Volume 216 — Federal Reporter

<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 Mary S. B. Liebing and Frederick L. Liebing against Otho F. Matthews, Clyde E. Martin, and R. M. Miller. Decree for defendants, and complainants appeal.</p> <p>• The complainant Mary S. B. Liebing, was the wife of Frederick W. Blees, now dead, and is now the wife of her co-complainant, Frederick L. Liebing. Frederick W. Blees founded the Blees Military Academy of Macon, Mo., which, was incorporated under the laws of that state. The corporation had a capital of $250,000, all of which was owned by the complainant Mary S. B. Liebing, except three or four shares necessary to qualify directors. It owned 808 acres of land on which the Academy was located. This property was covered, early in September, 1911, by a deed of trust to William E. Griswold, as trustee f6r the Northwestern Mutual Life Insurance Company, to secure $65,000 and interest, which was dated February 4, 1910. The- real estate and all the personal property of the Academy was also covered by a deed of trust to John Scovern, dated November 21, 1910, to secure divers claims outstanding, about $11,000. The Northwestern Mutual Life Insurance Company deed of trust was in default, and suit was brought to foreclose it on July 19, 1911. The Scovern deed of trust was also in default and Scovern had published notice that he would sell said property on Monday, September 11, 1911. At that time the complainants and the Academy owed other debts to the amount of between $40,000 and $50,000, some of it secured by pledge. Under date of September 9,1911, complainant Mary S. B. Liebing transferred in blank her stock in the Academy Company and delivered it to the defendants Otho F. Matthews and Clyde L. Martin. Nominally on the same day, although she claims on the Sunday following, the two complainants executed and delivered to Otho F. Matthews, C. L. Martin, and K. M. Miller a bill' of sale, reciting that the grantors were then insolvent and conveying substantially all their personal property,' except the family pictures, wearing apparel, hogs, and poultry owned by the grantors, but including 2500 shares in the Blees Military Academy Company. About the same time Mary S. B. Liebing deeded a large number of lots in Macon, Mo., to Otho F. Matthews. Under date of September 9, 1911, Otho F. Matthews, Clyde L. Martin, and R. M. Miller agreed in writing with Frederick L. Liebing and Mary S. B. Liebing to reconvey all the property conveyed to them within any time within six months upon the payment of $30,000 and the sums expended by Matthews, Martin, and Miller in payment of debts owing by the Liebings or the Blees Military Academy Company, with interest. Under the same date Matthews, Martin, and Miller leased to Mary S. B. Liebing for six months for the sum of one dollar all the property in the residence occupied by her. On March 1, 1912, Mr. and Mrs. Liebing commenced suit to have said bill of sale and deed of trust declared mortgages, and to be allowed to redeem therefrom, alleging that- on August 21, 1911, said Otho F. Matthews was retained by said complainants as their counsel, and later said Clyde L. Martin was retained as fiscal agent, and the complainants executed said instruments through fraud and under pressure, and induced thereto by their attorney and- agent. Not only was the bill filed against Matthews, Martin, and Miller, but against all parties who had any claim against any of the property through them, and against the Blees Military Academy Company.</p> <p>The defendants filed separate answers, but on May 6, 1912, Otho F. Matthews, Clyde L. Martin, and R. M. Miller and G. C. Miller filed a joint answer in which they denied all fraud, and especially denied that any of them sustained, at the time of the transfers, any fiduciary relations to the complainants, and they then continued: “In order to hasten the termination of an unprofitable litigation and an unfortunate venture by reason of tlie institution of tills litigation these defendants here offer and tender to the complainants all of said property mentioned in the inventory and schedule, together with all stock in Bloes Military Academy Company, and the $500 note made to Otho F. Matthews and in said hill of complaint, and all the lands conveyed to these defend;;ilia, or either of them, with the net proceeds of the receiver’s sale, upon the payment to these defendants of all the moneys they have advanced and paid out for and on behalf and by reason of the said contracts and agreements and such further sum, if any, for interest, services, time, labor, and expenses of these defendants as may be determined in a summary manner by the court or a master, as the court may direct; and the complainants shall also release and relieve these defendants from all liability, of every kind whatever, that they have assumed to the'Northwestern Mutual Life Insurance Company in connection with the §65,000 deed of trust and debt and also the note and claim of Col. Ge.orge L. Byroade, hereinbefore mentioned, and the Hunter & Ohamier note and claim for §700, set out in Schedule B, as well as all other matters mentioned and set forth in Schedule B, attached to this answer, for which these defendants, or any of them, ma.y have become liable in whole or In part in connection with the transactions here in issue and growing out of the performance of the contracts and agreements executed September 9 and 11, 1911, and also indemnify said defendants, Matthews, Martin, and It. M. Miller, against their liabilities on appeal bonds that they have found it necessary to make on behalf of Bloes Military Academy Company, since they have had charge of said academy. And complainants’ ae ceptance of this offer must likewise contain a formal withdrawal of the allegations of fraud, covin, oppression, duress, coercion, and unfair advantage as contained in their said bill, since the saifie are not tine, as these defendants have always maintained and. still maintain; that said offer should be accepted by the 20Ui of May, 1912, so that these defendants may be informed of the action and intended action of the complainants, that they may arrange their business and affairs In accordance therewith, and that the said payments of moneys must be made on or before the June rules.”</p> <p>On May 20, 1912, complainants filed the following: “Now come the complain ants, Mary S. 'B. Liebing and Frederick L. Idebiug, and file this their written acceptance of the tender made by tile defendants, Otho F. Matthews, Clyde Ii. Martin, and E. M. Miller, and G. G. Miller, in their answer filed hereon on May 6, 1912; and said complainants further say that they are willing to submit to the court the matter of services, time, labor, and expenses of said defendants, if any services were rendered, time given, and labor performed for the said complainants by the aforesaid defendants. Complainants deny that the said defendants rendered any services, gave any time, performed ar.y labor, or had any expenses foe said complainants; but if so be it the court should find otherwise after taking testimony on that subject, then complainants are willing to pay such reasonable, fair, and just sum as the court may fix. All of said tender to be complied with in a reasonable time, after the finding of the court, and within a Lime, to be named by the court.”</p> <p>On June 3, 1912, complainants filed their replication to the answer of Matthews, Martin, and the Millers in which they said: “They deny that they are in any manner indebted to said defendants for services performed, time given, work done, labor performed, or expenses had or incurred. Complainants, however, say they are willing to submit to the court the manner of services rendered, work done, labor performed, time expended, and expenses incurred by said defendants for the complainants. Further replying, complainants say that said defendants in their said tender demand of complainants that payment of all moneys, claimed by said defendants to be due and owing to them for the items by them alleged to have been paid out, as well as the amounts, if any, found to be due for interest, services rendered, work done, labor performed, time expended, and expenses Incurred, must be paid to them by the rule day of the June term, 1912, and that such payment must be made before the amount to which said defendants aro entitled for items paid out has been ascertained and verified and tlie amount to bo allowed said defendants for services rendered and work done has been fixed or decreed by the court. Com■ plainants, further replying, say that by reason of the foregoing facts and of the short time allowed for the payment of the moneys that may be found to be due and coming to said defendants, complainants were and are unable to comply with the aforesaid tender of the defendants. And complainants further reply and state, after the amounts which said defendants are entitled to receive for the items by them paid out has been ascertained and verified, and the amount, if any, to which said defendants may be entitled for work done, services rendered, time spent, and expenses incurred, has been fixed by the court, that if a reasonable time be allowed said complainants in which to procure and produce said moneys, they will comply in all respects with the terms and conditions of said tender."</p> <p>On June 6, 1912, the case w.as referred to F. L. Schofield, standing master. On July 8, 1912, he reported that he had heard the matter for ten days, and that the matter had been settled by the making of a stipulation, and on the same day the court entered the following decree:</p> <p>“Now at this day this cause coming on'for further hearing on the partial and special report of Hon. F. L. Schofield, master in chancery, which said report recommends the entrance of a judgment and decree as stipulated and agreed to by the respective, parties to this action, which said stipulation is in writing and is in words and figures as follows, to wit:</p> <p>“ ‘Stipulation.</p> <p>“ ‘Now on this 26th day of June, 1912, come the parties hereto before the master, the Honorable F. L. Schofield, and file this stipulation signed by the solicitors of the respective parties, and it is agreed by and between the said parties to this action, as follows, to wit:</p> <p>“ ‘1. This cause hereby is dismissed as to the following parties, to wit: (3. A. Martin, J. M. Miller, John Scovern, .State Exchange Bank of Macon, Missouri, Moberly Trust Company of Moberly, Missouri, National Bank of Commerce of Kansas City, Missouri, W. A. Wilson, G. C. Miller, R. L. Matthews, M. A. Matthews, R. S. Matthews and George Perry.</p> <p>“ ‘2. It is agreed that the instrument recorded on September 11, 1911, in the office of the recorder of deeds in and for Macon county, Missouri, in Rook 189, page 175, is now and has been since its execution on the 9th day of September, 1911, a valid and subsisting conveyance of the property therein described and of the property described in the schedule thereto attached, and that the same vested the title to said property in the defendants herein, to wit, Otho F. Matthews, Clyde L. Martin and R. M. Miller; and the same is true in every respect of the warranty deed of same date made by the complainants to the defendant Otho F. Matthews and recorded in Book 190, page 126.</p> <p>“ ‘3. That at the time of the execution of the instrument mentioned in paragraph 2 hereof, the defendants, Otho F. Matthews, Clyde L. Martin and R. M. Miller, executed to the complainants, Mary S. B. Liebing and Frederick L. Liebing, a certain option contract granting and giving to the said complainants the right to repurchase the property conveyed by said instrument aforesaid, upon the payment to the said defendants, Otho F. Matthews, Clyde L. Martin and R. M. Miller, of certain moneys therein named, and further provided by the terms of said option that the right to repurchase the same would expire within six months after the expiration of the option, that is to say, on March 9, 1912.</p> <p>“ ‘4. All the parties hereto further agree that all charges of fraud and conspiracy made and contained in complainants’ bill of complaint herein shall be and are hereby withdrawn as untrue and without foundation in truth and fact.</p> <p>“ ‘5. That after the execution of said bill of sale on September 9, 1911, the defendants hereto, Otho F. Matthews, Clyde L. Martin, and R. M. Miller, paid certain bills of the complainants, Mary S. B. Liebing and Frederick L. Liebing, and the defendant Blees Military Academy Company, and the said defendants Otho F. Matthews, Clyde L. Martin and R. M. Miller also assumed and personally bound themselves to pay certain obligations and debts of said complainants, Mary S. B. Liebing and Frederick L. Liebing, and the defendant Elees Military Academy Company, amounting in the aggregate to approximately the sum of one hundred and. eight thousand (¡¡>108,000) dollars.</p> <p>“ ‘6. The complainants, Mary S. B. Liebing and Frederick L. Liebing, shall have the right to exercise their option to repurchase the property conveyed by them to these defendants, Otho F. Matthews, Clyde L. Martin and E. M. Miller. upon the payment to them by these complainants of the sums of money hereinafter mentioned, upon the following terms: Said right to exercise said option shall expire on August 1, 3912, unless the said complainants shall pay to these defendants, Otho F. Matthews, Clyde L. Martin and ft. M. Miller, the sum of sixteen hundred twenty-five (?!,'625.00) dollars for the purpose of paying the interest to the Northwestern Mutual Life Insurance Company, falling duo in the rnopth of August, 1912, and provided further that if the said complainants pay said sum of $1.625.00 on or before August 1, 1932, said payment shall ipso facto extend ihe time for them to exercise the said option to repurchase said property to the first of October, 1912. Failure to pay said sum of 81,625.00 on or before August 1, 1912, as above provided, shall foreclose and end any and all rights of the complainants to exercise the right to repurchase under said option, and under no condition or circumstance'shall the time to exercise said option to repurchase said property be extended beyond the first of October, 1912, nor shall a further extension or a right to repurchase said property under said option be asked or sought in any way or form whatsoever.</p> <p>“ ‘7. All costs of this suit shall be paid by the complainants including the costs of the receivership, stenographer’s foes, etc. The receivers to make no charges for services, except'actual expenses.</p> <p>" ‘8. Services rendered by the said Otho F. Matthews, Clyde L. Martin and K. M. Miller In furnishing the money and in assuming the liability therefor and in taking care of and preserving the properly following the execution of the conveyance to them on September 9, 1931, are hereby admitted to be rendered by them in good faith and the master from the evidence shall determine the amount and value of said services and the amount thereof shall be fixed by him at a sum between eight and fifteen thousand dollars, the amount of which shall be ascertained by the master, as aforesaid, and shall be part of the money to be paid by the complainants upon their exercising the rights to repurchase under the option contract aforesaid.</p> <p>“ ‘9. All moneys paid out by the said Otho F. Matthews, Clyde L. Martin and It. M. Miller in taking care of and looking after said property so conveyed to Them by the instrument mentioned in paragraph 2 hereof, shall be paid by the complainants as a condition precedent to their right of exercising said option of repurchase.</p> <p>“ TO. That before the said complainants, Mary S. E. Liebing and Frederick L. Liebing, shall have the right to exercise said option contract and repurchase the property, as herein provided, they shall release each and all of these defendants. Otho F. Matthews, Clyde L. Martin and R. M. Miller, and also George C. Miller from any and all obligations and liabilities which they or either of thorn have assumed or incurred on account of any debt or liability or any alleged debt or liability of the Elees Military Academy Company or the complainants, Mary S. B. Liebing and Frederick L. Liebing, or-either of them, and ihe said complainants shall also before exercising the rights of said option to repurchase, pay to the said Otho F. Matthews, Clyde L. Martin and R. M. Miller all sums of money which the said Matthews, Martin and Miller expended in paying debts or liabilities or alleged debts or liabilities of the Elees Military Academy Company or either of the complainants, Mary S. B. Liebing or Frederick L. Liebing, together with seven per cent, interest thereon from the date of said option, to wit, September 9, 1913..</p> <p>“ ‘11. Before exercising the rights to repurchase said property under their option, said complainants, Mary S. B. Liebing and Frederick L. Liebing, shall pay to the said defendants, Otho F. Matthews, Clyde L. Martin and R. M. Miller, any and all sums of money that the said defendants may hereafter find it necessary to pay on account of their possession and ownership of said property and in taking care of and looking after the same, as well as all debts and liabilities that they may hereafter have to pay for the said Blees Military Academy Company, or either of the said complainants. All sums hereafter paid by the defendants shall bear interest at the rate of 7% from date of payment.</p> <p>“ ‘12. One of the items of expense to be paid by the complainants to the defendants before the complainants exercise the right to repurchase under their option is that of an attorney fee due to S. H. Ellison for his services rendered in connection with the transactions in September, 1911, and shortly thereafter.</p> <p>“ ‘13. It is further agreed that in event the said complainants and these defendants fail to agree upon the amount of any item herein provided to be paid as a condition precedent to the 'exercise of said option to repurchase, then the amount of such items shall be determined by the master, which determination shall be final and conclusive; and provided, further, that unless prevented by the failure of these defendants from hearing any contests or controversies as to the amount of any item, the master shall have no right or authority to hear or determine the amount thereof on any date after September 20, 1912, and in event the master has not determined any controversy that may arise as to the amount of an item before September 20, 1912, then the amount of the item as rendered and determined by these defendants shall be the amount agreed upon. The costs attending any hearing before the master for the purpose of determining the amount of any item shall be taxed as to the master may seem proper.</p> <p>“ ‘14. The money in the hands of the receivers shall be paid out by them in-accordance with the orders of the court.</p> <p>“ ‘15. It is understood by the parties hereto that some of the" chattel property described in the schedule attached to the instrument described in paragraph two herein never came into the possession of these defendants and that in event said complainants exercise their right to repurchase as above provided, then the complainants shall accept in lieu of the property listed in said schedule all of the property that came into the possession of the said defendants by virtue of said transaction and which is now in their possession, excepting, however, that these defendants shall not be called upon to return any property that may be lost or stolen or broken without their fault or negligence.</p> <p>“ ‘16. A failure on the part of the said complainants to exercise their right to repurchase the property under the terms and conditions herein provided, shall ipso facto operate as a dismissal of this action and they shall be forever barred from instituting or prosecuting any other suit or action relative to the subject-matter herein or growing out of or connected with the same.</p> <p>“ 17. It is hereby agreed and stipulated by and between the parties hereto that the master is hereby authorized and is respectfully requested to make at once a partial report to the court returning therewith this stipulation and recommending that the court enter a judgment affirming the same, and that he obtain permission further to make a final report as to any questions that he may adjudicate between the parties as provided under the various terms of this stipulation, which said final report shall be made on or before October 1, 1912, and that his report of what he has done in said matters shall be final and conclusive and shall not be subject to exception by either of the parties.</p> <p>“ ‘Mary S. B. Liebing,</p> <p>“ ‘Frederick L. Liebing,</p> <p>“ ‘Complainants.</p> <p>“ ‘Alfred J. Brockschmidt,</p> <p>“ ‘Bernard A. Dolan,</p> <p>“ ‘Mahan, Smith & Mahan,</p> <p>“ ‘Solicitors for Complainants.</p> <p>“ ‘Guthrie & Franklin,</p> <p>“ ‘Campbell & Ellison,</p> <p>‘“J. C. McKinley,</p> <p>“ ‘Solicitors for Defendants.’</p> <p>“And the court, having considered said stipulation and the report and recommendation of the master, and having heard the evidence thus far adduced, doth find that the recommendation of said report ought in all things to be confirmed.</p> <p>“Wherefore it is by the court ordered, adjudged, and decreed, that the said recommendation of the said master be and the same is in all things hereby confirmed, and that said stipulation as hereinbefore set out be and the same is hereby affirmed in all its terms, conditions, and agreements, and established as the decree of this court in the premises.</p> <p>“And it is further ordered, adjudged, and decreed that the decree herein be left open for such other, further, and final orders, modifications, directions, and judgments to be entered at the foot thereof or otherwise as the exigencies of the cause may require and equity approve.</p> <p>“And it is further ordered that this cause remain open and continue to stand referred on the orders of reference heretofore entered, and that the master in chancery be and he is hereby directed to proceed and take such proofs as may be offered by the respective parties on all matters arising under the said stipulation and this decree, and report same back to this court, with his findings of fact and conclusions of law thereon, for the information of the court, all as may bo needful until the final disposition of this cause.”</p> <p>On September 20, 1912, the master again reported that the complainants should pay $51,169.84 in redemption of said property under the previous decree. No exceptions were ever filed to this report but on October 1, 1912, the complainants filed a petition for leave to file a supplemental bill, in which they set up many of the facts heretofore recited, and alleged:</p> <p>“That, in entering into said contract of settlement with the said Otho F. Matthews, Clyde I>. Martin, and R. M. Miller it was represented unto these complainants by the said Otho IP. Matthews, Olyde L. Martin, and R. M. Miller that they had personally assumed and obligated themselves to pay unto the Northwestern Mutual Life Insurance Company of Milwaukee, Wis., certain large sums of money, to wit, the sum of $65,000 and the interest accruing thereon, and that by reason of said undertaking on their part the said Otho If. Matthews, Olyde L. Martin, and R. M. Miller had become personally responsible to the said Insurance Company for the said sum of money.</p> <p>“Further your petitioners represent that as an inducement to get your petitioner's to enter into said contract of settlement the said Otho F. Matthews, Olyde L. Martin, and R. M. Miller represented to your petitioners that by reason of their having assumed said indebtedness of $65,000 to the said Northwestern Mutual Life Insurance Company they thereby became and were in a position to control said indebtedness, and that if said petitioners continued to carry on said litigation, which was the subject-matter of the aforesaid cause, the said defendants, Otho F. Matthews, Clyde L. Martin, and R. M. Miller, would proceed to have Ihe deed of trust, given by the Blees Military Academy Company to W. E. Griswold, trustee, for the benefit of the said Insurance Company, to secure said indebtedness of $65,000, foreclosed as soon as the interest thereon came due on August 4, 1912, and that all the property conveyed by said deed of trust, which is the property in litigation in this case, would be sold, before any decree could be had in the said cause between the parties thereto in the due course of the hearing thereof.</p> <p>“Your petitioners further represent that, relying wholly and entirely upon the said representations as made by the said Otho F. Matthews, Clyde L. Martin, and R. M. Miller as to the assumption on their part of the said indebtedness, which said information was wholly within the knowledge of said defendants and of which these petitioners had no means or ways of ascertaining the truth thereof, your petitioners, believing in good faith that the said representations were true and correct, entered in good faith into and executed the said contract of settlement hereinabove referred to.</p> <p>“Further your petitioners represent that after said contract of settlement was entered into a report of Hon. F. L. Schofield was filed with the clerk of said court, finding the making of said stipulation between said parties, and an order of said court was duly signed herein, approving the said master’s report, and the making of said contract of settlement between said parties.</p> <p>“Further, your petitioners represent that, acting in good faith under said contract of settlement, these complainants requested the said defendants to furnish unto said complainants an itemized list of all the moneys that they had paid out and of the expenses that they had been pdt to by reason of the contract originally executed between your petitioners and the said defendants. Your petitioners further represent that pursuant to the privileges allowed to them under the terms of said contract of settlement, they have filed exceptions to certain items of the expense and of moneys paid out by the said defendants, and that in accordance with the provisions of said contract of settlement said master in chancery passed upon each and all the items of moneys reported by said defendants as having been paid out, and of each item of expenses incurred or defrayed by said defendants under said contract of settlement, and had fixed the amounts of moneys due and coming to said defendants by his findings made herein and filed with the clerk of said court on the 20th of September, 1912.</p> <p>“Your petitioners further represent that after the sums, to be paid by said complainants, had been fixed by the master, as aforesaid, your petitioners, acting in good faith, made every reasonable effort to effect a settlement with the said defendants, and for that purpose had gone to Macon, Mo., on three different occasions, and that at the occasion of their last trip to Macon on September 28, '1912, your petitioners were ready, able, and willing to pay to the - said defendants, and your petitioners offered to pay to said defendants, the full amount of moneys as had been fixed by the master in the findings in said case, together with all accrued interest thereon and expenses incurred since ,the filing of the master’s report, herein on September 20, 1912.</p> <p>“Further your petitioners represent that the said defendants refused to accept the payment of said moneys as fixed by the master in chancery, that they demanded the payment of other large amounts of money from your petitioners which up to that time had never been presented by said defendants or claimed of your petitioners. Your petitioners represent that said defendants, Otho F. Matthews, Clyde L. Martin, and E. M. Miller were instrumental in having four suits in attachment brought against the Blees Military Academy -Company, after they had filed their said items of expenses and demands with said master in chancery, and have also been instrumental in having brought, after the filing of their said demands, five suits against the complainant Mary S. 'B. Liebing, wherein the said defendants who have heretofore been appointed receivers of this court, and are now acting as such, and are now holding all the chattel property which is in part the subject of this litigation, in their possession, as such receivers, and have caused themselves to be garnisheed in the said five suits brought against the said Mary S. B. Liebing, in order that said chattel property now held by them may not be recovered from them, by your petitioners, except after further long and continued litigation.</p> <p>“And your petitioners further represent that the said defendants, Otho F. Matthews, Clyde L. Martin, and E. M. Miller, have represented to your petitioners that they have in their possession and know of various other claims upon which suits will be brought against your petitioners and the said Blees Military Academy Company, which they refuse to disclose to your petitioners, and which they insist that your petitioners must settle and pay off before they will reconvey to your petitioners the property which they now have in their possession. And your petitioners further represent that by their acts, their conduct, and the demands made the said defendants Otho F. Matthews, Clyde L. Martin, and E. M. Miller have sought to make and are presently trying to make it impossible for your petitioners to procure from them the property now in: their possession by redeeming the same.</p> <p>“Your petitioners further aver that the representations made by the said Otho F. Matthews, Clyde L. Martin, and E. M. Miller, to the effect that they have become personally responsible for said indebtedness to the Northwestern Mutual Life Insurance Company, and upon the strength, correctness, and truth of which representations your petitioners entered into and made said ■ contract of settlement, are false and not correct. Your petitioners further represent that on the 28th of September they learned for the first time that all such representations made by the said defendants, relative to the assumption on their part of said indebtedness of $65,000 to said Northwestern Mutual Life Insurance Company and the liability which said defendants claimed they were under to said Insurance Company relating to said indebtedness of said $65,-<300 were false and are not the truth.</p> <p>“And tliat said defendants are not responsible to said Insurance Company for said indebtedness and no part thereof, and that they never assumed the same, and that the said Insurance Company at this time holds no claims, demands, or obligations of any kind against the said defendants.</p> <p>“Further your petitioners represent that the averments made in paragraph 5 of said contract of settlement, wherein the said defendants Otho F. Matthews, Clyde h. Martin, and It. M. Miller assumed and personally bound themselves to pay certain obligations and debts of your petitioners, Mary S. B. Diebing' and Frederick L. Lieblng, and of the Blees Military Academy Company, amounting in the aggregate to about the sum of $108,000, which includes said Indebtedness of 865,000, are false and not true, and that, these petitioners did not know such to be the fact, and had no means of knowing such facts until they learned to the contrary on the 28th of September, 1012. Your petitioners aver and represent that the said contract of settlement was procured from them by the said defendants by misrepresentation and fraud and by circumvention, and that had your petitioners known such facts they would never have assented to and entered into the said contract of settlement</p> <p>“And your petitioners therefore pray that leave may bo granted to them by this honorable court te file a supplemental bill against the said Otho F. Matthews, Clyde L. Martin, and K. M. Miller for the purposes of having the said contract of settlement entered into between your petitioners and tho said defendants, Otho F. Matthews, Clyde D. Martin, and K. M. Miller, vacated and set aside and for naught held, and also for the purposes of having vacated and set aside the order of this court approving the first and second report of the facts and findings, as filed herein by the master in chancery, and also for the purposes of obtaining such other and further relief in the premises as equity may require and as io your honor shall seem meet and proper.”</p> <p>On October 11, 1912, the defendants filed a motion to dismiss the action, and on October 22d the following was filed:</p> <p>“Mow comes ^Frederick If. Diobing, one of the complainants in tho above entitled cause, by his solicitor, W. H. Douglass, and represents to the court that he no longer wishes to prosecute the petition signed and verified by Mm on the 1st day of October, 1912, for the purpose of securing leave to file a supplemental bill in this cause, because he says that while said matters and facts-may be true as in said petition set forth, yet subsequent investigation has induced him to believe that they are more or less doubtful, and he has also been advised Unit in all probability they will turn out to be insufficient to support such supplemental bill; that if the matters and things in said petition are true and would be sufficient to support such a supplemental bill, the amount involved Is not sufficient to justify a continuance of this litigation, which amount is loss than .$1,000, which represents the difference in tho amount tendered and tlie amount demanded, which said amount this complainant is willing to be paid out of his interest in said property; that at the time com - plainant signed said petition, he did so at the request and upon the advice of A. J. Brockschmidt, who at the time was one of the complainant’s solicitors, and complainant believed from the advice of his said solicitor that it was to complainant's best interest to sign said petition and continue this litigation. But subsequent investigation induces complainant to believe it is to his best interest to settle this whole matter as provided in the stipulation of June 26, 1012.</p> <p>“Complainant has therefore dismissed his former counsel A. J. Brock-schmidt, Bernard A. Dolan, and Mahan, Smith & Mahan, who no longer represent him in this matter, and this complainant has retained W. H. Douglass, who will henceforth be his sole solicitor in this action. Complainant says he is willing and anxious to accept the tender of settlement made in defendants' notice, but asks the court to give him ten (10) days to comply therewith, and that the court will make such orders and decrees as may protect -complain-dnt in his rights, and he will ever pray.”</p> <p>On December 2, 1912, the master filed his third and final report as follows:</p> <p>“After the coming in of the master's second special report herein, filed on September 20, 1912, it appears that, a controversy having arisen between the-parties, complainants and defendants, as to the matter and manner of carrying out the provisions of the stipulation for compromise referred to in and filed with my first special report herein, the provisions of said stipulation for compromise were not carried out at or before the time fixed therein, viz., October 1, 1812. Thereupon on October 1, 1912, the complainants filed in the office of the clerk of this court their application for leave to file in the cause a supplemental bill, based upon the matters set out in their said application. Afterwards, on October 22, 1912, the defendants filed with the clerk of the court their motion to dismiss the complainants’ bill.</p> <p>“Pending the above application of complainants and motion of defendants, it appeared from the declarations of all parties that they were still willing and able to carry out the provisions of said stipulation for compromise; they came before me on October 25, 1912, with the view of reconsidering and taking the master’s views upon their differences arising on the said matter; both parties complainants and defendants, however, disclaiming any waiver of their rights, respectively, to bring on for hearing their said application for leave to file a supplemental bill and said motion to dismiss. At such hearing before me on October 25, 1912, as expressive of the master’s views in respect of said pending differences, I made the following directions:</p> <p>“First. That on or before the 8th of November, 1912, the complainants, in and by way of a full payment to defendants of the amount for which they were liable under said stipulation for compromise, in order to be entitled to a reconveyance and delivery of all the property in controversy, should deposit in any bank in Macon City to the credit of the defendants, Matthews, Martin, and Miller, the sum of $54,980.94 (less the sum of $262.05 and $1,649.95, being the amount of funds remaining in the hands of defendants as receivers) ; that is to say, the net sum of $53,068.94, with 7 per cent, interest per annum thereon from October 28, 1912, until the day of payment.</p> <p>“Second. That on or before the same date the complainants should also deliver to defendants, or one of their counsel, full release and acquittance to defendants of all liability on certain claims now pending, or on which judgments have been entered in the circuit court of Macon county or before justices of the peace as per a list of said claims in suit or judgment exhibited to the master, or in lieu of such acquittance the complainants might pay, either to the claimants or to defendants, the amount of any said claims, or by deposit of cash in some bank for-that purpose fully indemnify the defendants against liability on account of any of such claims as are not so released or paid.</p> <p>“Third. That contemporaneously with the performance of the above by complainants, the defendants are to transfer and deliver to complainants, or to any other person designated by them in writing, all the personal property involved in this controversy, including all the capital stock of the Blees Military Academy Company and the record books and other books and papers relating to same, and also adequate deeds of conveyance of all the real estate likewise involved.</p> <p>“Fourth. That defendants should also at the same time procure to be canceled and deliver to complainants or their counsel, or to said person so designated by them, two certain promissory notes executed by the said Academy Company, one to Guthrie & Franklin, and the other to Campbell & Ellison, each being for the sum of $500.”</p> <p>On December 16, the court entered a decree adjudicating that the property in question was the property of the defendants, denying the application to file a supplemental bill, and dismissing the original bill. On January 3, 1913, the complainants filed a petition for rehearing without leave of court and on January 11,1913, the court denied the petition, and the complainants appeal.</p>

