Volume 217 — Federal Reporter

<p>1. Master and Servant (§ 286*) — Injuries to Servant — Dangerous Machine — Negligence—Question tor Jury.</p> <p>In an action for injuries to an inexperienced servant in defendant’s woolen mill, by having his hand drawn between the carding and hicltey rolls of a finishing machine on which he was employed, while he was attempting to remove waste from the hiekey roll, as he had seen others do, evidence held to require submission to the jury of the question of defendant’s negligence in failing to warn plaintiff of the danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-10-12, 10-14, 1046-1050; Dec. Dig. § 286.*]</p> <p>2. Negligence (§ 97*) — Injuries to Servant — Instructions—Comparative Negligence.</p> <p>In an action for injuries to a servant by getting his hand caught between the rolls of a wool-finishing machine, the court charged that if defendant was careless in giving plaintiff proper instructions, and plaintiff was heedless, his heedlessness, co-operating with that of the defendant, would not prevent recovery because the injury would not be the sole result of the boy’s fault, the fundamental fault being that of defendant in not giving Mm proper instructions. Held erroneous, as submitting the doctrine of comparative negligence, which is not a part of the law of New Hampshire, where the accident occurred.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 93, 102; Dee. Dig. § 97.*]</p>

This is an appeal from an order and decree entered in the United States District Court for the Southern District of New York denying the petition of George Julius and Simon Julius trading as Julius Bros., bankrupts, for their discharge. This decree was entered on October 24, 1913.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by the United States against James Hawkins, Ella Hawkins, the Boynton Land, Mining & Investment Company, the Iowa Land & Trust Company, -E. S. Warner, L. C. Hivick, M. I. Seifried, W. H. Manes, and J. P. Hivick. From the decree there were cross-appeals by the United States and by the Iowa Land & Trust Company and E. S. Warner. Reversed on appeal o-f United States. Affirmed on appeal of other parties.</p>

<p>1. Bankruptcy (§ 36*) — Procedure — Power of Court to Vacate Order after Term.</p> <p>The general rule that a court has no power to set aside or modify its judgments or decrees after the term at which the same were entered does not apply to orders and decrees in a bankruptcy proceeding as to which there are no separate terms.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 36; Dec. Dig. § 36.*]</p> <p>2. Judicial Sales (§ 31*) — Effect of Confirmation.</p> <p>While confirmation of a sale made under an order of court does not pass the legal title, it vests the full equitable title to the property in the purchaser.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent Dig. §§ 59-67; Dee. Dig. § 31.*]</p> <p>3. Judicial Sales (§ 35*) — Vacation—Grounds.</p> <p>A judicial sale may be vacated for cause, even after confirmation; but public policy requires that there should be stability in such sales, and a sale should not be set aside, except for reasons for which, equity should . set aside a sale between individuals.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent Dig. §§ 72, 73; Dec. Dig. § 35.*]</p> <p>4. Judicial Sales (§ 42*) — Persons Who may Question Validity.</p> <p>One must be a party who is interested and injuriously affected by a judicial sale, to entitle him to apply to have it vacated.</p> <p>[Ed. Note. — For other eases, see Judicial Sales, Cent Dig. §§ 80, 81; Dec. Dig. § 42.*]</p> <p>5. Bankruptcy (§ 311*) — Secured Debts — Waiver of Security.</p> <p>A secured creditor of a bankrupt, who proves his debt as unsecured, waives his security.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-500; Dec. Dig. § 311.*]</p> <p>6. Judicial Sales (§ 31*) — Irregularities in Proceedings — Persons Who may Question Validity — Laches.</p> <p>Defects of form or irregularities in an order of sale or notice are cured by confirmation, and even in case of serious irregularities a party who, with knowledge of the same, fails to object before confirmation, loses his right by his laches, and cannot thereafter ask a vacation of the sale on that ground.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 59-67; Dec. Dig. § 31.*]</p> <p>7. Judicial Sales (§ 39*) — Vacation—Inadequacy oe Price.</p> <p>Inadequacy of price alone is not sufficient ground for setting aside a sale after confirmation, unless the inadequacy is so great as to raise a presumption of fraud or to shock the conscience of the court.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Gent. Dig. § 77; Dec. Dig. § 39.*]</p> <p>8. Bankruptcy (§ 269*) — Sale oe Realty by Trustee — Grounds for Vaca- • TION.</p> <p>The difference between $6,250, for which property was first sold by a trustee in bankruptcy, and $8,500,' which it brought on a resale, held not to show such a gross inadequacy of price as to justify the vacation of the confirmation and the setting aside of the first sale.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 370; Dec. Dig. § 269.*]</p>

<p>In Error to the District Court of the United States for the North- ■ ern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Action at law by Susan Harkins against the Potlatch Dumber Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Evidence (§ 441*) — Extbinsic Evidence ot Contracts — Offer and Acceptance.</p> <p>Where a proposal to purchase an electric crane provided that the terms were 50 per cent, cash 30 days, balance in four notes of equal amount, payable 3, 6, 9, and 12 months, at 6 per cent., and that all communications between tbe parties, whether verbal or written, with reference to the subject of the contract, were superseded by the proposal and its acceptance by the purchaser, followed by its approval by an officer of the seller, should constitute a binding contract, and no modification should be binding on either party,-unless it should be in writing, signed and accepted in the same manner as the original contract, a letter written by the seller’s Southern representative, confirming an agreement as a part of the proposal that the seller should take an electric machine of the buyer and allow $2,300 on the price of the new one, not accepted or signed by any of the seller’s officers, and not shown to have been submitted to the 'seller for acceptance, was ineffective to supersede the terms specified in the accepted proposal.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*]</p> <p>2. Principal and Agent (§ 173*) — Acts of Agent — Ratification—Evidence.</p> <p>In an action for the balance of the price of a crane, evidence held insufficient to show a ratification by the seller of an agreement of its agent to accept an old crane owned by the buyer as part payment.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 659-661; Dec. Dig. § 173.*]</p> <p>3. Sales (§ 418*) — Breach of Contract — Damages.</p> <p>Forghe breach of a seller’s contract the buyer may recover such damages as are the natural, proximate, and certain consequences thereof, but cannot recover those which are remote, speculative, and contingent.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p> <p>4. Sales (§ 420*) — Breach of Contract — Elements of Damages.</p> <p>Where it is doubtful whether items of damage claimed by a buyer from the seller's breach of contract are the natural, proximate, and certain consequences of the breach, or are remote, speculative, and contingent, the question must be determined as one of fact.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1202; Dec. Dig. § 420.*]</p> <p>5. Sales (§ 418*) — Breach of Contract — Damages—Doss of Profits.</p> <p>In an action for the price of a locomotive crane, the buyer was not entitled to recover on a counterclaim the estimated extra cost of unloading gravel by reason of the failure of the crane to work properly, or the expense of demurrage due to the same cause.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174r-1201; Dec. Dig. § 418.*]</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Action at law by Cook Clayton, as trustee in bankruptcy of Gray Chandler, against the Pitts Banking Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. .Seamen (§§ 11, 21*) — Injury in Service — Suit fob Cube and Wages.</p> <p>It is not a defense, to a suit by a seaman to recover for the cost of medical attendance and care while disabled by an injury and wages during such time, that he had been guilty of a violation of the shipping articles, which would have warranted his discharge, whore the master, although having knowledge of the fact, did not discharge him.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 39-44, 92-110, 187; Dee. Dig. §§ 11, 21.*</p> <p>Eights and liabilities of seamen as to medical treatment, see note to The Cuzco, 83 C. C. A. 186.]</p> <p>2. Seamen (§ 18*) — Wages— I3xtra Wages for Improper Discharge — Construction of Statute.</p> <p>Kev. St. § 4527 (U. S. Comp. St. 1901, p. 3077), which provides that a seaman improperly discharged before commencement of the voyage, or before he has earned a month’s wages, shall bo entitled to one month’s wages in addition to those earned, is not applicable to a case where a seaman was taken from the vessel to a hospital, because disabled, but was not discharged.</p> <p>[Del. Note. — For other cases, see Seamen, Cent. Dig. §§ 76-82; Dec. Dig. § 18.*]</p> <p>3. Seamen (§ 6*) — “Commencement of Voyage.”</p> <p>When a vessel with all her cargo aboard left her dock to be towed to a buoy in the bay for a temporary mooring, her voyage commenced.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 8-18; Dec. Dig. § 6.*]</p>

<p>Aliens (§ 32*) — Immigration—Chinese—Eight to Enter — Decision oe Immigration Authorities.</p> <p>Since tbe collector of customs, in determining the right of a Chinese person to land, may act on his own information and discretion, and such action, however taken, is conclusive, subject to the right of appeal to the Secretary of the Treasury, the fact that the collector, in determining that relator was not entitled to enter, failed to give to relator’s certificate identifying him as a merchant, issued under Act May 6, 1882, c. 126, § 6, 22' Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 (U.' S. Comp. St. 1901, p. 1307), the effect to which it was legally entitled, but, considering all the testimony, rejected the certificate as evidence of relator’s-right to land, did not entitle relator to his discharge on habeas corpus.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]</p>

of the' United States for the Territory of Hawaii; Chas. F. Clemons, Judge. In the matter of the petition of Lee Leong for writ of habeas corpus. From an order denying the writ, petitioner appeals. The appellant appeals from- an order of deportation made by the District Court of the United States for the territory of Hawaii, upon a hearing on the return to a writ of habeas corpus.

Dole, Judge. In the matter of the application of Tsurukichi Nakao for writ of habeas corpus. From an order granting the writ, the United States appeals. The appellee, a subject of the Emperor of Japan, came to the Hawaiian Islands in November, 1892, and remained there until November, 1908, when he returned to Japan, not intending to abandon or surrender his right to come again to Hawaii as a domiciled alien. He returned to Honolulu on May 23, 1913.

Dole, Judge. In the matter of the application of Tsunezo Kusano for writ of habeas corpus. From an order granting the writ, the United States appeals.

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

In Equity. Separate suits by the American Sulphite.Pulp Company against the St. Regis Paper Company, against the Union Bag & Paper Company, against the Newton Falls Paper Company, against the Ma- ■ lone Paper Company, and against the Carthage Sulphite Pulp Company. On final hearing.

In Equity. Suit by the American Sulphite Pulp Company against the Hinckley Fibre Company. On final hearing. Suit in equity for an injunction to restrain defendant from using certain structures (pulp-digesters) alleged to infringe United States letters patent No. 11,282, dated November 15,1892, and granted to George F. Russell, assignor to the complainant, and for an accounting.

<p>In Equity. Suit by the Asbestos Shingle, Slate & Sheathing Company and Ludwig Hatschek against the Rock Fibre Manufacturing Company. On final hearing.</p>

<p>In Equity. Suit by William M. Conner against the Stumpp & Walters Company. On final hearing.</p>

<p>In Equity. Suit by Daniel B. Luten against Walter Sharp and others. On final hearing.</p>

<p>1. Commerce (§ 97*) — Interstate Commerce Commission — Review of Orders.</p> <p>Courts of tlie United States can review orders of the Interstate Commerce Commission only on questions of law. They cannot consider questions of policy or expediency, or substitute their findings of fact for those of the Commission; but they may consider the question whether there is any evidence on which those findings can legally be based, which is one of law.</p> <p>[Ed. Note. — For other cases see Commerce Cent Dig. § 147; Dec. Dig I 97.*]</p> <p>2. Commerce (§ 58*) — Orders oe Interstate Commerce Commission.</p> <p>An order of the Interstate Commerce Commission, directed against a number of railroad companies, based on a finding of discrimination, must be supported by evidence which is sufficient to warrant a finding separately against each company named therein.</p> <p>TEd. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Doc. Dig. § 88.*]</p> <p>8. Commerce (§ 87*) — Interstate Commerce — Discrimination in Rates.</p> <p>A charge of discrimination cannot be made by a locality against a railroad company which does not serve that locality, either directly by its own line or by a joint arrangement with other comxianies for a through route and a joint rate.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 139; Dec. Dig. § 87.*]</p> <p>4. Commerce (§ 85*) — Interstate Commerce Commission — Orders Relating to Rates.</p> <p>In a proceeding before the Interstate Commerce Commission against separate railroad companies charged with discriminating against a locality, the Commission has no legal jurisdiction to compel two connecting roads, only one of which reaches such locality, to make a through route and a joint rate; nor, where such two companies have not made a through route or joint rate, but each charges its own separate rate to and from the point of connection, neither of which rates is found to be unreasonable, is there any legal basis in the evidence for an order of the Commission making a reduction in the sum of the two rates.</p> <p>LEd. Note. — For oilier cases, see Commerce, Cent. Dig. § 138; Doc. Dig. § 85.*]</p> <p>5 Commerce (§ 88*) — Interstate Commerce Commission — Orders Relating to Rates.</p> <p>In establishing through routes with joint rates in proper proceedings looking to that end, the Interstate Commerce Commission cannot deprive a carrier of the benefit of a full haul over its own line, unless there is a finding, based on adequate evidence, that the haul over the entire distance would make the through route unreasonably long.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. § 88.*]</p>

<p>1. Shipping (§ 84*) — Liability of Vessels — Injury to Stevedore.</p> <p>It is the duty of a steamship company to provide reasonable safeguards and protection against injury to those on a coal barge alongside engaged in filling the ship’s bins pursuant to orders of her captain, and the company is liable to such a person, who was injured by a sudden jet of steam and hot water allowed to escape from the vessel’s exhaust without warning.</p> <p>|Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. § 84.*]</p> <p>2. Shipping (§ 86*) — Liability op "Vessel — Suit pop. Injury to Stevedore.</p> <p>In snch case the person injured had a right to rely on the performance of their duty by those in charge of the vessel, and. Is not required to prove the reason for discharging the steam and water at the time; but the doctrine of res ipsa loquitur applies, and the burden of proof rests on the vessel.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Dec. Dig. § 86.*]</p> <p>3. Admiralty (§ 34*) — Laches—Suit eob Personal Injury.</p> <p>A suit against a steamship company for a personal Injury held not barred by laches, where a prior action at law was dismissed for want of jurisdiction, and other causes beyond libelant’s control also contributed to the delay.</p> <p>].Ed. Note. — For other eases, see Admiralty, Cent. Dig. §§ 316-321; Dec. Dig. § 34.*]</p>

In Admiralty. Suit by Henry F. Stockwell, receiver of John H. Dialogue and Son, against the steamtug Transit. On exceptions to answer for insufficiency. This proceeding is on a libel in rem filed by the receiver in bankruptcy of John I-I. Dialogue & Son against the (ug Transit. An answer was filed, to the sufficiency of which exceptions were taken, and an amended answer was put in. To this a number of exceptions have been interposed charging insufficiency.

<p>Courts (§ 354*) — Procedure—Set-Off or Counterclaim — Effect of Dismissal of Bill.</p> <p>Tlie provision of new equity rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi) that the answer may “set out any set-off or counterclaim against the plaintiff which might be the subject of an independent suit in equity against him and such set-off or counterclaim so set up shall have the same effect as a cross-suit” is to be given a liberal construction, and includes, as it in terms states, “any” set-off or counterclaim which might be the subject of an independent suit in equity; and the same, when pleaded, being in effect a “cross-suit,” is not affected by a decree dismissing the liill on the merits. Whether such a decree is a final one, reviewablo by appeal before adjudication upon the set-off or counterclaim, quaere.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. § 934; Dec. Dig. § 354.*]</p>

<p>• In Equity. Suit by the .Pacific Live Stock Company against John H. Lewis, James F. Chinnock, and George T. Cochran, constituting the State Water Board of the State of Oregon, C. B. McConnell, Emory Cole, Leonard Cole, the'Harney Valley Improvement Company, the Silvies River Irrigation Company, the William Hanley Company, R. R. Sitz, Fred Otley, and M. B. Hayes. On motion for preliminary injunction.</p>

<p>In Equity. Suit by W. H. Johnson, trustee in bankruptcy of W. D. Wilson, against Amanda J. Wilson. On exceptions to report of special master.</p>

<p>Bankruptcy (§ 166*) — Voidable Preference — Belief of Creditor.</p> <p>A wholesale house, having received notice from a mercantile agency of the filing of a number of mortgages against the property of a customer, sent an agent, who at once, and without examining the records, or making any inquiries, except of the customer, took a mortgage on the latter’s stock, of goods to secure a pre-existing indebtedness. The debtor was insolvent, and became a bankrupt a few days afterward, and the mortgage, if enforced, would have effected a preference. Held, that the creditor had reasonable cause to believe that such preference would result, and that the mortgage was voidable under Bankr. Act July 1, 1898, c. 541, § 00b, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), as amended by Act June 25, 1910, c. 412, § 11, 36 Stat. 842 (U. S. Comp. St. Supp. 1911, p. 1506).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. § 166.*]</p>

<p>Constitutional Law (§ 280*) — Due Process of Law — Adopting Plan op Streets — Pennsylvania Statute.</p> <p>Act Pa. Dec. 27, 1871 (P. L. 1872, p. 1390) § 3, and Act Pa. May 16, 1891 (P. L. p. 80) § 12, provide that the owner of property over which a street has been plotted by the city of Philadelphia in accordance with its adopted plan of streets cannot recover for damage to any building subsequently built within the linos of such plotted street, and the Supreme Court of the state has held such acts constitutional and valid. Held, that neither their enactment nor the plotting of a paper street projected over the lands of an owner constitute a taking of his property without due process of law, within the prohibition of the fourteenth constitutional amendment.</p> <p>[Ed'. Note. — -For other cases, see Constitutional Law, Cent. Dig. §§ 877-890; Dec. Dig. § 280.*]</p>

<p>1, Bankruptcy (§ 100*) — Jurisdiction of Court — Domicile of Bankrupt— Proof of Change.</p> <p>An alleged bankrupt, who was a builder, and bad for many years had his domicile and been engaged in business in the district of New Jersey, where the petition was filed, about a year before that time, being finan- • daily embarrassed and in failing health, conveyed all of his property to a trustee for the benefit of his creditors, and on the advice of a physician went to California for the benefit of his health, and was still there at the time of the filing of the petition. Held, that the burden of proving that he had changed his domicile from New Jersey, so as to defeat the jurisdiction oí the court, rested on intervening attachment creditors, who contested the adjudication; that the fact that he had been absent for a year, and had during that time continued to reside in California, was not, under the circumstances, sufficient, in the absence of further proof of his intention not only to abandon the old domicile, but also to acquire a new one in California.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dec. Dig. § 100.*]</p> <p>2. Domicile (§ 2*) — Definition—Residence Distinguished.</p> <p>Domicile is of more extensive signification than residence, and includes, beyond mere physical presence at a particular locality, an intention to constitute it a permanent abiding place.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. § 2; Dec. Dig. § 2.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Domicile.]</p>

