for his own benefit does not arise from real estate, but from a personal contract, and, upon distribution, will be awarded to the trustee in bankruptcy, and not to the judgment creditor of the bankrupt.

Criminal prosecution by the United States against Adolph E. Wupperman, Max M. Hart, Andrew S. Work, and Frank W. Fowler. On demurrer to indictment.

In Equity. Suits by the Mutual Film Company and by the Mutual Film Corporation against the Industrial Commission of Ohio and Wallace D. Yaple, Matthew B. Hammond, and Thomas J. Duffy, as members of such commission, and the Board of Censors of Moving Picture Films of the State of Ohio, and J. W. Maddox, H. E. Vestal, and Maude Murray Miller, as members of such board. On motion for preliminary injunction.

In Admiralty. Suit by the C. F. Harms Company against the steam tugs Senator Rice and Luzerne, and cross-suit by the Lehigh Valley Transportation Company, owner of the Luzerne, against the Senator Rice.

In Bankruptcy. In the matter of the bankruptcy of Halsey W. Kelley & Co., Incorporated. On review of the evidence, finding, and order of the referee on the claim of John B. Kennedy, certified to the judge on exceptions and petition of the trustee. Exceptions overruled, and allowance by the referee of the claim of John B. Kennedy confirmed.

In Admiralty. Suit for collision by the owners of the steam tug. J. S. W. Holton against the steamboat City of Chester, the Wilmington Steamboat Company, claimant, with cross-libel, and libels by Clara F. Adkins and A. Virginia Lynch, respectively, against the Wilmington Steamboat Company, for death of members of crew of the Holton. Decree in favor of each vessel against the other for half damages, and for each libelant against the steamboat company in the suits in personam.

<p>In Equity. Suit by James Bayley, Marcus L. Bayley, Emery S. Bayley, Lizzie Lynn, Ida Bayley, and Hazel Bayley, by H. B. Beckett, her guardian ad litem, against M. M. Davis and Mary B. Davis, his wife, C. M. McKellips and Alice H. McKellips, his wife, Mary Case, A. D. Shollenberg and Lizzie Shollenberg, his wife, H. D. Blakely and Effie A. Blakely, his wife, E. M. Hurd and Ruby A. Hurd, his wife, William N. Borden and Eleanor Borden, his wife, Thomas Leese and Emma Leese, his wife, Theresa Roper, S. E. Paddock and Jane Doe Paddock, his wife, P'loyd Bilycu and Hazel Bilyeu, his wife, W. I. Watson and Charlotte E. Watson, his wife, J. L. Rickman, L. C. Smith, Don V. Walker and Mabel D. -Walker, his wife, E. E. Wilson, Alwilda Shonkwiler, Ray C. Oliver, T. H. Hallcck and Daisy E. Halleck, his wife, A. H. Hampton and Agnes S. Hampton, his wife, Carl Tamm, Isabel Yaeger, F. H. McDonald and Carrie iVIcDonakl, his wife, Prank Priest and Hattie L. Priest, his wife, and the City of Newport. On motion to dismiss bill.</p>

In Equity. Suit by Charles Weegham and another, copartners doing business under the name of the Chicago Federal League Baseball Club, against William Killefer, jr., and the Philadelphia National League Club. On motion for a preliminary injunction.

Habeas corpus by Keisuki Sata and others to obtain discharge from custody under a deportation warrant. Writ granted, and petitioners discharged.

<p>Aliens (§ 68*)—Natubalization—Witnesses—Nonposted Witness.</p> <p>Naturalization Act (Act June 29, 1906, c. 3592, 34 Stat. 596 [U. S. Comp. St Supp. 1911, p. 5291) § 4, par. 2, provides that the petition shall be verified by two credible witnesses and paragraph 4 declares that it shall be made to appear to the satisfaction of the court that the alien has resided, etc., and, in addition to the applicant’s oath, the testimony of at least two witnesses, citizens <3£ the United States, shall be given as to the facts, and the name, place of residence, and occupation of each witness entered on the record. Section 5 provides for the filing and posting of notice containing the names of the witnesses whom the applicant expects to summon in his behalf, and that the clerk, if the applicant requests it, shall issue a subpoena for the witnesses so named to appear on the day set for the final hearing; but, in case the witnesses cannot be produced on the final hearing, other witnesses may be summoned. Section 6 declares that final action on the petition shall be had only on stated days and not until at least 90 days have elapsed for filing and posting the notice, and section 9, that on the final hearing the applicant and witnesses shall be examined under oath. By section 11 the United States is authorized to appear and cross-examine the petitioner and the witnesses produced in support of his petition and to produce evidence and be heard in opposition to the granting of the petition. Held, that where one of the witnesses whose name was posted in support of the petition had returned to Italy at the time of the hearing, and' therefore could not be produced and sworn and could not be obtained after a reasonable adjournment, the petitioner was entitled to support his petition by the testimony of other witnesses.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p>

<p>1. Fraudulent Conveyances (§ 105*)—Husband and Wife—Purchase by Husband—Title in Wife’s Name.</p> <p>A husband, may not lawfully purchase property and place the.title in the name of his \yii’e, and then prevent lienors or judgment creditors of the wife from treating the property as hers in case she reconveys to him without consideration, she having used the property as her own in creating incumbrances, as provided by Real Property Law, N. Y. (Consol. Laws, c. 50) § 262, nor can the wife successfully transfer the property in equity belonging to her husband in order to prevent her creditors from collecting their debts, incurred through their reliance on her ownership, as provided by section 268.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. § 315; Dec. Dig. § 105.*]</p> <p>2. Trusts (§ 81*)—Property Purchased by Husband—Conveyance to Wife —Accounting.</p> <p>Where a husband purchases property with his own funds and has the title conveyed to Ms wife, equity as between the parties may compel her to account to Mm for the proceeds.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 115-118; Dec. Dig. § 81.*]</p> <p>3. Fraudulent Conveyances (§ 44*)—Conveyance by Wife to Husband-Rights of Creditors.</p> <p>Where a husband, having purchased certain real property with his own funds, caused the title to be conveyed to his wife, and she reconveyed to him through a third person at a time when there was no creditor having a lien of any sort on the property, the conveyance was not voidable at the instance of her creditors, unless she had held herself out as the owner of the property, and made representations of ownership which would have made a transfer by her fraudulent.</p> <p>[Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 102-104; Dec. Dig. § 44.*]</p> <p>4. Principal and Agent (§ 156*)—Representations of Agent—Authority.</p> <p>Where a husband purchased certain real property, taking the title in the name of his wife, she was not bound by representations made by her brother, who was her agent to discount certain notes at a bank on which she was an indorser, that she was the owner of the property, in the absence of proof that the brother was authorized to make any representations, or that Iho bank had any right to rely thereon.</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. § 156.*]</p> <p>5. Bankruptcy (§ 175*)—Transfer by Bankrupt to Corporation—Rights op Creditors.</p> <p>Where persons who subsequently became stockholders of a corporation placed certain real property in the hands of a bankrupt and made it possible for her to deal with it as her own, and after money had been loaned to her,on the faith of her ownership such stockholders, through the use of the bankrupt as a dummy holder of title, procured a transfer of the property to the corporation for their own benefit, such transfer was fraudulent and subject to vacation at the instance of the bankrupt’s trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. § 175.*]</p>

<p>In Admiralty. Suit by David S. Stetson against the Insurance Company of North America.</p>

<p>Bankruptcy (§ 184*)—Mortgage on Merchandise—Fraud—Rights of Creditors.</p> <p>Where a bankrupt executed a chattel mortgage on a stock of merchandise to secure payment of a part of the purchase price to the seller, and there was no delivery of possession to the mortgagee, and the mortgage expressly gave permission to the mortgagor to sell the mortgaged property, but the mortgage contained nothing requiring the bankrupt to apply the proceeds of sales from the stock to the payment of the mortgage debt or to the purchase of new stock to replenish or increase the mortgaged goods, the mortgage was fraudulent as to the mortgagor’s creditors and unenforceable in favor of the mortgagee against the mortgagor’s trustee in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 275-277: Dec. Dig. § 184.*]</p>

In the matter of proceedings for the arbitration of controversies between the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive P'iremen and Enginemen and the Georgia & Florida Railway, under Arbitration Act July 15, 1913, superseding the Erdman Act. On exceptions to the Board of Arbitrators.

<p>At Law. Action by Joseph Penoza and another against the Northern Pacific Railway Company. On motion to strike an allegation of mental suffering, pain, and anguish from plaintiff’s amended complaint.</p>

<p>In Equity. Suit by Margarete Steiff, Incorporated, against John Bing.</p>

<p>At Eaw. Action by the, United States, against the D’Olier Engineering Company. On demurrer to plaintiff’s statement of claim.</p>

In Equity. Suit by the United States against the Cain-Bonness Lumber & Timber Company and others. Billy Tom (Sewalmus), an Indian of the Nooksaek Tribe, on October 31, 1889, filed a homestead application under section 2289, U. S. Rev. St. (U. S. Comp. St. 1901, p. 1388), for the land in issue, upon which he then was and for a long time prior thereto had been residing.

<p>1. Corporations (§ 210*)—Stockholders—Right to Sue—Parties.</p> <p>Where a stockholder sues to recover damages to his property, whether it consists of tangible assets or shares in the corporation the property of which if it should prove to have a surplus would be divided among its stockholders, he is not required to make the corporation holding the legal title a party, but otherwise, if his action is purely representative and he sues as a stockholder for the benefit of the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 808-813; Dec. Dig. § 210.*]</p> <p>2. Equity (§ 293*)—Pleading—Amendment—Construction.</p> <p>Where a pleading has been dismissed on a definite ground, and the party amends ór renews the pleading so as to obviate the difficulty, and the new pleading is capable of construction so as to avoid the difficulty as well as to be no different from the previous pleáding, the construction which would respect the previous decision and conform thereto must be , held to be the intended meaning.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 551, 565, 576; Dec. Dig. § 293.*]</p> <p>3. Corporations (§ 209*)—Action by or Against—Bill—Laches.</p> <p>Where complainant and his predecessor in title since 1891 had been interested in litigation to establish rights alleged in the present suit, and though complainant had never been nominally or actually a party in court, he had knowledge of the proceedings and had helped financially and by advice in their progress and brought the present suit after attempts by other parties had failed without a hearing on the merits, and it further appeared that the case could now be tried without prejudice to defendant in substantially as complete a way as if undertaken before, the bill would not be dismissed without a hearing on the merits on the ground that complainant was guilty of laches.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 806, 807; Dec. Dig. § 209.*]</p>

At Daw. Detinue by the Jeffrey Manufacturing Company against the Mound Coal Company. The plaintiff filed its declaration in the Circuit, now this court, alleging that it was entitled to recover from the defendant certain machinery and material of the value of $8,380.

<p>In Equity. Suit by Scott Calhoun and another, as receivers of the Seattle, Renton & Southern Railway Company, against the City of Seattle and another. On objection of complainant to the jurisdiction of the District Court to hear and determine the issue, unless determined by three judges under Judicial Code, § 266.</p>

<p>1. Seamen (§ 27*)—Lien foe Wages—Hakboe Tugs.</p> <p>The rule that maritime liens entitled to precedence in case of harbor tugs, making no regular voyages, will be limited to such as arose within 40 days does not apply to claims for wages which may be given priority for a reasonable time.</p> <p>[Ed. Note.—Eor other cases, see Seamen, Cent. Dig. §§ 4, 141, 157-169; Dec. Dig. § 27.*]</p> <p>2. Seamen (§ 27*)—Lien foe Wages.</p> <p>Act June 23, 1910, c. 373, 36 Stat. 604 (U. S. Comp. St. Supp. 1911, p. 1191), providing for maritime liens for repairs, supplies, etc., makes no provision for claims for wages which are entitled to preference as before its enactment.</p> <p>[Ed. Note.—For other cases, see Seamen, Cent. Dig. §§ 4, 141, 157-169; Dec. Dig. § 27.*]</p>

<p>In Admiralty. Suit for collision by Thomas J. Ploward against the Steamtug Jersey Central and the Philadelphia & Reading" Company.</p>

<p>Salvage (§ 13*)—Nature of Service—Assisting Tug with Broken Propeller.</p> <p>A tug, which went to the assistance of another tug and her tow, anchored in Buzzard’s Bay on account of a broken propeller, in fair weather, and towed them to port, held, entitled to compensation for a salvage service, but of a low order, as the disabled tug and her tow were in no immediate peril, nor was the rescuing tug exposed to any particular danger.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent Dig. §§ 16, 23-25; Dec-Dig. § 13.*]</p>

Action by the United States, for benefit of the Starr.ett-Fi'elds Company against the Massachusetts Bonding & Insurance Company and another. On motion to dismiss.

<p>In Bankruptcy. Action by Dennis B. Rucey, as trustee in bankruptcy of Roswell P. Matteson,</p>

<p>1. Bankruptcy (§ 333*)—Claims—Form—Partnership and Individual Estate.</p> <p>Where a firm and one of the partners were declared bankrupts, and a claim on a note of the firm, indorsed by the individual partner was entitled “In the matter of Greed Collins as an individual and as a member of the partnership of the Collins Company, composed,” etc., reciting that Collins was “the person” by whom the petition for adjudication was filed, and that he was indebted to the claimant, and distinctly distinguishing in its statement and description the note and the account against the firm on which it was liable alone, the claim was sufficient in form to sustain its allowance as against the individual estate of tho indorser</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 519; Dec. Dig. § 333.*]</p> <p>2. Bankruptcy (§ 389*)—Claims—Form—Estoppel.</p> <p>Where a claim on a note executed by a firm and indorsed by an individual partner was filed and allowed as against the bankrupt estates of both, and the trustee took no objection to the proof of claim as against the estate of the individual partner for four years thereafter, so that the claim could not then be amended, the trustee was estopped to contend that the claim was insufficient in form to justify its allowance against the partner’s estate.</p> <p>[Ed. Note.-—For other eases, see Bankruptcy, Cent. Dig. §§ 525, 526; Dec. Dig. § 339.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Herrin & West. Rehearing on a petition of C. H. Stewart to review a referee’s order revoking a homestead exemption, in which the court filed a brief opinion April 10, 1914.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of R. H. Elrod & Son. Application by the Arnold Grocery Company for a balance due to the bankrupts on the sale of real property mortgaged to them. From a referee’s order denying the application, applicants appeal.</p>

<p>Action by the United States, to the use and benefit of William S. Van Clief', against Ernest Merrick, conducting business in the trade-name of the Merrick Fireproofing Company, and the Maryland Casualty Company.</p>

<p>Druggists (§ 12*)—Insecticide Act—Criminal Prosecutions.</p> <p>Informations for violation of the Insecticide Act April 26, 1910, c. 191, 36 Stat. 331 (U. S. Comp. St. Supp. 1911, p. 1368), by tbe shipment in interstate commerce of misbranded insecticides, considered, and held, sufficient as against demurrers and motions to quash.</p> <p>[Ed. Note.—For other cases, see Druggists, Cent. Dig. § 11; Dec. Dig. § 12.*] .</p>

In Equity. Suit by the Cincinnati, Hamilton & Dayton Railway Company against Charles A. Orr and another, and action at law by Charles A. Orr against the Railway Company, removed from the state court. On motion to remand the latter action, and motion for temporary injunction in the former suit.

<p>United States (§ 67*)—Bond of Contkaotob fob Public Wobk—Action by Subco ntkaotob.</p> <p>In a suit by subcontractors on the bond of a contractor for public work under Act Aug. 13, 1894, e. 280, 28 Stat. 278 (Ü. S. Comp. St. 1901, p. 2523), as amended by Act Feb. 24, 1905. c. 778, 33 Stat. 811 (U. S. Comp, St. Supp. 1911, p. 1071), where due notice by publication has been given, in the absence of concealment or fraud, the plaintiff is required to send personal notice only to such creditors as are actually known to him.</p> <p>[Ed. Note.—For other eases, see United States, Cent. Dig. § 50; Dee. Dig. § 07.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of William Monroe Oakley. On review of a referee’s order sustaining a creditors’ petition for restitution of alleged exorbitant fees the bankrupt to his attorneys.

M. C. Young was indicted for using the post office establishment in, furtherance of a scheme to defraud, and demurs to the indicunent.