<p>1. CHnirxAi, Raw (§ 673*) — Offenses—State and National Jurisdiction— Evidence.</p> <p>Where certain members of a labor union were indicted for conspiracy to commit a crime against the United States, to wit, the transportation in interstate commerce of dynamite and nitroglycerin in passenger cars ami trains, to be used in blowing up buildings and works constructed by “open shop” concerns, and in transporting, aiding, and abetting the transportation of such substances, in violation of the federal statutes, evidence of a chain of explosions throughout the United States, alleged to have occurred by means of dynamile and nitroglycerin so transported, while admissible as circumstantial evidence to support the charges specified in the indictments, should be limited to that purpose; since the offense's involved in the explosions themselves were offenses against, and punishable only under, the laws of the states by the state courts.</p> <p>[I Id. Note. — For other cases, seo Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.*]</p> <p>2. Criminal Law (§ 1167*) — Appeal—Indictment—Different Counts- — 1Ob-jections.</p> <p>Where sentences under several counts of an ‘indictment for imprisonment within the term fixed by statute are made to run concurrently, and one of the counts Is good, it is immaterial that the others are defective.</p> <p>Uhl. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. § 1167.*]</p> <p>8. Conspiracy (§ 27*) — Statutory Offense — Elements—Success.</p> <p>‘■Conspiracy” to commit a crime against the United States denounced by Rev. St. § 5440 (Cr. Code [Act March 4, 1909, e. 821, 35 Stat. 109©; U. S. Comp, St. Supp. 1911, p. 1600] § 37) is distinguished from the com-inon-law offense, in that it requires for completion and conviction that one or more of the conspirators do any act to effect the object of the conspiracy, and, when so carried forward by any overt act, it constitutes an offense entirely irrespective of its success, or of the ultimate objects sought to be accomplished by conspiring, and the conspiracy so denounced may either intend and be accomplished by one or several acts which complete the offense, or it may be made by the parties a continuing conspiracy for a course of conduct in violation of law to effect its purposes.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 38, 39; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.]'</p> <p>4 Conspiracy (§ 43*) — Continuing Conspiracy — Indictment—Transportation of Explosives — Federal Offenses.</p> <p>An indictment charged that certain defendants named, on December 1, 1906, conspired with others to commit an offense against the United States, to wit, to transport dynamite and nitroglycerin in interstate commerce in veMcles used by common carriers in transporting passengers by land for hire. It then averred that such carriage was not witbin tbe exceptions named in Cr. Code, § 232 et seq., and that tlie conspiracy was continuously in existence and in process of execution throughout all the. time from and after December 1, 1906, and at all of the times mentioned in the indictment, and particularly at the time of the commission of each of the overt acts subsequently set forth. Overt acts were then averred in furtherance of the conspiracy and to carry out its objects, with specifications, alleged to have been committed by the different defendants, the first committed January 20, 1908, and the last August 27, 1911. Held,, that such indictment averred a continuing conspiracy to commit a continuous offense against the United States in the carriage of prohibited explosives as described.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 8dr-99; Dec. Dig. § 43.*]</p> <p>6. Conspiracy (§ 28*) — Crimes Against United States — Purpose op Conspiracy.</p> <p>Where defendants were indicted for conspiracy to commit an offense against the United States, to wit, the transportation of explosives in interstate commerce in passenger cars and trains, in violation of Cr. Code, § 232 et seq., and the carriage of such explosives as charged was made the subject-matter of the conspiracy in any measure, its violation-of the federal statutes would establish a basis for a conspiracy to commit an offense against the United States in violation of Cr. Code, § 37, irrespective of the fact that the ultimate purpose of such transportation was to destroy “open shops” steel construction in the various states — an object not within federal cognizance.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. § 28.*]</p> <p>6. Criminal Law (§ 150*) — Continuing Conspiracy — Limitations:</p> <p>Where defendants were charged with conspiracy to commit a crime against the United States, to wit, the transportation of prohibited explosives in passenger cars and trains in interstate commerce, in violation of Cr. Code, §§ 37, 232, et seq., and the first overt act was alleged to have occurred January 20, 1908, and the last August 27j 1911, and the indictments were filed February 6, 26, 1912, the prosecution was not barred by limitations.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 274, 275; Dec. Dig. § 150.*]</p> <p>7. Conspiracy (§ 28*) — To Commit Crime — Explosives—Transportation in Interstate Commerce — Statutes—Alteration.- .</p> <p>Where defendants were indicted for conspiracy to commit an offense against the United States, to wit, the transportation of dynamite and nitroglycerin in interstate commerce in passenger trains and cars, continuously from and after December 1, 1906, and the first overt act was alleged to have been committed January 20, 1908, and the last August 27, 1911, it was sufficient to sustain a conviction that the carriage of nitroglycerin had been continuously prohibited since Act July 3, 1866, c. 162, § 1, 14 Stat. 81, as preserved in Rev. St. 1874, § 5353 (U. S. Comp. St. 1901, p. 3637), re-enacted, with dynamite expressly named as one of the prohibited explosives in Act May 30, 1908, c. 234, §§ 1, 4, 5, 35 .Stat. 554, 555, and Cr. Code,' §§ 232, 235; it being immaterial- that dynamite was not expressly named in the earlier enactments in force at the date of the inception of the conspiracy, nor was it material that Rev. St. § 5353, had been amended both in respect of additional enumerations and the punishment for the offenses, since such changes could not affect the unlawfulness of the undertaking for the carriage of nitroglycerin as averred in the primary conspiracy.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. § 28.*]</p> <p>8. Conspiracy (§ 43*) — Offenses Against United States — Transportation of Dynamite and Nitroglycerin — Evidence.</p> <p>Where defendants were charged with a continuing conspiracy to transport nitroglycerin and dynamite in passenger trains and cars in interstate commerce, beginning on December 1, 1900, the last overt act having been committed August 27, 1911, it was not necessary for the government to prove extension of the conspiracy to the transportation of dynamite after May 30, 1908, when Rev. St. § 53B3, prohibiting the transportation of explosives in interstate commerce, was amended to include dynamite, though such proof was admissible.</p> <p>[Ed. Note. — Dor other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dee. Dig. § 43.*]</p> <p>9. Explosives (§ 2*) — Transportation—Interstate Commerce — Statutes— Application.</p> <p>Cr. Code, §§ 232, 235, prohibiting the transportation of nitroglycerin, dynamite, etc., on passenger trains and cars in interstate commerce, were not limited to common carriers, but extended as well to passengers, or persons traveling on trains; the intention being to prohibit the carriage in any manner of the explosives named on passenger trains engaged in interstate commerce, in a “vehicle” thereof carrying passengers for hire, including the carriers, their employes, or any person traveling on such vehicle.</p> <p>[Ed. Note. — For other cases, see Explosives, Cent. Dig. § 1; Dec. Dig. § 2.*]</p> <p>10. Explosives (¡j 5*) — 1Transportation in Interstate Commerce — Offenses —Indictment.</p> <p>Counts of an indictment charging that certain defendants named, unlawfully, knowingly, willfully, and feloniously did then and there transport and carry dynamite and nitroglycerin in a vehicle, to wit, and felo-niously alleged in different counts as a passenger car or passenger train, and that oilier defendants were aiders and abettors therein, sufficiently alleged a violation of Cr. Code, § 232, prohibiting such transportation.</p> <p>[Ed. Note.- — For other cases, see Explosives, Cent. Dig. § 2; Dec. Dig. § 5.*]</p> <p>11. Criminal Daw (§ 619*)- — Separate Counts in Indictments — Different Offenses — Consolidation for Trial.</p> <p>Where counts of several indictments charged a conspiracy to commit a crime against the United States, to wit, the transportation of dynamite and nitroglycerin in interstate commerce in jiassenger cars or trains, and other counts charged defendants either as principals or aiders and abettors with so transporting dynamite and nitroglycerin in interstate commerce in such cars, or trains, such offenses were separate and distinct and not interdependent, nor susceptible of proof by the same evidence, and hence a consolidation of the indictments for trial was properly ordered and was not objectionable as carving several offenses out of one.</p> <p>[Ed. Note. — For oflier cases, see Criminal Law, Cent. Dig. § 1376; Dec. Dig. § 619.*</p> <p>Consolidation of and trial of indictments together, see note to Dolan v. United States, 69 C. C. A. 287.]</p> <p>12. Criminal Law (§ 195*) — Jeopardy—Former Trial for Same Offense.</p> <p>Whether a conviction or acquittal on one indictment is a bar to a sentence or conviction on another depends, not on whether a defendant has before been tried for the same act, but whether he has been put in jeopardy for the same offense, since a single act may constitute an offense against two statutes, and, if each requires proof of an additional fact which the other does not, an acquittal or conviction under either will not exempt the defendant from prosecution and punishment under the other.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 382, 383; Dec. Dig. § 195.*]</p> <p>13. Criminal Law (§ 1036*) — Appeal—Questions Not Raised at Trial.</p> <p>An objection to the testimony of a witness not raised at the trial cannot be considered on a writ of error.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641;. Dec. Dig. § 1036.*]</p> <p>14. Criminal Law (§ 508*) — Testimony of Codefendant — Competency.</p> <p>Codefendants who had pleaded guilty were competent to testify for the government against their codefendants in the indictment.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 508.*]</p> <p>15. Conspiracy (§ 47*) — Offenses Against United States — Interstate Commerce — Transportation of Explosives — Evidence.</p> <p>In a prosecution for conspiracy to commit a crime against the United States, to wit, the transportation in interstate commerce in passenger trains or cars of nitroglycerin and dynamite in violation of Cr. Code, §§ 37, 232, et seq., and for transporting, aiding, and abetting in such transportation of nitro’glycerin and dynamite^ evidence held sufficient to sustain a conviction of certain of the defendants, and insufficient to sustain a conviction of certain others.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*]</p>