<p>In Admiralty. Suit for collision by D. McEarchern and others, owners of the motor boat Topaz and lighters in tow, against the steam tug Protector and the barge Mattie E. Johnson and their owner.-</p>

<p>Bankruptcy (§ 250*) — Corporations—Unexplained Shortage of Assets— Liability of Managing Officers.</p> <p>Directors of á bankrupt mercantile corporation conducting a store in a small town, who were also its managing officers, having charge of all of its business and property, held liable to its trustee for a large shortage in its stock of goods, wholly unexplained by the books which it was their duty to keep; hut another director who had no part in the actual conduct of the store and no reason to suppose it was not properly managed, held not liable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 235, 350; Dec. Dig. § 250.*]</p>

<p>1. Courts (§ 505*) — Jurisdiction of Federal Courts — Suits bt Legatee, or Distributee.</p> <p>A federal court may entertain jurisdiction of a suit l>y a distributee, who is a citizen of another state, to establish iiis right to a share in the estate of a deceased person, although the estate is still pending for settlement in probate, and may enforce its adjudication against the administrator or his sureties personally, or in any other way which does not disturb the possession of the property by the state court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1-110; Dec. Dig. § 505.*]</p> <p>2. Wills (§ 435*1 — Construction—General Rules — Intention of Testator.</p> <p>It is a cardinal principie in the construction of wills that the actual personal intention of the testator, and not merely the presumptive intention, to lie inferred from the use of set. phrases or familiar forms of words, must lie ascertained, and in case of ambiguity the situation of the testator and the circumstances surrounding him at the time the will was executed may be considered, although parol or extrinsic evidence is not admissible to add to, vary, or contradict its terms.</p> <p>[Ed. Note. — For other eases, see Wills, Cent Dig. § 946; Dec. Dig. § 435.*]</p> <p>S. Wills (§ 728*) — Construction—Shares of Devisees — Rents and Income.</p> <p>In tlie absence of clear directions to the contrary in the will, t:ho beneficiaries have the same interest in the income, rents, and profits of the property given to them as they have in the property itself.</p> <p>LEd. Note. — For other cases, see Wills, Cent Dig. §§ 1759-1780; Dec. Dig. § 728.*]</p> <p>4. Wills (§ 728*) — Construction—Shares of Beneficiaries — Rents and Profits.</p> <p>A testator by his will devised one-half of his property to his wife and ono-half to a nephew and nieces, who were to have their shares as soon as available without undue expense or delay. The executors were authorized to sell any of the property whenever they thought it advantageous to the estate. By a codicil it ivas directed that the dividing of the property should not take place until the death of the wife, whose share should go to her heirs as she might direct by will. Held that, while the division of the principal of the estate was so postponed, the rents and profits were to be divided, as they accrued, between the widow and the nephew and nieces.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1759-1780; Dec. Dig. § 728.*]</p>

<p>1. Aliens (§ 08*) — Naturalization Proceedings — Declaration of Intention-Requisite Form.</p> <p>Naturalization Act June 29, 1900, c. 3592, 34 Stat. 596 (U. S. Comp. St. Supp. 3911, p. 528), is expressly designed to provide “a uniform rule for the naturalization ‘of aliens throughout the United States,” and its administration is committed to the Bureau of Naturalization thereby created, which is required to furnish to the clerks of courts having the requisite jurisdiction of naturalization proceedings, on their requisition, all blank forms and record books required. Such clerks are required to ¶ keep the records in a specified maimer, and to charge certain fees and report and account to the United States for one-half of the same. Hold, that it is the evident intention of the act that every step toward naturalization shall be under government supervision and control, that a court which has not obtained the requisite forms and records cannot exercise jurisdiction in naturalization matters, and that a declaration of intention filed in such a court, and not upon the prescribed form, is a legal nullity, and cannot be made the basis of a petition for naturalization.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p> <p>2. Aliens (§ 68*) — Naturalization—Rules and Regulations of Department.</p> <p>Rules and regulations made by the Secretary of Labor under authority of Naturalization Act June 29. 1906, c. 3592, § 28, 34 Stat. 608 (17. S. Comp. St. Supp. 1011, p. 543), if not contrary to its terms, have the same weight as the law itself.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. § 68.*]</p>

In Admiralty. Suit for collision by John R. Flannery, owner of the barge Economy, against the steam tug Pocohuntas, with the German steamship Maia, impleaded.

<p>1. Removal of Causes (§ 29*) — Right to Remove — Resident Defendants.</p> <p>Where a suit, by citizens of New York, South Carolina, Delaware, and West Virginia, was instituied in the state courts of Maryland against residents of Maryland, West Virginia, and Washington, there being residents of Maryland among the defendants, who had no right of removal on the ground of diver.se citizenship, the suit was not removable.</p> <p>[Kd. Note. — For oilier cases, see Removal of Causes, Cent. Dig. §§ 69, 72, 74; Dec. Dig. § 29.*J</p> <p>2. Removal of Causes (§ 4.8*) — RionT to Remove — Citizenship.</p> <p>Where a resident of the state in which the action was brought is made a defendant, he cannot remove the cause to'the federal court because of diversity of citizenship, regardless of the fact that the suit may involve a separable controversy between plaintiffs and another defendant.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §8 93, 94; Dec. Dig. § 48.*]</p>

<p>In the matter of the petition of Paul William Schrape for naturalization. On objection to petition.</p>

<p>1. Injunction (§ 144*) — Restraining Order — Verified Petition.</p> <p>Where a petition for a restraining order is verified, and there is no counter showing by defendant, the facts recited in the petition, which are well pleaded, must control the application.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*]</p> <p>2. Commerce (§ 89*) — Refusal to Transport LrcjuoE — Right to Sue — Application to Interstate Commerce Commission.</p> <p>Where defendant railroad company refused to transport liquor into Oklahoma from Missouri, complainant was not bound to apply to the Interstate Commerce Commission for relief before suing in equity for an injunction.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 89.*]</p> <p>3. Carriers (§ 45*) — Refusal to Transport Liquor — Injunction — Adequate Remedy at Law.</p> <p>Where defendant railroad company posted a general order refusing to receive shipments of liquor designed for or to be carried and delivered to points in O. county, Okl., and pursuant to such order refused to carry liquor into that county for complainant, a wholesale liquor dealer in Missouri, and complainant in a suit for an injunction alleged that defendant’s refusal would work irreparable damage to complainant’s business, which could not be estimated in damages, equity jurisdiction was not defeated on the theory that complainant had an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. § 45.*]</p> <p>4. Indians (§ 35*) — “Indian Country” — Introduction of Liquors.</p> <p>What is “Indian country,” within Act Jan. 30, 1897, c. 109, 29 Stat. 506, prohibiting the introduction of liquors among Indians, depends on Whether the Indian title under which the land was formerly held has or has not been completely extinguished by subsequent grants.</p> <p>[Ed. Note. — For other cases, see Indians; Cent. Dig. §§ 61, 62; Dec. Dig. § 35.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Indian Country.]</p> <p>5. Carriers (§ 45*) — Transportation of Liquors — Duty to Transport— Interstate Commerce.</p> <p>Where complainant, a wholesale liquor dealer in Missouri, had a legal right to sell liquor to a white male citizen of O. county, Okl.,'for his personal use, it had an equal right to compel defendant, a public carrier, to transport the liquor, and was entitled to restrain defendant from enforcing as to it a rule refusing to receive liquor for transportation into such county.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. g 45.*]</p>

<p>1. Towage (§ 11*) — Duty of Care — Injury to Tow.</p> <p>While a towing tug is not an insurer, her master is bound to the exercise of reasonable care and skill, commensurate with the difficulty of the undertaking, and failure therein is a fault which creates liability on the part of the tug for any resulting injury.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p> <p>2. Towage (§ 11*) — Injury to Tow — Liability of Tug.</p> <p>Injury to a steamship while being berthed by a tug, by striking her anchor, which protruded slightly from the hawse hole, but was in plain-view, against the wharf, held due solely to the fault of the tug, whose-captain in charge of the movements failed to exercise due care.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. § 11.*]</p>

<p>Damages (§ 120*) — -'Breach ok Contract — Elements ok Damage — Injury to Refutation or Business.</p> <p>In an action for defendant’s breach of contract employing plaintiff to procure for it foreign laborers from among his own countrymen, plaintiff was entitled to recover all damages proximately resulting from his discharge, consisting of expenditures necessarily made by him and loss of compensation; but he could not recover for alleged injury to his reputation and business as an employment agent.</p> <p>Hid. Note. — For other cases, see Damages, Cent. Dig. §§ 291-805; Dec. Dig. § 120.*]</p>

<p>Husband and Wife (§ 129*)- — Separate Property of Wife — Estoppel to Claim.</p> <p>Property owned by a wife was exchanged in part payment for a farm, rhe remainder of the price being unpaid. A bond for a deed was executed in the name of the husband, who afterward, while they were living together on the farm, transferred it to his wife, and later became a bankrupt. IIcl4, that the wife was not estopped to claim the laud, as against the bankrupt’s creditors, because the bond for a deed was for a time in his name, or because of any representations made by Mm with respect to the ownership of the property, where she neither said nor did anything to induce a belief that he owned it.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 283,. 468-470;, Dec. Dig. § 129.*]</p>

<p>In Equity. Suit by the Ashland Electric Power & Light Company . against the City of Ashland and O. H. Johnson, Mayor, C. H. Gillette, Recorder, and C. L. Cunningham, T. L. Ashcraft, L. L. Werth, W. H. Goudy, Á. M. Beaver, and E. C. Sherman, Councilmen, of said city. On motion to dismiss bill.</p> <p>On January 29, 1889, the common council of the city of Ashland by ordinance granted the Ashland Electric Power & Light Company, under the name of the Ashland Electric Light & Power Company, “the right of way, but not exclusive, over, upon, and across the streets, alleys, and public grounds of the city of Ashland, ' * * » for the purpose of establishing, maintaining,</p> <p>and operating throughout the city a system of electric light, and for the purpose of transmitting power within the limits of the city and adjacent country, in accordance with the object and purposes expressed in the articles of incorporation of said company.” Section 2 of the ordinance provides for locating tlie poles and stringing the wires under the supervision of the mayor and council.</p> <p>At tlie time of the adoption of this ordinance the city council was authorized and empowered by subsection 5, § 31, of the charter of the city of Ash-land, “to provide for lighting the streets and furnishing the city with gas or other light, and for tlie erection or construction of such works as may be necessary or convenient therefor,” the franchise for such purpose to be “used and exercised, under such rules, regulations and restrictions as the council shall from time to time prescribe.” And by subsection 27 the council was further authorized and empowered “to regulate the use of streets and sidewalks for the use of signs, signposts, awnings, awning posts, telegraph and telephone posts, and all other purposes.” City Charter 1885.</p> <p>By an act of the legislative assembly, approved February 19, 1903, conferring tlie right of eminent domain upon telephone, telegraph, and electric lines in Oregon, and amending section 4750 of the Annotated Codes and Statute's of Oregon, it was provided, among other things, that “any agreement or grant heretofore made by a county court, or by any municipal corporation, of the right to build or maintain any lines of poles and wires for the purposes aforesaid in any county or in any incorporated city or town, within which such line of poles and wires is already located is hereby confirmed, and such line of poles and wires may be maintained and operated so long as they are kept in repair and do not interfere with the convenient use of the highway for travel.” Sess. Laws 1903, p. 112.</p> <p>The Ashland Electric Tower & Light Company, an Oregon corporation, accepted tlie grant, and in pursuance thereof, at heavy cost, and expense, erected and established in Hie city of Ashland, and throughout the streets thereof, an electric light system, and has since operated the same. On July 23, 1911, the city council adopted an ordinance repealing in toto Ordinance No. 02. and requiring the light company to remove its system from the streets and highways of the city, and has since adopted resolutions with the purpose of requiring the removal of said system, and prohibiting the light company from exercising its said franchise in any way.</p> <p>in resistance of tlie acts of the city, the light company has instituted a suit to restrain the city from interfering with its rights and privileges acqnired under Ordinance Nro. 62, alleging that tlie city is seeking to deprive' plaintiff of Its property without due process of law. The sufficiency of the bill of complaint is tested by a motion to dismiss under the new equity rules.</p>

<p>Salvage (§ 34*) — ^sature of Service — Towing into Port Water-Logged Lumber Vessel.</p> <p>A barkentine loaded with lumber, bound southward for San Francisco, when 160 miles southwest of Cape Flattery, encountered a storm which caused her to leak, and she began to fill. Unable to make headway, the captain turned back for Puget Sound. Five days after the storm commenced, and after jettisoning 100,000 feet of lumber, he arrived 7 miles off the Straits, where he beat about for another day unable to enter, because of the wind. On the second day, in response to his signal, libelant’s, tug came and towed the vessel into Port Townsend. She was then full of water. Held, that the vessel was in danger, and the service rendered by the tug was one of “salvage,” although not of high order, and that she was entitled to an award of $800, exclusive of her crew; the value of the saved vessel, with cargo, being $23,000.</p> <p>[Ed. Note. — Por other cases, see Salvage, Cent. Dig. §§ 80-83; Dec-Dig. § 34.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Salvage.]</p>

<p>In the matter of the British American Cedar Company, bankrupt. On review of order of referee allowing the Great Northern Railway Company a lien on certain machinery for freight.</p>

<p>1. Courts (§ 425*) — Federal Courts — -Jurisdiction of District Court— Claims Against United States — “Fees, Salary, or Compensation.”</p> <p>Jud. Code (Act March 3, 1911, e. 231) § 200, 36 Stat. 1146 (U. S. Comp. St. Supp. 1911, p. 214), creating the Commerce Court, provides that “each of the judges, during the period of his service in the Commerce Court, shall, on account of the regular sessions of the court being held in the city of Washington, receive in addition to his salary as Circuit Judge an expense allowance at the rate of ¡pi,500 per annum.” Held, that such expense allowance is not “fees, salary, or compensation” for official services, within the meaning of section 24, par. 20, of such Code, which excepts from suits against the United States, of which the District Courts are thereby given jurisdiction, “cases brought to recover fees, salary, or compensation for official services of officers of the United States.”</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1130: Dec. Dig. § 425.*]</p> <p>2. 'United States (? 39*) — Actions Against — Conditions Precedent — Suit to Recover “Fees.”</p> <p>A suit by a judge to recover such expense allowance is not within the meaning of Jud. Code (Act March 3, 1911, c. 231) § 145, par. 2, 36 Stat. 1137 (U. S. Comp. St. Supp. 1911, p. 199), which provides that no suit against the United States by an officer to recover “fees” shall be allowed “until an account for said fees shall have been rendered and finally acted upon as required by law,” etc.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. §§ 5, 24-28; Dea Dig. § 39.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Fees.]</p>

<p>In the matter of Lovell R. Crocker and Sarah'C. Crocker, his wife, bankrupts. On petition of the trustee of bankrupts’ estates for review of an order of the referee allowing and setting apart to them a homestead.</p>

<p>Suit by the United States against Iver'Engebretsen Ness, to set aside a certificate of naturalization.</p>

<p>In Equity. Suit by John Hayden and another against the Perfection Cooler Company. On motion to dismiss the bill.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of David Wiener. On application to withdraw funds of a third person deposited to perform a proposed composition.

<p>In Equity. Suit by the United Tace & Braid Manufacturing Company against the Barthels Manufacturing Company. On motion by complainant to- take depositions.</p>

<p>Appeal from the District Court of the United States for the Northern District of California; William C. Van Fleet, Judge.</p> <p>Suit in equity by the Baldwin Locomotive Works against the Ocean Shore Railway Company and others. From a decree awarding preference to claims of F. L. Donahoo and others, Charles C. Moore, F. W. Bradley, Maurice Schweitser, R. D. Robbins, and Walter S. Martin, interveners, appeal.</p>

<p>1. Courts (§ 489*) — Federal and State Courts — Conflict of Jurisdiction —Receivers.</p> <p>The state of Kansas commenced a suit against the Kansas Natural Gas Company, a Delaware corporation doing business in the state, to enforce its anti-trust laws. Pending the suit receivers were appointed by the federal court in a foreclosure suit for all of the property of the company situated in Kansas, Oklahoma, and Missouri, under Judicial Code (Act March 3, 1911, c. 231) § 56, 36 Stat. 1102 (U. S. Comp. St. 1913, § 1038). As the result of the hearing receivers were also afterward appointed by the state court for the property of the company in Kansas, and on their application such property was turned over to them by the federal receivers by order of the court. The Kansas City Pipe Line Company, organized as an auxiliary of the gas company, had leased all of its property, consisting of pipe lines, to the gas company and was a large creditor for rentals. It also had a mortgage on its property, and the gas company had two mortgages securing outstanding bonds, in all aggregating $13,000,000. The pipe line company, and also its mortgagee, were brought into the state suit, and a receiver for the pipe line company appointed therein. The receivers for both companies and the gas company itself applied to the federal court to have all of the property of such company, including money in the hands of the receivers, turned over to its state receivers, which was opposed only by the pipe line company^ and its mortgagee. The property of the gas company consisted of gas' wells owned and leased in Kansas and Oklahoma and pipe lines extending therefrom through. Kansas and into Missouri, and its business was the supplying of gas, for the most part through local companies, for the use of about 40 cities and towns in those two states, from which a large revenue was collected by the federal receivers, and all parties agreed that, in order to conserve the property, all that in the three states must be kept and operated together. Held, that the mere pendency of the suit in the state court did not deprive the federal court of jurisdiction to appoint receivers at suit of the mortgagee, but that because of the nature of the suit in the state court its receivers, when appointed, had the better right to possession of the property within the state, and that as all parties in interest, except the pipe line company and its mortgage trustee, desired it, and the necessity for a common control and management of the entire property was apparent, it was within the power of the federal court to turn over possession of all of the property and money in the hands of its receivers to the state receivers, subject to all lawful liens arising by virtue of its own receivership, retaining jurisdiction of the suit until that in the state court was disposed of.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1824-1330, 1333-1341, 1372-1374; Dec. Dig. § 489.*</p> <p>Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 356.]</p> <p>2. Receiveks (§ 91*) — Adoption of Lease.</p> <p>Where an order appointing receivers provided that contracts and leases should not be taken as adopted without the express action of the court, the fact that they continued to use leased property did not bind them as an adoption of the lease, the court not having been asked to adopt or dis-affirm it, so as to make the rental called for by the lease an operating expense of the receivership and a lien on the property and its income.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 167, 168; Dec. Dig. § 91.*]</p>

<p>Appeal and Error (§ 323*) — Parties—Separate Appeal bt One or More Parties.</p> <p>, In an action for an injunction the court entered a separate judgment in favor of each of the three defendants against plaintiff in the sum of $7,361 as damages from a temporary injunction, and also a separate judgment that each defendant recover from the surety on the injunction bond the sum of $4,000, one-third the amount of the bond, which amount, it was recited, was included in the sum awarded against complainant, it being specially declared that the liability of the sureties and of the complainant was coequal to the extent of $4,000 and no more. Held, that an appeal by complainant would not be dismissed on the ground that the surety was a necessary party to the appeal, and that a separate appeal could not be maintained by complainant, since the decree was separate with respect to all the parties to it and distributive in its awards of damages, and from such a decree each of the judgment debtors may prosecute an appeal, and a failure to join all in an appeal is not fatal to the court’s jurisdiction.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Gent. Dig. §§ 1796, 1798-1805; Dee. Dig. § 323.*]</p>

C. Van Fleet, Judge. Action by James Dunsmuir against Joseph J. Scott, Collector of Internal Revenue, substituted in the place of August E. Muenter. Judgment for defendant, and plaintiff brings error.