<p>Admiralty (§ 6*)—Jurisdiction—Suits Relating to Aeroplanes.</p> <p>A court of admiralty is without jurisdiction of a suit to establish and enforce a lien for repairs against an aeroplane, which, is not a subject oí maritime jurisdiction.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. §§ 86-98; Dec. Dig. § 6.*]</p>

<p>In Bankruptcy. In the matter of John Loughran, bankrupt. Objection to his discharge was sustained by the referee, and he brings the cause here for review.</p>

<p>Action by Wogan Bros., Incorporated, against the American Sugar Refining Company. On exception to the jurisdiction of the court.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of J. E. Bass. Application by receivers of the Rome Insurance Company to prove a claim against the bankrupt on a subscription to the stock of the corporation.</p>

In Bankruptcy. In the matter of Louis Kanter, bankrupt. On petition the trustee in bankruptcy to review an order of the referee allowing claims of Alta Kanter and another.

<p>Bankruptcy (§ 378*)—Composition—Failure—Withdrawal op Funds.</p> <p>Where a bankrupt obtained from a third person funds with which to comply with a composition, and on depositing the same obtained a stay of the bankruptcy proceedings, and the composition was thereafter withdrawn, the amount of expenses incurred during the pendency of the composition offer, which would not have been incurred if the orders of court previous to the composition had been carried out and the bankrupt’s property sold in the usual manner, were payable out of the fund so deposited.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 601: Dec. Dig. § 378.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Underwood & Daniel. Application by the M. C. Kiser Company to reclaim certain goods alleged to have been sold to the bankrupt through fraud.

In Bankruptcy. In the matter of bankruptcy proceedings of Frank Edward Grounds. On motion by the bankrupt for an order enjoining further proceedings by Katazyna Szewsky to enforce or collect a judgment obtained by her against the bankrupt for breach of promise of marriage accompanied by seduction.

<p>In Admiralty. Suit by the Tebo Yacht Basin Company against the steam yacht Priscilla. On motion S. & Co. to default.</p>

<p>In Admiralty. Suit by James J. Absley against the gasoline boat Florence.</p>

<p>In Admiralty. Suit by Bernard McKenna against the Union Steam-company.</p>

<p>At Taw. Action by David F. Deal against the Coal & Coke Railway Company. On demurrer to the declaration.</p>

<p>Bankruptcy (§ 384*)—Composition—Confirmation—Denial—False Statement of Financial Condition.</p> <p>Where a bankrupt made a careless arid indifferent statement as to his financial condition and obtained a rating by a commercial agency, which, though incorrect, was not shown to have been materially and intentionally false, and sales made to him on credit claimed to have been induced by such statement were made after a considerable lapse of time and under circumstances where inquiry of the bankrupt was possible, the statement did not constitute such a materially false statement in writing of his financial condition as would preclude the confirmation of a composition.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §s 590-592: Dec. Dig. § 384.*]</p>

<p>Courts (§ 357*)—Costs—Remand of Cause to State Court—Docket Pee.</p> <p>Under Judicial Code, § 37 (Act March 3, 1911, c. 231, 36 Slat. 1098 [U. S. Comp. St. Supp. 1911, p. 146]), providing that a federal court, on remanding a suit to the state court, shall make such order as to costs as shall be just, plaintiff, on such remand, is only entitled to tax a docket . or attorney’s fee of §10; Rev. St. § 824 (U. S. Comp. St. 1901, p. 632;, providing for the taxation of a docket fee of §20, being inapplicable.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 938; Dec. Dig. § 357.*]</p>

<p>Collision (§ 150*)—Damages—Findings oe Commissioner.</p> <p>Tlie findings of a commissioner on conflicting evidence as to the value of a motor boat and other property lost in collision confirmed.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 302; Dec. Dig. § 150.*]</p>

W. Sessions, Judge. Suit by Charles Weeghman and another, partners doing business under the style of the Chicago Federal League Baseball Club, against William Killifer, Jr., and another. From a decree dismissing the bill, complainants appeal.

<p>Appeal from the District Court of the United States for the Northern District of Ohio, Eastern Division, William E. Day, Judge.</p> <p>Suit in equity by the Commonwealth Steamship Company against the American Shipbuilding Company. Decree for complainant, and defendant appeals.</p> <p>Without distinguishing between proof by direct testimony and by inferences which we think clearly proper, and without reference to many details not of ultimate importance, the record shows these facts:</p> <p>The American Shipbuilding Company (spoken of herein as defendant) was engaged, at Cleveland, in the business indicated by its name. W. A. and II. A. Hawgood, also of Cleveland, were engaged in the vessel business, both on their own account and as managers of lines owned by others, and had a high local reputation for ability and success in this business. After some negotiation, it was, on July 1, 1905, agreed between the Shipbuilding Company and r!ie Hawgoods that the latter should undertake to organize a corporation or otherwise assemble capital to buy a ship to be built by the company, and that, for thus making the sale, the Hawgoods should receive a commission of $15,000. Pursuant thereto, the Shipbuilding Company wrote to one of the Hawgoods a letter describing the proposed ship and giving him an option for the price of $385,000, to be paid $195;000 in cash and $190,000 in purchase-money mortgage bonds. The commission bargain was not mentioned in the letter, but it was understood that the price named included the commission, and that the net amount of cash required would be $180,000. The Hawgoods and tlieir associates then prepared a prospectus of a proposed Ohio corporation, to be called the Commonwealth Steamship Company (called herein plaintiff). The capital stock was to be $200,000, and $200,000 of mortgage bonds were to bo issued. The Hawgoods were to be two of the directors, and were to be agents for the company. The vessel to be built and acquired was described in general terms, and it was said that “under option already given by the American Shipbuilding Company to W. A. Haw-good & Company, Cleveland, Ohio, this steamer will be built at a cost of $385,000, and ready for delivery at the opening of navigation in J906.” The prospectus set out much general information regarding the vessel business on the Great Lakes, estimated the gross earnings and the operating expenses of the proposed ship, and indicated annual net earnings of $61,000, which would pay the first year's interest on the bonds, 10 per cent, dividends on the stock, retire $20,000 of the bonds and leave $11,000 for surplus. To the prospectus, a subscription agreement was attached promising payments to Hawgood & Co. in installments as called by them. The Hawgoods subscribed $20,000, and the remainder of the proposed capital was taken by a large number of subscribers. Thereafter, and on August 16, 1905, a formal contract for the construction .and sale and purchase of the ship, to be called the “Abraham Stearns,” was entered into between the Shipbuilding Company and the Haw-goods. The purchasers wore named in the contracts as, aDd signed the same as, “trustees,” and all parties understood that the Hawgoods were making this contract as trustees for the subscribers. Installment payments were called for and were made by the subscribers in August, and again in October, and the sums so received by the Hawgoods were paid over to the Shipbuilding Company. The formal organization of the Commonwealth Company did not take place until November, 1905. Articles of association were then subscribed by the two Hawgoods and three other prospectus signers, and these five persons proceeded to organize the corporation and hold the first stockholders’ and directors’ meetings, whereby, on November 22, 1905, the corporation first acquired complete legal existence. At this organization meeting, a stockholders’ resolution was passed, reciting that the contract with the Shipbuilding Company had been made by the Hawgoods on behalf of the subscribers of the capital stock to' the Commonwealth Company, and taking over the contract for the corporation. On the same day, the directors passed a resolution reciting that several named persons had rendered valuable services for the corporation “in the way of selling its capital stock and otherwise looking after-its interests,” and that the Hawgoods “have contracted for the steamer ‘Abraham Stearns,’ and have promised and agreed to convey the same to the Commonwealth Steamship Company for $10,000 less than such steamer can now be purchased, and have otherwise carefully guarded the company’s interest,” and thereupon directing that the Hawgoods be paid $5,000 and that each of the other named persons be paid specific sums for their respective services. This compensation was additional to, and given wholly in ignorance of, what the Hawgoods were to receive from the Shipbuilding Company, which paid the Hawgoods the $15,000 commission at about the time the first payment was made on the ship.</p> <p>The carrying business on the Great Lakes was notoriously subject to great fluctuations, having periods of great prosperity and periods of depression. This was known to the prospective subscribers. The ship was built and delivered in the spring of 1906, and was operated for the Commonwealth Company under the management of the Hawgoods for five seasons, and, in 1911, until September. The net earnings in 1906 were $62,000; in 1907, $46,000; for the three seasons of 1908, 1909, and 1910 the earnings and operating expenses about balanced; the boat was not operated all the time; and, in the season of 1911, the boat was tied up. During the last-named year, other directors than the Hawgoods first learned, and so it may be said that the corporation first knew, of the payment of the $15,000 commission. Thereupon, and in September, 1911, the Commonwealth Company filed this bill, setting out that the payment of the secret commission was a fraud by the Shipbuilding Company against the Commonwealth Company entitling the' latter to rescind, tendering back the ship, offering to do equity, and asking a decree which would determine the proper conditions, effectuate the rescission, and compel the repayment of the purchase price. A decree was rendered for the Commonwealth Company ([D. C.] 197 Fed. 797) awarding rescission, directing the repayment of the full purchase price, with interest at 6 per cent., less the net earnings of the ship during the whole period, and less the amount of the outstanding unpaid mortgage bonds which were to be assumed by defendant. From this decree, defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Wm. E. Day, Judge.</p> <p>Two suits in equity by the Commonwealth Steamship Company against the American Shipbuilding Company. Decrees for complainant (197 Fed. 797) and defendant appeals.</p> <p>These are companion cases to American Shipbuilding Company v. Commonwealth Steamship Company, 215 Fed. 296,-C. C. A. —-, No. 2483, an opinion in which is this day filed. The controlling facts are so closely analogous to the facts in that case as not to require further statement, except in one particular.</p> <p>The steamship Sheldon Parks was built for and delivered to the Cuyahoga Steamship Company, for the price of $410,000, out of which the Hawgoods received a secret commission of $25,000, and the steamer ,T. Q. Riddle was furnished to the Milwaukee Steamship Company for the same price and with the same secret: commission. Each of these corporations was a company organized for the purpose of buying and operating the boat which it did acquire, and the steamboats Abraham Stearns, Sheldon Parks, and J. Q. Riddle were separately operated till 1911. There were four other boats similarly promoted and built and sold, the entire seven within two or throe seasons. The seven distinct corporations had many common stockholders, but There was nothing approaching identity of stock interests, and the chief thing in common was that all were operated and managed by the same agents.</p> <p>Before 1911, it developed that in the business conditions which had then arisen there was not trafile enough for all the boats, and that it would be 1 letter policy to keep part of the boats fully occupied and the remainder tied up, whereby the total overhead expenses would be vastly lessened; but the lack ox common ownership made this plan not feasible. In addition, It was difficult for the common agents to distribute the business among the boats without continual dissatisfaction. With these as the main reasons, it was, in the spring of 1911, determined to put all seven boats into the ownership of one corporation. Accordingly, the capital stock of the Commonwealth Company was sufficiently Increased, and all the stockholders in the other six corporations surrendered and canceled their stock therein and received in exchange practically the same amount of stock in the Commonwealth Company. All the stock had been originally issued to represent the purchase price of the boats (above the bond issue) at par, and the same figures were used when the exchange stock was issued in the Commonwealth Company, except that there was a slight .change designed to equalize more perfectly. Thereupon, each of the other corporations, including the Cuyahoga Company and the Milwaukee Company, executed and delivered to the Commonwealth Company a formal transfer and conveyance of “all properties of every kind and all choses in action and of all claims and demands of whatever kind and nature whether in law or in equity.” , The Commonwealth Company assumed all the indobfodness of the assignor compnuios, and each of the latter, Including the Cuyahoga and Milwaukee Companies, was, under the laws of Ohio, formally dissolved and wound up.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit in equity by the Old Colony Trust Company of Boston, Mass., and others, against the Ft. Dodge, Des Moines & Southern Railroad Company. From an order directing receivers to abandon and dismantle a portion of defendant’s line of railroad, the State of Iowa and others appeal.</p> <p>Xn a suit to foreclose a mortgage given by the Ft. Dodge, Des Moines & Southern Railroad Company to secure the payment of a large issue of bonds, the court below, on the petition of the receivers appointed in that case, joined in by the railroad company itself, by the Old Colony Trust Company, complainant in the foreclosure suit, and by the American Trust Company, an intertener in that suit and trustee in a second or junior mortgage given by the railroad company to secure an issue of $3,500,000 of refunding bonds, on December 7, 1912, made an order directing the receivers to dismantle and abandon a stretch of about 27 miles of the road in their possession, extending from Goddard near its southeastern extremity to Des Moines Junction and to sell and dispose of the rails, ties, and other movable property constituting the roadbed along that stretch and also to sell as. an entirety so much of the line of road as lies between Colfax by way of Goddard and Newton. From this order the state of Iowa, the railroad commissioners of that state, and some individual patrons along the line of the road prosecute an appeal.</p> <p>Prior to the filing of that petition, the state of Iowa joined by several patrons of the road had filed a petition to compel the receivers to continue the operation of the line sought to be abandoned. The petition was heard by the court on voluminous evidence taken, and overruled. At that hearing the court found that there was not sufficient public patronage on that line to justify its continued operation, but ordered the receivers to continue its operation in a limited .way for a period of four weeks, and that for a period of 90 days special efforts should be made to sell or lease the line to some party or parties who would operate it; and if neither of these expedients proved successful that an application for its abandonment would be considered. The parties seem to have acquiesced in this order. No appeal was taken from it. Neither of these expedients proved successful, and the present petition of the receivers to abandon followed. ‘</p> <p>The petition stated that the main line of road extending from Des Moines through Des Moines Junction to Rockwell City and other places had been constructed, extended, apd reconstructed so as to form at the time the petition was filed a continuous connected system operated by electricity of about 125 miles; that the line extending from Des Moines Junction southeasterly to Goddard and thence to Newton had never been reconstructed like the balance of the system so as to be operated by electricity, but was operated by steam; that it was in a dilapidated and unsafe condition with ties rotten and bridges out of order; that to repair it so as to 'operate it by steam would require an expenditure of $125,000, and to repair and equip it for operation by electricity would require an additional amount of $275,000; that the receivers had no money and no means for raising the money for either such purpose; that there were few patrons only residing or doing business on this steam line that could not be accommodated by other lines of road constructed and operated.in that region; that there was little public necessity for the operation of this line; and that the attempt to do so would imperil the successful operation of the balance of the system for which there was a great public necessity.</p> <p>The petition stated that a part of this line located near its southeastern extremity extending from Colfax to Newton by way of Goddard, a distance of about 14 miles, was by reason of the fact that it could be used as a connection between a Des Moines interurban line and Newton, of some value above its junk or dismantled value, and might be sold for its reasonable value to the interurban line.</p> <p>The prayer was that the petitioners might be authorized to dismantle and abandon the line of road between Des Moines Junction and Goddard and dispose of the salvage as best they could and that they might be authorized to sell the short line between Colfax, via Goddard and Newton, and that the court would order a proper and equitable disposition of the proceeds of such sales. There was also a prayer for general relief.</p> <p>The state of Iowa by its Attorney General and the railroad commissioners of that state and some residents along the line sought to be abandoned, intervened and joined issue with the petitioners on the averments of the petition and pleaded affirmatively that there was an implied contract between the state and the original railroad company which constructed the line of road sought to be abandoned, that it should be perpetually operated, and that on the assurance that it would be perpetually operated certain persons had made donations and subscriptions for the construction of the road, and for that reason estoppel arose against its abandonment.</p> <p>Tlie issues so joined wore submitted to the court “on the evidence and on the argument of counsel”: but no such evidence is preserved in the record. We therefore cannot enter upon any original consideration of the testimony introduced before the trial court. All we have are the pleadings and facts found and Incorporated in the order and decree of December 7, 1912, appealed from in tills case.</p> <p>The question therefore is whether on the pleadings and facts found the District Court erred in ordering tlie dismantling and abandonment and the sale and disposition respectively of the two portions of tlie liuc in question.</p> <p>The decree discloses the following facts: On June 4, 1910, when the foreclosure suit was instituted, the Ft. Dodge, Dos Moines & Southern Railroad Company was hopelessly insolvent. There were then outstanding bonds secured by the mortgage being foreclosed amounting to §3,500,000 in face value. -There had been expended by the Ft. Dodge, Des Moines & Southern Railroad Company and the Newton & Northwestern Railroad Company, its predecessor, in the way of construction and reconstruction of the system of road, the aggregate sum of $5,146.189. There never had been net earnings available to pay interest on the mortgage debt or any return on the investment. Under orders of the court efforts had been made by the receivers and by Robert Ryan, one of the attorneys of patrons of the road residing along its line who had been appointed special master for that purpose, to sell, lease, or otherwise dispose of the line of road sought to be abandoned to some person or company that would operate it, but such efforts had proven ineffectual.</p> <p>The decree then in the language of the trial court proceeds as follows:</p> <p>“The court finds that the line of road from Des Moines Junction to Newton, and the line from Colfax to Goddard, is in. a very dilapidated condition, and, not being operated, it is impossible to care for same, and tlie same is in a much more dilapidated and run down condition than it was at the commencement of this foreclosure proceeding, and such line of road is rapidly depreciating in value; that the bridges need rebuilding, the tracks need reconstruction and new ties, and it would be dangerous and impossible to operate said line of road in its present condition. The court further finds: That the said Ft. Dodge, Dos Moines & Southern Railroad Company and its receivers have no equipment, motive power, or roiling stock with which such line of road could be operated. * * * That tiro portion of the line sought to be abandoned could not be safely operated without being rebuilt or reconstructed, and to rebuild and reconstruct this line of road, so that same could ho operated by steam, with reasonable safety, would require an expenditure of at least $120,000, that, if the said line of road above described was electrically equipped, so that same could bo operated with electricity, as the balance of the line of the Ft. Dodge, Des Moines & Southern Railroad is operated, it would require an additional expenditure of at least §147,000, making the financial outlay necessary to electrically equip the said line of road from Des Moines Junction to Newton, with the branch from Colfax to Goddard, in excess of §273,000. That the receivers of the Ft. Dodge, Des Moines & Southern Railroad Company, and the said railroad company, are wholly without means or credit to so reconstruct and rehabilitate said line of road.</p> <p>“Tlie court further finds that during the ten months from January 1 to November 1, 1910, while the said line of road from Des Moines Junction to Newtou, a distance of 37 miles, 'was being operated, the gross earnings for such period were $25,266.45 less than the operating expenses, and in this deficit of operation expenses over gross earnings there was not included any charge for the maintenance of locomotives or freight cars, nor was there included any item of interest or general depreciation of the property. The court finds that at thig time the said Ft. Dodge, Des Moines & Southern Railroad Company is wholly insolvent; that there is outstanding, in bonds secured by the first, mortgage, held by the Old Colony Trust Company, complainant herein, $3,500,000 with accrued interest; that there are outstanding bonds, secured by second mortgage, held by the American Trust Company, intervener, in the aggregate sum of $2,773,900 with accrued interest, and, in addition to these amounts, there are obligations of the receivers, issued and incurred in this foreclosure proceeding, and used in the reconstruction and preservation of the electrically operated portion of said road, in excess of $800,000; that the said Ft. Dodge, Des Moines & Southern Railroad Company, and its receivers, are wholly without means with which to equip, reconstruct, and operate the portion of the line of road sought to be abandoned, and are without ability or credit to raise a sum sufficient to operate same.</p> <p>“The court further finds that the portion of the railroad sought to be abandoned will not pay its mere operating expenses; that the public patronage and the interest of the public in such line is not sufficient to justify the operation of same; that, in effect, the present condition of the said Ft. Dodge, Des Moines & Southern Railroad presents two systems of railroad, one operated by electricity and the portion sought to be abandoned, which has been heretofore operated by steam; that the revenues of the entire line of said road would not justify the reconstruction and operation of that portion of the road sought to be abandoned; that the present line of road, as now operated by electricity, consists of about 125 miles of main line; that the continued operation of said electric line is of large public interest to the citizens of the state of Iowa; that, as at present operated, said electric line gives frequent service between the important cities of Des Moines, Ames, Boone, Ft. Dodge, and Rockwell City, and serves a populous portion of the state of Iowa; that up to this time there have been no net earnings on such electric line, in excess of the requirements of operation and proper maintenance, and the court finds that if it should compel the receivers, or subsequent purchasers of the line sought to be abandoned, to operate same, it would seriously embarrass if not prevent the successful operation of the entire fine of road, and would prevent the reorganization of the said electric line of road, and any effort made to place same in a solvent and prosperous condition.</p> <p>“The court further finds that the line of road from Des Moines Junction in Story county, Iowa, to Goddard, in Jasper county, Iowa, a distance of some 27 miles, should be permanently abandoned, and that the receivers, subject to the terms and conditions hereinafter described, should be and are hereby authorized to permanently remove and dispose of, for the benefit of the parties interested herein, all the salvage and property upon said line.</p> <p>“The court further finds that the said line of road from Colfax, in Jasper county, Iowa, to Newton via Goddard, in Jasper county, Iowa, a distance of some 14 miles, should, if possible, be disposed of to some person or corporation which will operate same, and that, under the terms and conditions hereinafter expressed,, the receivers should be and are hereby authorized and empowered to so dispose of said line of road.”</p> <p>Then follows the order and decree itself authorizing the receivers to permanently abandon the line of road extending between Des Moines Junction and Goddard and dispose of its rails, ties, spikes, switches, station houses, platforms, and property of every- kind and description, save and except the right of way, and authorizing the receivers to sell as an entirety so much of the line of road as lies between Colfax and Newton, via Goddard, all subject to the approval of the court.</p> <p>The court then reserved jurisdiction to make such orders as to the disposition of the proceeds of sale as might seein right.</p> <p>For a clear apprehension of the physical facts of the case, a blueprint • showing the location of the road sought to be abandoned and its relation to the electric system and to other roads intersecting it is here reproduced:</p> <p> </p>