Suit in admiralty by the New York & Oriental Steamship Company, Limited, against the United States. Decree for libelant, and respondent appeals. The bill was brought in the old Circuit Court under the Tucker Act to recover $1,199.42 unpaid balance of hire earned by the transportation of certain government stores from New York to Manila in 1902 on board the petitioner’s steamship Shimosa.

This cause comes here upon appeal from a decree in admiralty of the District Court of the United States for the Southern District of New York, dismissing a libel.

This case comes here on writ of error to review a judgment of the United Stales District Court for the Southern District of New York, entered on November 11, 1913, in favor of the railroad company and against the collector lor the sum of $22,441.12.

<p>In Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action at law by L. M. Hartley against the Lapidus & Holub Company. Judgment for plaintiff, for a part of his claim only, and he brings error.</p>

<p>Bastkeottct (§ 178*) — Claims—Corporations—Stock—Sale—Validity.</p> <p>A bankrupt corporation being in financial difficulties, in January, 1911, it was proposed by defendant majority stockholder to wind up the concern.* In September, however, the minority stockholders proposed that the corporation should purchase defendant’s majority interest, amounting to $5,100 par value, for $2,000, to which defendant agreed. Five hundred dollars was paid at the time, which was borrowed for the purpose, and the balance was secured by three notes secured by a deed of trust covering all the assets oi the corporation. No improvement resulted from the change, and on November 15th the corporation made a general assignment for the benefit of creditors and on December 5th was adjudged an involuntary bankrupt. Held, that such transaction in itself operated to render the corporation insolvent, and, though the transaction was without fraud in fact, it was nevertheless fraudulent as against the corporation’s creditors, and therefore void as against its trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 221, 2G4— 274, 283, 284; Dea. Dig. $ 178.*]</p>

<p>1. Principal and Agent (§ 85*) — Losses by Agent — Indemnification.</p> <p>An1 agent is entitled to be indemnified by his principal for losses arising by reason of acts done in the course of the agency, providing the agent’s acts or transactions are not contrary to law.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 224-228; Dec. Dig. § 85.*]</p> <p>2. Joint Adventures (§ 4*) — Stock Pool — Losses—Right to Indemnity.</p> <p>L. & Co. organized a stock pool to deal in the stock of a specified railroad company; F. & Co. subscribing to the extent of 2/17 in one venture and 1/5 in another. L. & Co. as agents of the subscribers gave the buying and selling orders, and when stock was bought would pay for it and deliver it among the subscribers in proportion to their respective interests, and when it was sold would call on the subscribers to furnish the stock for delivery in the same proportions. On January 19, 1910, L. & Co. bought stock for the pool, but on that day they failed, and because of their failure did not take or pay for the stock, nor was any portion thereof tendered to the subscribers, nor any demand made on them to contribute to the purchase price; the stock being resold for the account of L. & Co., causing a heavy loss. JKeld, that the loss was caused, not by the carrying out of the duties of L. & Co., under the pool contract, but by their insolvency only, and hence F. & Co. though having failed on the same day, could not be compelled to contribute any portion of such loss.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. § 4.*]</p> <p>3. Indemnity (I 9*) — Measure of Damages.</p> <p>The measure of damages for breach of a contract of indemnity is not the amount of liability incurred, but the amount actually paid by the person indemnified on account of the loss.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 16, 17; Dee. Dig. § 9.*]</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>Proceeding for criminal contempt by the United States against Henry W. Munroe. Finding of guilty, and defendant brings error.</p>

<p>1. CORPORATIONS (§ 484*)-POWERS-GUARANTY.</p> <p>A corporation cannot ordinarily become bound as an accommodation guarantor, and its naked promise as surety or guarantor with or without an independent consideration cannot be enforced.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1815; Dec. Dig. § 484.*]</p> <p>2. Bankruptcy (§ 341*) — Claim against 'Estate — Liabilities—Novation-Evidence.</p> <p>On an application to establish a claim against the corporation’s estate in bankruptcy on a note of certain of its stockholders guaranteed by it. evidence held insufficient to show a novation agreement or an assumption by the corporation of the indebtedness represented by the note, but on the contrary, to establish that the guaranty was made for the mere accommodation of the stockholders, and was not based on an independent consideration flowing to the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 516, 528; Dec. Dig. § 341.*]</p> <p>3. Corporations (§ 484*) — Rowers—Indebtedness—Surety—Guaranty.</p> <p>“While a corporation may bind itself as surety or guarantor to perform a contract, made for Its benefit or in the furtherance of an object within its corporate powers and purposes, it cannot bind itself for the payment of debts owing by its stockholders to third parties, wherein it had no interest, either direct or collateral, against which guaranty it may properly plead the defense of ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. S 1815; Dee. Dig. § 484.*]</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 by the trustees of H. C. Copeland and H. C. Copeland and Company, bankrupts, against Mrs. C. J. Copeland and M. Hornik. Appeal by Mrs. Copeland from a decree in favor of Hornik.</p>

<p>On petition to Superintend and Revise, in Matter of Raw, Proceedings of the District Court of the United States for the Eastern' District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>In the matter of H. C. Copeland & Co., bankrupt. On petition of Christian J. Copeland to revise an order of the District Court allowing the claim of M. Hornik.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>Suit in admiralty by the Robins Dry Dock & Repair Company against Fremont B. Chesbrough. Decree for respondent, and libelant appeals.</p>

Campbell, Judge. Suit by the United States against Phillip Mackey, Mary Mackey, Lovely Mackey, for himself and as guardian of Phillip Mackey and Mary Mackey, minors, Cyrus S. Avery, the Waterside Oil & Gas Company, the Gypsy Oil Company, the Texas Company (sued as the Texas Pipe Line Company), the Gladys Belle Oil Company, Charles Stunkard, Walter Stunkard, the Pollard-Hagan Oil Company, and the State of Oklahoma. Decree for defendants, and the United States appeals.

<p>- Appeal and Error (§ 78*) — -Decisions Reviewahle — “Final Decree.”</p> <p>A decree of a District Court dismissing- a cross-bill as to one issue raised thereby ou. demurrer, treated as a motion to dismiss, by one only of a number of defendants, but giving all defendants thereto leave to answer and retaining the case as to the cross-bill for further proceedings, is not a “final decree” from which an appeal by the cross-complainant will lie to the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 426, 434, 464 — 477, 480, 481; Dec. Dig. § 78.*</p> <p>For other definitions, seo Words and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7063.</p> <p>Finality of judgments and decrees for purpose of review, see notes to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. of New York v. Madden, 17 O. C. A. 238; Prescott & A. C. By. Co. v. Atchison, T. & S. F. B. Co., 28 C. C. A. 482.]</p>

Action at law by J. F. Hamilton and others against Max D. Miller and others, constituting the Sewer Commissioners of District No. 1 of Marianna, Ark. Judgment for plaintiffs, and defendants bring error.

This suit comes here upon an appeal from a final decree of the United States District Court entered on June IS, 1913, dismissing a libel. The action was brought for the breach of a charter party on the part of the respondent in not paying for certain towage services pursuant to the terms of the charter party. The respondent claimed that the towage services should not have been performed at the.time they were rendered because of the ice on the Passaic river.

Carpenter, Judge. Action by William Broderick against Walter B. Kennedy. Judgment for plaintiff, and defendant brings error.

<p>1. Corporations (§ 158*) — Stockholders — Right to Subscribe por New Stock.</p> <p>When a corporation by resolution authorized an issue of new stock for which the stockholders of record on a certain date were given the right to subscribe, complainant’s predecessor in title held a certificate of stock duly indorsed with power of attorney to act in all respects for the record holder. HeW-that presentation of such papers, together with a demand of the right to subscribe for the new stock and a tender of the necessary money, were sufficient to fix his right thereto.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 449, 587-592; Dec. Dig. § 158.*]</p> <p>2. Corporations (§ 158*) — RionT op Stockholder to Subscribe for New Issue — Enforcement in Equity.</p> <p>A stockholder in a corporation who, under the terms of an issue of new stock has a preferred right to subscribe for a certain amount thereof, may enforce such right by a suit in equity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 449, 587-592; Dee. Dig. § 158.*]</p> <p>3. Judgment (§ 592*) — Bar of Other Action — Splitting Causes of Action.</p> <p>A receiver, to whom a certificate of stock in defendant corporation had been assigned, applied to have it transferred to his name on the books, which was refused. Afterward a new issue of stock was authorized, for which the stockholders of record on a certain date were given the preferred right to subscribe pro rata. The receiver applied for the share to which his stock was entitled, and tendered payment therefor; but his offer was refused. He brought suit, and obtained a decree requiring defendant to transfer the stock on its books and for the recovery of back dividends. The stock was transferred to complainant, who brought suit to enforce the right to subscribe for his share of the new issue at par. Held-, that the decree in the receiver’s suit was not a bar to the second suit, that it was not a splitting of a single cause of action, but that the lights sought to be enforced in the two suits, while related, arose out of separate transactions at different times.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1107; Dec. Dig. § 592.*]</p>

<p>1. Appeal and Error (§ 977*) — Order Denting New Trial — Review—Discretion of Court.</p> <p>Where the trial court has considered and passed on plaintiff's alleged errors, brought forward in a motion for a new trial and denied the motion, no error can be assigned on such order on a writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*]</p> <p>2. Trial (§ 110*) — Examination of Witnesses.</p> <p>It was improper for plaintiff’s counsel in the examination of witnesses to repeat questions in substantially the same form after objections had been sustained to them.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 271; Dec. Dig. § 110.*]</p> <p>3. Appeal and Error (§ 1058*) — -Harmless Error — Reception of Evidence.</p> <p>Error in sustaining an objection to a question propounded by plaintiff to an expert witness was cured by the court subsequently permitting the witness to answer substantially the same question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]</p>

<p>Shipping (§ 49*) — Chabteb — Unauthobizeb Withdbawal op Vessels by Ownee.</p> <p>Where the owner of two scows chartered the same for a year at a monthly hire, no time being fixed in writing for its payment, the real agreement apparently being that he should be paid whenever he asked for it, which was the course followed, he was not entitled to withdraw the boats, without notice, because hire was in arrears, and is liable for the damages thereby caused to the charterers.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 48, 76; Dec. Dig. § 49.*</p> <p>Cancellation, surrender, or rescission of charter of vessel, see note to McNear v. Leblond, 61 C. C. A. 569.]</p>

These patents, all issued on the same day, May 25, 1909, aggregate about 29,000 words; they contain 125 claims and 27 illustrative figures. The claims involved, 48 in all, are Nos. 16, 17, 19, 24, 27, 29, 36 and 37 of No. 923,048; Nos. 1, 2, 8, 12, 13, 22 and 30 of No. 923,049; and Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 35, 36, 37, 38, 45, 47, 48, 52 and 53 of No. 923,122.

<p>1. Patents (§ 66*) — Anticipation—Prior Patent.</p> <p>Tlie date when a patent is actually issued, rather than the date when the application therefor was filed, determines whether or not it anticipates another patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 66.*]</p> <p>2. Patents (§ 66*) — Anticipation—Prior Patent.</p> <p>A patent in suit is not anticipated by another patent which, although prior in date, was not issued until after the filing of the application for the patent in suit, unless it is shown that the invention of the prior patent was in public use prior to such application.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. § 66.*]</p> <p>8. Patents (§ 328*) — Validity and Infringement — Hoisting or Logging Device.</p> <p>The Corbett patent, No. 807,109, for a hoisting or logging device, the invention consisting specifically of clutch-operating mechanism for throwing in and out of operative engagement a friction band and friction cone, was not anticipated, but shows a marked advance in the art. Also held valid as against the claim that the patentee was not the original and first inventor of the device, and infringed.</p> <p>4. Patents (§ 209*) — License—Construction of Contract.</p> <p>A contract between the patentee of the patent in suit and a defendant who was the owner of another patent, both relating to improvements of the same machine, by which they agreed to combine their inventions in a new machine, which each should be at liberty to make and sell, paying the other a royalty, construed, and held, not to operate as a license to defendant to use the invention of the patent in suit otherwise than in the new form of machine agreed upon.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 300, 303; Dec. Dig. § 209.*]</p>

<p>1. Patents (§ 114*) — Suit to Obtain Patent — Scope.</p> <p>A suit in equity to obtain a patent, brought under Rev. St. § 4915 (U. S. Comp. St. 1901, p. 3392), is in the nature of a proceeding de novo to determine whether or not the complainant is entitled to a patent, and involves, in addition to other issues which may be raised, the question of the patentability of the invention covered by the claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 166; Dec. Dig. § 114.*]</p> <p>2. Patents (§ 34*) — Invention—Scope of Prior Art.</p> <p>In considering the question of invention relating to the reforging or re-rolling of a worn article of iron or steel, the court cannot exclude from consideration patents in which the application of principles is involved which may be applied to the case in hand merely because they relate to forms, of iron or steel products different from that in the case before it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 38; Dec. Dig. § 34.*]</p> <p>3. Patents (§ 328*) —1 Invention — Process fob Reforging Worn Car Wheels.</p> <p>The Slick patent, No. 1,055,672, for a method of treating steel car wheels, which consists of reforging or re-rolling worn-out wheels, thereby reshaping the flange and tread so that they may be used again, held void for lack, of invention in view of the prior art.</p> <p>4. Patents (§ 328*) — Priority op Invention — Laches.</p> <p>Complainant, Hansen, held, on the evidence, to have first conceived the' method of reforging worn car wheels embodied in the Slick patent, No. 1,055,672, and to have acted with due diligence in reducing the same to practice which would entitle him to the patent therefor if the process disclosed patentable invention.</p> <p>5. Equity (§ 67*) — “Laches.”</p> <p>“Laches” has been defined to be such negligence or omission to assert a right as, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 191-196; Dec. Dig. § 67.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3969-3972;-vol. 8, p. 7700.]</p>

<p>In Equity. Suit by the Libbey Glass Company against the McKee Glass Company and the H. C. Fry Glass Company.</p>

<p>In Equity. Suit by Henry Robinson against the American Fruit Machinery Company and another. On final hearing.</p>

<p>Patents (§ 328*) — Validity and Infringement — Settee Hammock.</p> <p>The HoMfeld patent No. 947,546, claim 23, for a settee hammock, was not anticipated, and covers a patentable, though simple, combination as applied to hammock construction; also held infringed.</p>

In Equity. Suit by United States Expansion Bolt Company against the H. G. Kroncke Hardware Company. On motion by the Diamond Expansion Bolt Company to be made a party defendant and by complainant to strike out counterclaims and interrogatories.

<p>In Equity. Suit by the Sanitary Street Flushing Machine Company against the City of Amsterdam. On motion for preliminary injunction.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Ice Cream Freezer.</p> <p>Tbe Hoefler & Scbantz patent, No. 921,S37, for an ice cream freezer, was not anticipated, discloses a patentable combination of old and new elements, and is entitled to a reasonably liberal construction, also held infringed.</p> <p>2. Patents (§ 234*) — Infringement—Tests—Interchangeability of Parts.</p> <p>Tbe interchangeability of parts in two structures, is a good test in determining tbe question of infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 370, 381; Dec. Dig. § 234.*]</p>

<p>Patents (§ 328*) — Infria gement — Imt’bovemiwti: m Skirts.</p> <p>A preliminary injunction granted against infringement of the E'eueht-wanger patent, No. 052,714, for an improvement in skirts, on a prior decision of the Circuit Court of Appeals adjudging the patent valid.</p>

<p>Patents (§ 301*) — Suit fob Infringement — Pkeliminary Injunction.</p> <p>The fact, that the owner of a patent is not a manufacturer thereunder, but grants licenses under which he receives royalties, is not ground for refusing a preliminary injunction against infringement to which he is otherwise entitled on the giving of a bond by defendant to secure damages which may be recovered, nor is the pendency oí a suit in another court in which the same defenses are about to be passed on.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 489-495; Dec. Dig. § 301.*]</p>

<p>In Equity. Suit by the Kryptok Company against Marcus Rothschild. On motion for preliminary injunction.</p>

In Equity. Suit by The T. H. Symington Company against William H. Miner for infringement of letters patent No. 693,643 for a draft rigging for railway cars, issued to Emerick February 18, 1902, on an application filed May 24, 1901. On final hearing.