<p>Appeal And Error (§ 1064*) — Harmless Error — Misleading Instructions.</p> <p>Plaintiff was employed in defendant’s rendering plant to feed a suet hopper, to do which he was required to stand on a stool resting on a greasy and slanting floor. While doing so, his hand came in contact with the machine and was cut off. He testified that while standing on the stool another, employe shoveled the suet so that plaintiff was struck in the chest, causing the stool to slip and plaintiff to fall, so that his hand came in contact with the machine. At the trial, defendant introduced in evidence a statement, signed by plaintiff, in which he stated that he was putting a piece of fat into the hasher, when the fat twisted in the worm and caught his hand, and that it was a pure accident. The court charged that plaintiff was bound to exercise reasonable care for his own safety, but there was no claim that he was careless so far as the particular accident was concerned, nor was the jury required to consider the question of assumed risk, but, with reference to the statement, that, if the jury should believe all that was in the paper, plaintiff could not recover, but that if he was overreached, did not understand, or was mentally dull, or his appreciation of his rights was impaired, and the statement was not a fair representation of what occurred^ then he might recover, notwithstanding the statement. Held, that the instruction- was not objectionable, as requiring the jury to believe all that was in the statement before they could render a verdict for defendant, but merely required them to believe the portion of it that had reference to how the accident occurred, and the instruction was therefore not misleading, to defendant’s prejudice.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p>

<p> (Syllabus by the Court.) </p> <p>1. Witnesses (§ 150*) — Competency—Transactions with Decedent — “Representative.”</p> <p>An assign of a deceased person is held by the highest judicial tribunal of Nebraska to be his representative, within the meaning of section 6S82, Comp. Stat. of Nebraska 1911, which prohibits any person, having a direct legal interest in the result of any civil action or proceeding, from testifying to any transaction or conversation -between him and the deceased person, when the adverse party is the representative of the latter, and this ruling is controlling in the national courts.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 560, 653-657; Dec. Dig. § 150.*</p> <p>For .other definitions, see Words and Phrases, First and Second Series, Representative.</p> <p>Competency of witnesses in federal courts, following state practice, see notes to O’Connell v. Reed, 5 C. C. A. 602; Hinchman v. Parlin & Orendorft Co., 21 C. C. A. 278.]</p> <p>2. Courts (§ 366*) — State and Federal Courts — Rules op Decision.</p> <p>The settled construction by the highest judicial tribunal of a state of the Constitution or statutes of that state is controlling in the national courts, in the absence of any question of a violation of the national Constitution or statutes and any question of general or commercial law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. § 366.*</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>3. Deeds (§ 211*) — Witnesses (§ 139*) — Duress—Sufficiency of Evidence —Competency of Witness — Transactions with Decedent.</p> <p>The plaintiff alleged that she was forced, by the duress of threats of her son to commit suicide, to convey her property to him, and brought suit after his death against his grantee to avoid her deeds. Held, she was not a competent witness to the transaction or the conversations relating to it, and that, after laying aside her testimony, her charge of duress was not sustained by substantial competent evidence.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211;* Witnesses, Cent. Dig. §§ 582-597'; Dec. Dig. § 139.*]</p>

’ Suit in admiralty by the Independent Transportation Company and another against the Canton Insurance Office, Limited, and the Yank-Tske Insurance Association. Decree for libelant, and respondents appeal.

Action at law by Fairbanks, Morse & Co., a corporation, against J. M. Nelson. Judgment for defendant, and plaintiff brings error. The plaintiff in error was the plaintiff in the court below in an action to recover upon three several promissory notes, for $1,200 each, executed by the defendant in error in payment for a 30-60 horse power tractor engine, which was sold under a written contract. The parties will be designated herein plaintiff and defendant, as in the court below.

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by William Harcrow against Armour & Co. Judgment for plaintiff, and defendant brings error.</p>

<p> (Syllabus by the Court.) </p> <p>Bankruptcy (§ 314*) — Creditor op Bankrupt Corporation — Money Loaned —Stock Issue.</p> <p>One who subscribes $5,000 in full payment for $10,000 par value of the contemplated fully paid increase of the stock of a corporation, pays the $5,000, and obtains the promissory note of the corporation to his trustee for that amount before the corporation has authorized the increase, on the condition, -clearly expressed in the contract of subscription, that the $5,000 shall be treated as a loan to the corporation drawing interest at 6 per cent, until the corporation is ready to issue the fully paid stock of the par value of $10,000, becomes thereby the creditor of the corporation, and when the corporation never issues, or takes any steps to issue, the increase of stock, because it cannot legally issue it for a payment of 50 cents on a dollar without making the taker liable to pay another 50 cents on the dollar therefor, and is adjudged a bankrupt, he remains a creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 469-473, 478, 4834.87, 489, 490; Dec. Dig. § 314.*)</p>

<p> (Syllabus hy the Court.) </p> <p>1. Commerce (§ 27*) — Interstate Commerce — Injuries to Servant — Federal Employers’ Liability Act.</p> <p>The federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 fU. S. Comp. St. 1913, §§ 8057-S665]) protects only those employed. in interstate commerce. Those employed in the preparation or construction of roadbeds, rails, ties, cars, engines, and other instrumentalities which are intended for use in interstate commerce, but have never been and are not in use therein, are not employed in interstate commerce and are not protected by that act.</p> <p>An employé engaged in the construction of a bridge, 600 feet distant from a railroad, on a cut-off more than a mile in length, which had never been provided with rails or used as a railroad, is not employed in interstate commerce, although his employer is so engaged and intends to use the cut-off therein when completed.</p> <p>[Ed. Note. — For other- cases, see Commerce, Cent. Dig. § 25; Dee. Dig. § 27.*</p> <p>Employes engaged in interstate commerce within Employers’ .Liability Act, see note to Baltimore & O. R. Co. v. Darr, 124 C. C. A. 571.]</p> <p>2. Pleading (§ 369*) — Inconsistent Claims — Election of Causes.</p> <p>Where at the close of the plaintiff’s evidence, in an action for negligence by an employé upon a complaint which in a single count sets forth a cause of action under the state law, the plaintiff so amends his complaint as to make it state in a single count a cause of action under the federal Employers’ Liability Act, he thereby makes an election- to abandon his cause of action under the «state' law and to rely on his cause of action under the federal act, which he Is estopped from revoking or repudiating after a directed verdict against him on his pleading and evidence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. § 309.*]</p>

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action by Alvah W. Sargent against John P. Lane. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Frank A. Youmans, Judge.</p> <p>Action by John A. Bell, Jr., against P. F. Smith. From decree for plaintiff, defendant appeals.</p>

<p>1. Collision (§ 18*) — Diability—Negligence Not a Proximate Cause.</p> <p>Acts of negligence which do not contribute to a collision as a proximate cause do not render a ship liable.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 16; Dec. Dig. § 18.*)</p> <p>2. Collision (§§ 149, 153*) — Suits for Damages — Findings of Fact — Review.</p> <p>Whether negligence imputed is the proximate cause of a collision, or merely collateral or immaterial, is a question of fact; and, where the conclusion of the District Court is not against the preponderance of the evidence, it cannot be disturbed by an appellate court.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 149, 299-301, 305-307, 310, 311; Dee. Dig. §§ 149, 153.*)</p> <p>8. Collision (§ 105*) — Steam Vessels Meeting — Change of Course.</p> <p>A finding that a collision on the Elizabeth river in the evening between a gasoline launch and a meeting tug was due solely to the fault of the tug in changing her course shortly prior to the collision held supported by the evidence; it appearing that until such change the vessels were oh safe courses.</p> <p>[Ed. Note. — For other cases, see Collisions Dec. Dig. § 105.*]</p>

<p>Patents (§ 283s') — Suit nor Infringement-Equity Jurisdiction.</p> <p>Equity has jurisdiction of a suit for infringement of a patent for a kinetoscope for taking motion picture negatives from which an unlimited number of positive pictures may be printed for exhibition purposes, although the bill was filed only two days before the expiraiion of the patent, where there was no laches, and the bill alleges that defendant has In its possession a large number of negatives taken with the infringing camera, and prays for an injunction to restrain their use, and may grant such injunction even after the patent has expired.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-450, 452; Dec. Dig. § 283.*]</p>

<p>Patents (§ 328*) — Validity and Infringement — Portable Drill.</p> <p>The Willey patent, No. 750,744, for a portable drill, claim 2, which is very narrow and specific, as was required by the prior art, held valid, as disclosing invention, but not infringed.</p>

<p>On motion by the United States for a writ of mandamus against the Nashville, Chattanooga & St. Louis Railway to compel defendant to disclose to examiners employed by the Interstate Commerce Commission correspondence received by defendant and copies of correspondence sent by it and the indices pertaining to the same, etc.</p>

<p>In Equity. Suit by the Puget Sound Traction, Light & Power Company against the City of Tacoma. On motion for preliminary injunction.</p>

<p>In Equity. Suit by the Kern Trading & Oil Company and the Associated Oil Company against the Associated Pipe Line Company, Ulysses S. Webb, Attorney General of the State of California, John M. Eshleman, Harvey D. Loveland, Alex. Gordon, Edwin O. Edger-ton, and Max Thelen, constituting the Railroad Commission of the State of California, and Max Thelen, attorney for the Railroad Commission of the State of California. On motion for preliminary injunction.</p>

<p>1. Taxation (§ 611*) — Lands of Indian Allottees — Suit by United States to Protect.</p> <p>During the time the United States bolds the title to lands in trust for Indian allottees it may maintain a suit to enjoin the collection of taxes imposed on the lands by local authorities in violation of the trust agreement, and may •prosecute the suit to a decree, even after the trust period has expired, in the absence of objection by the allottees.</p> <p>LEd. Note. — Dor other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 611.*]</p> <p>2. Taxation (§ 611*) — Indian Lands — Suit by United States to Protect — ■ Laches.</p> <p>The fact that such a suit was not commenced promptly, when the taxation of the lands was first attempted, does not constitute laches, such as will bar the right to relief.</p> <p>LEd. Note. — Dor other cases, see Taxation, Cent. Dig. §§ 1242, 1245-1257; Dec. Dig. § 011.*]</p> <p>3. Indians (§ 13*) — Lands of Allottees — Mistakes in Patents — Jurisdiction of Equity.</p> <p>Act April 23, 1904, c. 1489, 33 Stat. 297, which authorizes the Secretary of the Interior to correct certain mistakes in conditional patents issued to Indian allottees, does not provide an exclusive remedy, and where through mistake the restriction against alienation and taxation in such patents was made 20 years, instead of 25 years, as provided by the statute, a court of equity has power to grant relief against such mistake at suit of the United States.</p> <p>I lid. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. . § 13.*]</p> <p>4. Taxation (§ 543*) — Land op Indian Allottees — Recovery by United States of Taxes Paid.</p> <p>The United States has such an interest in the lands of Indian allottees, which it has agreed to hold in trust for a stated term free from liens or taxes, that it may maintain a suit to recover back taxes which were unlawfully imposed on such lands during the term and collected from the allottees.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1006-1016; Dec. Dig. § 543.*]</p> <p>5. Taxation (§ 538*) — Hand of Indian Allottees — Recovery by United States of Taxes Paid.</p> <p>The rule that taxes voluntarily paid cannot be recovered back is made for the benefit of the state, and has no application to a suit by the United States to recover taxes wrongfully collected on lands of Indian allottees, which the government has assumed the duty of holding in trust and protecting from taxation.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 999, 1000-; Dec. Dig. § 538.*]</p>

<p>1. Corporations (§ 215*) — Stockholders—Liability for Corporate Debts.</p> <p>Except where elements of estoppel supervene, the general rule is that a shareholder is not liable to creditors upon insolvency of the corporation, unless the circumstances are such that he would have been liable to the corporation itself.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 826-828, 845-S48, 852, 854; Dec. Dig. § 215.*]</p> <p>2. Corporations (§ 170*) — Who are Shareholders — Entry of Name on Books.</p> <p>One is not bound as a stockholder of a corporation merely because his name has been entered on its books as a stockholder, unless in some manner, either expressly or impliedly, he consented to such entry.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 624-632; Dec. Dig. § 170.*]</p> <p>3. Insurance (§ 50*) — Insolvency of Insurance Company — Stockholders —Conditional Subscription — Enforcement.</p> <p>Defendant insurance company, in order to conduct the business for which it was organized under the laws of Pennsylvania, was required to obtain a capital of $300,000, and to that end issued and sold stock, some of which was bought by claimants, who were each given an agreement that the money paid should be retained in a special fund and returned unless the full amount was subscribed and paid in within 60 days. ,It was not kept in such special deposit, but was miixgled with other funds of defendant, for which a receiver was appointed within a few days; only a small part of the required sum having been subscribed. Certificates of stock were issued to claimants and retained by them. The money they paid could for.the most part be traced and identified. It was not shown that defendant had contracted debts on the strength of the subscriptions, or that claimants had acted or represented themselves as .stockholders. Held, that the fact that they had not returned their certificates before the commencement of the suit, the 60 days not having expired, did not create an estoppel, but that the agreements under which they subscribed were valid and enforceable against the receiver.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 8, 58-61; Dec. Dig. § 50.*]</p>

Suit by one Grier and others against the Union National Life Insurance Company. On petition for an order on a receiver to pay costs of an appeal. Denied.

<p>1. Principal and Surety (§179*) — Exoneration.</p> <p>Where a surety’s obligation to pay bas become absolute, the principal may be required to pay in relief of the surety by an application of the doctrine of exoneration in equity.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 512-519; Dee. Dig. § 179.*]</p> <p>2. Garnishment (§ 17*) — Public Moneys — Execution Process.</p> <p>Public moneys are not subject to levy under attachment in executiou process, under the rule of public policy that municipalities, because of their governmental character, are not to he drawn into disputes only affecting other parties.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 32-34, 44; Dec. Dig. § 17.*]</p> <p>3. Principal and Surety (§ 179*) — Rights op Surety Before Payment— Exoneration — Injunction.</p> <p>Where complainant was surety for a municipal contractor on two bonds, one to complete the work, and the other to pay materialmen and employes, and complainant’s obligation on the latter bond had become absolute, though not so on the bond to complete the work, the contractor having become insolvent' and having borrowed money from other parties, to whom it had assigned money payable under the contract by the city, complainant was entitled to maintain a suit in equity for exoneration, and to have a receiver appointed to apply the moneys due from the city in accordance with the equities of the parties.</p> <p>[Ed.‘ Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 512-519; Dec. Dig. § 179.*]</p> <p>4. Principal and Surety (§ 179*) — Exoneration of Surety — Municipal Corporation — Stakeholder.</p> <p>Where a contractor liad agreed to do certain work for a city and to be paid as the work progressed, the city to retain a specified percentage pending completion of the contract, the city, in the absence of any claim, of present indebtedness, was a mere stakeholder as to the amount that would be due to the contractor on completion of the work, and hence was not subject to suit by the contractor’s surety in connection with other claimants to marshal the fund and have the same distributed according to the equities of the parties in exoneration of its liability.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 512-519; Dec. Dig. § 179.*]</p> <p>5. Courts (§ 317*) — Federal Courts — Procedure—Pleading—Demurrers —Motion.</p> <p>Demurrers in equity having been abolished, .compla inant’s right to an injunction under the case made by its bill on application for preliminary injunction can be raised only on a motion called up and disposed of in the discrelion of the court, or after having been set down for hearing on five days’ notice, as provided ’by equity rule 29 (198 Fed. xxyi, 115 O. C. A. xxvi).</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]</p>

<p>In Admiralty. Suit by the Heflernan Dry Dock Company against the steamship Edith, in which the Carbon Hill Coal Company, the Turner & Pease Company, Barton & Co., E. A. Swift, and William Whiteside became interveners. On exceptions to report of commissioner.</p>

<p>In Equity. Suit by U. M. Hidden against the Washington-Oregon Corporation and others. On motion to remand.</p>

<p>In Equity. Suit by William P. Odell against the H. Batterman Company. On application by the Barwin Realty Company for leave to institute an action of ejectment.</p>

<p>1. Aliens (§ 28*) — Exclusion of Chinese — Statutes—Construction,</p> <p>Chinese Exclusion Act (Act May 6, 18S2) c. 126, § 6, 22 Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 (U. S. Comp. St. 1913, § 4293), providing for the presentation of certificates of identification by Chinese persons other than laborers seeking admission to the United States, executed by Chinese authority and viséed by the indorsement of the United States diplomatic representative in the country from which it issues, etc., declares that such certificate so visSed shall be prima facie evidence of the facts set forth therein, and shall be the sole evidence permissible “on the part of the person so producing the same to establish a right of entry.” Section 12 declares that no Chinese person shall be permitted to enter the United States without producing to the proper Chinese inspector the certificate in the act required by persons seeking to land from a vessel. Béld, that section 6 should not be construed to make the certificate the sole evidence permissible only on the part of the persons producing the' same, so as to exempt from such provision a minor claiming the right to enter the United States because his father was a regularly domiciled Chinese merchant in the United States; the intention of Congress being that no person falling within section 6 may be allowed to enter without the required certificate.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 88-90; Dec. Dig. § 28.*]</p> <p>2. Aliens (§ 25*) — Chinese Person — Minor—Production of Certificate.</p> <p>Where petitioner, at the time he sailed from China for the United States, was entitled to enter as the minor son of a regularly domiciled Chinese merchant of San Francisco, but such right was lost because of the death of his father, which occurred eight days before petitioner’s arrival, he was not entitled to enter as a student or merchant without the certificate required by Chinese Exclusion Act, § 6.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 79-82; Dec. Dig. § 25.*]</p>