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Suit in equity by Paris Jarrell and others against James O. Cole and Clinton Crane. Decree for defendants, and complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Western District óf Virginia, at Roanoke; Henry Clay McDowell, Judge.</p> <p>In the matter of T. W. Kirkbride, Incorporated, bankrupt. From an order adjudging a fund in court to Adams, Payne & Gleaves, Incorporated, A. P. Staples, Jr., trustee, and W. A. Bodell and others, mechanic’s lien creditors, appeal.</p>

<p>•Contracts (§ 352*)—Action fob Breach—Direction of ABírdict.</p> <p>In an action for breach of contract, where the breach is proved and. there is exact and uncontradicted proof as to the amount and date of the losses sustained by plaintiff, it is not error to direct a verdict both for damages and interest.</p> <p>[Eel. Note.—For other cases, see Contracts, Cent. Dig. §§ 1200, 1828; Dec. Dig. | 352.*)</p>

<p>Cross-Writs of Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge.</p> <p>Action by the United States, to the use of J. A. Peeler and others, trading as the Faith Granite Company, and others, against the Illinois Judgment for plaintiff for less than the relief demanded, and both parties bring error.</p>

<p>■1. Chattel Mortgages (§ 8*)—Pledge Distinguished from Mortgage—Delivery of Possession.</p> <p>A bankrupt partnership, which was a dealer in automobiles, ordered a car from the maker, which was shipped for delivery only on payment of a draft for the purchase price. Not having sufficient money to make the payment, $2,600 was advanced by claimants, who took a note from the bankrupt for $2,800, reciting that the car and an insurance policy thereon were pledged as collateral. At the same time a bill of sale was executed by bankrupts, under which the car was delivered to claimants, and was in their possession when suit for its recovery was brought by the trustee in bankruptcy. Held, that the bill of sale and note did not constitute a mortgage, necessary to be recorded as such under the state law, but a valid pledge, which could only be redeemed by the trustee by payment of the note.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 20-22; Dec. Dig. § 8.*]</p> <p>2. Pledges (§ 11*)—Validity—Bailment of Property to Pledgor.</p> <p>The keeping of the car by claimants in the sales and storage garage of bankrupts, wherp they kept others owned and used by them, was merely a bailment, and did not invalidate the pledge under the law of Tennessee.</p> <p>[Ed. Note.—For other cases, see Pledges, Cent. Dig. §§ 28-35; Dee. Dig. § 11.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. _</p> <p>_ Suit in equity by W. B. McLauchlin, as receiver of the Linson Lumber Company and as an individual, and J. W. McLauchlin against H. J. McLaurin, Jr. Decree for complainants, and defendant appeals.</p>

<p>1. Trade-Marks and Trade-Names (§ 70*) — Unlawful Competition — Gas Containers—Use for Competing Gas.</p> <p>Complainant manufactures and sells acetylene gas put up in metal tanks of peculiar construction, and also provides an exchange system by which an empty tank may be exchanged for a filled one at a small charge; •its gas being trade-marked under the name ‘•‘Prest-O-Llte,” and its containers being marked “Prest-O-Lite gas tank.” Defendants.sold, for similar use, acetylene gas made by a competitor of complainant and put up in different containers; the competing manufacturer also having a similar exchange system. Defendants filled with the competing gas empty PrestO-Lite tanks acquired by defendants, and in effect sold to consumers such refilled tanks, pasting a paper label thereon, from which the purchaser, by close attention, might discover that it was not complainant’s gas. Held, that complainant’s right to protection against unfair competition extended to the protection of its exchange system, and that defendant was therefore guilty of unfair competition.'</p> <p>[Ed. Noto.—For other eases, see Trade-Marks and Trade-Námes, Cent. Dig. § 81; Dec. Dig. § 70.*</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>21 Trade-Marks and Trade-Names (§ 11*)—Infringement—Patented Article.</p> <p>Where the term “prest-o-lite” not only applied to the sale of acetylene gas in patented container tanks for lighting vehicles, but had also become known as designating complainant’s exchange service system, by which empty tanks could be exchanged at different stations in nearly every ordinary sized city for a filled one at a small charge, the word Indicated origin or manufacture, and hence, the expiration of tlie patent on the container did not give the public the right to use the name, under the rule that on the expiration of the patent the generic name or description under which the patented article has been sold during the term of the monopoly passes to the public.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Gent. Dig. § 15; Dec. Dig. § 11.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit by Don Lacy, liquidating Agent of Oklahoma City National Bank, against Charles McCafferty, as County Treasurer of Oklahoma County, Okl., and others. From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Judge.</p> <p>Action by T. Gilbert Wood, suing, for himself and others, against the Spring Garden Insurance Company of Philadelphia, Pa. Judgment for defendant, and plaintiffs bring error.</p>

<p>Collision (§ 95*)—Steamer and Schooner in Tow—Fault oe Tug.</p> <p>The decree of a district court affirmed, which found on conflicting evidence that a tug which had made fast to a schooner in a narrow channel, for the purpose of moving her to a pier when it should be vacated by a steamer, was solely in fault for a collision between the steamer and schooner When the former moved away and was attempting to pass, on the ground that the tug unnecessarily started moving the schooner instead of waiting until the steamer had passed.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 200-202; Dee. Dig. § 95.*</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

<p>Courts (§ 307*)—United States Courts—Jurisdiction—Stipulations.</p> <p>A stipulation at tlie opening of a trial tliat plaintiff was a “resident” of a state otlier tlian tliat of wliicli defendants were citizens, was insufficient to show jurisdiction in a federal court in a case where the jurisdiction depended upon diverse citizenship.</p> <p>[Ed. Note.—Eor other cases, see Courts, Cent. Dig. §§ 850-854; Dec. Dig. § 307.*</p> <p>Diverse citizenship 'as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dallagham, 27 C. C. A. 298.]</p> <p>Cose, Circuit Judge, dissenting.</p>

<p>Teann - Marks and Trade-Names (§ 98*)—Unfair Competition—Accounting for Profits.</p> <p>A decree holding dciendants liable for profits realized from unfair competition, by using a label so like complainant’s as to be deceptive, affirmed on the ground that during the time for which profits were allowed defendants were chargeable with intentional fraud.</p> <p>[Ed. Note—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. | 112; Dec. Dig. § 98.*</p> <p>Unfair composition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. O. A. 165; Dare v. Harper & Bros., 30 C C. A. 376.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit by the Christy Box Car Loader Company against the Ottumwa Box Car Loader Company. From decree for plaintiff, defendant appeals.</p>

<p>In Equity. Suits by the Electric Boat Company against the Lake Torpedo Boat Company for infringement of specified patents, in which defendant filed certain counterclaims for complainant’s infringement of certain other patents for unlawful competition and malicious prosecution. On complainant’s motion to strike out the counterclaims.</p>

<p>Patents (§ -328:*)—Validity and Infringement—Mechanism and Process for Making Armored Cable.</p> <p>The Gilson patents, No. 1,004,643, for a mechanism for making armored cable, and No. 1,004,644, for a process for armoring cable, were not anticipated, and are valid and entitled to a fair range of equivalents. Claims Í and 3 of the apparatus patent, and claim 10 of the method patent, also held infringed.</p>

<p>Patents (§ 328*)—Infringement—Furnace.</p> <p>The Daley patent, No. 644,664, for a furnace, held infringed, on motion for preliminary injunction, by a furnace which contained nonfune.tional and immaterial modifications of the patented structure, designed merely to avoid the language of the claims of the patent.</p>

<p>In Admiralty. Suit by Olaf Dahl against the steam tug Owen J. McWilliams.</p>

<p>In Equity. Suit by Byron F. Babbitt, trustee in bankruptcy of the Randolph-Macon Coal Company, against William A. Read and others.</p>

<p>1. Carriers (§ 10*)—Regulation—Rates—Notice and Hearing—Due Process oe Law.</p> <p>Notice and Roaring are necessary to the validity of an action by the Georgia Railroad Commission, changing a freight classification of a railroad company doing business within the state, ,so as to reduce its freight rates, under authority conferred by Georgia Railroad Commission Law (Acts 3 879, p. 125) as amended by Acts 1907, p. 72.</p> <p>[Ed. Note.—For other cases, seo Carriers, Cent. Dig. §§ 12, 14-20; Dec. Dig. § 10.*]</p> <p>2. Carriers (§ 10*)—Regulation—Railroad Commission—Reduction of Rates—Notice and Hearing.</p> <p>Civ. Code 1910, Ga. §§ 2080, 2083, 2641, and 2653, being part of the Railroad Commission Law', providing the method of procedure before the Railroad Commission in rate regulation proceedings, and declaring that the same shall bo that ordinarily used and recognized in courts of law, does not provide for notice and hearing to a railroad company before the entry of an order by the Commission, changing freight classification so as to reduce intrastate freight rates.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 12, 14-20; Dec. Dig. § 10.*]</p> <p>3. Constitutional Law (§ 318*)—Due Process of Law—Notice.</p> <p>Where no statute or rule required the State Railroad Commission to give notice and hearing of a proceeding to change intrastate freight classification so as to reduce intrastate rates, the fact that the Commission did give notice to complainant railroad company by a letter addressed to one of its officers as matter of grace, did not constitute due process of law.</p> <p>[Rd. Note.—For other cases, see Constitutional Law, Cent. Dig. § 949; Dec. Dig. § 318.*]</p> <p>4- Constitutional Law (§ 318*)—-Due Process of Law—Notice—Railroad Commission—Hearings.</p> <p>Notice to a railroad company of proceedings before the State Railroad Commission to change intrastate classification so as to reduce rates given in pursuance of a rule -of the Commission as distinguished from a statutory requirement is sufficient to constitute due process of law.</p> <p>[Ed. Note.—For other eases, see Constitutional Law, Cent. Dig. § 949; Dee. Dig. § 318.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Caldwell Machinery Company. Application to review orders denying petitions of the Gardner Governor Company, Le Blond Machine Tool Company, and the Regal Gasoline & Engine Company, for reclamation of property in the hands of the trustee in bankruptcy. Confirmed except as to petition of the Gardner Governor Company and as to certain lathes consigned to the bankrupt by the Ee Blond Machine Company.

In Equity. Suit by the United States against the Puget Sound Traction, Eight & Power Company and others. On motion to make bill more definite and certain.