<p>In Equity. Suit by the Western. Union Telegraph Company against James A. Prear, as Secretary of State of Wisconsin, and by the Philadelphia & Reading Coal & Iron Company against John S. Donald, as such Secretary of State, and Walter C. Owen, as Attorney General, to restrain the enforcement of St. Wis. 1898, § 1770f, added by Laws 1905, c. 506.</p>

<p>Inbubance (§ 712*) — Mutual 'Beneeit Insurance — Assessments—Daw Govern! mu.</p> <p>Under an act of the Parliament of the Dominion of Canada, authorizing a benefit insurance society, incorporated by an act of such Parliament, to apportion a deficiency in the fund for paying certificates of members, who loined prior to n specified year, among such members, the society was authorized to assess the proportionate share of such deficiency against the holder oí a certificate, delivered, and accepted in New York, and constituting a New York contract, especially where the right to alter, amend, or repeal the charter was expressly reserved to Parliament; the act being entitled to the same recognition ordinarily given to the acts of the Legislatures of other states.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 173-178, 293. 1934; Dec. Dig. § 712.*]</p>

<p>1. Bankruptcy (§ 11*) — Powers of Court — Administration of Estate.</p> <p>Under the broad p'owers conferred by Bankr. Act July 1, 1898, c. 541, § 2,(7), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3421), to cause the estates of bankrupts to be collected, reduced to money, and distributed, and to determine controversies in relation thereto, when property has thus become subject to a court of bankruptcy, jurisdiction exists to pass on questions relating to its disposition, and to determine the extent and character of liens thereon and rights therein, and to that end to bring in and substitute additional parties whenever necessary for a complete determination of the matter in controversy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 11; Dec. Dig. § 11.*] ' •</p> <p>2. Bankruptcy (§ 267*) — Sale of Property Free of Liens — Proceedings FOR DlSTRIBIVTION OF PROCEEDS.</p> <p>As a consequence of the power of a court of bankruptcy to order the sale of property of a bankrupt free of liens, it has jurisdiction to determine the validity, extent, and relative priority of liens on the proceeds which stand as a substitute for the property sold, and in proceedings for the distribution of such fund, the trustee should appear and protect the rights of the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p> <p>3. Bankruptcy (§ 338*) — Contested Claims — Hearing Before Referee — Evidence.</p> <p>The testimony of an officer of a bankrupt corporation, taken on his general examination under Bankr. Act July 1, 1898; c. 541, § 21a, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3480), but not directed to any particular issue, is not admissible- on the hearing of a contested claim before the referee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525-527; Dee. Dig. § 338.*]</p> <p>4. Bankruptcy (§ 175*) — Validity of Liens — Pledge of Bonds by Corro RATION FOR INVALID CONSIDERATION.</p> <p>A corporation executed to claimant a trust deed on its property to secure Mm against contingent liability on indorsements for the company, and by express agreement such deed was withheld from record for the distinct purpose of avoiding publicity and injury to the credit of the company. Such company was consolidated with others into the bankrupt corporation to which it conveyed its property by warranty deed and bill of sale which did not mention the trust deed. In consideration of its surrender bankrupt transferred in trust for claimant certain of its mortgage- bonds. Field, that the trust deed was fraudulent and void, and formed no basis for a valid transfer of the bonds.</p> <p>[Ed. Note. — Tfor other cases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. § 175.*]</p> <p>5. Bankruptcy (§ 267*) — Validity of Lien — -Pledge of Mortgage Bonds by Corporation.</p> <p>A pledge of its mortgage bonds by a bankrupt corporation as security for notes given by another corporation, whose property the bankrupt had taken over with an assumption of its indebtedness, held, valid, and tbo holder entitled to share in the proceeds of the mortgaged property.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p>

In Bankruptcy. In the matter of Maurice S. Rivkin and another, copartners as Rivkin Bros., bankrupts. On exceptions to a report of a special master denying the bankrupts’ petition for confirmation of a composition.

<p>1. COMMERCE (| 3*) — ORGANIZATION-FEDERAL CORPORATION-ACT OP CONGRESS.</p> <p>Under its power to regulate commerce, establish post roads, and provide such, facilities as it may deem proper, and as military exigencies, when they arise, may require for the transportation of troops and munitions of war, Congress has power to charter a corporation to build and operate a railroad whereon interstate commerce may be conducted, and the mail, troops, and munitions of war may be transported, and for this purpose it is proper that such corporations be authorized to conduct the general business of a common carrier for its own purposes, in addition to serving the government.</p> <p>(Ed. Note. — For other cases, see Commerce, Cent. Dig. § 3; Dec. Dig. i 3.*]</p> <p>8. Commerce (§ 46*) — Federal Corporations — Exclusion from States.</p> <p>Congress having incorporated an interstate railroad company to engage as a common carrier in interstate commerce, and also to serve the government by the transportation of mails, troops, and munitions of war, the states through which the railroad was located had no power to announce conditions for the noncompliance with which the corporation would bo excluded from doing business in the state, and. hence Const. La., as amended (see Act No. 10 of Ex. Sess. lOOI), providing that any federal, foreign, or nonresident corporation which should institute any suit, or action in, or remove the same to, any federal court within the state should be prohibited and denied the right to operate, conduct, or do any business within the state, and that thereafter any contract, agreement, engagement, or undertaking with or by such corporations should be null and void, ivas invalid as to such railroad company.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113, 126; Dee. Dig. § 46.*]</p> <p>&. CONSTITUTIONAL LAW (§ 303*)-DUE PROCESS OF LAW-DRASTIC AND ÜN-, ordinate Punishments.</p> <p>Const. La., as amended (see Act No. 10 of Ex. Sess. 1907), provides that any foreign, federal, or nonresident corporation doing business within the state which should institute any suit or action in any other court or courts than those created and organized under the Constitution and laws of the state, or which should remove any suit to any other court or courts than those created under such laws, should be barred of the right to conduct any business within the state, and thereafter all contracts by or with such corporations should be void; also that any person acting as agent, servant, or officer of such corporation, who should make, or attempt to make, any contract for, with, by, or for its benefit after it had violated such provision, should be guilty of a misdemeanor, and on conviction should be fined not less than $100 nor more than $1000, and might also be imprisoned with or without hard labor, for not more than 12 months, or both at the discretion of the court. Held, that the penalties for disobeying such provision were so extreme that foreign corporations would generally be deterred from litigating the question of the right of the state to enact such amendment, and, as to a federal railroad company operating within the state, it was violative of the fourteenth amendment of the federal Constitution, as depriving the company of its property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 863-866; Dec. Dig. § 303.*]</p>

<p>In Admiralty. Suit for collision by Abram J. Slocum, master of the schooner City of Georgetown and as bailee of her cargo, and the International Salt Company, intervening libelant, against the steamship Prinz Oskar.</p>

<p>i In Admiralty. Suit by the Merchants’ & Miners’ Transportation i Company against 701 bales of cotton.</p>

<p>1. CORPORATIONS (§§ 182, 189*)-ELECTION OF REMEDIES (§ 7*)-MINING CORPORATIONS — SALE op Assets — Dissenting Stockholders — Remedies.</p> <p>Rev. Codes Mont. §§ 4409-4412, provide that any Montana mining corporation, when directed by a vote of the holders of two-thirds of the outstanding stock authorizing a sale or accepting a proposition from any one to buy all the corporate property for cash, property, or capital stock of any other corporation, may sell or convey in accordance therewith as though all stockholders had consented thereto, and that thereupon the vendor is dissolved and any dissenting stockholder may proceed in'court to secure an appraisal of the value of the stock and have judgment therefor, including expenses and costs, which shall be entered against both vendor and vendee and shall be a lien on all the real property sold. Held that, where a dissenting stockholder claims a fraudulent sale of the property of a mining corporation, he has a choice of remedies, to wit, appraisal or avoidance of the sale; but he cannot have both, and if he elects an appraisal he is estopped to sue.</p> <p>[Ed. Note. — Eor other eases, see Corporations, Cent. Dig. §§ 686-690, 706-722; Dec. Dig. §§ 182, 189;* Election of Remedies. Cent. Dig. § 12; Dec. Dig. § 7.*]</p> <p>2. Corporations (§ 189*) — Selling of Assets — Consolidation—Fraud— Evidence.</p> <p>In a suit by a minority stockholder to set aside an alleged sale of a mining corporation’s assets to another company for alleged fraud, evidence held insufficient to establish either fraud or that the sale was effected without complainant’s knowledge and consent.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 706-722; Dec. Dig. § 189.*]</p>

<p>1. Food (§ 5*) — Adulteration — Baking Powder — Presence of Egg Albumen.</p> <p>The presence of egg albumen in baking powder, which neither adds to, nor subtracts from, its leavening qualities, but only serves to demonstrate, in a simple way, the presence of carbon-dioxide, and whether the product has become stale and unfit for use, ánd does not make the powder appear better or of greater value than it really is, did not render the same violative of the Oregon Food Law (L. O. L. §§ 4830, 4831), declaring that an article should he deemed adulterated if it is so treated that a damaged or inferior article is sold or made to appear better or of greater value than it really is.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 1; Dec. Dig. § 5.*]</p> <p>2. Food (§ 15*) — Baking Powdek — Labeling.</p> <p>Where baking powder was composed of bicarbonate of soda, calcium acid phosphate, sodium aluminium sulphate, egg albumen, and com starch, a legend on the label, reciting, ‘•This Baking Powder contains the following ingredients and none other: Starch, Egg, Phosphate, Bicarb. Soda, Sodium Aluminium Sulphate,” constituted a substantial compliance with the Oregon Food Law (L. O. L. § 2231), making it unlawful for any person to sell baking powder in Oregon which does not have printed on the label, in plain English, free from all technical or chemical phrases, the names of all the ingredients composing it.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 14; Dec. Dig. § 15.*]</p>

In Equity. Suit by the Delaware, Lackawanna & Western Railroad Company to restrain Seymour Van Santwood and others, constituting the Public Service Commission of the Second District of New York, from enforcing an order requiring complainant to restore, run, and operate two trains each way, in. addition to the service existing at the date of the order between Oswego and Syracuse.

Writ sustained, and petitioner discharged. On examination before a United States commissioner, the defendant Joseph La Page having been held for action by the State Department in deportation proceedings to answer in the Dominion of Canada for an alleged crime, alleged to have been there committed by him, said La Page sues out this writ on the claim that the evidence is wholly insufficient to justify his being held and subjected to imprisonment, etc.

<p>Judgment (§ 684*) — Conclusiveness-— Beesons Bound.</p> <p>A judgment adjudging that plaintiff was the owner and entitled to the possession of a vein or lode of ore was not conclusive as to its ownership as against lessees of the defendant, who entered as such long prior to the rendition of such judgment, and prior to the institution of the suit, in actions against them for trespass.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1207; Dec. Dig. § 684.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition' — Acts Constituting.</p> <p>Plaintiff prepared and sold a beverage called “Coca-Cola,” and defendants one called “Koke,” .both, of which were made from syrups mixed with carbonated water, put up in bottles, and also served by the glass. Defendants’ bottles were slightly taller than plaintiff’s. The bottles of each party had a tin cap over the stopper, with the name of the beverage in script thereon, but it was the" custom of dealers in serving the two beverages to remove the tin caps so that the purchaser did not see the name. Defendants sold exelusivély to dealers. The color of the two beverages was similar, but it appeared that there were 181 beverages having practically the same color as Coca-Cola. Defendants neither sold Koke for Coca-Cola nor advised their customers to do so. Held, that defendants were guilty of no unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*]</p> <p>2. Trade-Marks and Trade-Names (§ 73*) — Origin or Adoption op Mark or Name.</p> <p>That certain purchasers of “Coca-Cola,” prepared and sold by plaintiff, referred to it as “Koke” did not entitle plaintiff to enjoin defendants from selling a somewhat similar beverage under the name “Koke,” on the theory that by. adoption or user the name “Koke” had become a secondary trade-name of plaintiff’s product, where plaintiff had neither adopted nor used such name in connection with its beverage.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. § 73.*]</p>

<p>1. Dismissal and Nonsuit (§ 60*) — Grounds—Want op Prosecution.</p> <p>Pending a suit for infringement of a patent against a manufacturer, plaintiff brought suit against a dealer, who was a customer of the manufacturer, on November 17, 1910. On February 27, 1911, he was restrained from proceeding against any of the manufacturer’s customers. This restraining order was reversed on October 16, 1911, but the suit was not finally determined in plaintiff’s favor until May 4, 1914. Held, that a motion made on June 18, 1914, to dismiss the suit against the dealer for want of prosecution, should be denied.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. § 60.*]</p> <p>2. Equity (§§ 272, 296*) — Supplemental Pleading — Matters Occurring Subsequent to Filing oe Bill.</p> <p>Whore matters, sought to be brought into the pleadings, have occurred since the filing of the original bill, they must be brought in by supplemental bill and not by amendment.</p> <p>[Ed. Note. — For other eases, see Equity, Cent. Dig. §§ 564, 584-586, 699; Dec. Dig. §§ 272, 298.*]</p> <p>3. Equity (§ 296*) — Supplemental Pleading — Matters Occurring Subsequent to Filing of Bill.</p> <p>Where plaintiff has no cause of action when his bill is filed, he cannot cure the defect by bringing in subsequent matters constituting a good cause of action by a supplemental bill, but may bring in matters not going to the existence of an original cause of action, but to a confirmation of it from which certain incidental rights flow.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 584r-586, 599; Dee. Dig. § 296.*]</p>

<p>1. Injunction (§ 60*) — -«Subjects of Protection — Restraining Breach of Contract.</p> <p>A written contract, by which complainant employed defendant as a ball player for certain specified periods at a fixed compensation, on condition that it should have the right to discharge him on ten days’ notice, followed by part performance by defendant and payment therefor, is based on a valuable consideration and valid, and a term of the contract by which defendant covenanted not to render such service to others during its continuance is also valid and binding and may be enforced by injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 117-119; Dec. Dig. § 60.*]</p> <p>2. Injunction (§ 14*)' — Grounds of Betjef — Irreparable Injury.</p> <p>Where the refusal of an injunction may, and probably will, inflict great damage upon the complainant, which is likely to be irreparable, while by a bond or otherwise defendant, may be saved from loss or injury if it is granted, the injunction should be granted.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 14; Dec. Dig. i 14.*]</p>

<p>In Admiralty. Suit by the Burns Bros, against the steam lighter Towanda. On determination of priority of liens.</p>

<p>Injunction (§ 140*) — Preliminary Injunction — Trade Secrets — Disclosure.</p> <p>Where complainant sued to restrain an ex-employé from disclosing, and persons with whom he had since associated himself from using, complainant’s secret processes in a competing business, but the answer denied the salient averments of the bill, and that defendants intended to do complainant the injury sought to be prevented, a preliminary injunction would be denied, with leave to renew the application at any time.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 319; Dee. Dig. § 146.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Alexis C. Angelí, Judge.</p> <p>Action by U. Grant Grummond against the City of Detroit. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of North Carolina, at Raleigh; Henry G. Conner, Judge.</p> <p>Action at law by Charles W. Hickman against D, C. Sawyer, John E. Parrisher, j. W. Gaboon, Charles Roughton, PI. T. Davenport, L. S. Spruill, and others. Judgment for defendants, and plaintiff brings error.</p>

Criminal prosecution by the United States against Oscar J. Weeks, doing business under the name of O. J. Weeks & Co. Judgment of conviction, and defendant brings error.

Suit in admiralty by Arthur H. Hahlo and another, executors, against E. C. Benedict, and cross-libel. Decree for libelants, and respondent appeals.

Dandis, Judge. In the matter of bankruptcy proceedings of the Frank E. Scott Transfer Company.

<p>In Error to the District Court of the United States for the District of Nebraska; William H. Munger, Judge.</p> <p>Action at law by Charles Zvega against Armour & Co. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts (§ 347*) — Objection to Evidence on Ground of Insufficiency of Petition.</p> <p>The practice of objecting to the introduction of any evidence in a cause • on the ground that the petition or complaint does not state a cause of action is very objectionable, and is not recognized in the federal courts, even though it may be permitted in the courts of the state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]</p> <p>2. Pleading- (§ 406*) — Waiver of Objections to Petition or Complaint— Filing of Answer.</p> <p>In the federal courts it is only when a defect in a petition is of such a nature that it cannot be cured by the verdict of a jury, and therefore can be talien advantage of by a motion in arrest of judgment after verdict, that it is not waived by the filing of an answer, which operates as a waiver of all technical defects.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. § 406.*]</p> <p>3. Appeal and Error (§ 889*) — Review—Pleading—Amendment—Treating Petition as Amended.</p> <p>Under Rev. St § 954 (U. S. Comp. St. 1901, p. 696), which permits the amendment of pleadings to conform to the proofs, where evidence was introduced by both- parties with respect to a matter which was material, the petition will be treated as having been amended, when necessary to properly put such matter in issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. § 889.*]</p>

Pollock, Judge. Suit in equity by Arthur L. Schwartz against Mary R. Loftus, ad-ministratrix of the estate of Matthew Ryan, Sr., deceased, and others. From a decree dismissing the bill on motion, complainant appeals.

Campbell, Judge. Criminal prosecution by the United States against J. O. Ammerman. Judgment of conviction, and defendant brings error. The plaintiff in error was indicted for violation of the laws prohibiting the introduction of intoxicating liquors into the Eastern district of Oklahoma. The indictment is as follows: “Indictment Introducing Liquor into Indian Country. United States of America, Eastern District of Oklahoma.

<p>In Error to the United States District Court for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Criminal prosecution by the United States against It. J. Allison. Judgment of conviction, and defendant brings error.</p>

<p>1. Indians (§ 5*) — Tribal Citizenship — Conclusiveness of Rolls Made bn Commission.</p> <p>The decision of the Commission to the Five Civilized Tribes, under the authority given by Act June 10, 1896, c. 398, 29 Stat. 321, that a person was entitled to enrollment in the Creek Tribe either as a citizen or freedman, not appealed from, is conclusive of such right and also of his relationship to the tribe, whether by blood or as a freedman.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 5.*]</p> <p>2. Indians (§ 16*) — Conveyance by Allottee — Validity.</p> <p>Under section 16 of the supplemental agreement with the Creek Nation, approved June 30, 1902, c. 1323, 32 Stat. 500, which provides that lands allotted to citizens shall not be incumbered nor alienated by the allottee or his heirs before the expiration of five years from the date when the agreement was approved, and that “any agreement pr conveyance, of any kind or character, violative of any of the provisions of this paragraph, shall be absolutely void and not susceptible of ratification in any manner,” a deed executed by a Creek allottee, enrolled as a citizen of Creek blood, after the five-year period but made in confirmation of one made before the expiration of that time, and without further consideration, is void, and will not support an action of ejectment.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. § 15.*]</p>

Pollock, Judge. Suit in equity by L. H. Underwood against Dinus Abbott and others. Decree for complainant, and defendants appeal. The appellee, who will be referred to herein as the plaintiff, instituted an action for specific performance against the surviving husband and the children of Harriet L. Abbott, deceased.