<p>In Admiralty. Suits by James Thomas and by Arthur Johnson against the schooner Emma F. Angelí, which have been consolidated.</p>

<p>1. Payment (§ 17*) — Execution of Note.</p> <p>Where a bankrupt executed a note to his landlord for rent in arrears and to accrue, there was no presumption of fact or law that the giving of such note constituted payment, so as to deprive the landlord of his right to enforce payment of the rent by distraint, etc., in the absence of proof that such was the intent of the parties.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 70-77; Dec. Dig. § 17.*]</p> <p>2. Appeal and Errob (§ 1017*) — Review—Findings of Referee.</p> <p>Findings of fact by a referee establish the fact on review in the District Court, and will not bo disturbed in the absence of good reason therefor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3011, 3961, 3996-4005; Dec. Dig. § 1017.*]</p>

<p>Pleading (§ 367*) — Statement—Definiteness.</p> <p>Where the statement set forth the contract in suit, which provided that for named services plaintiff should receive a stipulated sum, that if any services were unsatisfactory additional or extra service should be rendered before the stipulated sum should be duo, and that plaintiff should furnish at its own expense certain lantern slides, which should be exchanged for new ones at defendant’s request, the cost to bo allowed against claims for extra seivice, and alleged performance by plaintiff, the furnishing of new slides at a named cost, and the rendition of certain extra services which were not specified, defendant cannot require plaintiff to make a more specific statement of the extra service rendered, for, an allegation of the performance of extra services being unnecessary until nonperformance in an amount greater than the cost of the new slides is set up in defense, the allegation may bo wholly disregarded as surplusage.</p> <p>(Ed. Note. — Eor other cases, see Pleading, Gent. Dig. §§ 64, 1173-1193; Dec. Dig, § 367.*]</p>

<p>1. Aliens (§ 32*) — Chinese — Deportation Proceedings — Charge — De- ' PENSES.</p> <p>While, in proceedings before the immigration officers for deportation of a Chinese alien, no such particularity is required as is essential in court proceedings, yet a mere omnibus charge of being in the country in violation of law, which does not in any degree advise the alien as to what he is called on to’meet, is improper.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent:' Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p> <p>2. Aliens (§ 24*) — Chinese—Deportation Proceedings — Grounds—Chinese Minor — Labor After Majority.</p> <p>Where a Chinese alien has been admitted into the United States as the minor son of a Chinese merchant, he may not be lawfully deported for ■ the sole reason that, after attaining his majority, he has worked as a laborer.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 76-78; Dec. Dig. ' §24.*]</p>

<p>1. Pleading (§ 49*) — Statement of Claim.</p> <p>It is permissible for a plaintiff to so state the facts in Ms statement 'of claim as to leave him free to evolve any theory at the trial which is supported by them.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 107-111; Dec. Dig. § 49.*]</p> <p>2. Pleading (§ 316*) — Rule foe Bill of Particulars — Discretion of Court.</p> <p>A rule for a bill of particulars is an appeal to the discretion of the court, and this appeal will be granted or refused according- to the circumstances.</p> <p>[Éd. Note. — For other cases, see Pleading, Cent. Dig. § 951; Dec. Dig. § 316.*]</p>

In Equity. Suit by George W. Todd and Libanus M. Todd, doing business as G. W. Todd & Co., against John Whitaker, doing business as the J. Whitaker Manufacturing Company. Sur motions for further particulars of bill and answer.

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by Lewis, Leonhardt & Co. against the Southern Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Dyer, Judge. Action by the Stromberg-Carlson Telephone Manufacturing Company against Adolphus Busch and others. Judgment against Adolphus Busch, and Lillie Busch and others, executors, etc., bring error.

<p>1. Adverse Possession (§ 101*) — Constructive Possession.</p> <p>Tiie holder of the older and better title is to be regarded as having constructive possession, and the holder of the junior and inferior title, that may overlap it, cannot hold adversely until he has entered into the actual boundary claimed by the older and better title and acquired adverse possession thereof or of some part of it; it being insufficient that he enters into possession of land outside the boundaries of the land in controversy, though within the limits of his paper color of title.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent Dig. §§ 575-589; Dec. Dig. § 101.*]</p> <p>2. Adverse Possession (§ 53*) — Color oe Title — Continuity oe Possession.</p> <p>Where a claimant under color of title takes possession and holds for a time adversely, but vacates before the statutory period expires, the moment such vacation occurs the owner, by reason of his legal title, will be regarded as in constructive possession, and the adverse possession of the wrongdoer is at an end.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 266-270; Dec. Dig. § 53.*]</p> <p>3. Adverse Possession (§ 112*) — Burden of Proof.</p> <p>The burden is on him who asserts adverse possession to sustain every element involved therein by a preponderance of the proof, and, if he fails with reference to any element, it is the court’s duty to charge that there is no sufficient evidence of adverse title.</p> <p>TEd. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. § 112.*]</p> <p>4. Adverse Possession (§ 14*) — Constructive Possession.</p> <p>No length'of constructive possession will ripen a defective title into a valid qne, but the possession for that purpose must be actual and continuous.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 77-81; Dec.’ Dig. § 14.*]</p> <p>5. ' Adversé Possession (§ 14*) — Possession op True Owner.</p> <p>Where there is no actual possession- of land, the law carries the possession to the real owner.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 77-81; Dec. Dig. § 14.*]</p> <p>6. Adverse Possession (§ 44*) — Color op Title.</p> <p>Possession of land under color of title must be taken by the claimant himself, his servants or tenants, and by him or them continued for the statutory period, and is not established by proof of a single entry on the land against which an injunction has been promptly secured.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 226-231; Dec. Dig. § 44.*]</p>

This suit comes here on appeal from an order and decree made in the District Court of the United States for the Southern District of New York and dated December 19, 1913, dismissing the bill of complaint for insufficiency of facts to constitute a valid cause of action.

Cushman, Judge. Suit in admiralty for collision by the Shaver Transportation Company, owner of the steamer Henderson, against the steam tug Samson and barges No. 8, No. 9, and No. 27, Columbia Contract Company, claimant, with the Standard Oil Company of California impleaded. Decree against respondent vessels, and claimant appeals.

Suit by the Gardiner Investment Company and others against the Jackson Company and others. From a decree in favor of complainants, defendants appeal.

<p>1. Bankruptcy (§■ 58*) — Act of Bankruptcy — Preferences—Conveyance to Hinder and Defraud Creditors.</p> <p>Where an alleged bankrupt, who was cashier and stockholder of an insolvent bank, while insolvent and subject to a double liability on his stock in the hank to the bank commissioner, after the bank had been taken possession of by the commissioner, executed a note for the full amount of such double liability, secured by a mortgage on nonexempt real property, with intent to prefer the commissioner over his other creditors, he thereby committed an act of bankruptcy, and was properly adjudicated a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 57, 72-79, 83; Dec. Dig. § 58.*]</p> <p>2. Bankruptcy (§ 58*) — Preferences.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 3a, 30 Stat. 546 (U. S. Comp. St. 1913, § 9587), providing that “acts of bankruptcy by a person shall consist of his having * * * (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors’’ over others, a transfer to a trustee for creditors will be treated as if made direct to the creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 57, 72-79, 83; Dec. Dig. § 58.*]</p>

IT. Hunger and Thos. C. Munger, Judges. Claim by the County of Douglas and others against Arthur English, as receiver of the property of the Nebraska Traction & Power Company and the Midland Guaranty & Trust Company, trustee, in mortgage foreclosure proceedings, to recover certain taxes. From an order directing the payment of the taxes, the trustee appeals.

Action at law by the Duckworth Company against the Farmers’ Oil & Guano Company. Judgment for plaintiff, and defendant brings error. This is a suit brought to recover damages for breach of contract of sale of cotton for future delivery. In the petition commencing the suit the plaintiff below, as to jurisdiction, alleged as follows: “First. That it is a corporation of the state of 'New Jersey, and was a corporation of the said state at the times hereinafter mentioned. “Second.

<p>Appeal from the District Court of the United States for the Mid•dle District of Pennsylvania.</p> <p>Suit in equity by the New York Continental Jewell Filtration Company against the City of Harrisburg. Decree for complainant, and defendant appeals.</p>

Killits, Judge. Suit in equjty by the Crown Cork & Seal Company of Baltimore City against the Sterling Cork & Seal Company. Decree for defendant (210 Fed. 26), and complainant appeals.

<p>1. Patents (§ 328*) — Validity and Infringement — Buckle.</p> <p>The Spangler patent, No. 972,937, for a clasp or buckle, while its elements are all or nearly all old, embodies a new combination of utility and requiring more than mechanical skill; also held infringed by the device of the Bliss patent, No. 1,034,681.</p> <p>2. Patents '(§ 25*) — “Invention”—What Constitutes.</p> <p>An aggregation and association of old elements may constitute invention, if it rises above mere mechanical skill and produces utility of a superior virtue to that previously attained.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 27-29; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p>3. CPatents (§ 39*) — Invention—“Novelty.”</p> <p>Novelty, appertaining to invention, may be hut a simple change in construction, if productive of a marked advancement in utility.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 46; Dec. Dig. § 39.*</p> <p>For other definitions, see Words and Phrases, Patentable Novelty; also Second Series, Novelty.]</p>

Rudkin, Judge. Suit in equity by the Diamond Patent Company against the S. E. Carr Company. Decree for defendant, and complainant appeals. The appellant, as the assignee of letters patent No. 801,944, issued to Fred Weber, of date October 17, 1905, brought a suit against the appellee for an injunction against infringement and for an accounting.

<p>Patents (§ 328*) — Validity and Infringement — Golf Ball.</p> <p>The Work and Haskell patent, No. 622,834, for a golf ball, the core of which is composed of rubber thread wound under tension, covers a ball not merely differing in degree from the old style gutta percha ball, but one substantially different in kind, which by reason of its specific difference in construction and greater resiliency has a much longer range of flight, and the patent discloses invention and is valid; also held infringed.</p>

<p>In Equity. Suit by the Belsteel Company and John Kerwin against the Lorain Steel Company. On final hearing.</p>

In Equity. Suit by the McCaskey Register Company against George L. Mantz for infringement of letters patent No. 783,126, for account-recording appliances, granted February 21, 1905, to Perry A. McCaskey. On final hearing.

<p>Bankruptcy (§ 165*) — Preferences—Security—Receipt of Preference.</p> <p>Each of the defendants, directors of the bankrupt corporation, having advanced to it sums aggregating more than §5,000 each, and the company being in need of $1,000 more, one of the director’s wives agreed to advance such additional sum on receiving a mortgage from the corporation, which it was agreed as a part of the same transaction should secure $3,500 of the amount advanced to each of the directors. To carry out this arrangement, the mortgage was executed -by the corporation xfor §8,000 to the wife, and she gave a check to the corporation for $8,000, with the understanding that it should give to each of the defendants its check for $3,500, which should be immediately indorsed by defendants and delivered to her. Held, that such transaction did not constitute a receipt of 83,500 by each of the defendants, and hence such sum was not recoverable from them by the bankrupt’s trustees as a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec.- Dig. § 165.*]</p>

<p>Removal oe Causes (§ 30*) — Grounds—Diversity oe Citizenship — Defendants — Resident Servant.</p> <p>Plaintiff brought suit against a foreign street railway company and two of its resident servants for injuries to plaintiff as a passenger, charging that the servants were respectively conductor and motorman of the car in which plaintiff was riding at the time of the injury. The names of the servants being unknown, they were designated as John Doe and Richard Roe, as permitted by the statutes of the state. -Held, that since the status of the parties, whether nominal or otherwise, depends on their relation to the controversy, and not on their designation, and substantial relief having been asked against them, they could not be treated as mere nominal parties, though not served, and, they being of the same citizenship as plaintiff, the action could not be removed by the nonresident defendant.</p> <p>, [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 70; Dec. Dig. § 30.*]</p>

<p>1. Street Railroads (§ 49*) — Lease—Construction.</p> <p>A provision in a lease of a street railroad system, requiring the lessee, “upon the expiration or earlier termina Lion of this lease (to) deliver up the said demised railroads and other property and all additions thereto-in good order and repair,” hinds it, where it has replaced rails or other parts of the roadway with heavier rails or more expensive parts, to return the structure as thus improved in good order and repair, but, where it has not made such betterments before the termination of the lease, the obligation is merely to keep the existing type of structure in such condition.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>2. Street Railroads (§ 49*) — Lease—Liability of Lessee — Covenant to Return Property in Good Order and Repair — “Good Order and Repair.”</p> <p>Such lease having been terminated by the insolvency of the lessee and tlie appointment of receivers for both lessee and Lessor, who operated the roads for the latter tor four years or more, where there was evidence) that, at the time of the receivership, a considerable portion of the lines needed new rails to place the roadway in good condition and repair, although, owing to the financial condition of the lessee, tito old rails were not being replaced, the fact that the lines could he operated, and that the .rails were not. at once replaced by the receivers, but the work was continued through three or four years as funds and conditions permitted, does not warrant a finding that the tracks and roadway were in “good order and repair,” within the meaning of the lease, at the time of its te;rruination, nor a limitation of the liability of the lessee thereunder to the cost of such replacements as were made within any fixed time after thp receivership.• '</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*</p> <p>Por other definitions, see Words and Phrases, Pirst and Second Series, Good Order and Condition.]</p> <p>.3. Street Railroads (g 49*) — Lease—Covenant to Return Property in Good Order and Repair. ■</p> <p>Under a covenant, in a lease of street railroad property, to deliver up the same upon the expiration or earlier termination of the lease, with all additions thereto, in “good order and repair,” the condition of the property at the time of the lease is immaterial in determining the liability of the lessee for breach of such covenant.</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*]</p> <p>4. Street Railroads (§ 49*) — Lease—Liability of Lessee.</p> <p>In a lease of a street railroad system, which operated as an assignment of prior leases, under which the lessor held certain of the lines in the system, the lessee covenanted in effect to perform the conditions of the prior leases so long as its own lease continued in force. On the termination of the lease by the insolvency of the lessee and the appointment of receivers for both lessee and lessor, the receivers of the lessor surrendered such leased lines to the original lessors, who were subsequently awarded damages for breaches of their leases, which were made charges upon the estates of both their lessee and its assignee. Held that, as to such damages, the assignee was the principal debtor, and its lessor the surety, and that, on an accounting between them, the lessor was entitled to recover only so much as it should be required to pay to its own lessors.</p> <p>[Ed. Note. — Por other eases, see Street Railroads, Cent. Dig. §§■ 125, 126; Dec. Dig. § 49.*]</p> <p>5. Street- Railroads (§ 49*) — Lease—Accounting Between Receivers of Lessor and Lessee.</p> <p>Various items of claim and counterclaim considered and disposed of on the evidence on an accounting between the receivers of the lessor and the lessee of a street railroad company after the termination of the lease.</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. § 49.*}</p>

At Law. Actions by Joseph Teti and Joseph Tomaino, as administrators, etc., of Antonio Teti, deceased, and by Joseph Tomaino and Joseph Teti, as administrators of Joseph Dastoli, deceased, against the Consolidated Coal Company of Maryland. On demurrer by defendant in each case to the plaintiff’s complaint. Demurrer overruled in the Teti Case and sustained in the Dastoli Case.

Petition for writ of habeas corpus by Lam Pui, an alien Chinese in the custody of W. R. Morton, and held for deportation, upon warrant of Hon. W. B. Wilson, Secretary of Labor.