<p>1. Trade-Marks and Trade-Names (§ 93*)—Unfair Competition—Evidence.</p> <p>A manufacturer and seller, who is charged with unfair competition, is not chargeable with an occasional remark of an unidentified occasional salesman of his product, based on misrepresentations by the salesman, so as to confuse the product of the manufacturer with a product of the complaining manufacturer.</p> <p>[Ed. Note—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.*]</p> <p>2. Trade-Marks and Trade-Names (§ 93*)—Unfair Competition—Evidence.</p> <p>The court in a suit by a manufacturer to restrain a rival manufacturer from unfair competition must, if possible, determine from the appearance of the articles themselves whether the purchasing public may be deceived, unless a course of conduct is proved wbieb shows the employment of methods and means indicating unfair competition, and in doubtful cases actual instances of confusion by the purchasing public may assist in arriving at a correct decision.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. § 93.*]</p> <p>3. Trade-Marks and Trade-NAmes (§ 70*) — Unfair Competition — Evidence.</p> <p>Where the original manufacturer of a fly catcher, known to the trade as the “Pyramid,” showed that a hanger ribbon of red, white, and blue was a distinctive item of the article, and that its label was divided into three vertical spaces, in one of which was the name of the article, and in another printed directions, and in another the name of the manufacturer, and that-a subsequent manufacturer of a fly catcher, known to the trade as the “Spiralette,” also used at times a hanger ribbon of red, white, and blue, and advertised that it was “First in the Fight,” and that its label was also divided into three vertical spaces, omitting the name of the manufacturer, the original manufacturer was entitled to an injunction to compel the subsequent manufacturer to adopt a hanger of a single color and cease the use of the words “First in the Fight” or arfything similar thereto, and put on its label its name or some legend indicating that the article does not come from the original manufacturer.</p> <p>[Ed. Note.—For other eases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]</p> <p>4. Trade-Marks and Trade-Names (§ 69*)—Unfair Competition—Motive.</p> <p>Motive is not an essential element of unfair competition, though often valuable in determining the existence of unfair competition.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 80; Dec. Dig. § 69.*]</p>

<p>Petition for a writ of habeas corpus by Marie Robina Grayson.</p>

<p>In Equity. Suit by Charles J. Swift against William C. McFarland and another.</p>

<p>In Equity. Suit by George H. Macy and others against George S. Browne and others.</p>

<p>L Bankruptcy (§ 114*)—Receivers—Possession—Unlawful Seizure—Con- • tempt.</p> <p>Where a bankrupt having in his possession certain boats for repairs when bankruptcy intervened, his receiver completed the repairs and notified the owner that he might take the boats on paying the balance due for the repairs, and the owner’s servant at his direction removed the boats by force from the bankrupt’s dock without paying the amount due, and with knowledge that the claim was unpaid, against the protests of the receiver’s employés, both the owner and his servant were guilty of contempt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 164-166; Dec. Dig. § 114.*]</p> <p>2. Receivers (§ 74*)—Possession of Property—Interference—Contempt.</p> <p>Where a court has appointed a receiver, his possession of property in his' official capacity is the possession of the court, and a disturbance thereof without leave of court constitutes a contempt.</p> <p>[Ed. Note.—For other eases, see Receivers, Cent. Dig. §§ 132-135; Dec. Dig. § 74.*]</p> <p>3. Receivers (§-74*)—Possession of Property—Removal—Contempt.</p> <p>Where the receiver of a firm completed the repairs on boats which the firm had contracted to make, and offered to deliver them to the owner on payment of the amount due therefor, but the owner, without payment or attempting to get possession by application to the court, took the boats by force from the receiver’s servants, the court was not bound to merely enforce the return of the boats, but was warranted in treating it as a criminal contempt punishable by fine to vindicate the court’s authority.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. §§ 132-135; Dec. Dig. § 74.*]</p>

<p>1. Trial (§ 178*)—Verdict—Motion to Direct.</p> <p>On motion to direct a verdict, it is the duty of the trial judge to take that view of the evidence most favorable to the party against whom the direction is requested.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. 1 178.*]</p> <p>2. Master and Servant (§ 150*)—Injuries to Servant—Perils—Warning.</p> <p>Where an occupation is hazardous, it is the master’s duty to inform his servants of all perils to which they will be exposed, which are or should reasonably be known to him, except such as are obvious to the servants or through the exercise of ordinary care on their part may be foreseen and in either event injury therefrom bo reasonably avoided.</p> <p>[Fd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 297, 299 -302, 305-307; Dec. Dig. § 150.*]</p> <p>8. Master and Servant (§ 150*)—Injuries to Servant—Dangers—Duty to Warn.</p> <p>The duty of a master to warn his servants of perils to which they will be exposed extends to any change made by him which introduces into their service a new element of danger.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. § 150.*]</p> <p>4. Master and Servant (§ 151*)-—Injuries to Servant—Duty to Warn— Delegation.</p> <p>A master's duty to warn of perils to which servants will be exposed is primary and nondelegable.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 298; Dec. Dig. § 151.*]</p> <p>5. Master and Servant (§ 28(1*)—Injuries to Servant—Dangers—Duty to</p> <p>Warn—Question for Jury.</p> <p>In an action for injuries to a railroad guard, during a strike, in a collision with deputy marshals sent to a crossing where the guards were located in response to a telephone message that there was trouble at that point, through the marshals mistaking the guards for strikers, whether the railroad company was negligent in failing to warn the marshals of the presence of the guards, and the guards of the approach of the marshals, hold for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 100(1. 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 2S(».*]</p>

Suit in equity by Wentworth Watson and others against Henry E. Huntington and others. Decree dismissing the bill, and complainants appeal.

Kohlsaat, Judge. Suit by Chiekering & Sons and another against Clifford C. Chickering and others. From a decree awarding a perpetual injunction and an accounting of the profits in a suit for unlawful competition, .defendants appeal.

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Criminal prosecution by the United States against Allen Botsford. From a judgment of conviction, defendant brings error.</p>

<p>1. Deeds (§ 194*)—Time oe Delivery—Presumption.</p> <p>In the absence of proof to the contrary, a deed shown to be in the possession of the grantee must be presumed to have been delivered on the day it bears date.</p> <p>[Ed. Note.—For other.cases, see Deeds, Cent. Dig. §§ 574r-583, 623, 634; ■ Dec. Dig. § 194.*]</p> <p>2. Judgment (§ 682*) — Persons Bound — Grantee in Unrecorded Deed —</p> <p>Suit Against Grantor.</p> <p>Complainants, I. W. Rowe and Hannah Rowe, citizens and residents of West Virginia, were grantees in a deed to land in Kentucky. After delivery of their deed, but before it was recorded, a suit was begun in a state court to quiet title to the same land in the present defendant against their grantor, and a warning order was issued to “J. W. Rowe,” described as a citizen and resident of Pennsylvania, as an alleged purchaser under an unrecorded deed. Service was not made on the defendant in such suit, so as to create a lis pendens, until after the deed was recorded. Held, that complainants were not bound by the decree in said suit, either as actual parties or privies in estate with their grantor, or as purchasers pendente lite.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*]</p> <p>3. Boundaries (§ 3*)—Relocation oe Survey—General Rules.</p> <p>In a suit to quiet title, defendant claimed under an older survey made in 1858; the question being whether the boundaries of such survey included the tract in suit. The beginning corner was established, but no marked lines or corners were found. The survey and patent described the tract as containing 100 acres, and the calls, when run according to course and distance, inclosed about that quantity of land, but did not even approximately reach points and lines and corners of older surveys claimed by defendant to be called for, which would inclose about 650 acres, nor was it shown that such lines and corners had been marked, or were otherwise known and established, in 1858. The evidence fairly showed that the survey was a “'paper” survey, and that a very small part, if any, of the lines were actually run. Held, that the ease did not come within the established rule in Kentucky that course and distance must yield to calls for natural objects or the lines of other surveys which were then actually marked and visible on the ground, or were susceptible of definite and certain location.</p> <p>[Ed. Note.—For other eases, see Boundaries, Oent. Dig. §§ 3-41; Dec. Dig. § 3.*]</p> <p>4. Quieting Title (§ 12*)—Right of Action in Fedekal Coukt—Necessity of Possession.</p> <p>Under the federal equity practice, independent of a state statute, a bill to remove a cloud from title will not lie where the comxilainant is not in possession of the premises, and cannot bo maintained without proof both of possession and of legal title; nor is the eoiriplamant relieved from the necessity of making sucli proof by the fact that the denial of his possession in the answer is accompanied by an allegation of possession in defendant and an incidental prayer that his own title be quieted.</p> <p>[Ed. Note.—For other cases, see Quieting Title, Oent. Dig. §§ 44, 45; Dee. Dig. § 12.*]</p>

<p>1. Trade-Marks and Tbade-Names (§ 45*)—Descriptive Words—Effect of Registration.</p> <p>The federal trade-mark statute does not directly operate to grant a monopoly to one who rightfully registers a descriptive or geographical word under the 10-year clause of Act Peb. 20, 1905, c. 592 (U. S. Comp. St. Supp. 1911, p. 1461) ? 5, but removes from words which had been exclusively used as a mark in interstate commerce for 10 years the bar or disability caused by their descriptive or geographical character, and makes them, after their registration, subject to exclusive appropriation with the same effect, in the main, as if the disability had never existed.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 53, 59; Dec. Dig. § 45.*]</p> <p>2. Trade-Marks and Trade-Names (§ 59*)—Infringement—“Coca Cola.”</p> <p>The name Coca Cola, duly registered as a trade-mark for a syrup used as a basis for carbonated drinks, and which had by more than 10 years exclusive use prior to 1905 become the distinctive name under which complainants’ product was known, held infringed by the name “Fletcher’s Coca Cola” used on a similar product.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 68-72; Dec. Dig. § 59.*]</p> <p>3. Trade-Marks and Trade-Names (§ 22*)—Validity—Deceptive Names.</p> <p>Whether a claimed trade-mark is so descriptive of something else as to lie deceptive must be decided as of the time of its adoption.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 25; Dec. Dig. § 22.*]</p> <p>4. Trade-Marks and Trade-Names (§ 22*)—Validity—Deceptive Names.</p> <p>The name “Coca Cola” as applied to a flavoring syrup for carbonated drinks, containing about 2 per cent, of a compound made from coca leaves and cola nuts, held not so substantially and really deceptive as to invalidate it as a trade-mark under the 10-yo.ar clause of the act of 1905.</p> <p>fEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 25; Dec. Dig. § 22.*]</p> <p>5. Trade-Marks and Tbade-Names (§ 59*)—Infringement.</p> <p>Where a name has been exclusively used to designate the product of a particular manufacturer for so long a time as to have become identified with it in the minds of purchasers and to be a valid trade-mark it cannot be used by another on a similar product merely because ingredients are used in Such other product which make the name in a sense descriptive of it.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72; Dec. Dig. § 59.*]</p> <p>6. Trade-Marks and Trade-Names (§ 98'*) — Suit fob Infringement — Accounting foe Profits.</p> <p>On an accounting for profits for infringement of a trade-mark by a bona fide corporation, defendant is entitled to credit for the salary paid its manager, who was a minority stockholder only, as a part of its operating expenses.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. § 98.*]</p> <p>7. Appeal and Error (§ 339*)—Time foe Appeal—Suit for Infringement of ■ Trade-Mark.</p> <p>Where an interlocutory decree in favor of complainant was entered in a suit for infringement of a trade-mark, directing a reference for an accounting, a subsequent decree entered on the report of the master, whether or not it refers to the interlocutory decree in terms, has the effect of reaffirming it and rendering it final, and an appeal may be taken by the defendant at any time within the statutory time after entry of such final decree on which the decision embodied in the interlocutory decree may be ■reviewed. The fact that the appeal purports to be from the interlocutory decree, and that steps were taken therefor before such decree became final, which were perfected afterwards, is not a fatal irregularity.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1883-1887; Dee. Dig. § 339.*]</p>

Sanford, Judge. Libel by the United States for condemnation of 40 barrels and 20 kegs of Coca Cola, the Coca Cola Company claimant. There was a judgment (191 Eed. 431) denying relief, and the United States brings error.

<p>In Error to the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.</p> <p>Criminal prosecution by the United States against John A. Eish. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the St. Louis Independent Packing Company against David F. Houston, Secretary of Agriculture, A. D. Melvin, Chief of the Bureau of Animal Industry, and James J. Brougham, Chief Inspector of said Bureau at St. Louis. Complainant appeals from an order denying a preliminary injunction.</p>

Action by R. B. Turnbull, as administrator of the estate of R. H. Thompson, deceased, against the Perris Irrigation District. From an order denying a motion to vacate a default judgment in favor of plaintiff, and to dismiss the action, defendant brings error.

Action at law by Conrad Escher and Louis Rahn, copartners doing business as Escher & Rahn, against the Perris Irrigation District. From an order denying a motion to vacate a default judgment in favor of plaintiffs, and to dismiss the action, defendant brings error.

<p>Appeal from the District Court of the United States for the Eastern District of Illinois.</p> <p>Suit by Marie H. Kelly against the Illinois State Trust Company. Decree for complainant for less than the relief demanded, and she appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from an order of the District Court for the Southern District of New York dated March 3, 1914 (211 Fed. 236), dismissing a writ of habeas corpus and remanding the relators to the custody of the respondent.</p>

<p>Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Tr„ Judge. _</p> <p>_ Suit in equity by the Greenleaf Johnson Dumber Company against Dindley M. Garrison, Secretary of War of the United States, and Henry S. Breckenridge, Assistant Secretary. From the decree both parties appeal.</p>

• Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge. Suit by the Van Kannel Revolving Door Company against the American Revolving Door Company. From a decree denying a preliminary injunction and dismissing on motion the bill of complaint, complainant appeals.

<p>1. Food (§ 5*)—“Adulterated Food.”</p> <p>Decayed frozen eggs, taken from the shell and mixed together, are within the prohibition of Food and Drugs Act of June 30, 1906, c. 3915,</p> <p>§ 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), which prohibits the transportation from one state to another of any adulterated article of food as defined in section 7.</p> <p>[Ed. Note.—For other cases, see Food, Cent. Dig. § 1; Dec. Dig. § 5.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 210-212.</p> <p>What constitutes a violation of pure food regulations, see note to Brina v. United States, 105 C. C. A. 559.]</p> <p>2. Food (§ 14*)—Violation oe Food and Drugs Act—Shipment of Adulterated Article of Food—Intent of Parties.</p> <p>On the question of a violation of Food and Drugs Act of June 30, 1906, c. 3915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354), by the shipment in interstate commerce of an adulterated article of food, the intent of either the shipper or consignee is immaterial.</p> <p>[Ed. Note.—For other cases, see Food, Cent. Dig. §§ 10-13; Dec. Dig. § 14.*]</p>

Tn error to the District Court of the United States for the Southern District of New York to review a decree (208 Fed. 950) entered upon a trial directing the condemnation of certain frozen eggs seized under Act June 30 1900, c. 3915, 34 Stat. 768 (U. S. Comp. St. Supp. 1911, p. 1354).

<p>1. Patents (§ 165*)—Construction—Implied Terms op Claims.</p> <p>Elements in claims should be read with reference both to the structure and the function given in the description of the invention, and interpreted to include such connections and relations of the several means of the combination which are named as are implied therewith to make them operative.</p> <p>[Ed. Note.—Eor other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*] •</p> <p>2. Patents (§ 328*)—Validity and Infringement—Window Lifter.</p> <p>The Evans patent, No. 815,914, for a window lifter, construed, and held. sufficiently specific to cover a structure erected in the particular manner shown in the drawings; also held valid and infringed.</p>

<p>Patents (§ 328*)—Validity and Infringement—Self-Feeding Fuknaoe.</p> <p>The Murphy patent, No. 587,678, for a self-feeding furnace, claims 14 and 17, construed and held not anticipated, valid, and infringed.</p>

<p>Appeal from the District Court of the United States for the District of Indiana; Albert B. Anderson, Judge.</p> <p>Suit in equity by the Goshen Manufacturing Company against the Hubert A. Myers Manufacturing Company and Hubert A. Myers. Decree for defendants, and complainant appeals.</p>

<p>1. Patents (§ 328*)—Validity and Infringement—Improvement in Sewing Machines.</p> <p>The Woodward patent, No. 890,582, for an improvement in sewing machines, relating to mechanism for changing from a straight-away to a zigzag or overedge stitch, and vice versa, at the will of the operator, and-without stopping the machine, in view of the prior art, is entitled to-only a very narrow construction; as so construed, held not infringed.</p> <p>2. Patents (§ 11*)—Right to Patent—Function of Machine.</p> <p>No patent can validly issue for the mere function or abstract effect of a machine, but only for the mechanism which performs or produces it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 9; Dee. Dig. § 11.*]</p> <p>3. Patents (§ 157*)—Infringement—Presumption from Grant of Second Patent.</p> <p>There is a presumption arising from the grant of a patent that the invention covered by it'differs substantially from any other covered by a prior patent.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. §§ 229-232; Dec. Dig. § 157.*]</p>

<p>In Equity. Suit by William H. Woerheide against H. W. JohnsManville Company for infringement of letters patent No. 973,902, for a cleat to secure prepared roofing.</p>

<p>Action by Barnhill’s administrator against the Mt. Morgan Coal Company, for alleged wrongful death of a child 10 years of age.</p>

In Admiralty. Suit by the Johnson & Joseph Company against the gasoline launch Earl K. On motions of R. H. Clarke, claimant, to set aside sale and default.