Youmans, Judge. Action at law by Helen Hise and Vesta Hise, who sues by Helen Hise as next friend, against the Western Coal & Mining Company. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty by the Gwladys Steamship Company, Dimited, against the Gans Steamship Dine. Decree for libelant, and respondent appeals.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Northern District of Ohio; John E. Safer, Judge.</p> <p>Suit in equity by the Grand Rapids Show Case Company against Barney R. Baker, Walter A. Eversman, Eizzie Eversman, and the Curtis-Leger Fixture Company. Decree for defendants, and complainant appeals.</p>

<p>Patents (§ 328*) — Validity and Infringement — Bottle Opener.</p> <p>The Vaughn patent, No. 1,029,645, for a bottle opener, shows a patentable improvement over the device of patent No. 943,759 to the same pat-entee and is valid; also, held infringed.</p>

361) which held valid and infringed claims 2, 3, and 4 of patent No. 970,656, granted to Frank F. Smith September 20, 1910, for a “transom adjusting device.”

<p>■ In Equity. Suit by the Frank F. Smith Metal Window Hardware Company against John W. Yates. On final hearing.</p> <p>Decree affirmed by Circuit Court of Appeals, 216 Fed. 359.</p> <p>The following are sketches of the models in question:</p> <p> </p> <p> </p>

<p>Patents (§ 328*) — Infringement—Surfacing Composition fob Pavements.</p> <p>An injunction granted, restraining the carrying out of a paving contract with a city on the ground that its performance according to its specifications would necessarily involve infringement of the Warren patent, No. 727,505, for a wearing surface of a pavement.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Cornets.</p> <p>The Holton patent, No. 1,005,972, for an improvement in cornets was not anticipated in the prior art, and discloses novelty and invention; also held infringed.</p> <p>2. Patents (§ 72*) — Anticipation—Devices Designed for Other Purposes.</p> <p>A patent is not anticipated by a prior device because the latter might, by modification, be made to perform the functions of the patented device, where it was not designed nor adapted nor actually used for the performance of those functions.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 86-91; Dec. Dig. § 72.*)</p> <p>3. Patents (§ 167*) — Construction and" Scope — Advantages Not Claimed.</p> <p>A patentee is entitled to all of the advantages and new results flowing from his invention, whether stated in his specification or not.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dec. Dig. § 167.*]</p> <p>4. Patents (§ 26*) — Invention—New Combination of Old Elements.</p> <p>That a new combination and arrangement of elements that are old produces new and beneficial results is evidence of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. ss 27-30; Dec. Dig. § 26.*]</p> <p>5. Patents (§ 35*) — Evidence of Utility — Commercial Success.</p> <p>While large sales and general use of a patented invention are not conclusive evidence of its utility, they are facts to be taken into consideration in a doubtful case.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 39; Dee Dig § 35.*]</p>

Proceeding by the United States against Max M. Hart and others. Question as to the right of the United States to use on the trial of an indictment for conspiracy, etc., and to introduce in evidence against the defendant, certain papers, letters, checks, and notes paid and unpaid be-longingto the defendant, Hart. Objection to use of such papers overruled.

In Equity. Suit by the Bank of North America and others against the Pennsylvania Oil Refining Company, otherwise called the Petroleum Products Company. On exceptions to the report of an auditor, finding that exceptant was a stockholder and not a creditor of defendant company.

<p>Salvage (§ 27*) — Compioxsatiox—Pumpixg out Lkakixg Barge.</p> <p>A barge loaded with copper ore lying in a slip on Sunday was leaking so that the water gained on the four men who were pumping when li-belant’s tug was called to assist, and in about three hours the water was pumped out and was thereafter kept down by the hand pumps. The barge was not believed to be in immediate danger, and was not in fact, as there were additional men available for pumping and also means for moving her 75 feet to one side, where she would have rested on a mud bank. Held, that the service, if regarded as a salvage service, was not of high order, and that an award of S?133 was sufficient compensation.</p> <p>¡Kcl. Note. — For other cases, see Salvage, Cent. Dig. §§ 65, 66; Dec. Dig. § 27.*]</p>

<p>1. Equity (§ 43*) — Jurisdiction—Adequate Remedy at Law.</p> <p>Equity will refuse to entertain jurisdiction, where the averments of the bill conferring jurisdiction and the equitable relief sought is for the mere purpose of giving jurisdiction in order to obtain other relief which may be obtained at law.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 121-140, 164-166; Dec. Dig. § 43.*]</p> <p>2. Courts (§ 352*) — Adequacy oe Legal Remedy — Dismissal.</p> <p>Under United States equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), providing that if at any time it appear that a suit, commenced in eguity, should have been brought on the law side of the court, it shall be transferred to the law side and be there proceeded with, and rule 23 (198 Fed. xxiv, 115 C. C. A. xxiv), providing that, if in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court, a bill in equity cannot be dismissed on the ground that there is an adequate remedy at law, and a want of equity.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 926-932; Dec. Dig. § 352.*]</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Metropolitan Jewelry Company. Claim of one Meyrowitz for priority under Bankr. Act, § 64b (4), disallowed.</p>

<p>Bankruptcy (§ 345*) — Claims—Pekfkkencks.</p> <p>Claimant, who was general manager and treasurer of the bankrupt corporation, and who represented his wife, who owned tlie majority of the stock, was not entitled to priority under Bankr. Act July 1, 1898, c. 541, § 64b (4), 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 531, 532, 534, 539, 540; Dec. Dig. § 345.*]</p>

<p>Removal or Causes (§ 84*) — Removal Peoceedings — Notice — Omission — Remand.</p> <p>Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1095 [U. S. Comp. St. Supp. 1911, p. 142]) § 29, providing that written notice of intent to file a petition and bond for removal shall be given to the adverse party prior to filing the same, is mandatory, so that an unexcused failure to give such notice is ground for remand.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 164; Dee. Dig. § 84.*]</p>

Suit by Marie Heller on her own behalf, etc., against Charles E. Teale, individually and as public administrator of the county of Kings, upon the goods, etc., of Eleonore K. Bader, deceased, and others.

<p>In Equity. Suit by the Hamilton Manufacturing Company against the Tubbs Manufacturing Company and others. On final hearing.</p>

In Equity. Suit by Adolph Davis against William H. Berry and others, constituting the Iowa State Board of Parole, Austin F. Philpott, the Iowa Penitentiary physician, and James C. Sanders, warden of said penitentiary, to restrain the enforcement of Acts 35th Gen. Assem.-Iowa, c. 187, requiring the performance of vasectomy on criminals twice convicted of a felony.

<p>Herman A. Salen was indicted for perjury. On motions to quash the indictment.</p>

In Admiralty. Petition by the Gilchrist Transportation Company, as owner of the Steamship Perry G. Walker, and by George A. Garret-son and Samuel P. Shane, as receivers of said company, for limitation of liability. On exceptions to report of commissioner.

In Admiralty. Suit by the Southern Towing Company, owner of the tug Virginian, against the steamship Urko Mendi. Findings of Facts. The court makes the following findings; (1) The libelant’s tug, by which the salvage services claimed were performed, is of the value, with her tackle and equipment, of §40,000. (2) The Urko Mendi, the vessel for which the salvage services were performed, is a steamship of the value of §100,000, and her cargo was of the value of §12,750.

<p>At Law. Action by Municipal Waterworks Company against the City of Ft. Smith. Trial to court.</p>

In Admiralty. Suit by Charles Killam & Co. against the Monad Engineering Company. Heard on libel, answer, and trial proofs. Findings of Fact. The court finds the following findings of fact: (1.) Certain findings of fact which arise out of the evidence have not been made because not asked. (2) On August 20, 1907 the libelant hired or chartered the lighter Koosevelt to the respondent for a period of from 25 to 28 days at $.10 per day.

<p>In Admiralty. Suit by the Monad Engineering Company against Charles Killam & Co. Heard on libel, answer, and trial proofs.</p>

In Admiralty. Suit for collision by the Island Transportation Company, owner of the steamer Carnario, against the steamship Modoc, Sound Packet Tines, claimant, and cross-libel. Libelant relies upon the following authorities: Marsden’s Collision at Sea (6th Ed.) 473, 474; Spencer on Marine Collisions, § 172; The Marion (D. C.) 56 Fed. 271; The St. John v. Paine, 10 How. 557, 13 T. Ed. 537; The Coe F. Young, 49 Fed. 167, 1 C. C. A. 219; The New Orleans, 106 U. S. 13, 1 Sup.

H. Hanford, Judge. Suit in admiralty by Mary F. Rainey, as administratrix of David I,. Rainey,_ deceased, against the New York & Pacific Steamship Company, Limited, and W. R. Grace & Co., a corporation. Decree for respondents, and libelant appeals.

Suit in equity by the Pennsylvania Steel Company and The Degnon Contracting Company against the New York City Railway Company and the Metropolitan Street Railway Company. Appeals from four decrees arising out of the receivership.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; George A. Carpenter, Judge.</p> <p>Suit in equity by Laura G. Rogers against the National City Bank of Chicago, L. H. Grimme, Thor R. Thorsen, G. L. Wire, and E. W. Wagner and Paul Tietgens, partners as E. W. Wagner & Co. Cross-appeals by the Bank, Grimme, Thorsen, and Wire, and by complainant.</p>

<p>1. Bankruptcy (§ 467*) — Apmsau—Findings—Review.</p> <p>A finding by a referee in bankruptcy affirmed by the district Judge will not be set aside on appeal on anything less than a demonstration of plain mistake.</p> <p>fEd. Note. — For other eases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*</p> <p>Apreal and review in bankruptcy cases, see note to In re Eggert, 4$ C. C. A. 9.]</p> <p>2. Bankruptcy (§ 303*) — Mortgages—Fraud.</p> <p>Evidence held insufficient to show that a mortgage executed by the bankrupt to his mother was fraudulent in whole or in part or had boon withheld from record in order to give the bankrupt an unwarranted credit or to defraud subsequent creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-A62; Dec. Dig. § 303.*]</p> <p>3. Mortgages (§ 175*) — Dtens—Priorities—Failuke to Record — Notice.</p> <p>Ky. St. 1903, § 496, provides that no deed, deed of trust, or mortgage shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deeds shall be acknowl edged or proved according to law, and lodged for record. Held, that mi der such statute a mortgage duly executed and delivered for a valid consideration is good as between the parties though not recorded, and also as against creditors taking with notice and subsequent creditors who liavf-not obtained a lien on the property.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 175.*]</p> <p>4. Bankruptcy (§ 184*) — Liens—Unrecorded Mortgage — Validity—State Law.</p> <p>Whether an unrecorded mortgage executed by the bankrupt is invalid as against the bankrupt’s trustee under Bankr. Act July 1, 1898, c. 541, § 67a, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), providing that claims which for want of record or for other reasons would not have been valid liens as against claims of the creditors of the bankrupt shall not be liens against his estate, depends on the effect of the recording law of the state.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*]</p> <p>5. Bankruptcy (§ 184*) — Unrecorded Mortgages — Priority.</p> <p>Bankr. Act July 1, 1898, c. 541, § 47, cl. 2, subd. “a,” 30 Stat. 557. (U. S. Comp. St. 1901, p. 3438), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (U.' S. Comp. St. Supp. 1911, p. 1500), provides that trustees in bankruptcy as to all property in the custody or coming into the custody of the bankruptcy courts shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, and, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied. Held, that a mortgage executed and delivered in Kentucky in good faith and for a valid consideration prior to the date of the amendment, and recorded afterwards but before the petition in bankruptcy against the mortgagor was filed, was not subordinate to the claims of judgment creditors who became such subsequent to the execution of the mortgage and before it was recorded.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*]</p> <p>6. Bankruptcy (§ 161*) — Mortgages—Record—Preferences.</p> <p>Where a mortgage was executed by a bankrupt more than four months prior to the institution of bankruptcy proceedings and was valid under the state law except as against subsequent creditors who had acquired a lien and equally valid against the bankrupt’s trustee, representing no such creditors, though not recorded until less than four months prior to bankruptcy, the date of record could not be regarded as the date of execution for the purpose of determining the four months’ period in order that it might be declared a voidable preference under Bankr. Act July 1, 1898, c. 541, §§ 60a, 60b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (U. S. Comp. St. Supp. 1911, p. 1506).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§■ 261-263; Dec. Dig. § 161.*]</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>.Action at law by Martha Bierce Holden against the Circleville Light & Power Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Evidence (§ 588*) — 'Weight and Sumtciency — Contradiction by Physi-cai. Facts.</p> <p>When the testimony of a witness is positively contradicted by the physical facts, neither the court nor the jury can be permitted to credit it.</p> <p>[Ed. Note.- — For other cases, see Evidence, Cent. Dig. § 2437; Doe. Dig. I 588.*]</p> <p>2. Master and Servant (§ 278*) — Action J'or Injury — Negeigence oe Fel-iow Servant.</p> <p>While plaintiff was working under a car blocked up in defendant’s yards for repair, it was struck and knocked from its supports by another car moved by an engine operated by an engineer, who was a fellow servant, and plaintiff was injured. The ground of defendant’s liability relied on was that the spring on the engine, the function of which was to hold the throttle closed, was weak and defective, and failed to work properly. The only evidence of the defect was the testimony of the engineer, which was contradicted, and it was further shown by defendant without contradiction that the spring worked properly on the night before and the night after the injury, when other engineers were in charge, and that it had not been replaced or repaired, but had been in constant use and worked perfectly up to the time of trial. Held, that the testimony of the engineer was positively contradicted by such physical fact, and that the court should have directed a verdict for defendant.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960 -969, 971, 972, 977; Dec. Dig. § 278.*]</p>

<p>1. Appeal and Erbok (§ 095*) — Review op Evidence — Partial Record.</p> <p>On a question of fact an appellate court cannot have the entire record before it, where the trial court and jury made an inspection of the premises where an accident occurred.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. § 093.*]</p> <p>2. Negligence (§ 93*) — Imputed Negligence — Injuey to Passengee in Automobile.</p> <p>Plaintiff was riding with others as a guest in an automobile at night. The lights gave out, and they stopped at a town, but could procure no light, except an oil lamp, which was very dim. After traveling several miles, while they were on a trail not used or treated as a public road, and with which none of those in the car was acquainted, the machine went over an embankment into a cut made by defendant railroad company, and plaintiff was injured. The place was within the limits of a city, but in a part which had not been platted, nor streets or alleys dedicated. Held that, aside from the question of defendant’s negligence, plaintiff was chargeable with contributory negligence and conld not recover.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 147-150; Dec. Dig. § 93.*]</p> <p>3. Negligence (§ 93*) — Negligence op Driver op Vehicle Imputable to Passenger.</p> <p>The rule that the negligence of the driver of a conveyance will not be Imputed to a passenger, whether the conveyance is a public one or the passenger is the guest of the driver of a vehicle, does not apply where the passenger has full knowledge of the danger and voluntarily incurs the risk.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 147-150; Dec. Dig. § 93.*]</p>

<p>1. Patents (§ 328*)- — Validity and Imbingement — Mechanism fob Rifling Pipes ob Tobes.</p> <p>Tho Fell patent, No. 888,984, for apparatus Cor rifling pipes or tubes was not anticipated, discloses patentable invention, making a distinct and valuable advance in the art, and its claims are entitled to a fairly broad construction; also held infringed as to claims 1, 2 and 3.</p> <p>2. Patents (§ 165*) — Gonstbuotion of Claims — “Substantially as De-scbibed.”</p> <p>At least in all recent patents, granted since the rule of the Patent Office established by tho decision of the Commissioner in 1902 in Ex parte Simpler, 102 O. 6. 468, has been in force, and save in exceptional instances, the presence or absence of the phrase “substantially as described” in a claim is of no interpretative importance, words of such import being implied if not expressed. Such words, if present, do not limit tho patentee to the exact mechanism described, nor deprive him of the benefit of the rule of equivalents to the same extent as if they were absent.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6741, 6742.]</p> <p>3. Patents (§ 157*) — Construction—Rules op Patent Oppice.</p> <p>When the Patent Office has a settled rale of construction under which a certain phrase in a patent grant has a fixed meaning, acquiesced in by the patentee, the courts cannot afterward rightfully say that the phrase means something more or something less.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 229-232; Dec. Dig. § 157.*</p> <p>Conclusiveness and effect of decisions of patent office in proceedings on applications, see note to Novelty. Glass Mfg. Co. v. Brookfield, 95 C. C. A. 530.]</p> <p>4. Patents (§ 165*) — Construction oe Claims.</p> <p>Where a patent contains both a broad and a narrow claim and suit is brought on the broad claim, the court cannot construe into it a limitation not therein expressed, but which is expressed in the narrower claim, and by which alone one is distinguished from the other.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. § 165.*]</p> <p>5. Patents (§ 168*) — Construction—Estoppel bx Proceedings in Patent Office.</p> <p>It is not necessarily important that when the examiner rejects a claim in an application for a patent on a reference to an earlier patent, the applicant thereupon amends the claim, but it is of importance and creates an estoppel against the patentee only when it additionally appears that the effect of the amendment was to narrow the claim.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. § 168.*]</p>

<p>1. Courts (§ 290*) — Federal Court — Suit to Reform Patent License Contract — Citizenship op Parties.</p> <p>A federal court is without jurisdiction of a suit to reform a contract purporting to grant licenses under certain patents, with a right of purchase, on the ground that the person executing such contract on behalf of complainant was without authority, where the parties aro citizens of the same state.</p> <p>I Ed. Note. — For other cases, see Courts, Cent. Dig. § 832; Dec. Dig. § 290.*]</p> <p>2. Patents (§ 211*)— Suit fob Infringement — Estoppel.</p> <p>A complainant held, estopped to maintain a suit to recover royalties under patents in addition to those specified in a contract under which defendant was operating, or damages for infringement, on the ground that the contract was executed without authority, where it was shown that she had ratified the contract by collecting royalties and demanding ac-countings thereunder.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 304-311; Dec. Dig. § 211.*]</p>

<p>Action by the Central Building, Loan & Savings Company against Willis G. Bowland, as Collector of Internal Revenue for the Eleventh District of' Ohio, and by the Bellefontaine Building & Doan Company against William V. McMaken, as Collector of Internal Revenue for the Tenth District of Ohio, to recover certain corporation taxes assessed against plaintiff in each case, under Corporation Act Aug. 5, 1909, § 38.</p>