<p>Application by L,am Fuk Talc for a writ of habeas corpus. Petitioner discharged.</p>

In Bankruptcy. In the matter of F. Rae Suprenant, bankrupt. Motion by trustee in bankruptcy to continue an injunction granted on order to show cause restraining the sheriff and certain judgment creditors of Moody and Suprenant from selling on execution or interfering with certain personal property formerly owned by the firm or copartnership of Moody & Suprenant, but which property came into the sole possession of Suprenant as alleged owner more than four months prior to the…

<p>1. Dbtjggists (§ 11*) — Insecticide—Misbranding—Fraudulent Intent.</p> <p>Absence of a fraudulent intent on the part of a shipper is no defense to proceedings for misbranding, in violation of the Insecticide Act (U. S. Comp. St. 1913, § 8705).</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. § 11.*]</p> <p>2. Evidence (§ 363*) — Text-Books—Admissibility.</p> <p>Where an insecticide, sold under the name “chloro-naptholeum,” was claimed to be misbranded, and the government sought to show that ehlornaptliol was a recognized chemical product, standard chemical books, produced from the library of the Department of Agriculture, were admissible, not as evidence of the opinions of the text-writers, but to show the state of the art or of the world’s knowledge on tho subject.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1516-1519; Dec. Dig. § 363.*]</p> <p>3. Druggists (§ 11*) — Insecticide—Easels.</p> <p>A word used on a label of an insecticide or other drug does not become purely arbitrary until it has lost its descriptive significance, both to the specialist in the subject and to the general public, so that, where common words are put on labels, they will be held to have been used in their popular meaning rather than that which they may have acquired among manufacturers and dealers.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. § ll.*J</p> <p>4. Druggists (§ 11*) — Insecticide—Misbranding—Chloro-Nabtiiolkum.</p> <p>Insecticide Act April 26, 1910, c. 191, 36 Stat. 331 (TJ. S. Comp. St. 19Í3. § 8705), provides that an article shall be deemed misbranded if it be labeled or branded so as to deceive or mislead the purchaser. Claimant had manufactured and for many years had sold an insecticide labeled “ehlovonaptholeum,” which, however, did not contain as an essential ingredient chlorine or chlor-napthol. Chlorine, however, was shown to be a valuable disinfectant, and had been recognized as such since the close of the eighteenth century; and napthol is also well known as a powerful germicide, and as early as 1881 the name “chlor-napthol” had been given to a definite chemical compound. Held that, since the name, as applied to claimant’s product, would be likely to deceive those having knowledge of chlorine and chlor-napthol, and their chemical character and attributes, claimant’s substance was misbranded, though the word used by it had by long use, to the large majority of people, become associated with claimant’s product.</p> <p>• [Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. § 11.*]</p> <p>5. Druggists (§ 11*) — Insecticides—“Misbrand.”</p> <p>Under the Insecticide Act (U. S. Comp. St. Supp. 1911, p. 1372), goods are misbranded, if they bear any statement which will deceive or mislead purchasers who are of normal cápacity and who use that capacity in a common-sense way.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dee. Dig. § 11.*</p> <p>For other definitions, see Words and Phrases, Second Series, Misbrand.]</p>

<p>Application for a writ of mandamus by Fred FI. Thompson against F. H. Duehay, Superintendent of Prisons of the Department of Justice, and others.</p>

<p>In Bankruptcy. In the matter of the Kinnane Company, bankrupt. On application to confirm composition.</p>

<p>1. Bankruptcy (§ 414*) — Discharge—Application—Hearing—Evidence.</p> <p>On an application for a bankrupt’s discharge, his testimony given in his general examination is admissible against him, so far as material, as admissions.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p> <p>2. Evidence (§ 249*) — Admissions and Representations op Partner.</p> <p>On the general ground of agency, admissions and representations of a partner, made in the ordinary course of the firm’s business concerning its affairs, are admissible against his copartners; but admissions made after dissolution of the firm are incompetent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 965-975; Dec. Dig. § 249.*]</p> <p>3. Bankruptcy (§ 413*) — Discharge—Objections—Nature op Proceeding —New “Action.”</p> <p>Objections to a bankrupt’s discharge are the beginnirfg of a distinct and separate dispute, and constitute a new suit or “action,” the hearing of which is in effect a trial in equity.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. § 413.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, ■ Action.]</p> <p>4. Bankruptcy (§ 414*) — Application for Discharge — Partnership—Evidence — “Course of the Firm’s Business.”</p> <p>A partnership having been dissolved by 'bankruptcy proceedings against it, the examination of the bankrupts in such proceedings was not a matter occurring in the “course of the firm’s business”; and hence the evidence of each bankrupt, taken in the general course of bankruptcy proceedings, was admissible only against him in a subsequent proceeding to obtain his discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of David Z. Schweitzer. On petition to review a referee’s order requiring the surrender of certain property to the bankrupt’s trustee.</p>

This cause comes here on appeal from a final decree of the United States District Court for the Southern District of New York finding that the libelant is entitled to recover from the respondent Fields S. Pendleton nine-sixteenths of the amount of its damages, but that the said Fields S. Pendleton is entitled to limit his liability to his interest in the schooner Edith Olcott and her freight, and dismissing the libel as to the said Pendleton, which decree was entered on…

<p>1. Evidence (§ 253*) — Admissions of Conspirators — Statements Made after End of Conspiracy.</p> <p>Where a conspiracy is charged, acts of one of the alleged conspirators, done while the conspiracy is pending, and in furtherance of its object, are deemed the acts of all, and may be shown in evidence against all, but after the conspiracy has come to an end, either through success or failure, admissions of one conspirator, by way of narration of past facts, are not admissible against others.</p> <p>[Ed. Note. — Eor other eases, see Evidence, Cent. Dig. §§ 994-1002; Dec. Dig. § 253.*]</p> <p>2. Appeal and Error (§ 970*) — Trial (§ 60*) — Review — Discretion of Court — Order of Proof.</p> <p>Declarations of alleged conspirators may be admitted before the conspiracy is sufficiently shown, the plaintiff undertaking to furnish such proof later, but this rests in the discretion of the trial court, and its ruling in admitting or excluding such testimony will not ordinarily be disturbed by an appellate court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970 ;* Trial, Cent. Dig. §§ 141-145; Dec. Dig. § 60.*]</p> <p>3. Evidence (§ 220*) — Admissions—Failure to Deny Statements Made in Newspaper Article.</p> <p>A newspaper article containing statements concerning the acts of a party is not admissible in evidence against him merely because, when called to his attention, he did not deny the statements.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 771-785; Dec. Dig. §. 220.*]</p>

Rudkin, Judge. Action by Edgar E. Campbell against the Spokane & Inland Empire Railroad Company. Judgment for plaintiff, and defendant brings error. On the afternoon of the 31st day of July, 1909, at about 4:30 o’clock, the defendant in error, plaintiff below, he being the motorman, started with his train of three cars — the motor car and two trailers — out of Coaur d’Alene over the electric -line for Spokane.

<p> (iSyllabus by the Court.) </p> <p>1. Appeal and Error (§§ 1031, 1062*) — Prejudicial Eseob — Refusal to Withdraw Charge — Presumption of Prejudice.</p> <p>A refusal by the court to grant a specific request to withdraw from the jury at the close of the trial one of several charges of negligence on which the plaintiff is seeking to recover is fatal error, if there is no substantial evidence to sustain that charge, although there may be evidence to sustain others, because the presumption is that error produces prejudice, and the appellate court cannot know that it was not npon that baseless charge that the jury founded its verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4040, 4212-4218; Dec. Dig. §§ 1031, 1062.*] .</p> <p>2. Trial (§ 145*) — Direction of Verdict — Evidence.</p> <p>It is the duty of the trial court at the close of the evidence, at the request of counsel, to direct the finding of the jury upon each issue of fact upon which the evidence is undisputed, or so clearly preponderant, or of' such a conclusive character that the court would be bound in the exercise of a sound judicial discretion to set aside a contrary finding.</p> <p>[Ed. Note. — For. other cases, see Trial, Cent. Dig. §§ 328, 341; Dec.. Dig. § 145.*]</p> <p>3. Railroads (§ 383*) — Railroad Yards — Duty of Pedestrian.</p> <p>“No one, whether passenger, licensee, or trespasser, can frequent or walk over a private railroad yard covered by many tracks employed constantly for a variety of purposes like through travel, switching, breaking up, and making up trains, without scrupulously * * * exercising the-utmost * * * vigilance in looking out for approaching engines and trains.” Hart v. Northern Pacific Ry. Co., 196 Fed. 180, 185, 116 C. C. A. 12, 17. It is his duty to look and listen. If he cannot see or hear that no engines or cars are approaching, it is his duty to stop until he can. If smoke or steam obscure his vision, or noise his hearing, it is his duty to keep off the track until they so disappear that he can be sure that he will incur no danger by entering upon or crossing it.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1305-1310; Dec. Dig. § 383.*]</p> <p>4. Master and Servant (§ 137*) — Injury to Railroad Employe — Railroad-Yard- — -Negligence.</p> <p>It is not a lack of ordinary care for a railroad company to fail, in its private railroad yard in constant and active use, over which its employés have been and are in the habit of crossing to and from their work, not in crowds, but thinly scattered, to place or maintain a man for the purpose of warning employés of its approach, notifying the engineer of their proximity, and turning an angle cock to stop it, upon a switch engine which is working in the yard, with its bell ringing, its headlight burning, and its engineer and fireman watching for the employés and handling the engine as the rule of the company requires them to do.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269,. 270, 273, 274, 277, 278; Dec. Dig. §• 137.*] * ■</p>

<p>1. Contracts (§ 116*) — Combinations Prohibited — Contract Granting Exclusive Use of Right of Way to Telegraph Company — Validity.</p> <p>A contract by a railroad company, giving a telegraph company the exclusive right to maintain a telegraph line upon its right of way, is contrary to public policy and void.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 512-552; Dec. Dig. § lie.*]</p> <p>2. Injunction (5 5*) — Nature and Form of Remedy — Mandatory Injunction.</p> <p>An “injunction” is a writ framed according to the circumstances of tlie case, and a court of equity is not always limited to the restraint of a contemplated or threatened action, but may require affirmative action, where the circumstances of the case demand it.</p> <p>n-’d. Note. — For other cases, see Injunction, Cent. Dig. § 4: Dec. Dig. § 5.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Injunction.]</p> <p>3. Injunction (§ 57*) — Nature and Form of Remedy — Mandatory Injunction.</p> <p>Where a railroad company and a telegraph company had agreed on a contract giving the latter the right to construct and maintain its line on the rail road company’s right of way, and its execution was prevented only by the objection of another telegraph company, which claimed exclusive use of the right of way under an illegal contract, it was within the power of a court of equity to require the execution of such contract by a mandatory injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 111-113, 130; Dec. Dig. § 57.*]</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by the Union Pacific Railroad Company against the Board of County Commissioners of the County of Weld, State of Colorado, and others. Decree for defendants, and complainant appeals.</p>

Upon Petition for Revision from the District Court of the United States for the District of Idaho, Northern División; Frank S. Dietriclc, Judge. In the matter of the Dane Lumber Company, Limited, bankrupt, Samuel L. Boyd, trustee. Petition by Johanna Hirlinger to revise an order denying her petition for the allowance of her claim as a secured debt.

Dietrich, Judge. In the matter of the Dane Lumber Company, Limited, bankrupt. Appeal by Samuel L. Boyd, trustee, from an order (210 Fed. 82), allowing the claim of M. K. Wall to a vendor’s lien.

Dietrich, Judge. In the matter'of the Lane Lumber Company, Limited, bankrupt. Appeal by Samuel L. Boyd, trustee, from an order (210 Fed. 82), allowing the claim of Mary Wall to a vendor’s lien.

' In Error to the District Court of the United States for the Western District of Missouri; Smith McPherson, Judge. Action by Charles A. Marsh and others against P. Stephen Harris and others. Judgment for plaintiffs, and defendants 'bring error.

<p>In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit by William U. Hammond, as trustee in bankruptcy of the Handy Things Company, against the Stearns Salt & Dumber Company. Judgment for plaintiff, and defendant brings error.</p>

Action at law by W. C. Powell, administrator of the estate of M. Emma Powell, deceased, against the Mutual Uife Insurance Company of New York. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller,' Judge.</p> <p>Action at law by Annette S. Perkins against the Prudence Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Liens (§ 16*) — Common-Law Lien — Waiver by Claiming Statutory Lien.</p> <p>By instituting proceedings to claim and perfect a lien given by statute, the claimant waives the right to claim a common-law lien.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 7-16; Dec. Dig. § 16.*]</p> <p>2. Logs and Logging (§ 26*) — Statutory Liens — “Laborer.”</p> <p>Persons contracting to log and cut certain timber for a stated price per thousand feet for the lumber produced held not “laborers,” within the meaning of Code Va. 1904, § 2485, and not entitled to a lien on the lumber thereunder.</p> <p>[Ed. Note. — For other cases, see Logs and .Logging, Cent. Dig. §§ 6CW>6; Dec. Dig. § 26.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Laborer.</p> <p>Who are entitled to liens or preferences as laborers or employés, see note to Latta v. Lonsdale, 47 C. C. A. 2.]</p>

<p>Patents (§ 328*) — Validity and Infringement — Process of Desiccating Milk.</p> <p>The Stauf patent, No. 666,711, for a method of desiccating blood, milk, etc., is for the same invention described and claimed in the original application, was not anticipated, and discloses patentable invention; also held infringed.</p>

<p>In Equity. Suit by the Sundh Electric Company against the General Electric Company. On motion for supplementary injunction.</p>

<p>At Law. Action by Georgeanne Wood, as executrix of Jerome I. Wood, deceased, against the Concrete Fibre Company. On rule for judgment on the pleadings.</p>

<p>1. Mechanics’ Diens (§ 271*) — Proceeding to Enforce — Pleading.</p> <p>A petition to establish a mechanic’s lien on property in the hands of a receiver held insufficient in failing to show how much work was done of to be. done out of the total contract price.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*]</p> <p>2. Mechanics’ Liens (§ 132*) — Completion of Work — Defects.</p> <p>Subsequent making good of a defect then appearing in the work will not reopen the time of actual completion, from which the 90-day period starts.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. § 132.*]</p>

<p>1. Corporations (§' 661*) — Service oe Process — Designation of Agent.</p> <p>Where a trust deed was executed in 1911, appointing a Pennsylvania corporation trustee for bondholders, the trustee was not disqualified to maintain a suit to foreclose the mortgage because of. its failure to appoint an agent in Oregon, where property covered was located, as required by Laws Or. 1913, p. 730, § 24; there being nothing in the act indicating legislative intention that it should be retroactive.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542, 2543, 2544, 2546, 2563-2567; Dee. Dig. § 661.*]</p> <p>2. Corporations (§ 643*) — Foreign Corporations — Trust Companies — Deposits.</p> <p>Laws Or. 1913, p. 730, § 24, provides that in case any foreign corporation whose name contains the word “trust,” or whose articles of incorporation empower it to do a trust business, desires to engage in the business of loaning money on mortgage security in the state, it shall file, in addition to its articles of incorporation or association, a resolution of its governing board stating that it will not receive deposits in Oregon or accept from citizens property or money in trust for investment. Held, that a foreign trust company named as trustee in a deed of trust on property in Oregon was not disqualified to act by a failure to comply with such act, in the absence of any claim that it had accepted deposits or received from citizens or residents of Oregon property or money in trust for deposit or investment.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2510, 2511, 2536, 2538, 2539, 2541, 2543, 2545, 2546; Dec. Dig. § 643.*]</p> <p>3. Corporations (§ 482*) — Trust Deeds — Foreclosure.</p> <p>A trust company, appointed as trustee under a deed of trust securing bonds, providing that a majority in interest of the outstanding bondholders in case of default were entitled to declare the whole amount due and direct foreclosure, was not disqualified to act as trustee because it was named and consented to act with certain bondholders representing a large majority of the outstanding bonds in foreclosure proceedings and contemplating reorganization pursuant to a bondholders’ agreement, which provided for the deposit of bonds with the trustee for a greater convenience in conducting the proceedings; the terms of the agreement not being such as to conflict with the duties the trustee owed to the bondholders as such.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dee. Dig. § 482.*]</p> <p>4. Corporations (§ 479*) — Mortgages — Bondholders’ Agreement — Construction.</p> <p>A bondholders’ agreement for reorganization, providing that a depositary shall be bound to exercise only reasonable care in the safe-keeping of the deposited bonds, etc., did not touch the depositary’s duties to the bondholders as trustee under the deed of trust.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>.5. Corporations (§ 479*) — Deed oe Trust — Foreclosure — Bondholders’ Agreement.</p> <p>A provision of a bondholders’ agreement that the committee appointed to arrange foreclosure and reorganization assumed no obligation to any bondholder who should not within the period limited deposit his bonds thereunder, or to any other person except holders of certificates of deposit issued in accordance with the terms of the agreement, contemplated only that by the bondholders’ agreement no new obligations were assumed or cast on the men composing the committee to any bondholders not depositing their bonds, but did not free the committee of the depositing bondholders, nor the trust company as trustee, of any obligation under the deed of trust, or growing out of it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>6. Corporations (§ 479*) — Trust Deed — Trustee—Delegation of Duties.</p> <p>The rule forbidding delegation of authority by a trustee does not forbid the majority of corporate bondholders from delegating to a committee the power to give necessary instructions to the trustee as to the foreclosure of the deed of trust securing the bonds.</p> <p>[Ed. Noto. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>'7. Corporations (§ 479*) — Deed of Trust — Foreclosure — Bondholders’ Agreement.</p> <p>A bondholders’ agreement preliminary to the foreclosure of a corporation’s deed of trust authorized the committee to consent to the payment of interest on any bonds, securities, or other obligations against the corporation, and to instruct the trustee or trustees under any agreement under which any of the bonds may have been issued from time to time to soli or refrain from selling any of the property covered by any such mortgages. Held, that such provision constituted a delegation to the committee by the depositing bondholders of the power to consent and instruct for them, and did not bind the trustee, by its consent to act as depositary, to submit to the direction of the committee as to the sale of the property covered by the agreement, or to follow the committee’s instructions.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>8. Corporations (§ 478*) — Deed of Trust — Sale of Property — Condemnation — Application of Proceeds.</p> <p>A deed of trust executed by a corporation to secure a bond issue provided that the company, in the absence of default, should be entitled to convey, freed from the deed, all or any of Its real estate which should no longer be useful or necessary to its business, the net proceeds to be paid to the trustee and applied, at the election, of the corporation, either to the benefit or extension of the corporation’s plants or to the purchase “in the open market” of bonds secured by the deed. The following clause declared that the corporation should have the further right at all times, in the absence of default, to convey, free from the deed, any of its plants or systems, or any property so sold or assigned, in the same manner as set out in the preceding provision, the proceeds to be applied “only to the redemption and cancellation of outstanding bonds.” Held, that the first provision should be construed as relating to sales of minor portions of the corporation’s property, and did not relate to the taking by a city in the-exercise of its power of eminent domain of an entire water plant or system belonging to the company, which was covered by the second subdivision.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Digc § 1871; Dec-Dig. § 478.*]</p> <p>9. Corporations (§ 479*) — Deed of Trust — Sale of Property — Acts of-Trustee.</p> <p>Where property of a corporation covered by a trust deed was taken by a city in the exercise of its right of eminent domain, and it was doubtful which provision of the trust deed covered the disposition of the proceeds, the trustee would not be'held disqualified for a mistake, which was not gross, in determining such question, in the absence of fraud, especially where it acted under the provision affording the bondholders the greatest protection.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>10. Corporations (§ 479*) — Deed of Trust — Misconduct of Trustee.</p> <p>An allegation that a trustee under a corporate deed of trust securing ' bonds used the proceeds of a taking of certain of the corporation’s property to purchase bonds from the corporation’s trustees, instead of in the open market, or for betterments or extensions as provided in the deed, did not show disqualifying misconduct, in the absence of an allegation that the bonds could have been obtained in the open market, that an excessive price was paid for those purchased, or that any request had been made to the trustee for the proceeds by the mortgagor to be used in betterments or extensions.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>11. Corporations (§ 479*) — Trust Deed — Foreclosure — Bondholders’’ Agreement — Deposit—Certificate.</p> <p>Where a trust company, which was trustee under a corporation’s trust deed securing a bond issue, was also depositary under a bondholders' agreement looking to foreclosure, a certificate issued by it, certifying that the holder was bound by the terms of the agreement and entitled to the advantages accruing to the depositors of bonds thereunder, was not an undertaking by the trust company that the certificate holder should receive the benefits of the bondholders’ agreement beyond safe-keeping by the trustee of the deposited bonds and the dealing with them, while so-kept, as directed by the bondholders’ committee under the agreement.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dec. Dig. § 479.*]</p> <p>12. Corporations'(§ 479*) — Deed of Trust — Foreclosure — Bondholders’ Committee — Depositary.</p> <p>Where a bondholders’ agreement, looking to the foreclosure of a corporation’s deed of trust securing bonds, provided for the deposit of the bonds with the trustee as a depositary, and that the title to the bonds-on deposit should pass to the bondholders’ committee, the depositary was-only bound to use ordinary care to keep the bonds and deal with them as the committee directed.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1869, 1872-1874; Dee. Dig. § 479.*]</p> <p>13. Corporations (§ 479*) — Mortgages — Deed of Trust — Bondholders’ Agreement.</p> <p>A bondholders’ agreement that a trust company, which was trustee under the corporation’s deed of trust securing the bonds, should act as depositary in proceedings looking to foreclosure of the deed, and should deal with the bonds in accordance with the directions of the bondholders’ committee, did not contemplate any broadening of the duties of tbe trust company under tbe deed of trust.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1869, 1872-3874-; Dec. Dig. § 479.*]</p> <p>14. Corporations (§ 473*) — Detob of Trust — Foreclosure—Bondholders’ Committee.</p> <p>That bondholders were also holders of unpaid stock in tbe mortgagor corporation did not Authorize the setting off of tbe amounts due on such stock against the bonds held by such delinquent bondholders, on foreclosure of a trust deed securing the bonds.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1842-1853, 1855; Dec. Dig. § 473.*]</p> <p>15. Corporations (§ 247*) — Deed of Trust — Provision—Security—Unpaid Stock.</p> <p>A trust deed securing corporate bonds provided that no recourse should be had for the payment of principal and interest of the bonds to the stockholders, officers, or trustees of the corporation by virtue of any statute, or by enforcement of any assessment or otherwise, and any and all personal liability of stockholders in respect to the bonds was waived and released by every holder thereof. It also provided that for the debt and bonds secured the corporation was liable in personam, and any deficiency after exhausting the mortgage security might be enforced against tbe corporation, but not against its officers, trustees, or stockholders individually. Held, that by such provisions the bondholders waived their right to have recourse to the stockholders on account of their liability for unpaid stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 983-997; Dec. Dig. § 247.*]</p> <p>16. Corporations (§ 482*) — Deed of Trust — Bonds—Validity—Foreclosure Proceedings.</p> <p>An averment of an intervener’s bill, in a suit to foreclose a corporate deed of trust, that bonds held by members of a bondholders’ committee and other majority bondholders were issued without consideration and were invalid, was insufficient to warrant the stay of foreclosure proceedings until the amount and validity of the outstanding bonds bad been determined.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 1870, 1877-. 1888; Dec. Dig. § 482.*]</p> <p>17. Corporations (§ 482*) — Deed of Trust — Trustee—Disqualification.</p> <p>A bill of intervention, to disqualify the trustee under a corporate deed of trust securing bonds to proceed with foreclosure proceedings, alleging that the. trustee’s solicitor also represented tbe mortgagor, one of the members of the bondholders’ committee under a second mortgage, the trustee under the second mortgage, a committee of consolidated bondholders under the first mortgage, holders of stock in the mortgagor company, the committee of second mortgaged bondholders, and certain general creditors of tbe mortgagor, merely showed that the trustee was acting in conjunction with other interested parties, and did not indicate disqualifying misconduct.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. § 482.*]</p> <p>18. Corporations (§ 482*) — Deed of Trust — Foreclosure—Conspiracy— Keeping Books Outside State.</p> <p>An allegation that the books of a corporation have been and were kept outside the state, in violation of statute, did not support an averment that tbe trustees of the mortgagor company and others, including certain of the bondholders, had conspired to cause the mortgage property to be sold, free from tile claims of intervening bondholders and other creditors, for a sum much less than its actual value, and insufficient to pay in full the claims of the intervening bondholders,-and insufficient to pay any sum . to general creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. § 482.*]</p>