<p>In Admiralty. Libel by the Mobile Towing & Wrecking Company against the steamboat San Cristobal, for salvage. Heard on exceptions.</p>

<p>Bankruptcy (§ 54*)—Insolvency—Indebtedness as Surety or Indorsee.</p> <p>in determining the question of insolvency of an alleged bankrupt, the liability as surety or indorser of a solvent principal, who is abundantly able to pay, is not to be counted as a liability of the bankrupt, since, if he was called upon to.pay the debt, he would immediately have an asset which would be equal to the amount he was required to pay.</p> <p>[lid. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 54, 84, 85; Dec. Dig. § 54.*J</p>

At Law. Action by the Columbia Digger Company against A. B. Rector and another, doing business as Rector & Daly and others. Plaintiff relies upon the following authorities: Crane Co. v. Pacific Heat & Power Co., 30 Wash. 95, 78 Pac. 460; Getchell & M. Lumber & Mfg. Go. v. Peterson, 124 Iowa, 599, 100 N. W. 550; Cain v. Vogt, 138 Iowa, 631, 116 N. W. 786, 128 Am. St. Rep. 216; Board of Com’rs v. Citizens’ Bank, 67 Minn. 236, 69 N. W. 912; Thomason v. Keeney, 8 Ga.

<p>1. Banks and Banking (§ 86*)—Organization—Purpose—Discounting Ac-</p> <p>counts and Commercial Paper—“Banking Business.”</p> <p>Discounting accounts and commercial paper is not exclusively a banking function or business, whore the corporation uses its own funds for such purpose, since the banking business in which an ordinary Illinois corporation may not engage involves the receipt of deposits from customers and the use of money so obtained for banking purposes.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 218; Dec. Dig. § 86.*]</p> <p>2. Corporations (§ 387*)—Ultra Vires Acts—Effect.</p> <p>Where complainant sold certain accounts at a discount to a credit company guaranteeing payment thereof, complainant having power to sell, defendant’s act in buying the accounts, even if Ultra vires, could not reinvest complainant with title to the accounts so as to entitle it to recover them, since, if defendant was powerless to hold them, the state only could call it to account.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1548-1553; Dee. Dig. § 387.*]</p> <p>3. Assignments (§ 1.6*)—Accounts—Collateral—Executed Transaction.</p> <p>Where complainant assigned certain accounts to a credit company under an agreement by which complainant guaranteed payment, 20 per cent, of the purchase price being retained as security, not for tile performance of complainant’s guaranty, bnt for the obligations of the debtors owing the accounts assigned, the assignment, except as to complainant’s obligation to guaranty, was an executed one.</p> <p>[Ed. Note.—For other cases, see Assignments, Cent. Dig. § 24; Dec. Dig. § 16.*]</p> <p>4. Usury (§§ 92, 115*)—Form of Transaction—Recovery of Collateral— Payment of Debt.</p> <p>A court of equity will not be frustrated in ascertaining the real intention of the parties to make a usurious loan by the fact that parol proof thereof would contradict the written evidence of the apparent transaction; but, if it appears that the real intent of both parties was to make a usurious loan, then, so far as the transaction is still executory, the debtor may recover his collateral on payment of the debt with legal interest.</p> <p>TEd. Note.—For other cases, see Usury, Cent. Dig. §§ 191-193, 196, 326; Dec. Dig. §§ 92, 115.*]</p> <p>5. Sales (§ 3*)—Assignment Distinguished.</p> <p>A contract provided that defendant, in consideration of $1, agreed to buy from complainant all acceptable accounts tendered to it and pay therefor the face value thereof less specified discounts, depending on the number of days the accounts were to run, etc., complainant to act as defendant’s agent without compensation or costs, to collect and receive payments, and to hold the same in trust and pay over the same to defendants, complainant guaranteeing the payment to defendant or its assigns of all accounts purchased and within five days after receipt of written request to do so, to repurchase at their face value all accounts in default or against insolvent debtors, etc. Held, that the transaction on its face was a sale and assignment of the accounts and not an agreement for the loan of money, the sale and guaranty being separate and distinct contracts, the former being executed and the latter executory.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 6-19; Dec. Dig. § 3.*]</p> <p>6. Usury (§ 72*)—Sale op Accounts—Series op Transactions.</p> <p>Though an original agreement by which defendant bound itself to purchase such accounts as complainant offered to it, complainant guaranteeing the accounts and defendant retaining 20 per cent, of the purchase price as collateral to the debtor’s obligation to pay, was regarded as an agreement to make such loans • as complainant might require and for which it could give the collateral specified, it would not make an entire series of such transactions a single one, but for the purpose of determining whether they were usurious each loan must be considered separately.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. § 147; Dec. Dig. § 72.*]</p> <p>7. Usury (§ 102*)—Usurious Transaction—Executed Contract.</p> <p>An executed transaction cannot be opened for usury under the rule that usurious interest actually paid on a completed transaction must be deemed to have been .voluntarily paid, and is not recoverable.</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 197, 241, 242, 244-258; Dec. Dig. § 102.*]</p> <p>8. Corporations (§ 385*)—Powers—Ultra Vires Acts—Executed Transaction.</p> <p>Ultra vires is not ground for reopening a completely executed transaction.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1545-1547; Dec. Dig. § 385.*]</p> <p>9. Corporations (§ 487*)—Ultra Vires Loans—Repayment op Principal and Legal Interest.</p> <p>Though a loan made by a corporation is ultra vires, repayment of principal and legal interest by the debtor is a prerequisite to a suit to recover collaterals.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1893-1898; Dec. Dig. § 487.*]</p> <p>10. Usury (§ 95*)—Usurious Loan—Recovery op Collaterals—Payment op Debt and Legal Interest.</p> <p>Though a loan is usurious, repayment of principal and legal interest by the debtor is a prerequisite to a recovery of collaterals.</p> <p>[Ed. Note.—For other cases, see Usury, Cent Dig. §§ 198-202; Dec. Dig. § 95.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Colonial Mill & Lumber Company. Application by the Hotchkiss Bros. Company for the delivery of certain wooden columns in the custody of the trustee, alleged to belong to claimant. Petition to review a referee’s order denying the claim.

<p>Contusion (|115*)—Liabjxity—Contract with Ctty for Usk of Soow.</p> <p>A firm contracted with the city of New York to remove with its tugs scows loaded with street sweepings and ashes by the street cleaning department, and dispose of their contents. The scows wore owned by the department, and the contractors were charged by the day for their use. In practice, when a scow was emptied, it was returned to a dump for reloading, and delivered to the inspector in charge, and was then credited to the contractors, until the time it was again taken out. Another concern also had the privilege of sorting the refuse after loading before the scow was delivered to the contractors for removal. Held, that after a scow was returned to an inspector, and until it was again loaded and delivered to the contractors, they were not responsible for Its handling, and that the city was alone liable for damage caused by a collision between a loaded scow which had been removed from the dump by direction of the inspector, and tied up outside of another and a schooner lying at a wharf, against which the scow drifted after breaking loose because of being insufficiently secured.</p> <p>¡Ed. Note.—For other cases, see Collision, Gent. Dig. §§ 244-247; Dec. Dig. § 115.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Henry E. Bushnell, bankrupt. Appeal by the City and Town of Meriden from a referee’s order disallowing certain taxes and interest owed by the bankrupt and claimed to be due the city and town, under Bankruptcy Act, § 64a.

<p>1. Collision (§ 71*)—Moving and Moored Vessel.</p> <p>A steamer, being navigated down a river under usual and ordinary conditions, held in fault for a collision with a scow lying at a wharf.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. § 71.*]</p> <p>2. Collision (§ 132*)—Measure of Damages.</p> <p>Restitution is the rule of damages for collision, where the injured vessel is not a total loss and repairs are practical.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 286; Dee. Dig. § 132.*]</p>

<p>In Equity. Action by I. H. Jennings, as trustee in bankruptcy of Paxson-Cadwell, against W. B. Augir.</p>

<p>1. Bankruptcy (§ 396*)—Exemptions—Homestead—Hotel Building.</p> <p>Rem. & Bal. Code Wash. § 552, provides that homesteads may be selected and claimed exempt in lands and tenements, with the improvements thereon, not exceeding $2,000 in value, but that the premises must be actually intended and used for a home for the claimants, and shall not be devoted “exclusively” to any other purpose. Held, that where the bankrupts used the proceeds of a former homestead to purchase certain real estate improved with a building containing 24 bedrooms and a restaurant conducted by a third person, the whole used as a hotel, and the bankrupts kept five rooms for the use of their family as a home, the premises were not devoted exclusively to a purpose other than homestead, and hence the bankrupt was entitled to an exemption of $2,000 of the value thereof.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. § 396.*]</p> <p>2. Bankruptcy (§ 396*)—Exemptions—“Other Furniture.”</p> <p>Rem. & Bal. Code Wash. § 563, par. 3, exempts to each householder one bed and bedding, and' one additional bed and' bedding for each additional member of the family, and “other household goods, utensils and furniture” not exceeding $500 in value. Held, that “other furniture” as used in such section meant furniture other than beds and bedding.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. § 39©.*]</p>

In Bankruptcy. In the matter of. bankruptcy proceedings of Walter R. Johnson. On petition of the Eastern Safe & Vault Company to review a referee’s decision denying its prayer for surrender of a safe sold to the bankrupt under a conditional sale contract, or its proceeds.

<p>In Bankruptcy. In the matter of bankruptcy proceedings by Rubin & Lipman. Specifications of objection to the bankrupt’s' discharge having been referred to a second special master after the death of a master first appointed, questions were certified to the court before report.</p>

Suit by the Theo. Hamm Brewing Company against the Chicago, Rock Island & Pacific Railway Company.

At Law. Petition of John Dennett, Jr,, and others, for a writ of mandamus to the District Court for the District of Arizona and the judge thereof.

<p>1. Prostitution (§ 4*)—White Slave Act—Evidence.</p> <p>In a prosecution for violating the White Slave Act (Act June 25, 1910, c. 393, 36 Stat. 825 [U. S. Comp. St. Supp. 1911, p. 1313]), evidence held sufficient to sustain a conviction of accused for causing a woman to be transported, in interstate commerce, for the parpóse of having sexual intercourse with her, but insufficient to sustain counts for causing the same woman to be transported for purposes of prostitution.</p> <p>[Ed. Note.—For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>2. Statutes (| 217*)—Construction—Extraneous References.</p> <p>in the absence of ambiguity apparent on the face of the statute, extraneous references to public debates, as indicating the author’s intent in the introduction of a statute, are inadmissible and cannot be considered, but the meaning is to be determined exclusively from the text, with the words taken in their ordinary and usual meanings.</p> <p>[Ed. Note.—For other cases,' see Statutes, Cent. Dig. § 293; Dec. Dig. § 217.*]</p> <p>3. Prostitution (§ 1*) — White Slave Act — “Prostitution” — “Other Immoral Purpose.”</p> <p>The White Slave Act makes it a felony for any one knowingly to transport, or cause to be transported or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce, any woman or girl for the purpose of prostitution or debauchery, or any other immoral purpose. Held, that while the term “prostitution” involves the financial element and signifies commercialized vice, the words “other immoral purpose” as used in the statute are not limited to kindred offenses involving the sharing of profits by the hire of the woman’s body, and hence their meaning was fulfilled by sexual debauchery between the female and the defendant involving no financial element.</p> <p>[Ed. Note.—For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5740, 5741.]</p> <p>4. Commerce (§ 16*) — White Slave Act — Power oe Congress — Commerce Clause.</p> <p>Since the term “commerce” as used in the federal Constitution (article 1, § 8, cl. 3) granting to Congress the right to legislate with reference to interstate and foreign commerce, is not limited to traffic in or an exchange of commodities, but extends as well to the transportation of persons, and includes navigation and intercourse, giving to Congress not only the right to regulate, but actually to prohibit transportation in the interest of the general welfare, Congress had complete power to pass the White Slave Traffic Act, making it a felony to transport or cause to be transported any woman or girl for prostitution, or any other immoral purpose, though the statute be construed as extending beyond commercialized vice to include transportation in interstate commerce of a female for the purpose of mere unlawful sexual intercourse with defendant.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 2; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1287-1298; vol. 8, pp. 7606, Í6Ü7.]</p> <p>5. Criminal Law (§ 84*)'—Place oe Trial—White Slave Act.</p> <p>Since the violation of the White Slave Act is an abuse of interstate transportation, Congress was entitled to provide, as it did, that the offense should be cognizable in any district from, through, or into which the transportation led.</p> <p>[Ed. Note.—For otiier cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig. § 84.*]</p> <p>On Rehearing.</p> <p>6. Criminal Law (§ 703*)—Duty oe District Attorney.</p> <p>Where the District Attorney, in a prosecution for violating the White Slave Act, in good faith stated to the jury that one of defendant’s purposes in transporting the female in question was to compel her to commit the crime against nature upon his body, but the attorney subsequently discovered that he could not prove such statement, it was his duty at once to withdraw the same.</p> <p>[Ed. Note.—For other eases, see .Criminal Law, Cent. Dig. § 1659; Dec. Dig. § 703.*]</p> <p>7. Witnesses (§ 401*)—Cross-Examination—Conclusiveness op Answer— Collateral Matters.</p> <p>Where, in a prosecution for violating the White Slave Act, defendant testified in his own behalf, and on cross-examination was asked if he had not beaten a certain woman with Ms fist, and answered in the negative, the government could not introduce evidence to show the contrary, under the rule that a cross-examiner, to show the character of the party from his own admission, may go into collateral matters, but he is bound by the answers he obtains.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1270; Doe. Dig. § 401.*]</p> <p>8. Criminal Law (§ 878*)—Separate Counts—Partial Invalidity.</p> <p>The rule that if a criminal act is charged in several ways, and sentences run concurrently, one good count, supported by competent evidence, will sustain a general verdict of guilty does not apply, where the elements involved in the two sets of counts are not identical, and the trial judge in fact assessed the punishment on the basis that defendant was guilty of both offenses.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. § 878.*]</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge.</p> <p>Action by Sarah E. Holbrook, as administratrix of W. T. Holbrook, deceased, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Trade-Marks and Trade-Names (§ 24*)—Rights Protected—Right oe Service.</p> <p>While service is not trade in articles of commerce and while trademarks as such must actually be put on articles of commerce or their containers, a. trade-mark may cover, not only the physical article sold, but also the incorporeal right to render further service in connection with it.</p> <p>[Ed. Note.—Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 27; Dec. Dig. § 24.*]</p> <p>2. Trade-Marks and Trade-Names (§ 97*)—Infringement—Injunction.</p> <p>Complainant for years sold steel tanks equipped with regulating valves and containing acetylene gas dissolved in acetone for lighting automobiles. The gas packages were patented, and complainant had a license to make and sell the same for automobile use, while the patentee sold them for other purposes. Complainant for its own product used the word “Prest-O-Lite” as a trade-mark, which was stamped into the metal of its tanks, and continued to use the same after the patent expired. It sold the tanks, charged, for §25 each, and furnished the customer with new charged tanks in exchange for those in which the contents had been exhausted for §2.50 each. Held, that the trade-mark covered and protected, not only the original package, but the right to refill the same, and that a deliberate infringer was properly enjoined from recharging such tanks for users “without completely removing and permanently obliterating from the said tanks the said trade-mark Prest-O-Lite.”</p> <p>[Ed. Note.-—For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 'ill; Dec. Dig. § 97.*]</p> <p>S. Trade-Markb and Trade-Names (§ 32*)--Patented Articles—Effect of Expiration of Patent.</p> <p>A licensee under a patent who has adopted and used a distinctive trademark for the special form of the patented article made and sold by him, different from that used by the patentee upon such articles made for different purposes, does not lose his right to such trade-mark on the expiration of the patent.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 36; Dec. Dig. § 32.*]</p> <p>4. Monopolies (§ 21*)—Violation of Anti-Trust Law—Defense to Suit foe Infringement of Trade-Mark.</p> <p>That a complainant may conduct its business in a manner in violation of the anti-trust law is no defense to a suit for infringement of a trade-mark.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.*]</p> <p>5. Judgment (§ 704*)—Bah by Former Adjudication—Identity of Parties.</p> <p>The decree, in a former suit by complainant and another against defendant and another for infringement of a patent, held not a bar to a suit by complainant alone for infringement of a trade-mark, in which its co-complainant in the former suit had ho interest.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1229; Dec. Dig. § 704.*]</p>

Petitions to Revise and Appeal from Orders of the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from an order of the District-Court, Southern District of New York, denying a petition in reclamation proceedings. Consolidated with this record is a petition to revise an order of Judge Holt confirming a composition offered by the alleged bankrupts.