<p>1. Commerce (§ 40*) — Subjects of Interstate Commerce — Stocks and 'Bonds.</p> <p>Stocks, bonds, and securities are subjects of interstate commerce, and shipments and sales of the same between the states are interstate commerce.</p> <p>[Ed. Note. — li'or other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.*]</p> <p>2. Commerce (§ 60*) — Constitutional Law (§ 207*) — State Regulation of Sales of Stocks and Bonds — Constitutionality — Interstate Commerce.</p> <p>Acts 35th Gen. Assem. Iowa, c. 137, commonly termed the “Blue Ski I,aw,” which by its terms prohibits a citizen of a sister state owning ani-having stocks, bonds, certificates, or securities, although the same are listed on the exchanges of the country and have a well-established actual and salable value, from either bringing or sending them into the state for sale or negotiating for their sale to any person in the state unless he complies with the requirements of the act by obtaining from the Secretary of State and paying for a certificate as an investment company or a stockbroker and subjecting himself to its penalties, held, on an application tor a preliminary injunction to restrain its enforcement, not within the police powers of the state as an inspection law, but unconstitutional and invalid -as imposing a direct burden on interstate commerce, and as imposing burdens upon and denying privileges to citizens of other states which are not imposed upon, and which are granted to, citizens of Iowa.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 91-95; Dee. Dig. § 60;* Constitutional Daw, Cent. Dig. §§ 625-648; Dec. Dig. § 207.*]</p> <p>3. Statutes (§ 184*) — Construction and Validity — Power of State to Enact.</p> <p>The power of a state to enact a law must be determined from that which is sought thereby to be ordained or accomplished, and not from the title it bears.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 262; Dee. Dig. § 184.*]</p>

<p>Work and Labor (§ 9*) — Recovery on Quantum Meruit — Effect of Express Contract.</p> <p>Defendants were interested in oil lands which, with other lands, it was proposed to put into a corporation to be organized by defendants and others. Plaintiff, an experienced civil and mining engineer, was employed by defendants to examine the lands as to the probability of their containing oil in commercial quantities, make a report thereon, and aid defendants in negotiating for certain of the lands; defendants agreeing to pay him a specified amount in the capital stock of the proposed company. Plaintiff performed the contract, but without his knowledge defendants saegotiated with other parties for the purpose of acquiring such lands to Be put into a different corporation, which was brought about and largely financed upon the report and information furnished by plaintiff, and from Che organization of which defendants made a large profit. Held, that while ordinarily when there is a special contract covering the rendition of services which are not to be compensated in money, but in corporate shares, the remedy for nonperformance is an action for damages for breach of the special contract, defendants having, by their own acts, put -it beyond their power to comply with the special contract, and having made use of plaintiff’s services in carrying out a plan in breach of the contract, plaintiff was entitled to rescind and sue on quantum meruit for his services.</p> <p>[Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 23-24; Dec. Dig. § 9.*]</p>

<p>Suit by the United States against the Primrose Coal Company.</p>

<p>In the matter of Isadore Geller, bankrupt. On petition to review ■ii/rder of referee.</p>

Actions by the State of Missouri, on the relation of John T. Barker, her Attorney General, against the Chicago & Alton Railroad Company, against the Kansas City Southern Railway Company, and against the Chicago, Milwaukee & St. Paul Railway Company. On pleas to the jurisdiction, and motions to remand to the state court.

<p>At Law. Action by George Schuede against the Zenith Steamship Company, removed-from state court. On motion to strike out parts of answer.</p>

<p>Collision (§ 91*) — Steam: Vessels Meeting — Violation op Passing Agreement.</p> <p>A collision at night on the Delaware river between the government dredge Delaware which was slowly working upstream to the eastward of the center of the channel and the steamship Raven going down with the ebb tide in the center of the channel when signals for passing port to port were exchanged held, due solely to the fault of the Raven which, instead of keeping her'course or bearing to starboard, swung to port and struck the Delaware at a point some .300 feet to the east of the middle of the Channel.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 187-192; Dec; Dig. § 91.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Raymond M. Booth. Petition to review a referee’s order denying the petition of Patrick Burns for leave to file an amended proof of claim.

<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 and others against the Ft. Dodge, Des Moines & Southern Railroad Company. From a decree entered on its petition of intervention, the Chicago, Milwaukee & St. Paul Railway Company appeals.</p>

The complainants, citizens and residents of the state of New Jersey, filed a bill in the District Court for the Southern District of New York against the defendant, a corporation organized and existing under the laws of the state of New York.

<p>On rehearing. Petition denied.</p>

<p>Patents (§ 328*) — Validity and Infringement — Spring Contracting and Removing Device.</p> <p>The Bryant patent, No. 1,008,694, for a spring contracting and removing device, especially intended for use in connection with valve springs of explosion engines, held not anticipated, valid, and infringed as to claims 2 and 3.</p>

<p>Patents (§ 30-1*)— Suit eor Infringement — Preliminary Injunction.</p> <p>The granting of a temporary injunction on a supplemental bill in an infringement suit to restrain infringement by a new device patented by the defendant after the original hearing held within the discretion of the court.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 304.*]</p>

Hollister, Judge. Suit in equity by the Fogelsong Machine Company against the J. D. Randall Company. From an order affirming the report of the master on an accounting, defendant appeals.

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; William R. Day, Judge. Suit in equity, by Reinhold Herman against the Youngstown Car Manufacturing Company. From the decree after an accounting, both parties appeal.

<p>Appeals from the District Court of the United States for the Eastern District oí Michigan; Henry H. Swan, Judge.</p> <p>Suit in equity by the United States Frumentum Company against Frank Fauhoif, William FauhofI, and Henry Fauhoff. From the final decree, both parties appeal.</p> <p>The Frumentum Company brought against the Lauhoff Pros, the usual infringement bill, based upon patent No. 440,806, of November 18, 1890. This patent was issued to Frank Dauhoff, who was instrumental in organizing the plaintiff corporation and assigned the patent to it, but later ceased his connection with the Frumentum Company and, it is said, caused the defendant partnership, of which he was a member, to engage in infringing. The patent contained three claims, of which the first two are, for the purposes of this case, equivalent. Claims 2 and 3 are as follows:</p> <p>“2. As a new article of manufacture the herein described product from com, consisting of compressed films formed from the corn retained continuously in its normally dry and raw condition, substantially as described.</p> <p>“3. The herein described process of producing films from corn, consisting in first crushing the cereal in its normally dry condition to granules and subsequently subjecting said granules, in their normally dry condition, to a drawing compression, substantially as described.”</p> <p>It. is conceded that the patented product and (except for the drawing step)' the patented process differed from the earlier ones of Gent (who called his product “cerealine”) only in that the “grits” or granules produced by crushing the hulled and germ-freed Kernels were, by Gent, steam-soaked and cooked before they were rolled into films, while Lauhoff retained these grits in their “normally'dry” condition. Doubts as to the patentability of this change or step omission at once suggest themselves, but it has been conceded from the beginning of the case that Frank Lauhoff as patentee, and the other defendants by virtue of his relations to their joint enterprise, are estopped to deny the patent’s validity; so that infringement and damages have been and are the only questions in dispute. To make its prima facie case, plaintiff produced an expert witness who testified that certain flakes, confessedly produced by defendants, were the product called for by the second claim and had necessarily been made by the process of the third claim of the patent; more specifically, that these flakes could not have been produced if the grits had been effectively steamed before rolling. Defendants met this proof only by an expert who said that the flakes might have been steamed before rolling and still have all their existing characteristics. The District Judge accepted plaintiff’s theory, thought the proof of infringement was sufficient, and made the usual interlocutory decree for injunction and accounting.</p> <p>The defendants continued to manufacture, pending accounting. The master’s report was not made until 2% years after the interlocutory decree, and both parties took evidence before the master upon the question of infringement during his period. The master found that the infringement had continued ; that the defendants had made no profits; that plaintiff’s profits, if it had made the sales which defendants made, would have been $13,000; and that plaintiff was damaged in this amount. The defendant took exceptions, and on final decree the District Court affirmed the master’s finding that the infringement had continued throughout the accounting period, and to the total amount stated; but concluded that plaintiff’s proof was insufficient to support the conclusion that, except for the infringement, it would have made the sales. A final decree was therefore entered in favor of plaintiff, but for nominal damages only. The parties bring these cross-appeals.</p>

<p>Patents (§ 328*) — Novelty—Joint Connection foe Bedsteads.</p> <p>The Adams patent, No. 923,235, for a joint connection for metal bedsteads, while covering a device which is simple, economical, and successful, is void for lack of novelty, in view of prior devices of similar construction.</p>

In Equity. Suit by the St. Rouis Union Trust Company, as trustee, against the Studebaker Corporation and Studebaker Brothers Company of New York, for infringement of the Ottofy patent No. 795,059 for a street-flushing machine.

<p>In Equity. Suit by the P. M. Company against the Ajax Rail Anchor Company. On motions to strike out portions of answer.</p>

<p>Patents (§ 328*) — Validity and Infeingement — Pneumatic Conveyob.</p> <p>Tlie Bassler patent, No. 851,054, for a pneumatic conveyor, for conveying coal ashes, discloses patentable novelty, and sufficiently describes the invention, although the device lias been made more efficient by experimentation since the patent; also held infringed.</p>

<p>In Equity. Suit by the Johns-Pratt Company against the Economy Eusc & Manufacturing Company. On final hearing.</p>

<p>Patents (§ 306*) — Suit fob Infringement — Preliminary Injunction.</p> <p>• Preliminary injunctions against infringement of patents granted, in suits against dealers only, subject to suspension pending decision in a suit against the manufacturer on the giving of security by defendants.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 500, 501; Dec. Dig. § 306.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Heiiron Company.

<p>1. Shipping- (§ 84*) — Liability op Vessel — Duty to Stevedore’s Employes.</p> <p>An employer must use proper and reasonable care to provide a reasonably safe place in which to have Ms work done, and proper and reasonably safe appliances with which to do the work, but a steamship which contracts with a stevedore to discharge the vessel is not the direct employer of the stevedore’s men, and that fact must vary, to some extent, the measure of its duty and responsibility to them.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Shipping (§ 84*) — Liability of Vessel — Injury to Stevedore.</p> <p>Libelant was a winchman employed by a stevedore in discharging respondent ship. The winch was furnished by the ship, and was intended to be operated by a man standing, but another employe of the stevedore who preceded libelant at the winch had rigged a seat which, however, was not secure, and by reason of its falling, libelant who was using it, was caught in the machinery and injured. Held, that there was no ground upon which the vessel could be held liable for the injury.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p>

<p>1. Injunction (§ 230*) — Strike Injunction — Violation—Proceedings to Punish — Nature and Character.</p> <p>A proceeding to punish certain union miners for violating a strike injunction against violence is criminal in character.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 502-516; Dee. Dig. § 230.*)</p> <p>íí. Injunction (§ 223*) — Strike Injunction — Inciting Others to Violence.</p> <p>Where an injunction against certain union miners had been issued, restraining violence against the property and nonunion employSs of a mining company, language or conduct intended to incite others to violence and to a violation of the court’s order constituted a punishable contempt.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. § 223.*]</p> <p>¡V Injunction (§ 230*) — Striking Injunction — Violation—Evidence.</p> <p>In proceedings for alleged violation of a strike injunction prohibiting interference with the workings of a mine, its property, employSs, etc., or the exercise of violence towards nonunion employSs, evidence held to require a conviction of some of the defendants, and insufficient to establish the guilt of others beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 502-516; Dec. Dig. § 230.*]</p> <p>4. Criminal Law (§ 168*) — Offenses—Autrefois Convict.</p> <p>Conviction of certain union miners for violating a strike injunction, prohibiting acts of violence against the property and nonunion employSs of a mine operator, on a charge of contempt for an offense which is also a crime, does not bar a prosecution for the crime.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dec. Dig. § 168.*]</p>

<p>1. Commerce (§ 98*) — Interstate Commerce Commission — Keview of Orders.</p> <p>On an investigation into the reasonableness, of rates by the Interstate Commerce Commission, if upon the facts found its conclusion therefrom plainly involves an e¡rror of law, as where it rests under the undisputed facts upon an erroneous construction of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), an order made by the Commission, based on such error of law, is subject to judicial review; but the question of the reasonableness of a rate is one of fact, and the conclusion of fact of the Commission that a given rate is reasonable or unreasonable will not be reviewed on the weight of the evidence, unless either there is no substantial evidence supporting such conclusion or it is contrary to the indisputable character of the evidence.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 148; Dec. Dig. § 98.*]</p> <p>2. Commerce (§ 98*) — Interstate Commerce Commission — Keview of Orders.</p> <p>Where the party complaining of an order of the Interstate Commerce Commission does not exhibit to the court the evidence taken by the Commission, but in lieu thereof insists that the facts found by it are insufficient to support its conclusion as to the reasonableness or unreasonableness of a given rate, such conclusion should be accepted by the court as final, unless it appears, not only that the Commission undertook to embody in such findings all the material facts established by the evidence, but in addition either that the evidential facts so found furnish no substantial support to such conclusion, or that the conclusion is contrary to the indisputable character of such evidential facts.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 148; Dee. Dig. § 08.*]</p> <p>S. Commerce (§ 98*) — Interstate Commebce Commission — Review of Or-debs.</p> <p>In determining whether the conclusion of the Interstate Commerce Commission as to the reasonableness or unreasonableness of a rate is supported by substantial evidence, the court does not consider the wisdom or expediency of the order based thereon, or whether on like testimony it would have made a similar ruling; nor does the validity of an order made by the Commission depend upon the correctness of each of its separate findings, the question being whether there was substantial evidence to support the order.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 148; Dec. Dig. § 98.*]</p> <p>4. Commerce (§ 98*) — Interstate Commerce Commission — Review of Orders.</p> <p>In rate-making cases the weight to be given to evidence relating to rates which the carrier insists had been enforced by competition is peculiarly a matter for the Interstate Commerce Commission, and in general, as the matter of fixing reasonable rates has been committed to the Commission, the courts, which have not been' vested with any such power, cannot interfere with the rates fixed by the Commission, unless it is plainly made to appear that the orders are void.</p> <p>[Ed. Note. — Dor other cases, see Commerce, Cent. Dig. § 148; Dec. Dig. § 98.*]</p> <p>5. Commerce (§ 98*) — Interstate Commerce Commission — Orders Fixing Rates— -V alidity.</p> <p>The evidential facts set forth in the report of the Interstate Commerce Commission, on which an order fixing new rates was based, when considered as a whole, held to afford substantial support to its conclusion that the old rates were unreasonable and that the new rates are reasonable.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 148; Dec. Dig. § 9S.*J</p> <p>6. Carriers (§ 32*) — Interstate Commerce Commission — Orders Respecting Switching Practice — Validity.</p> <p>The conclusion of the Interstate Commerce Commission that the switching practice of defendant railroad companies at Nashville, Tenn., in refusing to switch cars of coal to or from the tracks of a third company, except at prohibitive rates, while switching to and from the tracks of each oilier ata much lower rate, was unjustly and unduly discriminatory, held substantially supported by the facts set forth in the report of the Commission, considered as a whole, and an order requiring defendants to establish and maintain the same practice permitting the interswitching of coal to and from the tracks of such third company, as between the tracks of each other, held valid.</p> <p>[Ed. Note. — -For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. § 32.*]</p>

<p>In Equity. Suit by Samuel Heyman, trustee in bankruptcy of Orlando Ricciardelli, against the Third National Bank of Jersey City, to recover alleged preferences. The master advised a decree dismissing the bill, to which both parties except.</p>

In Equity. Suit by the Seattle, Renton & Southern Railway Company against the City of Seattle and others. On final hearing.

<p>Action for penalties by the United States against the New York, Ontario & Western Railway Company.</p>

<p>1. Admiralty (§ 20*) — Jurisdiction—Injury to Stevedore.</p> <p>• Where plaintiff was employed on a dock as a stevedore to assist In loading a vessel and while so doing was struck and injured by a sling load of lumber which was being transferred from the dock to the boat by its hoisting apparatus located on and operated from the boat, the iujury having taken place on land and not on navigable water, was not a maritime tort within the jurisdiction of admiralty, and did not therefore create a maritime lien against the boat.</p> <p>lEd. Note. — For other cases, see Admiralty, Cent. Dig. §§ 216, 225, 281; Dec. Dig. § 20.*]</p> <p>2. Maritime Liens (§ 60*)- — Jurisdiction—Injuries to Stevedores — Liens— State Law.</p> <p>A lien against a boat rising out of such injury, if it existed at all, was nonmaritime and created by the statutes of the state in which the injury occurred, and enforceable according to the procedure prescribed by Such law.</p> <p>[Fd. Note. — For other cases, see Maritime Liens, Cent. Dig. § 98; Dec. Dig. § 60.*]</p> <p>8. Saimso (§ 87*) — Injury to Stevedore — Boat Lien Law.</p> <p>Where a stevedore, while working on a wharf assisting to load lumber onto a vessel, was injured by being struck by a sling load of lumber, due to the alleged careless and negligent use and operation of the ship’s appliances by her officers, the injnry was caused by the ship, and was therefore within Oregon Boat Lien Law (L. O. L. § 7506), providing that under such circumstances an action may be maintained against the vessel.</p> <p>[Kd. Note. — For other cases, see Shipping, Cent. Dig. § 340; Dec. Dig. § 87.*]</p> <p>4. Master and Servant (§ 250*) — Injuries to Stevedore — Employer’s Liability Act — Application.</p> <p>L. O. L. Or. § 7506, provides that in cases of negligent injury by a boat or vessel, an action may be brought against the boat or vessel by name rather than in personam against the owner. Section 7509 declares that on return of the warrant, the proceedings shall be in the same manner as if the action had been commenced against the person on whose account the damages accrued, and section 7511 provides that if an issue of fact is joined, the same proceeding shall be had as in other actions, field, that the Oregon Employers’ Liability Act (L. O. L. §§ 5014-5072), was applicable to proceedings against a vessel for injuries to a stevedore by the alleged negligent operation of the vessel’s hoisting appliances.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 805; Dee. Dig. § 250.*]</p> <p>5. Shipping (§ 73*) — Injuries to Stevedore — Nonmaritime Tort — What Law Governs.</p> <p>Though the territorial sovereignty of a state extends to a vessel while she is on the high seas and the law of her home port is usually applied by comity to regulate the mutual relations of the ship, her owner, master, and crew as among themselves and with relation to their lien for wages, methods of discipline, contracts, and the status of those aboard her, yet as regards an actionable personal injury, not maritime in character, the ship’s liability will be governed by the law of the place where the injury occurred, rather than that of the vessel’s home port.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 73.*]</p>

At Raw. Action by Raura A. Cauble against the Central Vermont Railway Company. On motion-to set aside the verdict of the jury for -$10,000 damages, and for a new trial.