<p>In Admiralty. Suit for collision by the Strathalbyn Steamship Company, Limited, as owner of the steamship Strathalbyn, against the steamship Virginian, American-Hawaiian Steamship Company, claimant, and cross-libelant; also suit by the same libelant as bailee of cargo against the same respondent, with the steamship Strathalbyn inter-pleaded. Cases consolidated.</p>

<p>1 Judgment (§ 717*) — Res Judicata — Interlocutory Decree by Consent.</p> <p>In a consolidated suit by a number of libelants and interveners to establish and enforce liens on a dredge, an interlocutory decree was entered by stipulation of all parties, including the owner of the dredge, finding that all the material allegations of the libels were true and that the libelants severally were entitled to recover the sums set out It also ordered the dredge sold and the net proceeds paid into court to await its further orders, and decreed that, if insufficient to pay all of the claims in full, it should bo distributed “pro rata in accordance with the sums and amount of claims of equal dignity herein adjudged to be due and payable.” Held, that while, by such decree, the amounts and dates of the claims of the several libelants and interveners, and the considerations on which they were based, became res judicata as between the claimants named, the decree was not conclusive as to conclusions of law stated in the libels, and that the questions whether any claim constituted a maritime lien, and, if so, to what extent and of what dignity, were open for determination by the court.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1248; Dec. Dig. § 717.*]</p> <p>2. Admiralty (§ 03*) — Hearing—Review op Prior Interlocutory Orders.</p> <p>In admiralty, as in equity, on final hearing, all interlocutory orders relating to the merits are open to revision and under the control of the court.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 674-679; Dec. Dig. § 93.*]</p> <p>3. Maritime Liens (§ 25*) — Repairs and Supplies — Construction op Statute.</p> <p>Act June 23,1910, c. 373, § 1, 36 Stat. 604 (U. S. Comp. St. 1913, § 7783), giving a lien for repairs, supplies, or other necessaries furnished to a vessel ón order of the owner or a person authorized by him, does not create a new class of liens, and applies only to claims and contracts previously recognized as maritime and cognizable in admiralty.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Pig. §§ 20, 31-86; Dec. Dig. § 25.*]</p> <p>4. Maritime Liens (§ 25*) — Claims Entitled to Lien — Contracts por Construction and Equipment op Dredge — “Maritime Contracts.”</p> <p>Respondent, having taken a government contract for dre'dging, bought an old hull and delivered the same to a contracting and constructing engineer to be used in the construction of a hydraulic dredge. Held, thaf, until the dredge was completed and equipped for the use for which it was intended, it did not become a maritime entity within the admiralty jurisdiction, and that the contract for building the same, and contracts for materials, machinery, and equipment necessary for such completion were not “maritime contracts,” and could not be the basis for lletas on the vessel, under Act June 23, 1910.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 20, 31-36; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.]</p> <p>5. Maritime Liens (§§ 10, 11, 12*) — Claims Entitled To Lien — Repairs and Supplies Furnished to Dredge.</p> <p>Creditors for repairs, supplies, pontoons, and other equipment furnished to a hydraulic dredge while engaged in work, which were necessary to her continued operation and furnished on the credit of the vessel, held entitled to maritime liens therefor.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 14, 15, 16; Dec. Dig. '§§ 10, 11, 12.*]</p> <p>6. Maritime Liens (§ 10*) — Claims Entitled to Lien — Equipment pob Dredge.</p> <p>While a hydraulic dredge' was being built, libelant furnished on order of the owner rubber sleeves for use in connecting the pipes through which the material taken out by the dredge was carried and discharged. The sleeves were not unpacked nor used until the dredge had been completed and commenced work, and were necessary to its operation. Held, that they were a part of the original construction or equipment, without which the dredge was incomplete, and not repairs or supplies, and that libelant was not entitled to a maritime lien.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 14; Dec. . Dig. § 10.*]</p> <p>7. Maritime Liens (§ 38*) — Repairs and Supplies — Construction op Statute.</p> <p>Act June 23, 1910, c. 373, § 1, gives a lien for repairs or supplies furnished to a vessel on the order of her owner in her home port, which' may be enforced by proceedings in rem, without proof that such repairs or supplies were furnished on the credit of the vessel, whereas previously such right only existed as to repairs or supplies furnished in a foreign port; but the lien so given is a “maritime lien,” and the statute does not affect or restrict the power of courts of admiralty to apply to such liens the principles applied to other maritime liens in determining rights of priority.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. §§ 71-77; Dec. Dig. § 38.*]</p> <p>8. Words and Phrases — “Reconstruct”—“Convert.”</p> <p>The words “reconstruct” and “convert” are not synonymous.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First Series, Convert; also, First and Second Series, Reconstruct.]</p> <p>9. Words and Phrases — “Construction.”</p> <p>. “Construction” is the process of bringing together and correlating a number of independent entities, so as to form a definite entity.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Construct.]</p>

<p>1. Judgment (§ 349*) — Power of Court at Subsequent Teem to Vacate— Void Judgments.</p> <p>While a court has no power to vacate, modify, or amend a valid judgment or decree after the term at which it was entered, all courts have the inherent power to vacate at any time their own judgments rendered without, or in excess of, jurisdiction.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 685; Dec. Dig. § 349.*]</p> <p>2. Judgment (§ 15*) — Jurisdiction to Render — Conformity to Issues.</p> <p>Although a court has jurisdiction of the subject-matter of an action and of the parties, its power to render a valid judgment is nevertheless limited by the nature of the suit and the issues made by the pleadings, and if it transcends such limits its judgment is without jurisdiction and void.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 23; Dec. Dig. § 15.*]</p> <p>3. Judgment (§ 248*) — Conformity to Pleading.</p> <p>A suit by a stockholder against the corporation and another, brought on behalf of himself and all other stockholders, in which the bill alleges a fraudulent transfer by its officers of all of the property and assets of the corporation to its codefendant, and prays that such transfer be set aside and the property restored, that an accounting be had between the defendants and between the corporation and its stockholders, that a receiver be appointed and the affairs of the corporation be wound pp and its assets distributed to those found to be entitled thereto, is a suit for an injury to the corporation and to enforce a right of the corporation for the benefit of all of its stockholders, and a decree finding that the transfer of the property was fraudulent, but confirming the title in the transferee, and adjudging that complainant, or other stockholders who have intervened and adopted the allegations and prayer of his bill, recover from defendants the several amounts they had paid into the corporation, and making the same a lien on the transferred property, was not authorized by due course of procedure, and is outside the issues and void as to stockholders who were not before the court, hut had a right to expect such course of procedure to be followed and their rights protected.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. § 248.*]</p> <p>4. Judgment (§ 342*) — Decree in Excess of Jurisdiction — Power of Court to Vacate.</p> <p>In such case the court has power at a subsequent term to vacate the decree, and to enter a decree in conformity to the pleadings and findings.</p> <p>[Ed. Note.. — For other cases, see Judgment, Cent. Dig. §§ 668-671; Dec. Dig. § 342.*]</p>

In Equity. Suit by the United States of America against G. W. McCutchen and others to quiet title to certain oil land. On application for the appointment of a receiver.

<p>1. Monopolies (§ 26*) — Anti-Trust Act — Unlawful Combinations — Equitable Remedy.</p> <p>The Sherman Anti-Trust Act July 2, 1890 (26 Stat. 209, c. 647 [U. S. Comp. St. 1913, § 8820 et seq.]), section 4 of which alone relates to an equitable remedy for its violation, contains in terms no provision for ' equitable relief to the public, except by way of injunction or prohibition; and while the power-to dissolve an unlawful combination clearly exists, and should be exercised when necessary to give complete relief, the legislative policy as disclosed by the terms of the act is clearly to resort to restraint rather than to dissolution, except where restraint alone is inadequate. The means to be employed to put an end to such a combination are governed by no uniform rule, but depend upon the facts of the particular ease; and even where dissolution seems to be required to the furnishing of complete relief, such requirement does not necessarily amount to more than that the eombinatioh.be dissolved so far as unlawful.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dee. Dig. § 26.*]</p> <p>2. Monopolies (§ 26*) — Anti-Trust Act — Suit Against Unlawful Combination — Receivership.</p> <p>While a receivership is proper, when necessary to effect the dissolution of a combination which is unlawful, as in violation of tlie Anti-Trust Act, it is not' always necessary, even in such ease, and when it is not it should not be resorted to.</p> <p>[Ed. -Note/ — For other cases, see Monopolies, Cent. Dig. 8 17; § 26.*] ■ ■ Dec. Dig.</p> <p>3. Monopolies (§ 20*) — Astj-Tbttst Act — Suit to Kestbain Unlawful Combination — Nat use of Kelief.</p> <p>A towing compsmy. which through juirchasos of the stock of other competing companies and the vessels of still other owners, acquired a large percentage of the tugs operating on the Great Lakes, was adjudged to have created a monopoly, in violation of the Anti-Trust Act by nsiiig unfair means to prevent competitors from doing business anywhere on the Lakes. Held, that the violation of the law did not consist in the ownership of thy stock and vessels so acquired, but in the illegal method of doing business; that the remedy which would be most beneficial to the public was not a dissolution of the company through a receivership and sale of its vessels to a number of separate and independent purchasers, but a decree permitting it to continue business under proper and stringent injunctive regulations, which would eliminate the illegal practices and keep the way open for full and free competition.</p> <p>DM. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Doc. Dig. § 26.*]</p> <p>For other cases see same topic & § isroiiBKB in Dee. & Am. Digs. 1801 to date, & Rep’r Indexes</p>

<p>1. Admiralty (§ 10*) — Jurisdiction—“Maritime Contracts” — Bond Conditioned on Performance of Charter Party.</p> <p>A bond executed by a surety company, conditioned'for the payment of any damages arising from the breach by the charterer of the covenants and conditions of a charter party, is not a “maritime contract,” but a common-law obligation for the payment of damages in case of default in the performance of such a contract by another, and a suit thereon is not within the jurisdiction of a court of admiralty.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 131-149, 185-190; Dec. Dig. § 10*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.]</p> <p>2. Shipping (§ 58*) — Suit for Breach of Charter — Damages.</p> <p>An averment, in a libel by the owner of a vessel against a time charterer, filed before the expiration of the charter term, that respondent has refused to continue the use of the vessel, does not state a cause of action for the recovery of damages beyond the charter hire as it becomes due.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 233-244, 314, 327; Dec. Dig. § 58.*]</p>

<p>1. Pleading (§ 104*) — Plea—Demdreek.</p> <p>Where plaintiff sued in a federal court in Maryland to recover damages for the destruction of buildings and various articles of personal property by a Are negligently set out by defendant railroad company in West Virginia, a plea to the jurisdiction, that the land in question was located in West Virginia, and that the court had no jurisdiction in the premises, did not meet the entire case, and was therefore demurrable.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.*]</p> <p>2. Courts (§ 289*) — Jurisdiction—“Transitory Action.”</p> <p>An action to recover for the value of personal property destroyed is transitory, and may be brought in a federal court in a state other than that in which the property was situated.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 209.* •</p> <p>For other definitions, see Words and Phrases, First and Second Series, Transitory Action.]</p> <p>3. Courts (§ 7*) — Jurisdiction—Local or Transitory Action — What Law Governs.</p> <p>In determining whether an action is local or transitory, the law of the forum governs.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dee. Dig. § 7.*]</p> <p>4. Courts (§ 269*) — Jurisdiction—Local or Transitory Action — Injury to Real Property.</p> <p>.An action for the destruction of buildings in West Virginia by a fire set out by defendant railroad company was local in character, for trespass on real property; and, defendant being present and subject to suit in West Virginia, the action could not be maintained in a federal court sitting in Maryland.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. § 269.*]</p>

In Admiralty, Suit by the United States against the gasoline launch Calypso; William U. Sassaman and Morris Pettenger, claimants. Decree for libelant as against the interest of claimant Pettenger alone. 7

<p>In Equity. Suit by the American Malting Company against Adolph Keitel.</p>

<p>Commerce (§ 27*) — Subjects of Regulation — Employers’ Liability Act— Injuries to Servant — “Interstate Commerce.”</p> <p>Where a complaint for injuries to plaintiff alleged that defendant, in carrying on interstate commerce, employed plaintiff as a laborer with a construction gang, and that while plaintiff was employed in operating a steam shovel in the removal of earth “from the roadbed and tracks” of defendant, and in the repair and maintenance of the tracks and roadbed, which were employed for the movement of defendant’s trains in the conduct of its business, he was injured by reason of defendant’s negligence, it sufficiently alleged that plaintiff was employed in interstate commerce, within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, § 86571), and a removal of the cause was prohibited by Act March 3, 1911, c. 231, § 30, 36 Stat. 1098 (Comp. St. 1913, § 1012).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Contracts (§ 101*) — Shipping (§ 102*) — Contracts of Carriage — Validity — What Law Governs.</p> <p>A contract valid where made is valid everywhere, unless contrary to the public policy of the place of performance; and the law of the forum is immaterial, if a contract is valid where made and where it is to be performed. Hence a contract for transportation to Cuba, made.in Liverpool and valid by the laws of Great Britain, is presumed to be valid in Cuba, and the fact that, owing to its containing a negligence exemption, it is not valid by the laws of the United States, does not render a vessel, sued here for breach of such a contract, liable for damages.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 455-460; Dec. Dig. § 101 ;* Shipping, Cent. Dig. § 400; Dec. Dig. § 102.*]</p> <p>2. Evidence (§ 81*) — Laws of Foreign Country — Presumption.</p> <p>There is not any presumption that the law of Cuba is the same as the law of the United States. Cuba R. R. Co. v. Crosby, 222 U. S. 473, 32 Sup. Ct. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40, followed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 102; Dec. Dig. § 81.*]</p> <p>3. Shipping (§§ 121, 140*) — Negligence—Exemption of Bill of Lading— Warranty of Fitness.</p> <p>• An act of negligence on the part of a competent mate in failing to substitute a new rigging on the mast of a vessel in place of rigging which had become weakened and unsafe during the voyage is an act of negligence, within the negligence exemption of a bill of lading; and the owners, having equipped the vessel with a good cordage and a competent mate, have complied with the warranty of fitness which underlies every bill of lading and takes precedence of the exceptions therein.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 225, 449-451, 466, 493-495; Dec. Dig. §§ 121, 140.*]</p> <p>4. Shipping (§ 141*7^-Bill of .Lading — Negligence Clause — Defense.</p> <p>A clause in a bill of lading exempting the shipowner from any Injury to the goods arising from “any act, neglect, or default of pilot, master, mariner,” etc., is good by the English law; and if the destination of the shipment is not to the United States, nor to any other country by whose laws such clauses are proved to be contrary to public policy, it is a defense to an action in our courts for damage to cargo caused by negligence in handling.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. §§ 493, 497 — 499; Dee. Dig. § 141.*]</p>