This cause comes here upon appeal from a final decree of the District Court of the United States for the Southern District of New York, entered on October 16, 1913, holding the steam tug James J. McGuirl solely responsible for the collision between the steamship Arciduca Stefano and a barge in tow of the McGuirl, which occurred November 3, 1911, in Buttermilk Channel in the port of New York.

<p>Appeal from the District Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p> <p>In the matter of bankruptcy proceedings of the Pittsburg-Big Muddy Coal Company. Petition by the Goodman Manufacturing Company for the recovery of certain machinery covered by a chattel mortgage to secure a portion of the purchase price, sold to the St. Louis Company, and by it sold to the bankrupt, subject to the mortgage. From a decree dismissing the petition for want of equity, petitioner appeals.</p>

<p>1. Eminent Domain (§ 293*)—Remedies of Owners—Pleading.</p> <p>A bill by an owner of land to restrain a continuous trespass, which, began while the land was in the possession of a former owner, was defective for failure to allege that the latter, after the original entry without his knowledge or consent, remained in ignorance of the trespass and had not settled with defendant for taking his property.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.*] '</p> <p>2. Eminent Domain (§ 293*)—Remedies of Owners—Pleading.</p> <p>Where defendant constructed a water tunnel under complainant’s property without his knowledge and without condemning the right to do so, and complainant sued to compel the removal of the tunnel and the restoration of his lots to their original condition, an allegation in the bill that the construction was inferior and defective was immaterial.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.*]</p> <p>3. Eminent Domain (§ 273*)—Taking Land for Public Use—Equitable</p> <p>Relief—Damages.</p> <p>. Where a city constructed a water tunnel across complainant’s property 70 feet below the surface as part of a city system for taking water from Lake Michigan and supplying it for pay to its inhabitants, complainant was not entitled to maintain a, suit to compel the city to remove the tunnel and restore his lots to their former condition, though the city had not condemned the right to maintain the tunnel, but, the city’s work being of a public character and the land having been appropriated to a public use, complainant was limited to his right to recover damages.</p> <p>[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 743-749, 752, 754-764; Dec. Dig. § 273.*]</p> <p>4. Eminent Domain (§ 288*)—Remedies of Owners—Limitations. •</p> <p>.Where defendant city without condemnation appropriated a portion of complainant’s property for a water tunnel 70 feet below the surface and complainant did not sue for an injunction to compel the removal of the tunnel and a restoration of the lots to their original condition for 15 years after the work had been done, the bill could not be properly retained for an assessment of damages.</p> <p>TEd. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 783-788; Dec. Dig. § 288.*]</p>

<p>1. Customs Duties (§ 81*)—Administrative Aot—Construction.</p> <p>Wliile a collector may reliquldate duties within one year, as limited by Act June 22, 1874, c. 391, I 21, 18 Stat. 190 (U. S. Comp. St. 1901, p. 1930), and may to that end examine the importer under the provisions of Tariff Act Aug. 5, 1909, c. 6, § 28, subsec. 15, 36 Stat. 100 (U. S. Comp. St. Supp. 1911, p. 919), under subsections 13-36 of the latter chapter, which make the appraisal in case of no appeal “final and conclusive,” where merchandise has been appraised, the time for appeal has expired, the duties have been paid and the goods surrendered, the collector has no power, on an examination of the importer under said subsection 15, to ex ranine into the question of valuation.</p> <p>[Ed. Note.—For other eases, see Customs Duties, Cent. Dig. § 197; Dec. Dig. § 81.*]</p> <p>2. Customs Duties (§ 81*)—Reliquidation of Duties—Citation of Importer for Examination.</p> <p>A collector may, under his power to reliquldate duties, cite an importer to appear for examination as provided by Tariff Act Aug. 5, 1909, c. 6, § 28, subsec. 35, 36 Stat. 100 (U. S. Comp. St. Supp. 1911, p. 919), and for his failure to appear ho is subject to the penalty imposed by subsection 16.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 197; Dec. Dig. § 81.*]</p>

. The charter was for about one year, beginning from the time of her delivery to the charterer upon the completion of an existing charter to the Munson Line. Both charters were in the usual form-, the flat period of the Munson charter was to expire January 7, 1912. On November 24, 1911, the Moldcgaard stranded on one of the Bahama Islands, and was not again ready for service till February, 1913.

Suit in equity by the Farmers’ Loan & Trust Company against the New York Railways Company and the Central Park, North & East River Railroad Company and others. Appeal from an order relating to counsel fees.

Willard, Judge. Two actions by John P. Galbraith, as trustee in bankruptcy of Prank A. Witzig, against the Northwestern Consolidated Milling Company and George. C. Christian & Company, respectively. Judgment for plaintiff in each case, and the defendants appeal.

Appeal by defendant below from an interlocutory decree of the District Court, Southern District of New York, holding valid and infringed claim 11 of United States letters patent No. 985,984, dated March 7, 1911, granted to Martin and Eugene M. Deiller for a tobacco stripping and booking machine. Two suits were originally brought, which by order were duly consolidated.

<p>Patents (§ 328*) — Infringement — Machine for Coating Parer with Carbon.</p> <p>The Weeks patent No. 665,648, for a machine for coating paper with carbon, construed, and held not infringed by a machine in which the rolls are heated.</p>

<p>Patents (§ 328*)—Novelty—Cabton foe Biscuits.</p> <p>The Peters patent, No. 621,974, for a carton for containing biscuit, crackers, and like articles, and the method of making the same, is void for lack of patentable novelty in view of the prior art.</p>

In Equity. Suit by the Adrian Wire Fence Company against the Milwaukee Wire Fence Company. On final hearing. Complainant has filed its bill charging infringement of two patents, No. 533,403, issued to Williams, relating to the tie or knot for securing longitudinal or strand, and vertical ’or stay wires at points of intersection; also No. 755,187, issued to complainant, assignee of Tiffany, relating to the dies for forming and applying the knot or tie referred to.

<p>In Equity. Suit by the Mead Morrison Manufacturing Company against the Exeter Machine Works. On final hearing.</p>

<p>In Equity. Suit by Frederick E. Baldwin and the John Simmons Company against the Grier Bros. Company. On final hearing.</p>

<p>Patents (§ 327*)—Petoktty oe Invention—Res Judicata.</p> <p>Where the question of priority of invention between two patentees was actually litigated and decided in a suit to which the owners of both patents in effect became parties, by stipulation admitting their participation in the expense, the decision is conclusive, and a bar to a subsequent suit in another jurisdiction, between the owners of such patents, and involving the same question.</p> <p>LEd. Note.—Eor other cases, see Patents, Cent. Dig. §§ 620-625; Dec. Dig. § 327.*]</p>

<p>In Equity. Suit by the Oregon Woodenware Manufacturing Company against Gilbert V. Murray, doing business as the Eureka Woodenware Company. On final hearing.</p>

<p>In Equity. Suit by the Firestone Tire & Rubber Company against Samuel Dientenfass, doing business as the Central Tire Company. On application for preliminary injunction.</p>

<p>Bankruptcy (§ 414*)—Right to Discharge—Burden of Proof.</p> <p>Where a bankrupt schedules existing debts but no assets, the burden is on the creditors to establish one of the specific grounds specified in the act for denial of the discharge in order to Justify such denial.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p>

<p>In Equity. Suit by the Guth Chocolate Company against Charles G. Guth. On final hearing.</p>

<p>In Equity. Suit by Ginn & Co. against the Apollo Publishing Company. On bill, answer, and proof.</p> <p>The following are the findings of fact and conclusions of law;</p> <p>Findings of Fact</p> <p>The court finds the following conclusions of fact in the above case;</p> <p>(1) The plaintiffs ai’e as set forth in paragraph 1 of the bill filed in this casé as amended by the agreed amendment to the bill in this respect.</p> <p>(2) The defendant, Apollo Publishing Company, is a citizen of the state of Delaware, and has a corporate existence under the laws of that state, as set forth in paragraph 1 of the bill and the agreed amendment thereto.</p> <p>(3) The plaintiffs are some of them citizens of the state of Massachusetts, some of the state of New York, some of the State of Illinois, and some of the state of California, as set forth in paragraph 1 of the original bill and the agreed amendment thereto.</p> <p>(4) The case arises under the laws of the United States relating to copyrights in part and in part is a suit in equity between citizens of different states, and is a case where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of £3,000, as set forth in the bill filed in the case and in the agreed amendment thereto.</p> <p>(5) So far as they are questions of fact the required jurisdictional facts are found to exist in this case.</p> <p>(6) Tho plaintiffs are the proprietors as authors, publishers, and owners of the different publications as set forth in the original bill and the agreed amendment thereto, and have complied with all the statutory requirements conferring upon them copyrights under the acts of Congress, as set forth in the bill.</p> <p>(7) The firm of Ginn & Co., one of the plaintiffs, is and for many years has been a publisher of schoolbooks, making, compiling, publishing, and selling them in nearly all parts of the United States.</p> <p>(8) The defendant is and lias been during the time referred to in the bill of complaint engaged primarily in the business of rebinding of old or secondhand books. It is the owner of a new and useful form of binding, which is patented under the laws of the United States. As incidental to its main business of the rebinding of old books for the owners thereof, it also purchases old or secondhand books, and, after cleaning, renovating, and rebinding such books, resells them as secondhand books. All the books thus rebound and sold by them are plainly -marked, “Rebound by the Apollo Publishing Company, Reading, Penna.”</p> <p>(9) During the time complained of in the plaintiffs’ bill the defendant has purchased old or secondhand book copies of the plaintiffs’ publications, and lias cleaned, renovated, rebound, and resold them as old or secondhand books,, plainly marked on the cover as books rebound by the defendant.</p> <p>(10) Tho defendant has in like manner cleaned, renovated, and rebound old or secondhand books of the plaintiffs’ publications for others, and has delivered such secondhand books to the owners thereof as such rebound books.</p> <p>(11) Some of the books thus improved and resold have been imperfect copies of tlie original publications, in that parts thereof, consisting in some instances of the title page, in others the page of the book containing the plaintiffs’ copyright notice, and the page containing tho name of the author, being missing. All the instances in which this was done, however, it was done in cases in which the books were rebound for others in the condition in which they were when delivered to the defendant for rebinding, or when done in cases of a purchase and resale of the secondhand books by the defendant on its own account, the sending out of tho imperfect books was due to the neglect or inadvertence of defendant’s employes, and was not dono by its direction or with its knowledge, the purpose and effort of the defendant having been not to sell on its own account imperfect copies of the books sold.</p> <p>(12) The defendant has at times supplied parts of secondhand books purchased which had been torn out or were otherwise missing, so as to reproduce in substance the parts missing. This supply of missing parts has, in some instances, consisted of a reproduction of the original maps in geographies which were bound in with and were part of the original publication, and at other times consisted of reprinted pages of text which had been torn out, or were otherwise missing from the secondhand copies purchased and resold by the defendant. There was no effort or attempt in the supply of these missing parts to produce any deceptive imitations of tho plaintiffs’ publication. The omitted parts were supplied in each instance wholly for the purpose of giving to purchasers of the resold books substantial reproductions of the missing parts, and parts supplied were substitutions for and -not imitations of tbe parts of the original publication which were thus missing. There was no attempt at identity or similitude in the style of type from which the printing was done. The matter, however, copied was the. same, and textually the copies were accurate so far as it was practicable to make them so.</p> <p>(13) The secondhand books of plaintiffs’ publications which were thus renovated and rebound by the defendant company, either for the owners thereof or which were purchased by the defendant and thus treated and resold on its own account, were all copies of books’which had been regularly sold by the plaintiffs to the original purchasers, and from them passed immediately or mediately to the defendant company by resale, and in every instance the plaintiffs received the full benefit and advantage of the exclusive right conferred upon them by the copyright laws.</p> <p>(14) In none of the instances of a resale of the plaintiffs’ publications or a sale of the secondhand copies thereof was there any attempt by the defendant to palm off the books sold by it as new or original publications of the plaintiffs, nor were these books sold or attempted to be sold in competition with the plaintiffs in the sale of their copyrighted books as new publications.</p> <p>(15) So far as the same is involved in a finding of fact the defendant has not been guilty of any unfair competition or in any practices involving unfair competition with the plaintiffs in their trade or business as publishers of the books referred to in the plaintiffs’ bill, nor has the defendant bedn guilty of any unfair, trade or practices involving unfair trade in this réspect.</p> <p>(16) So far as the same is a finding of fact the defendant has been guilty of an infringement of the copyright of the plaintiffs, in that the defendant has, after the recording of the titles of the books set forth in plaintiffs’ bill, and within the term limited within which the plaintiffs have the exclusive right to print and sell the same, and within two years last past, printed and printed, published, and sold parts of the books, the titles of which were so recorded by the plaintiffs, by incorporating such-copies and reprinted portions of the plaintiffs’ publications with old, secondhand, or sold copies thereof, and selling the same as old or secondhand copies of the plaintiffs’ publications.</p> <p>Conclusions of Law.</p> <p>The court finds the following conclusions of law:</p> <p>1. So far as the same is a conclusion of law the facts necessary to give the court jurisdiction of the parties to this suit and of the subject-matter of the controversy between them exist, and the court has jurisdiction to grant the relief prayed for in the bill.</p> <p>2. So far as the same is a Question of law the defendant has been guilty of no unfair competition with the plaintiffs or of unfair trade in the respect of the publication or sale of its books as the publications of books of the plaintiffs.</p> <p>3. So far as the same is a question of law the plaintiffs are the proprietors and possess the exclusive right to print, publish, and sell the books and publications referred to in their bill, under the acts of Congress in such case made and provided relating to copyrights.</p> <p>4. So far as the same is a question of law the defendant has been guilty of an infringement of the copyright of the plaintiffs in that it has printed and has printed, published, and resold parts of the copyrighted boobs and publications of the plaintiffs by incorporating such reproduced and reprinted portions with the original publications and printed books of the plaintiffs and reselling them as old or secondhand books published by the plaintiffs.</p> <p>5. The plaintiffs are entitled to a decree restraining the defendant from printing, publishing, or selling any portion of the copyrighted books and publications of the plaintiffs, as set forth in the bill, and from incorporating such reprinted portions in old or secondhand books or publications of the ■plaintiffs and selling the same as plaintiffs’ books and publications.</p> <p>6. Plaintiffs are entitled to a decree against the defendant forfeiting to the plaintiffs all the plates on which said printed portions of plaintiffs’ copyrighted publications have been copied and every sheet thereof kept or printed. and to a decree of accounting for the damages sustained by said plaintiffs in its behalf.</p> <p>7 The plaintiffs are entitled to a decree in their favor and against the defendant for costs.</p>

<p>In Admiralty. Suit by Henrik A. Dahl against the steamship Roanoke.</p>

<p>1, Vendor and Purchaser (§ 186*)—Forfeiture of Contract for Default in Payment—Contract for Good Title.</p> <p>A vendor by a contract oí which time was made the essence contracted to convey by a good marketable title on payment of the last installment oí the purchase price. Before that time, however, the title became clouded by attachment suits, under one of which the laud was sold and bj' a divorce suit. Held, that, until the title was cleared so that the vendor or his successor in interest could convey by a good title, the purchaser was not in default, and that a court of equity would not declare the contract forfeited where it offered to make payment on receipt of a good title.</p> <p>[Ed. Note.-—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 341, 373; Dec. Dig. § 186.*]</p> <p>2, Public Lands (§ .140*)—Exemption of Homestead from Prior Debts— Construction of Statute.</p> <p>The provision of the Homestead Act (Rev. St. § 2296 LTJ. S. Comp. St. 1901, p. 1398]), that no lands acquired thereunder shall in any event become liable for the satisfaction of any debt contracted prior to the issuing of the patent, is to be construed.literally, and the exemption is not waived by the failure of the debtor to claim it before judgment or sale, but a sale on a judgment for a debt contracted before issuance of the patent, although after the final certificate, is void.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 377-382; Dec. Dig. § 140.*]</p> <p>3, Public Lands (§ 136*)—Equitable Mortgage—Deposit of Final Homestead Certificate.</p> <p>A deposit of the final certificate issued on a homestead entry as security for a debt is not effective to create an equitable mortgage on tbe land.</p> <p>['Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 364-366; Dec. Dig. § 136.*]</p> <p>4, Mortgages (§ 29*)—Deposit of Contract for Sale of Land—Delivery AVmrour Assignment.</p> <p>The deposit by a vendor of a contract for the sale of land as security for a loan, although without assignment, amounts to a pledge and creates a lien on the purchase money duo thereon, and a grantee of the land by a quitclaim deed from the pledgor with knowledge of such prior pledge takes subject thereto.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 54; Dec. Dig. § 29.*]</p>