<p>Tkespass (§ 40*) — Pleading—Statement of Claim:.</p> <p>A statement of claim in trespass under Act Pa. May 25, 1887 (P. D. 271), may properly state the duties to which defendant was subject, and its failure to perform them, but should in addition contain averments showing in what respect it failed.</p> <p>[Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 80-88; Dee. Dig. § 40.*]</p>

<p>1. Executors and Administrators (§ 438*) — Actions — Joint Obligees — Cause of Action — Rights of Survivors.</p> <p>Where plaintiffs, with certain others since deceased, executed an instrument called a “mining lease,” by which the lessee obligated itself to mine not less than 20,000 tons of coal per annum or pay $6,000 a year, plaintiffs’ interest under the contract was personalty, and, they being joint obligees and not tenants in common, the surviving obligees were entitled to sue without joining the personal or legal representatives of those who had died.</p> <p>[Ed. Note. — Eor other cases, see Executors and Administrators, Cent. Dig. §§ 1765-1785, 1790; Dec. Dig. $ 438.*]</p> <p>2. Parties (§ 4*) — Interest—Assignment.</p> <p>Where a suit was instituted to enforce collection of payments due from an obligee under a mining lease, defendant could not object that one of the legal plaintiffs had made an assignment of his interest in the cause of action.</p> <p>]Ed. Note. — For other cases, see Parties, Cent. Dig. § 4; Dec. Dig. § 4.*]</p>

<p>At Law. Action by Mary Jane Brace and others against the Central Railroad Company of New Jersey. On rule for order for compulsory examination.</p>

In Equity. Suit by J. Harold Way against J. H. Way & Sons ■ Company. On petitions of receivers for authority to enter into contract, and for an order to pa)c Surpetition of Receivers for Authority to Enter in Contract.

<p>1. BANKRUPTCY (§ 440*)-APPELLATE PROCEEDINGS — MODE OF REVIEW. An order of a court of bankruptcy allowing or denying a lien or priority of a lien asserted against property of a bankrupt estate as security for a debt of $500, or more, whether the debt or only the right to a lien is contested, is properly reviewable by appeal under Bankr. Act July 1, 1S98, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St 1901, p. 3432).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dee. Dig. § 440.*</p> <p>Appeal and' review in bankruptcy cases, see note to In re Eggort, 43 C. C. A. 9.]</p> <p>2. Mortgages (§ 151*) — Priority of Liens — Mortgages and Mechanics’ Liens.</p> <p>The owner of real estate 'sold the same to bankrupt pursuant to a verbal agreement that the bankrupt should give a purchase-money mortgage to the vendor which should be subject to another mortgage given at the same time for borrowed money, and that no work should be done on the premises until the transaction was completed and the deed and mortgages filed for record. This agreement was carried out, and the deed and mortgages were delivered and filed for record on the same date and as parts of the same transaction. Held, that the mortgage liens attached simultaneously with the vesting of title in the bankrupt, and that no valid mechanic’s lien could attach to the property through any contract with the bankrupt prior to that time.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. § 151.*]</p> <p>8. Mechanics’ Liens (§ 168*) — Time of Accrual — Beginning of Work.</p> <p>Under Gen. St. Kan. 3909, § 6244, relating to mechanics’ liens, as construed by the Supreme Court of the state, a mechanic’s lien dates from the commencement of the building or improvement, but such commencement must be in good faith and not a more pretense at commencement to defeat prior liens on the property.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 299, 300; Dec. Dig. § 168.*]</p>

Keller, Judge. Suit in equity by Bevietta B. Conner, administratrix of John S. Conner, deceased, against James S. Craig and another, trading as Craig & Wolverton, a partnership, and the Weston Dumber Company. Decree for defendants, and complainant appeals.

<p>1. Railroads (§§ 75, 93*) — Right op Wat — Location—Street Crossings.</p> <p>Under Illinois law a railroad company may locate its right of way in a city, including a way on or across streets without consulting the city, subject to the limitation that construction on or across a street may not be undertaken without the assent of the city; but, when the city in fact assents, the property right becomes as completely vested as if the grant had been direct from the sovereign.</p> <p>|Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 183-191, 260 - 265; Dec. Dig. §§ 75, 93.*]</p> <p>2. Constitutional Daw (§ 297*) — Eminent Domain (§ 2*) — Vested Rights— City Ordinances — Railroads.</p> <p>Where defendant city passed an ordinance in 1909 providing for the separation of the grades of a street from that of certain railroads crossing the same, providing for an elevated structure on which the tracks of another company should be superimposed on the structure by which complainant’s tracks were to be carried over the street, and in order to comply with such ordinance complainant, at large expense, was required to obtain a new right of way to fit the required point or crossing, complainant thereby acquired a vested property right to cross the street pursuant to the scheme of such ordinance, which right the city could not impair, without compensation or without due process of law, by the subsequent passage of' another ordinance requiring complainant to cross the street at another place and the right of way of such other company either north or south of the street crossing, so that the structure over the street should be two separate single elevated structures instead of two at the same point one superimposed upon the other.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dee. Dig. § 297;* Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2.*]</p> <p>3. Railroads (§ 98*) — Right op Wax — Long or Cross Streets — Shifting or Elevation — Police Power.</p> <p>Though a railroad company may insist ,on holding its perfected right of way latitudinally and longitudinally, a city, in the interest of the public and in the exercise of police power, if authorized by the state so to do, may enforce a shifting or elevation of the tracks within the limits of the right of way on or across the streets.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dee. Dig. § 98.*]</p> <p>4. Railroads (§ 98*) — Crossing Street Grade — Separation op Grades— Ordinances — Amendment.</p> <p>Where defendant city passed an ordinance in 1909 for the separation of the grades of a street and certain railroad crossings, contemplating a structure by which one railroad was carried over the street above another, and complainant railroad company acquired a right of way to comply with such plan, a subsequent ordinance requiring the erection of separate single structures over the street which would lessen and shorten the street grades and obviate the necessity of pumping surface water of the subway into the city’s sewers was not an attempt to appropriate complainant’s property within the constitutional prohibition of taking property, but was an attempt to exercise the police power as to the improvement of the street, but unenforceable in the absence of a lawful amendment of the plans under the former ordinance.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig. § 98.*]</p> <p>5. Railroads (§ 98*) — Street Crossings — Separation op Grades — Time.</p> <p>Where an ordinance providing for the separation of grades of a street and certain railroads crossing the same provided for a structure on which the tracks of one railroad were superimposed on another and required that the elevation work be completed by December 31, 1911, the ordinance not having provided for a forfeiture or abrogation of the elevation plans in case of delay, the railroad company’s failure to complete the work within the time specified did not bar its rights in its right of way that became vested under the ordinance.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 291, 292, 296; Dec. Dig.. § 98.*]</p> <p>6. Municipal Corporations (§ 724*) — Police Power — Damages—Citt’s Liability.</p> <p>Where a city in the exercise of its police power attempted in good faith to pass an ordinance changing the form of the structure by which a railroad company should cross a street above the grade of a street, which ordinance wa¡s invalid, such invalidity did not render the city liable for damages to-tlio railroad company resulting from increased cost pf operation by reason of delay, caused by the ordinance.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 1545, 1561, 1568; Dec. Dig. § 724.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action at law by Mollie E. Reed against the St. Rouis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Willard, Judge. Action at law by Joe Ralph against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff brings error.

<p>1. Master and Servant (§ 228*) — Master’s Liability for Injury to Servant — Assumption of Risk — Employers’ Liability Act.</p> <p>An employs of an interstate railroad company, wbo worked for more than 54 hours out of 57 hours, assumed the risk of injury by reason of his exhausted condition, and there can be no recovery for his death, due to such cause, under Employers’ Liability Act April 22, 1908, c. 149, 35 . Stat. 65 (U. S. Comp. St. Supp. 1911. p. 1322), unless the violation by the railroad company of some statute enacted for the safety of employés contributed to his death and exempted him from such assumption under section 4 of the act.</p> <p>[Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. ss 670, 671; Dec. Dig. § 228.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Master and Servant (§ 94*) — Hours oe Service Act — Railroad “Employe.”</p> <p>An employe, working about feedyards of an interstate railroad in helping to unload, care for, and reload stock which in course of shipment was unloaded there for food, water, and rest, who while riding on a switch engine, from one part of the yards to another, fell off and was killed, was not within Hours of Service Act March 4, 1907, c. 2939, 34 Stat 1415 (U. 8. Comp. St. Supp. 1911, p. 1321), which defines “employés,” as used therein, to mean “persons actually engaged in or connected with the movement of any train,” and the fact that he had been required or permitted to remain on duty continuously for more hours than prescribed therein did not constitute a violation of the act by the railroad company.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 159; Dec. Dig. | 94.*</p> <p>Hours of service of employés, see note to United States v. Houston Belt & T. By. Co., 125 C. C. A. 485.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Employé.]</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by the Outlook Envelope Company against the Sherman Envelope Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Projectile.</p> <p>The Davis patent, No. 945,492, for an armor piercing projectile having in combination (1) a cavity for the required quantity of explosive, (2) the shape to most readily pierce, (3) the support of a nose of soft metal covering and surrounding the penetrating point so as to make its power effective, (4) a shell or cap over the forward end of the projectile to give the contour for prolonged flight, and (5) a cavity or air space in this shell in front of the soft nose of the projectile, so that the operation of the latter may not be hindered, held to disclose patentable novelty and invention, and also infringed.</p> <p>2. Patents (§§ 283, 317*) — Suit fob Infringement — Injunction—Manufactures for United States.</p> <p>While the fact that an infringer of a patent for a projectile has contracted to manufacture the infringing projectile for the United States is no defense to a suit for the infringement, an injunction restraining the same may properly except from Its operation the performance of such contract and the entering into and performance of like contracts with the government, leaving to complainant, as to such infringements, its remedy on an accounting.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-450, 452, 559-565; Dec. Dig. §§ 283, 317.*]</p> <p>3. Patents (§ 1*) — Construction and Operation — Inventions Used by United States.</p> <p>The patent laws cannot be so limited by the courts as to exclude from their protection inventions which the United States may desire to use.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 1; Dec. Dig. § 1.*]</p>

<p>In Equity. Suit by Halbert K. Hitchcock against the American Plate Glass Company and James W. Cruikshank. On final hearing.</p>

<p>In Equity. Suit by Maria E. Vose against the United States Metal Products Company. On final hearing.</p>

<p>Patents (§ 328*) — Validity and Infringement — Machine fob Making Pa- . pee Boxes.</p> <p>The Rowell & Little patent, No. 844,190, for a paper box making machine, was not anticipated and is valid, but in view of the prior art is of narrow scope and limited to the construction shown in the specification. As so construed, held not infringed.</p>

<p>L Patents (§ 328*) — -Validitt and Infringement — Sling foe Sugar Cane.</p> <p>The. Crosby patent, No. 758,959, for a sling for holding sugar cane, while all of the elements of the device are old, is for a new and useful combination, and discloses patentable invention; also held infringed.</p> <p>2. Patents (§ 82*) — Combinations—Right to Equivalents.</p> <p>The owner of a patent in its commercial article may substitute well-known equivalents for any of the parts, without depriving its product of the protection of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 105-107; Dee. Dig. § 82.*]</p> <p>3. Patents (§ 102*) — Suits fob Infringement — Deff-nses.</p> <p>A verbal error or other insufficiency in the oath attached to the application on which a patent was granted constitutes no defense to a suit for infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 142; Dec. Dig. § 102.*]</p> <p>4. Patents (§ 112*) — Suits fob Infbingement — Defenses—Pboceedings in Patent Office.</p> <p>Courts will not look with great favor on objections to the history of a patent in the Patent Office, which has been finally granted after thorough, examination when such points are collaterally made, and particularly when made by an infringer.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. § 112.*]</p>

<p>1. Injunction (§ 85*) — State Statute — Enforcement—Criminal Offense.</p> <p>A court of equity has Jurisdiction of a suit to enjoin state officers from threatened enforcement of a state peddlers law,'as against transactions constituting interstate commerce, and affecting complainant’s property rights, though the violation of the law is punishable as a criminal offense.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]</p> <p>2. Injunction (§ 118*) — Enforcement of Peddlers Daw — Interstate Commerce — Relation between Comflainant and Representatives.</p> <p>Where complainant employed many representatives in Oregon to sell its goods in interstate commerce, adopting several methods to secure itself from loss, such as requiring bonds from agents, shipping goods to them C. O. D.; requiring agents to pay drafts attached to bills of lading, or to establish a credit with complainant, etc., a bill to restrain the enforcement of the Oregon Peddlers Law (Laws 1909, p. 386) against complainant and its agents, alleging that complainant’s solicitors are its agents and representatives receiving orders for it and not for themselves, and that the goods handled by them remain and are complainant’s property until delivered to the customer, sufficiently alleged that the relation between complainant and its solicitors was that of principal and agent, and not that of buyer and seller so as to deprive complainant of capacity to sue.</p> <p>[Ed. Note. — For other cases, see injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.*]</p> <p>3. Commerce (§ 40*) — Interstate Commerce — Peddlers Law.</p> <p>Complainant, a New Jersey corporation, was engaged in selling goods packed aud labeled for it in New York, from which place they were forwarded by complainant for sale and distribution to various parts of tho Union. Complainant maintained a store in- Portland where a small part of its merchandise was sold at retail, but the principal part of its business was done through solicitors who took orders for future delivery, which were sent to the store, where they were filled and the goods shipped to or delivered to the solicitors, who delivered the same to the customers, and collected the price on their next trip over their respective routes. The agents were not permitted to sell goods at retail from their wagons, or in any other manner than by taking orders for future delivery, and all goods not accepted by customers were returned to the store. All of the goods shipped to agents were shipped to and addressed to the company, in care of the agent, and remained the property of the company until actually delivered. The Portland store did not keep a stock of goods with which to fill orders taken by the solicitors, but orders for goods were sent to complainant each week, prior to the actual receipt of the customers’ orders by the agent, but while such orders were being taken in the field and during the time the goods were in transit. Helé, that such transactions constituted interstate commerce, and that complainant and its agents were therefore not subject to the Oregon Peddlers Law (Laws 1909, p. 386).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30: Dec. Dig. § 40.*]</p>

<p>L Cgkporations (§ 564*) — Receivers—Intervention by Stockholder.</p> <p>Where a creditors’ suit was instituted against a corporation, and a receiver was appointed to conserve the corporation’s assets, which were sold after proper public advertisement, a stockholder’s petition to intervene, merely alleging that plaintiff in the creditors’ suit and others, who were stockholders and directors of the corporation, became stockholders and directors in a company organized to purchase the assets, but without any charge of fraud or collusion showing want of good faith, and concluding merely that it was petitioner’s “belief” that such persons combined to acquire the assets and business of the corporation at an Inadequate price, not, however, based on information that such was the case, and without any charge of fraud or collusion, except by a suggestion, was in-suliicient to entitle petitioner to have the sale set aside, etc.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2176, 2177, 2255; Dec. Dig. § 564.*]</p> <p>2. Corporations (1 819*). — Creditors’ Suit — Director.</p> <p>That a creditor of a corporation is also a director does not impair his right to sue the corporation on the indebtedness at law or in equity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1415, 1416-1425; Dee. Dig. § 339.*]</p> <p>8. Corporations (§ 564*) — Bade of Assets- — Receivers—Liability to Stockholder — Remedy.</p> <p>Where the assets of a Corporation had been sold in receivership proceedings at the instance of a creditor, who was also a director, the right of a stockholder to hold the complainant in that suit, the receiver, and the other directors liable to him personally for losses incurred as a stockholder by reason of such sale was enforceable by a separate bill against them, and not by intervention in the receivership proceedings.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2176, 2177-2255; Dec. Dig. § 564.*]</p> <p>4. Coepoeations (§ 564*) — Sale of Assets — Receivers—Stockholders—Objections — Laches.</p> <p>Where a suit was instituted by a creditor and director of a corporation to sell its assets through a receiver, to preserve the interests of all creditors so far as possible, and to continue the business, and such proceeding had progressed to a final decree and sale, a stockholder’s right to intervene in such proceeding and object thereto, more than 18 months after, decree and sale, was barred by laches.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2176, 2177, 2255; Dec. Dig. § 564.*]</p>

<p>1. Removal of Causes (§ 107*) — Motion to Remand — Sufficiency of Pleadings.</p> <p>On a motion to remand, a federal court will not inquire into the sufficiency of the plaintiff’s pleading.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent Dig. §§ 17S, 225-232, 234; Dec. Dig. § 107.*J</p> <p>2. Removal of Causes (§ 3*) — Causes Removable — Action under Employers’ Liability Act.</p> <p>Where the plaintiff in an action in a state court to recover for the death of a railroad employé unequivocally bases the right of recovery on the federal Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), the cause is not removable whether or not the facts alleged are sufficient to state a cause of action under such act.</p> <p>LEd. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]</p>

In Equity. Bill by the United States of America against the Midway Northern Oil Company and others to nullify defendants’ alleged rights in certain public land sought to be entered after an attempted withdrawal from entry by the President, September 27, 1909.