<p>1, Commerce (§ 77*) — Tax on Exports — War Revenue Act — Tax on Charter Parties.</p> <p>War Revenue Act 1898 (Act June 13, 1898, c. 448, § 25, Schedule A, 30 ■ Stat. 460), imposing a tax on charter parties, is violative of the constitutional provision declaring that no tax or duty shall be levied on any articles exported from any state.</p> <p>[Ed. Note. — Eor other cases, see Commerce, Cent. Dig. §§ 61-70; Dee. Dig. § 77.*]</p> <p>2. Internal Revenue (§ 36*) — Actions to Recover Duties Illegally Imposed — Statutes.</p> <p>Act July 27, 1912, c. 256, 37 Stat. 240, provides that all claims for refunding any internal tax alleged to have been erroneously assessed or collected under the War Revenue Act, or any sums alleged to have been excessive, or wrongfully collected thereunder, may be presented to the Commissioner of Internal Revenue on or before January 1, 1914, and not thereafter; the Secretary of the Treasury being directed to pay out of the moneys of the United States not otherwise appropriated to such claimants as have presented or shall so present and establish such erroneous or illegal collection any sums paid by them, or on their account, or to the interest of the United States, under the provisions of the act. Held, that where petitioners paid taxes illegally assessed under the War Revenue Act, the act of 1912 gfive them the right to sue the United States under the Tucker Act (Act March 3, 1887, c.' 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752]) on their demand to recover the amount so erroneously paid, as founded on a law of Congress; they not being limited to a suit against the collector.</p> <p>[Ed. Note. — For'other cases, see Internal Revenue, Cent. Dig. § 82; Dec. Dig. § 36.*]</p> <p>3, INTERNAL REVENUE (§ 36*)-WAR REVENUE ACT-TAXES ILLEGALLY COLLECTED — Recovery—Payment under Protest.</p> <p>Under Act July 27, 1912, authorizing presentation to the Commissioner ol Internal Revenue of claims for illegal taxes assessed and paid under the War Revenue Act, and refundment thereof by the Secretary of the Treasury, it was not essential, to the right of one having paid illegal taxes so assessed to recover the same, that they had been paid under protest.</p> <p>[ltd. Note. — For other cases, see Internal Revenue, Cent. Dig. § 82; Dec. Dig. § 36.*]</p>

<p>■Commerce (§ 77*) — Tax on Exports — War Revenue Act — Stamp Taxes — Insurance Policies.</p> <p>War Revenue Act 1898 (Act June' 13, 1898, c. 448, § 25, Schedule A, 30 Stat. 461), providing for a stamp tax on policies of insurance, in so far as it imposed such a tax on policies of marine insurance which were necessary incidents of the business of exporting, and themselves constituted exports by virtue of their being sent with other documents to foreign ports, was not a violation of Const, art. 1, § 9, providing that no tax or duty should be laid on articles exported from any state, etc.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 61-70; Dec. Dig. § 77.*]</p>

<p>At Law. Action by the Thames & Mersey Marine Insurance Company, Limited, against the United States. On demurrer to amended petition.</p>

<p>In Admiralty. ' Suit by the United States against Charles McDonald, master of the schooner Mahukona.</p>

<p>1. Bankruptcy (§ 415*) — Discharge — Hearing — Attendance by Bankrupt.</p> <p>Bankr. Act July 1, 1898, c. 541, •§ 7, 30 Stat. 548 (U. S. Comp. St. 1913, § 9591), providing that a bankrupt shall attend the hearing on his application for a discharge, if filed, requires the bankrupt to attend such hearing, though he may have removed from the district.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 698-708, 719, 723, 724, 726, 728; Dec. Dig. § 415.*]</p> <p>2. Bankruptcy (§ 415*) — Application for Discharge — Hearing—Attendance by Bankrupt.</p> <p>Bankr. Act 1898, § 7, providing that a bankrupt shall not be required to attend for examination at a place more than 150 miles from bis home or place of business, does not apply to a hearing on an application for the bankrupt’s discharge, so as to excuse him from attending the hearing on such application; he having removed from the district pending the proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. ‘§§ 698-708, 719, 723, 724, 726, 728; Dee. Dig. § 415.*]</p>

Appeals from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. Suit in equity by James H. Lovewell, as trustee, and others, against Dudley T. Schoolfield, individually and as executor of the will of W. W. Schoolfield, deceased, and others. From the final decree, appeals were taken by complainants, by Lena Bakrow and .

Action at law by the Consolidated Louisiana Lumber Company against the Southern Pine Lumber Company. Judgment for plaintiff, and defendant brings error.

<p>1. Limitation of Actions (§ 35*) — Penal Statutes.</p> <p>Rev. St. Ohio, § 3373-1, requiring railroad companies to extend to all, without discrimination, equal opportunities and facilities for receiving and shipping freight of the same class, and declaring that a railroad failing to do so shall be liable in a civil action to the party injured for the damages sustained, but that the recovery in any such action shall not be less than $500, is not a penal statute, within Gen. Code Ohio, § 11225, providing a limitation of one year for an action “on a statute for a penalty, or forfeiture”; the right of .action being given only to the injured party, and being purely remedial, and this notwithstanding the minimum recovery provided.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 109, 15S-167; Dee. Dig. § 35.*]</p> <p>2. Limitation of Actions (§ 34*) — Statute Applicable — Statutory Liability.</p> <p>If an action is on “a liability created by statute other than a forfeiture or penalty,” for which Gen. Code Ohio, § .11222, provides a six-year limitation. it is controlled by such section, and not by section 11224, providing a four-year limitation for an action for “an injury to the rights of plaintiff not arising on contract.”</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 151-157; Dec. Dig. § 34.*]</p> <p>3. Limitation of Actions (§ 34*) — “Liability Created by Statute.”</p> <p>A “liability created by statute,” within Gen. Code Ohio, § 11222, prescribing a limitation for an action on such a liability, is one which would not exist, but for the statute.</p> <p>LEd. Note. — For oilier cases, see Limitation of Actions, Cent. Dig. §§ 151-157; Dec. Dig. § 34.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Liability Created by Law.,!</p> <p>4. Limitation of Actions (§ 34*) — Liability Created by Statute — Switching Facilities.</p> <p>The duty of a railroad company to give shippers equality of switch track connections did not exist at common law; so that an action under Rev. St. Ohio, § 3373-1, for failure to do so where the railroad has given such facility to another shipper of freight of the same class, is one on a “liability wealed by statute,” within Gen. Code Ohio, § 11222, prescribing a six-year limitation of action.</p> <p>LEd. Note. — For other cases, see Limitation of Actions, Gent. Dig. §§ 151-157; Dec. Dig. § 34.*]</p> <p>5. Courts (§ 365*) — State and Federal Courts — Common Law.</p> <p>A federal court is not bound by the decision of a state court as to what • the common law is.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dec. Dig. § 365.*</p> <p>Conclusiveness of judgment between federal and state court, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>6. Appeal and Error (§ 193*) — Nonobjection to Pleading — Indefiniteness.</p> <p>Failure of the petition, in an action under Rev. St. Ohio, § 3373-1, for denial by defendant railroad company to plaintiff of a switch track connection, when it had given one to another shipper of freight of the same class, to specify such other, is mere matter of indefiniteness, for which the court, by provision of Gen. Code Ohio, § 11336, may require amendment, but of which defendant, failing to ask for such specification, may not complain.</p> <p>’ [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1226— 1238, 1240; Dec. Dig. § 193.*]</p> <p>7. Appeal and Error (§ 1035*) — Harmless Error — Theory op Trial.</p> <p>The petition and proof making a case under the first clause of Rev. St. Ohio, § 3373-1 (that is, that defendant railroad company denied plaintiff a switch track connection, when it had given one to another shipper of freight of the same class), it is immaterial that the case was tried as one under the, second clause, which contains the additional element that defendant was interested in the freights of the other shipper, though this be not stated by the petition or shown by the evidence; the measure of damages not being different, and the trial court having substantially reduced the recovery, presumably to what it considered not unreasonable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4031; Dec. Dig. § 1035.*]</p> <p>8. Commerce (§ 13*) — Regulation—State and Federal Statutes.</p> <p>The Interstate Commerce Act (Act Feb. 4, 1887, e. 104, § 3, 24 Stat. 380 [Comp. St. 1913, §. 8565]) having no application to intrastate commerce, state statutes regulating commerce are void only so far as they affect commerce of an interstate nature.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 7; Dec. Dig. § 13.*]</p> <p>9. Commerce (§ 89*) — Discrimination by Carrier — Submitting Claim to Interstate Commerce Commission.</p> <p>The petition, in an action under Rev. St. Ohio, § 3373-1, for denial by defendant railroad company of a switch track connection, when it had given one to another shipper of freight of the same class, not alleging that plaintiff had beqn denied the connection with respect to interstate freights, and the evidence not showing this, or even that plaintiff was engaged in interstate transportation, it was not necessary to maintenance of the action that plaintiff should have submitted his claim to the Interstate Commerce Commission.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 89.*]</p>

In the matter of bankruptcy proceedings of George Carlson. From an order overruling objections to the bankrupt’s discharge, filed by the International Harvester Company of America, it appeals.

Petition to Superintend and Revise from the District Court of the United States for the Southern District of Georgia; Wm. B. Sheppard, Judge. In the matter of the Uuxury Fruit Company, bankrupt. On petition by W. C. Wright, trustee, to revise orders of the District Court in favor of William Henry Harris. The Luxury Fruit Company was adjudged a voluntary bankrupt March 31, 1914.

Petition for Revision of Proceedings of the District Court of the United States for the Western District of Pennsylvania, in Bankruptcy; James S. Young, Judge. In the matter of Vincent Di Cola, bankrupt. On petition to revise an order settling the accounts of the trustee.

<p>1. Corporations (§ 433*) — Contracts—Authority of Officer.</p> <p>Where correspondence relating to a contract for the sale of coal was signed in the name of a coal company by its secretary, who was also described on the letter head as treasurer and general manager, such evidence was sufficient to take the question of his authority to make the contract on behalf of the company to the jury in an action for its broach.</p> <p>[Ed. Note. — J'or other cases, see Corporations, Cent. Dig. §§ 1706, 1719, 1738, 1744; I)cc. Dig. § 433.*]</p> <p>2. Sat.es (§ 32*) — Offers and Acceptance by Correspondence — Requisites and Validity.</p> <p>Correspondence between a coal company and a prospective customer, which showed a complete meeting of minds upon all of the terms of a contract for the future delivery of coal, held to constitute a binding contract, although a formal contract embodying such terms, submitted by the purchaser, was not executed by the seller.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 59; Dec. Dig. § 32.*]</p>

Dyer, Judge. Suit in admiralty by the Louisiana Excursion Company against A. Gidionsen, Henry Scherf, and the steamer Belle of the Bends. Decree for respondents, and libelant appeals.

McCall, Judge. Suit in admiralty by Tom Jenkins against the steamboat Elenore and Robert E. Lee, managing owner and executor of the estate of James Lee, deceased. Decree for libelant, and respondents appeal.

B. Sheppard, Judge. Arbitration proceeding between the Georgia & Florida Railway Company and Brotherhood of Uocomotive Engineers and Brotherhood of Eocomotive Firemen and Enginemen. On appeal by the Railroad Company from decision of District Court (215 Fed. 195) on exceptions to award.

<p>1. Courts (§ 365*) — Proceeding by State to Compel Allowance of Appeal.</p> <p>A state, which by the decision of its own Supreme Court has no real or beneficial interest in lands in controversy in a suit in a federal court, held not entitled to maintain a proceeding for a writ of mandamus to compel the allowance of an appeal from the decree therein on behalf of one of its levee districts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 989-971 ; Dec. Dig. § 305.*</p> <p>Mandamus in aid of appeals, see note to Lewis v. Baltimore & L. R. Co., 10 C. C. A. 450.]</p> <p>2. Appeal and Error (§ 148*) — Right of Review — Persons Entitled.</p> <p>One who is not a party to a record and judgment is not entitled to an appeal therefrom.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 925-932; Dec. Dig. § 148.*]</p>

B. Sheppard, Judge. Creditors’ suit in equity against the Yaryan Naval Stores Company. From the decree obtained by the B. Borchardt Company and James S.. Brailey, Jr., receivers, defendant appeals.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action at law by the Hubbard Milling Company against the Erie Baking Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the Circuit Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge. Three suits in equity by the Schiebel Toy & Novelty Company against David P. Clark. Decrees for defendant, and complainant appeals.

<p>1. Patents (§ 328*) — Validity and Infringement — Coaster Brake for Bicycles.</p> <p>The Townsend patent, No. 850,077, for a coaster brake for bicycles, covers a device the essential feature of which is a telescoping, screw-threaded connector within the hub of the rear wheel, movable to the right and left and revolvable both with and upon the driver sleeve, and which, when the pedal is driven forward, moves to the right and clutches the hub, and, when driven backward, moves to the left, releases the hub, and clutches the brake mechanism. Hi such feature it was not anticipated in the -prior art, and, while not strictly a pioneer, the invention was the step which resulted in making practical and commercial the combination in one device of the driving, coasting, and braking functions, and the patent is entitled to a fairly liberal application of the rule of equivalents; its claims being not too broad to cover and protect the real invention. Also field infringed.</p> <p>2. Patents (§ 101*) —■ Validity — Elements Described Generally as “Means” or “Mechanism.”</p> <p>A claim of a patent is not functional and invalid merely because one of its specified elements is “means” or “mechanism*’; but such result may or may not follow, depending upon whether such all-inclusive term is used with reference to the element or subcombination which is the real point and gist of the invention, or to elements or parts already well known and designed to co-operate with the new element in order to make a completely operative unit..</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 141; Dee. Dig. § 101.*</p> <p>For other definitions, see Words and Phrases, First Series, Mechanism; also, First and Second Series, Means.]</p> <p>3. Patents (§ 101*) — Construction—Comparison of Specific and General Claims.</p> <p>In determining whether the ambiguous terms of a claim should be coufined more or less closely to the form shown in the drawings, it is usually well to compare with other claims which may not be in suit; and if other claims are found which call for the specific construction of a part mentioned more generally in the claims in suit that will be persuasive for not giving the limited construction to the general terms.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 141; Dec. Dig. § 101.*]</p> <p>4. Words and Phrases — “Brake”—“Brake Pair” — “Brake Shoe” — “Brake Drum.”</p> <p>An effective “brake” consists of two members, which are called the “brake pair,” consisting of the “brake shoe,” which is the movable member, and the “brake drum,” or the stationary member.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Brake.]</p>

<p>In Equity. Suit by the Troy Laundry Machinery Company, Limited, against the Columbia Manufacturing Company. On final hearing.</p>

In Equity. Suit by the Steber Machine Company against the Random Knitting Company, George W. Cummings, Frank J. Gardner, and William E. Proctor. On final hearing. Decree for complainant against the Random Knitting Company and Cummings only.

<p>In Admiralty. Suit by A. Cora, Incorporated, against the Norwegian steamer Solveig; the American Trading Company, claimant. Decree for libelant for part of damages.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Elmore Cotton Mills. Petition to review findings and order of the ref-</p> <p>eree allowing the claim of the Robertson Banking Company and awarding compensation to the receiver and trustee.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Elmore Cotton Mills. Petition of Mrs. Marshall K. Chamberlain to review the findings of the referee allowing the claim of the Robertson Banking Company, and also findings and order allowing compensation to L. C. Lowe, as receiver and trustee of the bankrupt’s estate. Reversed.

<p>1. Interest (§ 28*) — Rate—What Law Governs — Construction of Contract.</p> <p>Where a promissory note was given and made payable in the same state, the question of the rate of interest it bears is to be determined by the local law.</p> <p>[Ed. Note. — Eor other cases, see Interest, Cent Dig. §§ 56-59; Dec. Dig. § 28.*] .</p> <p>2. Interest (§ 37*) — Stipulations as to Rate — Construction..</p> <p>Under the law of Virgina as settled by decision, where a note merely provides for interest at a valid stated rate, the debt bears interest at that rate until payment, regardless of the rate established by statute.</p> <p>[Ed. Note. — Eor other cases, see Interest, Cent. Dig. §§ 77, 78; Dec. Dig. § 37.*]</p> <p>3. Interest (§ 38*) — Allowance on Judgment — Construction of Statute.</p> <p>Code Va. 1904, § 3391, which provides that “in any suit in equity, or in any action founded on contract, where no jury is impaneled, judgment or decree may be rendered for interest on the principal sum recovered until such judgment be paid, and where there is a jury which allows interest the judgment shall in like manner be for such interest until payment,” does not vest the court with any discretion as to the rate of interest or time to which it runs, but under the settled law of the state, if there is a lawful contract rate, it continues after judgment or decree, and if not the statutory rate governs, and in either case interest continues until payment of the debt.</p> <p>[Ed. Note. — Eor other cases, see Interest, Cent. Dig. §§ 79-82; Dee. Dig. § 38.*]</p> <p>4. Statutes (§ 227*) — Construction of Words — “Mat” in Grant of Power.</p> <p>Permissive words in respect to courts or officers are imperative in cases where the public or individuals have a right that the power so conferred be exercised, and in such cases the word “may,” used in the statute, will be construed to mean “shall” or “must.”</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 30S, 309; Dec. Dig. § 227.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, May.}</p>

<p>At Eaw. Action by J. H. Abbott against S. B. & B. W. Fleischer, Incorporated. On motion by defendant for new trial.</p>

<p>Petition by Bartolomeo Centi for naturalization. On plea in bar.</p>

At Law.. Action by Burt Whitted against the Southwestern Telegraph & Telephone Company. On motion to set aside a judgment and grant plaintiff leave to take a nonsuit.