<p>In Equity. Suit by John S. Alexander and others against the Fidelity Trust Company and others. On motion to dismiss.</p>

<p>1. Trade-Masks and Tradf.-Names (§ 58*) — Infringement — Painting Prod lot.</p> <p>Where complainant and defendant manufactured canvas belting and complainant adopted as a trade-mark a green line or stripe applied to one edge of the belt, directing in its advertising that consumers should “look for the green edge,” such mark, if valid as a trade-mark was not infringed by defendant coloring both edges of its belting a brilliant black.</p> <p>I Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 100; Dec. Dig. § 58.*]</p> <p>2, Trade-Marks and Trade-Naíirs (§ 70*)—Unlawful Competition.</p> <p>Where complainant manufactured and put out canvas belting, one edge of which was painted green as a distinguishing mark, defendant was not guilty of unlawful competition in manufacturing and selling similar bolting, both edges of which were painted a brilliant black.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 115; Dec. Dig. § 70. *j</p>

<p>In Admiralty. Suits by Cooney, Eckstein & Co. against the F. & J. Auditore Company, with Daniel B. Flannery, impleaded, and by Daniel B. Flannery, owner of the barge Evelyn, against the F. & J. Auditore Company.</p>

<p>In Admiralty. Suit by the Lehigh Valley Transportation Company against the steam tug May McGuirl.</p>

<p>1. Corporations (§ 448*)—Liability on Contracts of Promoters—Ratification.</p> <p>While a corporation is not bound by the contracts of its promoters if nothing more appears, where, after its organization, it adopts such contract, it is bound ,thereby, and it does so adopt it by accepting the benefits thereof.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec. Dig. § 448.*]</p> <p>2. Corporations (§ 88*)—Stock Subscriptions—Payment in Services.</p> <p>Services performed in procuring a lease for a corporation, subsequently assigned to it, under an agreement by the promoters of the corporation to have stock issued in payment for such services, were the equivalent of cash within a statute prohibiting the issuance of stock except for cash or its equivalent.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 337-364, 425-428; Dec. Dig. § 88.*]</p> <p>3. Bankruptcy (§ 225*) — Collection of Assets — Summary Proceedings — Evidence.</p> <p>In a proceeding before a referee in bankruptcy to compel the delivery of property by a third person to the trustee, it was irregular to receive and hear the evidence before the trustee’s petition was filed and the rule or show cause order to the third person issued.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 384; Dec. § 225.*]</p> <p>4. Bankruptcy (§ 225*) — Collection of Assets — Summary Proceedings — Parties.</p> <p>A summary proceeding by a trustee in bankruptcy to compel the issuance of stock pursuant to an agreement by the promoters of a corporation, adopted by the corporation, to issue stock to the bankrupt in payment for services, should have been against the corporation and not against the promoters alone.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 384; Dec. Dig. § 225.*]</p> <p>5. Bankruptcy (§ 224*) — Collection of Assets — Summary Proceedings — When Maintainable.</p> <p>A referee in bankruptcy had no jurisdiction of a summary proceeding to compel a corporation to issue stock to the trustee pursuant .to an agree-' ment by its promoters to have stock issued to the bankrupt in payment for services, as such a proceeding is proper only to effect the transfer of the physical possession of property from the bankrupt or a third person to the trustee, and not to collect a debt or enforce performance of a contract, and the bankrupt was not the owner of anything capable of physical possession.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 383; Dec. Dig. § 224.*]</p> <p>O. Bankruptcy (§ 228*) — Collection of Assets — Summary Proceedings — Review—Quéstions Reviewable.</p> <p>In a summary proceeding before a referee in bankruptcy to enforce performance of a contract between the bankrupt and a third party, it was not too late to question the referee’s jurisdiction on a petition to review his order.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. § 228.*]</p> <p>7. Corporations (§ 98*)—Mandamus (§ 126*)—Stock—Refusal to Issue-Remedies.</p> <p>Where a corporalion wrongfully refuses to issue a certificate of stock which it has the power and is under an obligation to issue, the party entitled thereto may compel its issuance by mandamus, sue in equity for specific performance, sue in damages for the breach of a contract, or treat the refusal as a conversion of the stock and sue in trover lor damages.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent Dig. |§ 436-4-13; Dec. Dig. § 98;* Mandamus, Cent. Dig. § 261; Dec. Dig. § 126.*]</p> <p>8. Bankruptcy (§ 293*)—Actions by Trustee—Jurisdiction.</p> <p>Under Bankruptcy Act, July 1, 1893, c. 541, § 23b, 30 Stat 552 (U. S. Comp. St. 1901, i>. 3431) providing that suits by the trustee shall only be brought or prosecuted in the courts 'where the bankrupt might have brought or prosecuted them, unless by consent of the proposed defendant, a suit to enforce performance of a contract by a corporation to issue stock to the bankrupt could not be brought in a United States district court unless the defendant consented, or unless diversity of citizenship existed between the bankrupt and the defendant, and the amount in controversy exceeded 83,000.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dee. Dig. § 293.*]</p> <p>9. Bankruptcy (§ 224*)—Actions by Trustee—Jurisdiction.</p> <p>Bankruptcy Act, July 1, 1898, c. 541, § 23b, 30 Stat. 552 (ü. S. Comp. St. 1901, p. 3431), authorizing suits by a trustee to be brought in the courts where 1he bankrupt might have brought thbin, does not authorize the bringing of such suits in the district court sitting in bankruptcy, and hence does not give a referee in bankruptcy jurisdiction of an action to collect a debt or suit to enforce specific performance of a contract.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 383; Dec. Dig. § 224.*]</p> <p>10. Bankruptcy (§ 224*)—Actions by Trustee—Jurisdiction.</p> <p>A referee in bankruptcy, having no jurisdiction of a suit by the trustee to enforce Sfiecific performance of a contract between the bankrupt and a third party, acquired no jurisdiction by the consent of the third party.</p> <p>I Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 383; Dec. Dig. § 224.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Tobias, Greenthal & Mendelson. On motion of Robert C. Moms,' receiver, to compel the bankrupt to answer questions on an examination under Bankr. Act, § 21a. The proceedings were involuntary, but they had gone to adjudication, and the bankrupt had filed his schedules, containing, of course, a statement of his liabilities and- of his property.

<p>Highways (§ 198*)—State Aid—Defects—Injuries to Travelers—Township Liability—Statutes.</p> <p>Laws N. H. 1903, c. 54, § 6, provides that no claim shall accrue against the state and no action bo maintained against any town in which a road is situated on which the work of construction is done or repairs made, in whole or in part, at the expense of the state for or on account of any injury to persons or property on any such road. Laws N. H. 1903, c. 35, § 1, declared that it was enacted to secure a more uniform system for the improvement of main highways throughout the state by the co-operation of municipalities, and provided for the appropriation of money by the state for highway construction and repair; section 8 declaring that all highways within any city or town improved by the expenditure of a joint fund created by contributions by the municipality in the state should thereafter be maintained by the municipality within which the highway was located to the satisfaction of the Governor and Council. Held, that where plaintiff was injured by failure of a town to provide a railing along a dangerous embankment on a road which had been designated as a continuous state highway under the act of 1905, and which had been repaired and was undergoing repairs at the partial expense of the state, it was within the description of Laws N. H. 1903, c. 54, § 6, and the town was therefore not liable for the injury.</p> <p>[Ed. Note.—For other cases, set; Highways, Cent. Dig. §§ 504-507; Dec. Dig. § 198.*]</p>

<p>Appeals from the District Court of the United States for the West-tern District of Virginia, at Uynchburg; Henry Clay McDowell, Judge.</p> <p>Suit in equity by Thomas T. Boswell, Merville H. Carter, and Andrew C. Snyder against the Big Vein Pocahontas Coal Company, in which Ollie H. Browning, and James S. Browning, Jr., an infant, by James S. Browning, his next friend, were interveners. Suit by the Colonial Trust Company against the Big Vein Pocahontas Coal Company. Suits consolidated. From the decree, interveners appeal.</p>

<p>j. Bankruptcy (§ 69*)—Partnership—Entity.</p> <p>Under Bankruptcy Act (Act July 1, 1898, c. 541, .80 Stat. 544, 547, 5-48 [Ü. S. Comp. St. 1901, pp. 3418, 3424]) §§ 1, 5, relating to bankruptcy proceedings against partnerships, a partnership is treated as an entity for at least some purposes.</p> <p>[Ed. Note.—Por other cases, see Bankruptcy, Cent. Dig. §§ 51-53, 56; Dee. Dig. § 69.*]</p> <p>2. Bankruptcy (§ 54*)—Partnership—Members of Firm—Solvency.</p> <p>A partnership cannot be adjudged a bankrupt so long as any of its members are individually solvent.</p> <p>]Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 54, 84, 85; Dee. Dig. § 54.*]</p> <p>3. Bankruptcy (§ 90*)—Partnership—Secret Partners—Member of Firm— Adjudication—Jurisdiction.</p> <p>In bankruptcy proceedings against a firm, the bankruptcy court has jurisdiction to inquire and determine whether an alleged secret partner is or is not a member of the firm, and, if he is, whether he is solvent.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. § 124; Dec. Dig. § 90.*]</p> <p>4. Bankruptcy (§ 81*)—Partnership-—Secret Partner—Obligation to File Schedules of Debts and Liabilities.</p> <p>in bankruptcy proceedings against a firm, a creditor’s petition against an alleged secret partner, asking that he be required to file schedules of his assets and liabilities on the theory that he was a member of the firm and liable for its debts, could not be sustained under Bankruptcy Act, § 59, providing the method by which creditors can proceed to have a person adjudged a bankrupt; there being no claim that the alleged partner was insolvent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, 125; Dec. Dig. § 81.*]</p> <p>5. Bankruptcy (§ 15*)—Proceedings Against Partnership—Secret Partner—Trial of Issue—Duty to File Schedules—Jurisdiction.</p> <p>Bankruptcy Act, § 21a, provides that a court of bankruptcy, on application of any officer, bankrupt, or creditor, may, by order, require any designated person to appear in court or before a referee and bo examined concerning the acts, conduct, or property of the bankrupt, whose estate is in process of administration under the act. Held, that neither under such section nor independent thereof did a bankruptcy court have jurisdiction of a creditor’s petition in proceedings against a firm to try the question of an alleged secret partner’s membership in the firm against his will, and to compel him to file schedules of assets and liabilities.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 21; Dec. Dig. § 15.*]</p> <p>8. Bankruptcy (§ 149*)—Partnership—Proceedings against Secret Partner.</p> <p>A bankruptcy court in proceedings against a partnership has no jurisdiction to administer on the estate of an alleged secret partner without declaring him a bankrupt or finding him insolvent.</p> <p>[Ed, Note.—For other cases, see Bankruptcy, Cent. Dig. § 229; Dec. Dig. § 149.*]</p> <p>7. Bankruptcy (§ 90*)—Courts—Jurisdiction—Partnership—Proceedings against Partner.</p> <p>WJien no petition in bankruptcy bas been filed against an alleged secret partner as an individual, and be asserts under oatb that be is not a partner, be cannot be summarily adjudged sucb on an inquiry before a referee in bankruptcy to which be does not consent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. '§ 124; Dee. Dig. § 90.*] ■</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Foreclosure suit by the Fidelity Trust Company, trustee, against the Conneaut & Erie Traction Company. From a decree confirming a master’s report and distributing the proceeds of the sale, Albert Edgar Freeman and others, bondholders, appeal.</p>

<p>1. Collision (§ 107*)—Steam Vessels Crossing—Special Circumstances Rule.</p> <p>The privileged one of two crossing vessels is not relieved from the duty of keening her course and speed as required by article 21 of the International Rulés (Act Aug. 19, Í890, c. 802, 26 Stat. 320 [U. S. Comp. St. 1901, p. 28701) by article 27, which authorizes a departure from the, rules under special circumstances which render such departure “necessary in order to avoid immediate danger,” unless there is clearly immediate danger, and then the departure must be no more than is necessary.</p> <p>[lid. Note.—For other cases, see Collision, Cent. Dig. § 224; Dec. Dig. § 107.*]</p> <p>2. Collision (§ 123*)—Contributory Fault- Violation oe Rules.</p> <p>Where a ship at the time of collision was acting in violation of a statutory rule, the burden is on her to show, not merely that her fault might not have been one of the causes of the collision, but that it could not have been.</p> <p>[Ed. Note.—For other cases, see Collision, Cent Dig. §§ 259-261; Dec. Dig. § 123.*]</p> <p>3. Collision (§ 40*)— Steam Vessels Crossing—Mutual Faults.</p> <p>The steamships Alleghany and Pomarpn both held in fault for a .collision at sea in open weather and in the daytime while on crossing courses, in which the Alleghany was sunk, her fault, being the failure to maintain a lookout, although the vessels were within sight of each other for several miles, and that of the Pomaron, which was the privileged vessel, a change of course without necessity.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. § 40; Dee. Dig. § 40.*]</p> <p>4. Evidence (§ 37*)—Judicial Notice—Laws of Foreign Country.</p> <p>Although the local laws of both countries to which two foreign vessels in collision on the high seas belong may coincide in providing that liability shall not be in solido, but in proportion to the degree in which each vessel is in fault, courts of admiralty of the United States cannot take judicial notice of such laws, nor apply such rule unless they are pleaded and proved.</p> <p>[Ed. Note.—-For other cases, see Evidence, Cent. Dig. § 52; Dec. Dig. § 37.*]</p>

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury directed by the court in favor of defendant in error* who was the defendant below.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge. _ ■ 1</p> <p>_ In the matter of the Standard Furniture Distributing Company, bankrupt. To review an order of commitment in contempt proceedings, brought by the Central Trust Company of Illinois, Isadore B. Freed brings error.</p>

- This is an appeal from an order of the District Court entered December 26, 1913, fixing the compensation of James A. Allen, as solicitor for the American Steel Barrel Company and Elizabeth .C. Seaman in certain bankruptcy proceedings in that court. The proceedings were commenced in April, 1911, by the filing of a petition in the Eastern District of New York against the Iron Clad Manufacturing Company, a corporation in which Elizabeth C. Seaman was largely interested.

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.</p> <p>Action by Jacob Tom against the Nichols-Eifield Shoe Machinery Company. Judgment for defendant, and plaintiff brings error.</p>

This suit comes here on appeal from a final decree in favor of the libelant, entered in the District Court for the Southern District of New York, October 27, 1913, awarding the sum of $257.42 to the libel-ant.

<p>Bankruptcy (§ 140*) -- Goods in Possession of Bahkbtjtt — Consignment for Sale—Conditional Sale.</p> <p>A bankrupt being’ indebted to claimant for machinery sold it, claimant refused to make further shipments except on consignment and on Januuary 16, 1911, shipped one car rndor a consignment invoice, and on February 2-jth following shipped a second car under an invoice which by mistake was marked, “Terms 4 Mo. note Q% Infc.” No such note was given, and, the mistake having been discovered, a duplicate invoice was issued, reciting, “Terms on consignment,’’ and substituted for the original, which was returned. In August it was found that the bankrupt was unable to settle for a considerable portion o£ the January shipment, whereupon claimant took its obligations for the amount sold, and a letter reciting that the bankrupt had m stock oi‘ claimant’s goods on consignment certain specified engines, which it was understood the bankrupt was to pay for when sold, at the same time as they received tlieir customer’s settlement, and the title to the engines was to remain in claimant and the bankrupt was simply to act as its agent in selling them and collecting for them, less the bankrupt’s proflt above claimant’s selling price. Held, that such goods were on consignment for sale and not sold, and hence title to such as ,remained in the bankrupt’s possession on the intervention of bankruptcy in November, 1911, did not pass to the bankrupt’s trustee.</p> <p>Did. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. § MOA</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 O. O. A. 44 8. J</p>

<p>Petition to Revise and Appeal from Order of the District Court of the United States for the Eastern District of New York.</p> <p>This cause comes here on appeal from and petition to revise an order of the District Court, Eastern District of New York, dismissing the petition of General Vehicle Company, Inc., for reclamation of the sum of $3,333.33, proceeds of the sale of certain automobile trucks.^ which, by order on stipulation, was held by the trustee of White’s' Express Company, bankrupt, as a separate fund, subject to the same lien or rights, if any, which claimant had on and in the trucks.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. On appeal from an order of the District Court for the Southern District of New York (210 Fed. 391) overruling the exceptions filed to the specifications of objection by the First National Bank of Easton, Pa., to the bankrupt’s discharge.