<p>In Equity. Suit by Joseph W. Woolfolk against John T. Jones. On petition by defendant and others for decree against complainant and the surety on his injunction bond.</p> <p>The defendant John T. Jones instituted in the law and equity court of the city of Richmond, against the complainant Joseph W. Woolfolk, two actions at law, one to recover $10,000, and the other $25,000, which suits were by appropriate proceedings removed into this court. Before trial, the complainant Woolfolk filed his bill in this cause, seeking to enjoin the prosecution of the two suits at law on the ground, among others, that it was impossible for him to make defense at law, and averred and charged that the defendant Jones was largely indebted to him. This court, before hearing the suits at law, on the 15th day of June, 1912, granted the injunction prayed for, and on the 22d day of June, 1912, the cause was referred to a master to inquire and report as to plaintiff’s indebtedness to the defendant Jones, by reason of the alleged contracts set forth in the declarations in the two common-law suits, and in the bill and proceedings mentioned, and also of the'amount of damages, if any, the complainant was entitled to recover from the defendant Jones, by reason of the facts and transactions set up in the bill, and said special master was authorized to inquire and report as to any other matters by him deemed pertinent, or which he might be required by any party in interest to report on. The cause was regularly proceeded with before the special master, running through the summer and fall of 1912, and a great mass'of testimony taken, and upon being finally argued and submitted, the special master, on the 25th day of February, 1913, filed an elaborate report stating his conclusions of the law and findings of fact, the substance of which was that the defendant Jones was entitled to recover nothing on the contract in the $10,000 suit, and that ,he was not entitled to recover on the contract in the $25,000 suit, but that, 'by reason of certain transactions in connection with the sale óf the real estate under the contract set forth in the second suit, he was entitled to recover .$8,651.16. To this report exceptions were taken by the defendant, and by decree entered on the 23d day of October, 1913, the same were overruled as to the common-law suit to recover $10,000, and the prosecution of the same permanently enjoined, and a decree of $25,000 upon certain conditions with which the defendant Jones has complied, entered in favor of the defendant against the plaintiff, growing out of the transactions set forth in the second suit, with interest from the 14th day of March, 1910, instead of the sum of $8,651.16 allowed by the special master. The court further adjudged costs in favor of the defendant against the plaintiff, Woolfolk, and by subsequent order on the 26th day of November, 1913, decreed against said complainant in favor of Henry ft. Miller, special master, in the sum of $2,500, and in favor of O. Raymond Brown, stenographer, in the sum of $310.15. Upon the decree in favor of said John T. Jones, execution was duly issued and returned no effects, and the said Henry It. Miller and O. Raymond Brown have each been unable to realize anything on account of the decree against said Woolfolk; he appearing to be utterly insolvent.</p> <p>At the time o£ granting the injunction on the 15th of June, 1912, the court required the complainant to enter into bond within five days from the dato thereof, in the sum of S10,000, with surety to bo approved by the court or the judge thereof, conditioned according to law, which bond was, on the 17th day of June, 1912, duly executed by the complainant, Woolfolk, payable to the defendant John T. Jones, with the American Surety Company of New York as Ms surety, upon the following condition: “Now, therefore, if the said Joseph W. Woolfolk shall abide the decision of said court, and pay all damages and costs which shall bo adjudged, against him because of the granting of said injunction in case said injunction shall he dissolved, then this obligation shall be void; otherwise to remain in full force and virtue.” Subsequently the defendant Jones, and Messrs. Miller and Brown, being unable as aforesaid to realize anything upon the decree in their favor against said Woolfolk, each presented petitions in this cause, asserting a liability under the injunction bond against said Woolfolk and the surety thereon, the contention of Jones being, in effect, that, he is entitled to a decree against the principal and surety for the face value of said bond, since the same was executed in his name and to abide the order of the court, and the said Miller and Brown that they, whether said Jones was entitled to recover on said bond or not, were entitled to recover the amount due them for costs, and if said Jones was entitled to recover on his theory of the bond, that nevertheless the sum thus decreed to be paid to Mm should be applied first to the payment of costs of the inquiry in which he and Woolfolk were jointly interested. The American Surety Company denied all liability to either Jones or Miller and Brown by virtue of said bond, and insisted that no damages were properly recoverable upon the dissolution of the injunction.</p>

<p>1. EXTRADITION (§ 32*)-INTERSTATE EXTRADITION-SUFFICIENCY OF INDICTMENT.</p> <p>An indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused is substantially charged with crime.</p> <p>[Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 36-38; Dee. Dig. § 32.*]</p> <p>2. Extradition (§ 30*) — Interstate Extradition — Fugitive from Justice.</p> <p>To constitute one a fugitive from justice to warrant his extradition from another state, he must have committed some criminal act when within the state, although the crime may not have been complete until other acts were done after he left the state.</p> <p>| Ed. Note. — For other cases, see Extradition, Cent. Dig. § 32; Dec. Dig. § 30.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Cordova Shop. On application to review a referee’s order disallowing the claim of Andréw B. Brown.

<p>1. Commerce (§ 27*) — Interstate and Intrastate Commerce.</p> <p>An interstate carrier may, through the samo ernployé or employes, engage at a given time in intrastate commerce and at another time in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>2. Evidence (§ 33*) — Judicial Notice — Legislative Journals.</p> <p>A court in interpreting a statute may take judicial notice of legislative journals.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 47; Dec. Dig. § 33.*]</p> <p>3. Statutes (§ 217*) — Amendment—Construction.</p> <p>Where during the passage of a statute words of enlargement were stricken out by amendment and words of limitation inserted in their stead, a court in construing tile statute as finally passed, would hold that the legislative intent was to restrict its application.</p> <p>LEd. Note. — For other eases, see Statutes, Cent. Dig. § 293; Dec. Dig. § 217.*]</p> <p>4. Master and Servant (§ 250%, New, vol. 16 Key-No. Series) — Injury to Servant — Workmen’s Compensation Act — Construction—Interstate Employes.</p> <p>Ohio Workmen’s Compensation Act (Act March 14, 1913, 103 Ohio Laws, p. 90) § 51, provides that the act shall apply to employers and their employés engaged in intrastate and also in interstate and foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States only to the extent that their mutual connection with the intrastate work may and shall be clearly separable and distinguishable from the interstate and foreign commerce, and then only when such employer and any of his workmen, working only within the state with the approval of the State Liability 'Board of Awards and so far as not forbidden by any act of Congress, voluntarily accept the provisions of the act. Held that the act does not apply to employers and their employés engaged exclusively in interstate commerce, but does apply to those engaged in both interstate and intrastate commerce where their mutual connection with intrastate work is separable from interstate and foreign commerce when, and only when, they elect to be governed by the act.</p> <p>[What law governs master’s liability for injuries to servant, see note to Mexican Cent. Ry. Co. v. Jones, 48 C. C. A. 232.]</p>

<p>Stipulations (§ 18*) — Effect.</p> <p>Where, in a suit for infringement of patent on a wire glass manufacturing machine, it was stipulated, for the purpose of determining complainants’ profits, that the cost to complainants of producing half-inch wire glass was the same as that of defendant, to wit,-15 cents per square foot, and the cost of grinding and polishing 18.79 cents per square foot, such stipulation, until withdrawn, was conclusive; and it was error, because of certain evidence introduced before the master, to find that the cost to complainants to manufacture such wire glass was 40 cents per square foot, and to determine the damages on that basis.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41-54; Dec. Dig. § 18.*]</p>

In Equity. Suit by the Goodwin Film & Camera Company against the Eastman Kodak Company. On motion to vacate a final decree and grant a lien to one Wetmore as counsel for complainant.

Campbell, Judge. Suit in equity by W. C. Eubank against the Bryan County State Bank of Caddo, Okl., and S. W. Maytubby. Decree for defendants, and complainant appeals.

Petition to Revise Order of the District Court of the United States for the District of Minnesota; Page Morris, Judge. Petition by John P. Galbraith, as trustee in bankruptcy of John Magnuson and another, doing business as John Magnuson & Co., to set aside a certain mortgage executed by John Magnuson and wife to S. Robson, to secure a pre-existing debt due from the bankrupt firm to the Robson-Hilliard Grocery Company, a Minnesota corporation.

H. Munger, Judge. N Suit in equity by the Omaha Electric Light & Power Company against the City of Omaha and Waldemar Michaelson. On bill in the nature of bill of review, treated as a petition for rehearing. Former decree (179 Fed. 4S5, 102 C. C. A. 601) set aside, and new decree entered.

Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge. Action at law by Peter Karnaca against the United States Gypsum Company, judgment for plaintiff, and defendant brings error.

Pollock, Judge. In the matter of the Taylor Grain Company, bankrupt. Appeal by W. E. Sterne, trustee, from an order allowing the claim of the Merchants’ National Bank, intervener, as a preferred claim. The Merchants’ National Bank of Topeka, Kan., presented a demand for an allowance as a secured claim against the estate of the Taylor Grain Company, in bankruptcy, praying that the same be paid in full out of the proceeds of sale of certain mortgaged property.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by the Denver Chemical Manufacturing Company against Thomas Lilley and the Germicide Company. Decree for defendants, and complainant appeals.</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 John St. Avit and" others against the Kettle River Company. Decree for defendant, and complainants appeal.</p>

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy. In the matter of bankruptcy proceedings of the Breyer Printing Company.

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy. In the matter of bankruptcy proceedings of Bertha S. Orr and Hannah Store, doing business as the Lake Shore Catering Company.

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit in equity by the United States against the Board of County Commissioners of Osage County, Old.; and others. From the decree, both parties appeal.</p>

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in bankruptcy. In the matter of bankruptcy proceedings of Morris Goldstein and Benjamin Moseson. Petition to review a summary order directing Benjamin Bros, to pay the Central Trust Company, as the bankrupts’ trustee, $8,375 for goods alleged to have been fraudulently transferred by the bankrupts. Reversed, with directions.

Petitions to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy. In the matter of bankruptcy proceedings of Morris Goldstein and Benjamin Moseson. Separate proceedings by the Central Trust Company against Sam Peller and against Ida Moseson to recover possession of assets alleged to be in the possession of the defendants.

Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy; George A. Carpenter, Judge. In the matter of bankruptcy proceedings of William M. Luken. Proceeding by Frank M. McKey, as tire bankrupt’s trustee, to recover 100 bolts of cloth seized by John V. Steger under a distress warrant prior to bankruptcy.

<p>1. Pleading (§ 367*) — Indefiniteness of Complaint — Waives of Objection.</p> <p>Under Gen. St. Minn. 1913, § 7770, which provides that, “if the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may strike it out on motion or require it to be amended,” objection to pleadings for such defects must be taken by motion, and cannot be raised for the first time in an appellate court.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent Dig. §§ 64, 1173-1193; Dec. Dig. § 367.*]</p> <p>2. CONTRACTS (§ 10*') — Validity—Mutuality op Obligation.</p> <p>A contract by which one party pays a valuable consideration to the other party, who agrees to sell to the first party all of a certain class oí goods he may wish to buy, is not invalid, for want of mutuality, because the first party does not obligato himself to purchase.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dee. Dig. § 10.*]</p> <p>S. Contracts (§ 10*) — Validity—Mutuality of Obligation.</p> <p>A contract by which the sole maker of a patented article agrees to supply such articles to a dealer having an established trade therein is not invalid, for want of mutuality, because the dealer does not expressly obligate himself to buy from the other party.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*</p> <p>Mutuality in contracts, see notes to American Cotton Oil Co. v. Kirk, 15 C. C. A. 543; Oakland Motor Co. v. Indiana Automobile Co., 121 C. C. A. 326.]</p> <p>4. Patents (§ 216*) — Contracts—-Validity—Certainty—Time of Performance.</p> <p>A contract by the owner of a patent, who is the sole manufacturer of the patented article, to supply the same to a dealer as required, is not invalid because no length of time is specified, but will be construed as intended to remain in force during the life of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 329; Dec. Dig. § 210.*]</p> <p>5. Sales (§ 416*) — Action for Breach of Contract — Evidence.</p> <p>In an action for breach of a contract by defendant to supply plaintiff with such quantities of a certain style of patented camera as plaintiff might order, evidence that the cameras designated were imperfect, and not usable or salable without improvement, was not matter of defense, but was immaterial.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1171, 1172; Dec. Dig. § 416.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by the Spirella Company against the NuBone Corset Company, a New Jersey corporation, the NuBone Corset Company, a Pennsylvania corporation, George H. Barlow, and Joseph J. Dés-mond.</p>

<p>1. Scales (§; 43*) — Sale of Personalty — Fraud—Concealment.</p> <p>Fraud in the purchase of personal property must ordinarily rest upon mistake, misrepresentation, or upon acts tending to mislead' another to his pecuniary loss. Thé mere forbearance to make disclosure to the vendor, who is ignorant of the value of his property, even though with intent to deceive him, does not furnish a basis, for equitable relief by way of rescission.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 86-92, 97-100; Dec. Dig. § 43.*]</p> <p>2. Patents (§ 200*)— Sale of Patents — Rescission of Contract.</p> <p>Evidence considered and held, insufficient to entitle a patentee to a rescission of assignments of patents on the ground that they were obtained by fraud and deceit.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 200.*]</p> <p>On Rehearing.</p> <p>3. Equity (§ 195*) — Pleading—Cross-Bill.</p> <p>A cross-bill cannot be made an original bill in the same cause, unless the subject-matter is germane to the original bill.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 446-449; Dec Dig. § 195.*]</p>

<p>Patents (§ 328*) — Vakditt and Infbingjsment — Knot-Tying Implement.</p> <p>The Colman patents, No. 672,036, for a knot-tying implement for use in the spooling- process in textile manufactures, and consisting of a rotatable tying-bill, with means for securing it to the hand of the operator, and which, when actuated by a thumb lever, automatically ties the threads together and cuts the ends to a uniform length, and No. 755,110, for improvements thereon, both held not anticipated, valid, and infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Heating- and Ventilating System fob Automobiles.</p> <p>The Williams patent, No. 873,399, for a combined heating and ventilating system for automobiles, claim 1, while not of broad scope, discloses patentable invention; also held infringed.</p>

<p>1. Bankruptcy (§ 268*) — Sale op Property — Rights op Purchaser — Dower Interest op Wipe.</p> <p>Under tbe law of Pennsylvania, by which dower is an estate of the wife and not of the husband, a sale of real estate by a trustee in bankruptcy under order of the bankruptcy court, free and discharged of all liens, does not divest the property of the inchoate dower interest of the bankrupt’s wife. .</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 372-379; Dec. Dig. § 268.*]</p> <p>2. Bankruptcy (§ 143*) — Rights Vesting in Trustee — Rights op Lien Creditors.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 47a (2), 30 Stat. 557 (U. S. Comp. St. 1901, p. 3438), as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (U. S. Comp. St. Supp. 1911, p. 1500), that, as to all property coming into the custody of the bankruptcy court, the trustee shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon cannot be held to affect any estates other than that of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. § 143.*]</p>

<p>' In the matter of Samuel Cozatsky, bankrupt. On petition of Nathan Spiro to review findings of referee.</p>

In Admiralty. Suit for collision by Ned Irish and J. B. Irish, co-partners trading as Irish Bros., owners of the coal boat Macy, against the barge Smedley, the Powelton Barge Company, claimant, with the Baltimore & Ohio Railroad Company and the Staten Island Rapid Transit Railway Company impleaded.

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>In the matter of the Dovey Coal Company, bankrupt; W. L. Gordon, Jr., trustee. The United States Trust Company, as trustee, appeals from an order rejecting its claim.</p>

<p>Patents (§ 328*) — Infringement—Improvement in Boilers.</p> <p>Tbe Kane patents, No. 620,931 and No. 686,900, for an improvement in steam and hot water boilers, held not infringed.</p>

<p>In Equity. Suit by the Closz & Howard Manufacturing Company against the J. I. Case Threshing Machine Company.. On final hearing.</p>

In Bankruptcy. In the matter of the Arti-Stain Company, bankrupt. Cto review of order of referee dismissing petition of creditors for review of proceedings at first meeting of creditors.

In Bankruptcy. In the matter of the Henry Siegel Company, bankrupt. On review of two orders of referee.

In Bankruptcy. In the matter of Harry I,. Katz, bankrupt. On review of order of referee requiring bankrupt to turn over to his trustee the sum of $12,007.43. Referee Chandler stated the facts and filed his opinion, as follows: A-i involuntary petition was filed against the bankrupt August 28, 1912, accompanied by a petition for a receiver. W. L. Moise was appointed receiver, and subsequently he was appointed trustee. Katz was adjudicated a bankrupt on September 16, 1912.

<p>In Equity. Suit by Annie L. De Koven and Cecil Barnes, as trustees, etc., against the Rake Shore & Michigan Southern Railway Company and the New York Central & Hudson River Railroad Company. On application for preliminary injunction.</p>

<p>1. Bankruptcy (§ 81*) — Involuntary Proceedings — Sufficiency of Petition.</p> <p>A petition in involuntary bankruptcy against a corporation held to sufficiently charge that a transfer of property by the corporation was made when it was insolvent, and with intent to hinder, delay, and defraud creditors, to constitute such transfer, if the allegations were proved, an act of bankruptcy, under Bankr. Act 1898, c. 541, § 3a (1), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 59, 113-118, 125; Dec. Dig. § 81.*]</p> <p>2. Bankruptcy (§ 101*) — Exclusive Character of Act — Right of Creditors to Enforce.</p> <p>By reason of the exclusive nature of the Bankruptcy Act, the manner of its enforcement, and the forum in which it is enforced, creditors obtain rights in the assets and property of their insolvent debtors, of which they may not be deprived by the voluntary action of the debtors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 163; Dec. Dig. § 101.*]</p> <p>8. Bankruptcy (§ 60*) — Acts of Bankruptcy — “General Assignment.”</p> <p>Bankr. Act 1898, c. 541, § 3a(4), 30 Stat. 546 (TJ. S. Comp. St. 1901, p. 3422), which makes it an act of bankruptcy if a debtor shall have “made a ‘general assignment’ for the benefit of his creditors,” does not refer to such acts only as constitute such an assignment under laws of the state, nor concern itself with the form of the written instrument employed, but contemplates any act of a debtor, regardless of the manner or form of its accomplishment, by which he parts with the title and possession of all of his property for the benefit of his creditors, to be disposed of by the trustee or assignee selected by him independent of the Bankruptcy Act.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig„ | 60*</p> <p>For other definitions, see Words and Phrases, First and Second Series, General Assignment.]</p> <p>4. Bankruptcy (§ 60*) — Acts of Bankruptcy- — General Assignment.</p> <p>An instrument executed by a corporation, which, while denominated and in form a mortgage, with a defeasance clause, in fact conveyed all of its property to trustees, with the right of immediate possession, to be by them converted into money and the proceeds distributed among all of its creditors, and under which they took such possession, held in effect a general assignment, and to constitute an act of bankruptcy under Bankr. Act 1898, c. 541, § 3 a (4), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dee. Dig. § 60.*]</p>

In Equity. Suit by the United States against the Hamburgh-Amer-ican Steamship Line and others. Bill dismissed as to two defendants, and decree for complainant for part of the relief prayed for against the other defendants. This is a proceeding in equity under the Anti-Trust Act to terminate and dissolve a combination of various trans-Atlantic steamships engaged in the transportation of passengers.

<p>In Equity. Suit for specific performance by G. N. Wilson against 'F. H. Seybold and others. On final hearing.</p>

<p>At Law. Action by the Edward E. Gerber Company against the Title Guaranty & Surety Company. On rule to show cause why a judgment in favor of plaintiff, entered for want of an affidavit of defense, should not be stricken off. Rule absolute. Judgment set aside, and permission accorded defendant to answer.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of David Greenblatt. On rule for attachment.</p>

<p>In Bankruptcy. In the matter of Charles Taunton, bankrupt. On motion.</p>

In Bankruptcy. In the matter of the Consumers’ Albany Brewing Company, bankrupt. On motion by Samuel Manges to modify order allowing the receiver herein to borrow money and issue certificates of indebtedness necessary to carry on and protect and preserve the property of the alleged bankrupt. Referred, for determination of preliminary question.

In Bankruptcy. In the matter of John Henry Snyder, bankrupt. On rule to show cause why the sheriff should not be enjoined from selling exempt property of the bankrupt.

Orr, Judge. Action at law by the United States, for use of David W. Challis, David A. Challis, and Fred Challis, partners doing business as D. W. Challis & Sons, with Reuben Brewer, George R. McDonald, and others as interveners, against the American Bonding Company of Baltimore. Judgment for plaintiffs and interveners, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.' Suit in equity by Charles P. Conners, trustee of John I. Frederick, bankrupt, against the Bucksport National Bank. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Joseph Cross, Judge. Suit in equity by the C. A. Dunham Company against Warren Webster & Co. From a decree in favor of defendant, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Win. I. Grubb, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Georgia ; William T. Newman, Judge.</p>

<p>No. 168. On petition for rehearing.</p>