<p>1. Criminad Law (§ 814*) — Instructions—Presumption as to Character.</p> <p>An instruction requested in a criminal case, that defendant ivas entitled to a presumption of good character, held properly refused, as directed to a fact not in issue; the jury being fully instructed as to the legal presumption of innocence of the crime charged.</p> <p>[lid. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1800, 1805, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*J</p> <p>2. Criminad ,Law (§ 921*) — Evidence—Admissions by Defendant — Proof and Effect.</p> <p>Admission in evidence of a statement by defendant: “I am in it pretty badly. Don't be hard on rue. I don’t want to go to jail again” — testiiied to by a witness, when asked, without objection, to state what defendant said when arrested, held not ground for new trial, where the jury was cautioned not to be influenced thereby.</p> <p>LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 220(1-2209; Dec. Dig. § 921.*J</p>

<p>In Equity. Suit by the United States against Charles B. Hill.</p>

<p>1. Public Lands (§ 120*) — Suit fob Cancellation of Patent — Issues and Peóof. .</p> <p>Where the evidence in a suit for cancellation of a patent to land shows that the original entry was fraudulent, a defendant has the burden to allege and prove as an affirmative defense that he was a bona fide purchaser for value.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-835; Dec. Dig. § 120.*]</p> <p>2. Limitation of Actions (§ 126*) — Suit fob Cancellation of Land Patent — Persons Not Parties.</p> <p>The bringing of a suit for the cancellation of a patent to land does not suspend the running of limitation in favor of a grantee, who purchased prior to the suif, until he is made a party.</p> <p>, [Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 548-550; Dec. Dig. § 126.*]</p> <p>3. Public Lands (§ 120*) — Suit foe Cancellation of Patent — Relief.</p> <p>In a suit by the United States for the cancellation of a patent to lands, which is barred as against the latest purchaser, who has not paid for the land, but not as against his grantor, who was first made the defendant, relief may be granted in the way of damages, by requiring the purchase money to be paid to complainant, with interest, in lieu of rents and profits for the time defendants have been in possession.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. § 120.*] f,</p>

<p>Appeal from the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.</p> <p>Suit in equity by the United States against Lewis I. Brannan and others. Decree for defendant Brannan, and the United States appeals.</p>

Cushman, Judge. Criminal prosecution by the United States against Charles E. Houston and John H. Bullock. Judgment of conviction, and defendants bring error. The plaintiffs in error were convicted of conspiracy under section 5440 of the Bevised Statutes.

<p>1. Contempt (§ 54*) — Proceedings for Punishment — Formal Requisites.</p> <p>There is no fixed formula for contempt proceedings, and technical accuracy is not required. It is sufficient if the offense is set out so that the defendant is clearly informed of the charges against him, and whether a criminal or civil contempt is alleged; and this is to be determined by examination of the entire record.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 143-149; Dec. Dig. § 54.*]</p> <p>2. Injunction (§ 230*) — Violation—Contempt—Jurisdiction and Power of. Court.</p> <p>Where, in a civil suit of which the court had jurisdiction, charges of contempt were made against defendant for violation of an injunction issued therein, and he appeared and pleaded, and, after the proceeding had been transferred to the criminal docket, procured a suspension of the proceeding on his voluntary promise to obey the injunction, he cannot attack a subsequent judgment for contempt against bim in the criminal proceeding, after a hearing, on the ground of the invalidity of the injunction order.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 502-516; Dec. Dig. § 230.*]</p> <p>3. Contempt (§ 66*) — Criminal Proceedings — -Review in Appellate Court.</p> <p>While, in a case of criminal contempt, the trial court must he convinced of the guilt of the accused beyond a reasonable doubt, a finding of such fact, supported by competent evidence, cannot be reviewed by an appellate court.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent.-Dig. §§ 213-215, 223-237; Dec. Dig. § 66.*]</p> <p>4. Criminal Law (§ 304*) — Criminal Contempt — Evidence.</p> <p>A proceeding for criminal contempt growing out of a civil suit is collateral to it, and the court may take judicial notice in the trial of the contempt proceeding of all orders made in the civil cause.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 295iy2; Dec. Dig. § 304.*]</p>

Dayton, Judge, Proceedings for criminal contempt in the name of the United States 'against Paul Scoric. From a judgment of conviction, defendant brings^ error.

<p>1. Specific Performance (§ 38*) — Contracts Enforceable — Parol Contracts fob Conveyance of Land.</p> <p>To render a parol contract for the conveyance of land specifically enforceable in equity, it must be certain and definite in its terms, the acts of part performance proved must refer to, result from, or be done in pursuance of the contract proved, and it must have been so far executed that damages will not afford full compensation for its breach.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 113; Dec. Dig. § 38.*]</p> <p>2. Equity (§ 263*) — Bill—Dismissal for Insufficiency of Allegation.</p> <p>Since a bill in equity is required to state only the ultimate facts, a court should be cautious not to dismiss a bill for mere lack of fullness of detail in allegation.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 535-540; Dec. Dig. § 263.*]</p> <p>3. Gifts (§ 45*) — Parol Gift of Land — Suit to Establish Title Against Subsequent Grantee.</p> <p>A bill alleging a parol contract by the owner of land to give a definitely agreed upon tract of the same to his son as an advancement and in full of his share in the father’s estate, and that the son at once took and held open anil notorious possession and improved and continued to reside with his family on the land, which was subsequently conveyed to him by his father, held to state a cause of action to establish his equitable title from the date of the contract as against a later conveyance by his father of mineral rights in the land.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 80; Dec. Dig. § 45.*]</p> <p>4. Gifts (§ 45*) — Parol Gift of Land — Suit to Establish Title Against Subsequent Grantee.</p> <p>That there was some discrepancy between the boundary of the land as described in the alleged parol contract and in the subsequent deed made in confirmation thereof did not Justify the dismissal of the bill on demurrer or motion; the land being at the time undeveloped and of small value, and absolute accuracy in such respect not being essential.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 80; Dec. Dig. § 45.*]</p> <p>5. Vendor and Purchaser (§ 232*) — Bona Fide Purchasers — Possession as Notice of Prior Rights — “Notice.”</p> <p>Under the law of Virginia, open and peaceable possession of land under a claim of right is “notice” to a subsequent purchaser of the right or claim of the person in possession both to the surface aud minerals thereunder.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §S ' 540-545, 548-562; Dec. Dig. § 232.*]</p> <p>6. Quieting Title (§ 29*) — Laches—&tjit to Establish Equitable Title to Land.</p> <p>One in the exclusive possession of land under claim of title is not ehargeable with laches in not bringing suit to establish bis right, so long as no superior title is asserted by another.</p> <p>LEd. Note. — For other cases, see Quieting Title, Cent. Dig. § 63; Dec. Dig. § 29.*]</p>

<p>Petition to Revise Orders of the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>In the matter of Joseph C. Richter, bankrupt. Petition by Miles E. Peck, trustee, and the Clark Implement Company, to revise orders of the District Court in favor of the bankrupt.</p>

Petition to Superintend and Revise from the District Court of the United States for the Southern District of Georgia; Wm. B. Sheppard, Judge. In the matter of J. C. Rawlins and S. J. Rawlins, partners as the Rawlins Mercantile Company, alleged bankrupts. Petition by bankrupts to superintend and revise an order for their examination procured by the Hall-Epps Clothing Company and others, petitioning creditors.

Petition for Revision in Matter of Daw of a Decree of the District Court of the United States for the Southern District of Georgia; Wm. B. Sheppard, Judge. In the matter of the Perkins Dumber Company, bankrupt. Petition by Joseph M. Dreyer, trustee, to revise a decree in favor of H. W. Perkins.

<p>In Equity. Suit by the Crown Cork & Seal Company of Baltimore City against the Bond Bottle Sealing Company. On final hearing.</p>

<p>In Admiralty. Suit by the Dampskibselskabet Dannebrog, owner pf the steamship Lejre, against Blanchard Randall and others, doing business as Gill & Fisher.</p>

In Equity. Suit by the Standard Home Company against John M. Davis, Bank Commissioner of the State of Arkansas, and others. On motion to dismiss. Held: in all courts, to be as valid and binding as if due sezwice had been made on the coznpany itself, according to the laws of „ this state or any other state, and such instrument shall be authenticated by the seal of said foreign investmezit coznpany and by the signature of a member of the copartnership or company, if it be a…

<p>1. Admiralty (§ 82*) — Rehearing After Interlocutory Decree.</p> <p>While there is no rule or settled practice which necessarily prevents a court of admiralty from entertaining a petition for rehearing in a collision suit after the entry of an interlocutory decree on the merits, but before final decree, regardless of the lapse of time, only exceptional circumstances could justify the reopening of the case on a petition filed after the lapse of any considerable tjme, on the ground of newly discovered evidence, and it should at least appear that the new evidence, if produced, could be accepted for the purpose of reversing the finding at the hearing.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 674, 676-678; Dec. Dig. § 82.*]</p> <p>2. Admiralty (§ 82*) — Rehearing After Interlocutory Decree.</p> <p>Affidavits of parties and counsel as to statements made by a witness in a collision suit, more than 3 years after the hearing at which he testified, and more than 2y2 years after the entry of an interlocutory decree ■ on the merits in favor of the vessel on which he was a seaman, held insufficient to support a petition for rehearing; it appearing, also, that he refused to sign an affidavit, and there being no clear showing as to what his testimony would be, if produced.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 674, 676-678; Dec. Dig. § 82.*]</p>

In Admiralty. Libels by the Bay State Dredging Company, Limited, by Frank Silva and others, and by Daniel F. Warren, as administrator, against the steamer Grand Manan, the Grand Manan Steamboat Company, claimant; also by the Grand Manan Steamboat Company against the Bay State Dredging Company, Limited. On petition to reopen interlocutory decrees holding the Grand Manan solely at fault for the collision in controversy, to receive additional evidence.

<p>Bankruptcy (§ 407*) — Discharge—Denial—1Grounds—False Credit Statement — “Faj.sk”</p> <p>Bankr. Act July 1, 1898, § 14b (3) (Comp. St. 1913, § 9598), provides that the judge of a bankruptcy court shall hear an application for the bankrupt’s discharge, and Khali discharge him unless, among other things, he has obtained money or property on credit on a materially false statement in writing made by him to any person or his representative to obtain credit from such person. Held, that the word “false” in such section was not used in its vernacular sense of erroneous or untrue, but rather as untrue coupled with a lying intent, or intentionally untrue, and hence was not satisfied by a financial statement made by the bankrupt while away from home, and without his books and records, while he was in a hurry to return, because of the illness of his wife, from which statement he omitted an item of indebtedness amounting to §4,300 and also assets of an equal or greater amount (citing Words and Phrases, “False”).</p> <p>FKd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. § 407.*]</p>

E. Wolverton, Judge. Suit in equity bjr D. F. Bateman and 112 others against the Southern Oregon Company, the State of Oregon, and Oswald West, Governor, and A. M. Crawford, Attorney General, of the State of Oregon. Decree for defendants, and complainants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>' Action by Frank A. Harrigan, trustee in bankruptcy of the Louis J. Bergdoll Motor Company, against Erwin R. Bergdoll. Judgment for plaintiff, and defendant brings error.</p>

S.‘Bean, Judge. Suit in equity by Christian Hermann against John F. Hall and others. Decree for defendants, and complainant appeals. Suit in equity by plaintiff to quiet title to certain real property situated in Coos county, Or., and to set aside and have declared null and void, on the ground of alleged fraud, certain deeds purporting to convey the legal title to the land in controversy to the defendants.

<p>1. Oakums (§ 320*) — -Injuries to Passengers — Depot Platform — Obstructions — Ice—Negligence—Question for Jury.</p> <p>1b an. action for injuries to a passenger by falling on a ridge of ice on defendant’s depot platform as the passenger was passing to Ms train, whether the ice formed on the platform on the day of the accident, or had negligently been permitted to remain for one or more days prior to the accident, held for the jury.</p> <p>ISd, Note. — For other eases, see Carriers, Cent. Dig. §§ 1118,1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233. 1244, 1248, 1315-1325; Dec. Dig. g 320.*]</p> <p>2. Evidence (§ 359*) — Photographs—Changed Situation.</p> <p>Where, immediately after plaintiff had fallen on a ridge of ice on defendant's depot platform, the ice was covered with salt, which removed it, and there was no controversy as to the other relative locations as disclosed by the evidence, photographs of the platform, etc., taken two or three days after the" accident, were properly excluded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. § 359.*]</p>

<p>1. Carriers (§ 316*) — Injuries to Passengers — Negligence—Res Ipsa Loquitur.</p> <p>The happening of an accident to a passenger is prima facie evidence of negligence on the part of the carrier, and, the passenger being in the exercise of due care, the burden rests on the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 1285-1294Dec. Dig. § 316.*]</p> <p>2. Carriers (§ 321*) — Injuries to Passengers — Pleading and Proof — Res Ipsa Loquitur — Burden of Proof.</p> <p>Where, in an action for death of a passenger, plaintiff pleaded specific acts of negligence on the part of the carrier, but no allegation of general negligence, an instruction submitting the doctrine of res ipsa loquitur, and charging that such /doctrine raised a presumption of negligence on the part of the carrier, and also shifted the burden of proof to the carrier to show that its whole duty was performed, etc., was error.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dee. Dig. § 321*</p> <p>Burden of proof of negligence where passengers have been injured, see note to Southern Ry. Co. v. Myers, 32 C. C. A. 23.]</p>

<p>In Error to the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge.</p> <p>Action by Charles Harman against the Great Northern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Hampshire; E. Aldrich, Judge.</p> <p>Action at law by Elizabeth M. Bullock against the W H. McElwain Company. Judgment, for plaintiff, and defendant brings error.</p>

<p>1. Commerce (§ 40*) — “Interstate Commerce” — Municipal Ordinances — License Tax.</p> <p>Complainant, an Illinois merchant, employed an agent, who solicited orders for teas and coffees in defendant city, in Missouri, sending the orders to eomxilainant in Illinois by mail. The merchandise was put up in packages according to the quantities ordered, but without the names of the customers on them, and shipped in one or more cases to the agent, who alone had authority to receive the goods from the carrier, and who then delivered the packages to the customers and collected and remitted the price, receiving a salary sent from complainant. Held, that the transaction was “interstate commerce,” and was therefore not subject to an ordinance imposing a license tax on vendors of teas, coffees, and other kinds of merchandise not otherwise licensed.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Injunction (§ 105*) — Criminal Prosecutions.</p> <p>Where city authorities had arrested complainant’s agent several times, and threatened to continue to arrest him every time he went there and transacted business for complainant, because of his failure to take out a license under a local ordinance, when in fact the business transacted constituted interstate commerce, the court properly granted an Injunction restraining further prosecutions; those pending being expressly excepted from the decree.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dee. Dig. § 105.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus B. Foster, Judge.</p> <p>Action at law by Joseph Behrens, administrator of John Joseph Behrens, deceased, against the Illinois Central Railroad Company. Judgment for</p> <p>plaintiff, and defendant brings error.</p>

<p>Public Lands (§ 29*) — Construction oí Act Limiting Entries — Timber and Stone Entries-“Agricultural .Lands.”</p> <p>By Sundry Civil Appropriation Act Aug. 30, 1890, c. 837, § 1, 26 Stat. 391 (Comp. St. 1913, § 4558), it was provided that no person who should thereafter enter upon any of the public lands, with a view of occupation, entry, or settlement “under any of the land laws, shall be permitted to acquire title to more than 320 acres in the aggregate under all of said laws.” This was followed by the provision of Act March 3, 1891, c. 561, § 17, 26 Stat. 1101 (Comp. St. 1913, § 4559), that the former act should “be construed to include in the maximum amount of land, the title to which is permitted to be acquired by one person, only agricultural lands, and not to include lands entered or sought to be entered under mineral land laws.” Held, that in view of the manifest purpose of Congress, as disclosed in the former act, to change its previous liberal policy with respect to land entries, owing to the increase of population and the rapid decrease in the quantity of public lands open to settlement, and its purpose to adhere to its long-settled policy of encouraging mineral exploration, as shown by the later act, the term “agricultural lands” was used in the latter in contradistinction to mineral lands, and it was intended to leave all other classes of lands subject to entry, including stone and timber lands, subject to the 320-aere limitation.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 41-47; Dec. Dig. § 29.*</p> <p>For other definitions, see Words and Phrases, Second Series, Agricultural Lands.]</p>

<p>In Admiralty. Suit for collision by the Puget Sound Tugboat Company, owner of the tug Sea Lion, against the schooner Oceania Vance; the Coast Shipping Company, claimant.</p>

Ii\ Admiralty. Suit for collision by the Inland Navigation Company, as owner of the steamship Rosalie, against the towboat Tillicum; the Stimson Mill Company, claimant and cross-libelant.

<p>In Admiralty. Suit for collision by the Everett City Tugboat Company, owner of the tug Mountaineer, against the American schooner Wilbert L. Smith. Both vessels held in fault, and decree dividing damages.</p>

<p>1. Removal of Causes (§ 48*) — Separable Controversy — Suit Against Stockholders.</p> <p>The liability of each stockholder of an insolvent corporation is distinct and separate, and may be enforced by a receiver for the corporation by a separate action; and the fact that he seeks recovery against a number in single action does not change the separable character of the controversies, nor deprive a defendant, otherwise entitled, of the right to remove the cause as to him into a federal court.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. SS 93, 94; Dec. Dig. § 48.*]</p> <p>2. Removal of Causes (§ 61*) — Separable Controversy — How Determined.</p> <p>For the purposes of the removal of a cause into the federal court, the cause of action is the subject of controversy, and that is whatever the plaintiff declares it to he in his pleading.</p> <p>[Ed. Noto. — For other cases, see Removal of Causes, Cent Dig. § 115; Dec. Dig. § 61.*]</p> <p>3. Removal of Causes (§ 48*) — Separable Controversy — Parties Entitled to Remove.</p> <p>The receiver of an insolvent corporation commenced an action in a state court against a number of defendants to enforce their liability on unpaid stock subscriptions. The complaint alleged that three of the defendant stockholders had entered into a conspiracy with a fourth defendant to defraud plaintiff, pursuant to which they had conveyed lands situated in the state of suit to the fourth defendant. The lands were attached, and their sale under the attachment prayed for. All of such defendants were citizens and residents of another state, and as to one stockholder the antouni- ©volved was sufficient to give a federal court jurisdiction, field, ©at ifie "cause of action so alleged was separable from ©at alleged against other defendants, and that under Judicial Code (Act March 3, 1911. c, 231) § 28, 36 Stat. 1094 (Comp. St. 1913, § 101Q), which provides that in such case “either one or more of ©e defendants actually interested in s.u.eh controversy muy remoyo said suit,” all of the defendants so named might, jo© in its. removal.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 93, 94; Dec. Dig, §48;*]</p>

<p>In Equity. Suit by Elias Wright, receiver of the Lak-A-Taka^ Company, against R. V. Ankeny and others. On motion by certain defendants to quash service.</p>