<p>Salvaom (§§ 26, 34*)—Recovery under Contract—Vesset. Frozen in.</p> <p>A tug owner, who contracted to move a loaded barge, which was frozen in the ice, to a place of safety, 7iclcl entitled to recover for delay and injury to the tugs caused by floating ice, but to interest on the damages awarded only from the date of tiling the libel.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. §§ 57-64, 68, 80-84; Dec. Dig. §§ 26, 34.*</p> <p>Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

Petitions to Revise Orders of the District Court of the United States for the Eastern and Southern Districts of New York. In the matter of the Burr Manufacturing Company, bankrupt, and of Leavitt & Grant, bankrupts. On petitions to revise orders of District Court.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree of -the District Court for the Southern District of New York disallowing the claim of the petitioner for $360 premiums paid upon the stipulation filed by him.</p>

<p>Petitions to Revise and Appeals from Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Leavitt & Grant, bankrupts. William Marley and seven other claimants of a fund in the hands of the trustee appeal from and petition to revise an order of the District Court.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; Wm. L. Day, Judge.</p> <p>Suit in equity by the Ohio Varnish Company against the Glidden Varnish Company. Decree for defendant (211 Fed. 676), and complainant appeals.</p>

This was a bill in equity filed in the United States District Court for the Southern District of New York by the Fowler & Wolfe Manufacturing Company against the MeOrum-lIowell Company for an injunction, damages, and an accounting for tlie infringement of letters patent No. 609,800, issued August 30, 189S, to Arthur H. Fowler, of whom the complainant was the assignee for an improvement in radiators.

Suit by Max Wallerstein and Deo Wallerstein against the S. Eiebmann’s Sons Brewing Company. Decree for complainants, and defendant appeals.

<p>Appeal from the District Court, of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Suit by Max Wallenstein' and Leo Wallerstein against Christian Eeigenspan, Incorporated. From an order denying a motion for preliminary injunction, complainants appeal.</p>

Tuttle, Judge. Suit in equity by the Weed Chain Tire Grip Company, Harry D. Weed, and the Parsons Non-Skid Company, Eimited, against Arthur S. Perry and Milton H. Perry, doing business under the name of Perry Chain Crip Company, the Union Steel Screen Company, and the Motor Specialty Company. Decree for complainants, and defendants appeal.

<p>'In Equity. Suit by the Merrell-Soule Company against the Powdered Milk Company of America, Wellington C. Patrick, and Dana R. Shedd.</p>

<p>1. Corporations (§ 642*)—Foreign Corporations—What Constitutes Doing Business.</p> <p>Wliere a Canadian corporation, engaged in loaning money, bad an agent residing in Oregon, and applications for loans made to Mm were forwarded to tlie company for approval, and, on approval of an application, an undertaking agreeing to pay to the agent the amount of the loan in consideration of monthly payments was issued to the agent, who assigned the same to the prospective borrower, the loan being secured by mortgage on Oregon real estate, the corporation was doing business in Oregon.</p> <p>LEd. Note.—For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Doc. Dig. § 642.*]</p> <p>2. Corporations (§ 648*)-—Foreign Corporations—Rtgut to do Business.</p> <p>L. O. L. Or. § 6727, requires foreign corporations to file with the Secretary of State a copy of the charter certified to by the legal keeper of the original, together with a certificate of a United States diplomatic or consular officer in such foreign country that such certifying officer has the requisite official knowledge whether such charter or articles of incorporation are of a genuine, valid, and subsisting character, and that such copy is duly certified by the officer having the legal custody of the original. A Canadian corporation doing business in Oregon had the certificate of the registrar of joint-stock companies that the copy of the article of association was a true copy of the original in the registrar’s office, also the certificate of the provincial secretary of British Columbia that the registrar was the duly appointed officer, and that the signature and seal attached to his certificate were his signature and seal, and that said registrar had the legal custody of the original document, and also a certificate of the United States consul general at Vancouver, B. C., that the registrar was the duly appointed and commissioned registrar of joint-stock companies for the province of British Columbia, and that to all his official acts full faith and credit were due and given. Held, that the corporation was not entitled to do business; there being no certificate that the registrar had requisite official knowledge whether the articles were of a genuine, valid, and subsisting character.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2516; Dec. Dig. § 648.*]</p> <p>3. Corporations (§ 661*)—Foreign Corporations—Bight to Sue.</p> <p>A foreign corporation unauthorized to do business in Oregon, because of failure to file the certificate required by D. O. L. Or. § 6727, is not entitled to sue in the federal court for the district of Oregon.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542, 2543, 2544, 2546, 2563-2567; Dec. Dig. § 661.*]</p>

<p>Salvage (§ 13*)—Rescue oe Disabled Schooner—Nature oe Service.</p> <p>A schooner, worth with her cargo about $15,000, during a storm and dense fog, was blown upon a rock in Long Island Sound, causing her to leak somewhat, and so injuring her rudder fastenings as to render her unable to navigate. In the morning she displayed a distress signal, in response to which she was towed to port by a tug, under an agreement that the price should be fixed by the underwriters at New Haven, which, however, was not done. Held that, while the schooner was not in immediate danger, her master was evidently in doubt as to his ability to reach port, and the service so rendered by the tug was a salvage service, for which she was entitled to an award of $750.</p> <p>[Ed. Note.—For other cases, see Salvage, Cent. Dig. § 15; Dec. Dig. § 13.*]</p>

<p>Action by the Kemp & Burpee Manufacturing Company against Benjamin C. Mitchell and another, doing business as B. C. Mitchell & Son. On exceptions to a referee’s report.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Metallic Specialty Manufacturing Company. On petition to review a referee’s order allowing additional fees to counsel for the trustee.

<p>At Law. Action by T. H. Thullen against the Triumph Electric Company. Sur demurrer to statement.</p>

In-Equity. Suit by the'Manufacturers’ Eight & Heat Company, the Manufacturers’ Gas Company, the Tri-State Gas Company, the Wheel-’ ing Natural Gas Company, the -Ohio Valley Gas Company, the Blacks-ville Oil & Gas Company, the Cameron Gas and Oil Company, the Wetzel Gas Coppany, and the New Cumberland Water & Gas Company against Lee Ott, Howard N. Ogden, Charles H. Bronson, and Wade C. Kilmer, composing the Public Service Commission of the State of West Virginia.

<p>In Equity. Suit by the Brooklyn Trust Company and another, as ■executors of the will of L. J. Busby, deceased, against Charles W. Mc-Culcheu. On final hearing.</p>

<p>1. Corporations (§ 068*)Foreign Corporations — Service — Managing Agent.</p> <p>Since the object to bo attained by service of process is to give defendant notice of suit, if the relations of the party served in an action against a foreign corporation are such that the service will surely give notice to the defendant, the party served being clothed with such general powers and duties that he is in fact the corporation’s alter ego, becomes pro hac vice its managing agent for the purpose of receiving process, regurdless of the nature of the duties he may perform for it.</p> <p>I Fid. Note.—For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. § 668.*]</p> <p>2. Corporations (§ 668*)—Foreign Corporations—Actions—Service—Persons Served.</p> <p>Whore complainant had a contract of exclusive agency to sell the goods of C. & Sons, an English corporation, in the United States until January 22, 1919, and in August, 1913, O. & Sons sent L., whom it described as “a member of our staff,” with authority to cancel complainant’s contract of agency and to make a settlement, it appearing that O. & Sons was doing business in New York, L., though described as its entomologist, was nevertheless Its “managing agent,” so that service of a subpoena on him in a suit by complainant to restrain defendant from canceling the contract and appointing another as its agent to handle its goods was sufficient to confer jurisdiction.</p> <p>[Ed. Note.—For other eases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. § 608.*]</p>

<p>In Admiralty. Suit -by Dunham Albury and others against the cargo salved from the British steamship Lugano.</p>

At Daw. Action by the Baldwin Locomotive Works against William McCoach, late Collector of Internal Revenue for the B'irst District of Pennsylvania. On motion for judgment for want of sufficient affidavit of defense.

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Charles R. Partridge Cumber Company. On petition to review an -order of the referee allowing the claim of Joseph M. Myers, assigned to Edgar C. Van Dyke, in part only.</p>

<p>1. Bankruptcy (§ 186*)—Order to Turn Oyer Money—Failure to Comply— Contempt—Punishment.</p> <p>Since a proceeding to punish a bankrupt for failure to comply with an order, requiring him to turn over money alleged to have been withheld, to Ms trustee, is for civil contempt, and the only punishment would bo remedial, that is, a commitment of the bankrupt, unless and until the order was complied with, the punishment cannot be imposed when it is shown that the bankrupt at the time of the hearing was unable to comply with the order.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 288, 235; Dec. Dig. § 13®.*]</p> <p>2. Bankruptcy <§ 136*) — Withheld Assets — Proceedings against Bankrupt.</p> <p>In proceedings against a bankrupt to compel him to turn over assets alleged to have been withheld from Ms trustee, it is the duty of the court first io ascertain whether the property was in the bankrupt’s possession or control at the time of the bankruptcy, and then whether the property is still in his possession and he is physically able to deliver it to the trustee.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p> <p>3. Bankruptcy (§ 136*)—Withheld Assets—Failure to Deliver to Trustee-—Ability—Bankrupt’s Denial.</p> <p>Iu proceedings to punish a bankrupt for contempt in failing to comply with an order requiring him to turn over to his trustee,’ assets alleged to have been withheld, the bankrupt’s mere denial of his ability to comply with the order is not controlling.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p> <p>4. Bankruptcy (| 136*)—Withheld Assets—Order to Surrender—Failure to Comply—Contempt.</p> <p>Where a bankrupt, after being ordered to pay over alleged withheld assets to his trustee, so deals with the fund as to make it impossible for him to comply with the order, he will be guilty of criminal contempt, and, punishable in a proceeding for criminal contempt by a fine in a definite amount, or by» commitment to prison for a fixed term.</p> <p>[Fd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. § 136.*]</p> <p>5. Bankruptcy (§ 485*)— Offenses—Concealment op Assets.</p> <p>Where a bankrupt knowingly and fraudulently conceals assets from his trustee, he is punishable under Bankruptcy Act, July 1, 1898, c. 5-11, § 29b, SO Stat. 554 (U. S. Comp. St. 1901, p. 3433), making such act an offense, though the property had been disposed of before any order had been made requiring the bankrupt to pay over the assets withheld to the trustee.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 906, 908; Doc. Dig. § 485.*]</p>

<p>Corporations (§ 232*)—Liability of Stockholders—Unpaid Stock—Stock Issued for Property.</p> <p>A New York corporation was organized and exchanged its capital stock of $20,000, for the property of a New Jersey corporation, assuming its debts. Defendants owned practically all of the stock of the New Jersey corporation, which was capitalized at $250,000, and succeeded to the stock of the new company. One of defendants was also the principal creditor of the New Jersey company, and all of its debts except hers were paid. She made further advances to the new company, which was unsuccessful and became bankrupt. Held, on the evidence, that the transaction by which the property was transferred to a corporation with a reduced capital was not fraudulent, and that the stock of the bankrupt, having been issued in good faith in payment for property which included patents and might reasonably be believed to be worth the par value of the stock, could not be said to have been unpaid in whole or in part, so as to render defendants liable to creditors of the corporation under Stock Corporation Law N. Y. (Consol. Laws, c. 59) g 56.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig, §§ 879, 880, 883, 884, 987; Dec. Dig. § 232.*]</p>

In Equity. Suit by Mary Hartman, Anna C. Hartman, and D. C. Clark against Arlen G. Swiger and J. H. McCoy. -On final hearing. Plaintiffs have filed their bill herein, alleging themselves to be the owners of 350 shares of the capital stock of the Ohio Valley Brewing Company, standing on the books' of the company in- the name of Geo. W. Hartman, 100 shares of which were assigned by Geo.

<p>Action by the Northern Trust Company against William McCoach, late Collector of Internal Revenue for the First District of Pennsylvania.</p>

<p>Action by the Pennsylvania Company i'or Insurances on Lives and Granting Annuities against William McCoaeh, late Collector of Internal Revenue for the First District of Pennsylvania. On rule for judgment for want of sufficient affidavit of defense.</p>

Action by the Philadelphia. Trust, Safe Deposit & Insurance Company against William McOoach, late Collector of Internal Revenue for the First District of Pennsylvania. On rule for judgment for want of sufficient affidavit of defense.

<p>Action by tbe Fidelity Trust Company against William McCoach, late Collector of Internal Revenue for the First District of Pennsylvania. On rule' for judgment for want of a sufficient affidavit of defense.</p>

<p>1. Mines and Minerals (§ 38*)—Placer Patent—Lode Locations—Evidence.</p> <p>In a suit to quiet title to plaintiff’s placer location, evidence held insufficient to warrant a finding that lodes subsequently located, under-which defendant claimed, were “known to exist” at the time plaintiff’s placer patent was applied for.</p> <p>[Ed. Noté.—For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. § 38.*]</p> <p>2. Estoppel (§ 22*)—Grounds—Placer Patent—Description.</p> <p>That a placer applicant prior to the application acquired title by deed describing the land as being “where the Original lode crosses said gulch,” but the “Original lode” was the name of some 30 200-foot claims asserted along the supposed strike of the lode each way from a discovery 2,100 feet east of the land in controversy, not marked or developed save at discovery, and existing only by virtue of the discovery and in a location notice filed with a miner’s recorder, such description was insufficient to estop the placer claimant to deny that there was a known lode within the limits of his placer location at the time he applied for a placer patent.</p> <p>[Ed. Note.—For other cases, see Estoppel, Cent. Dig. §§ 27-51; Dec. Dig. § 22.*]</p> <p>3. Mines and Minerals (§ 16*)—Placer Patent—“Known Lode.”</p> <p>Float, outcroppings, lodes, and abandoned locations, separately or together, are not sufficient to constitute a “known lode” within the exclusion of the placer mining law, but to be impressed with such character, the lode at the time of the application for placer patent must be clearly ascertained and defined, and of such extent and content that it will then, in view of conditions then existing, justify development and exploitation,</p> <p>anil because of wMch the placer claim Is valuable and more valuable than for placer mining.</p> <p>|Kd. Note.—For other x?ases, see Mines and Minerals, Gent. Dig. §§ 21-23; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, voi. 5, pp. 3914, 3945; vol. 8, p. 7700.]</p> <p>4. Mines and Minerals (§ 38*)—Placer Patent—Included Lodes—Limitations.</p> <p>Since a patent to a placer mining- claim does not pass title to a known 'lode within the limits of the placer claim at the time of the application, limitations will not run against the right of a lode claimant as against those claiming under the placer patent.</p> <p>I'F.d. Nolo.—For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dee. Dig. § 38.*]</p> <p>5. Minks and Minerals (§ 38*)—Placer Locations—Quieting Title—Res Judicata.</p> <p>A judgment for plaintiff, in a suit to quiet Dtle to a placer location as against confiieting lode claims, is not res judicata as against the United Slates and persons not parties, who may relocate and. rolitigate the question whether they were “known lodes” at the time of the placer application for patent.</p> <p>[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 87%~113; Dec. Dig. § 38.*]</p>

<p>In Equity. Bill by Frank R. Williams against Frederick Pope and another, local inspectors of steam vessels at Buffalo, N. Y.</p>

<p>Action by Gimbel Bros., Incorporated, against William M. Barrett, as president of the Adams Express Company. On motion to dismiss for want of jurisdiction.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston.</p>

<p>Cross Writs of Error to the District Court ot the United States for the Eastern District of South Carolina, at Columbia.</p>

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