Volume 218 — Federal Reporter

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Texas, in Bankruptcy; Edward R. Meek, Judge. Petition to superintend and revise ah order of the District Court in favor of J. W. Stitt, trustee in bankruptcy of the Texas Planing Mill & Manufacturing Company, denying the right of petitioner, the Huttig Sash & Door Company, to a lien on property held by the trustee.

<p>Appeals from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Suit in equity by William E. Bidwell arid others against William A. Huff and others. From the decree defendants, as well as the Mayor and Council of the City of Macon and the County of Bibb, as inter-veners, separately anpeal.</p>

<p>1. Courts (§ 307*) — Jurisdiction of Federal CoUjRts — Diverse Citizen-shit — Change of Wife’s Domicile.</p> <p>Where a citizen’s wife has justifiedly left him and removed to another state, with no intention of living elsewhere, she thereby acquires a domicile in such state, so that she may maintain an action in the federal courts against a citizen of the state in which her husband resides.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 850-854; Dec. Dig. § 307.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.1</p> <p>2. Trial (§ 260*) — Requests to Charge — Instructions Given.</p> <p>Refusal to submit instructions tendered is not error, where the charge given fairly and impartially states the law arising on the facts submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>3. Assault and Battery (§ 35*) — Evidence.</p> <p>In an action for assault and battery, evidence held to sustain a verdict for plaintiff.</p> <p>[Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. § 51, Dec. Dig. § 35.*]</p> <p>4. Assault and Battery (§ 42*) — Actions—Questions for Court and Jury.</p> <p>Where, in an action for injuries from assault, the evidence is such that reasonable men might reasonably differ as to the inferences to be drawn therefrom, it is the court’s duty to submit the case to the jury.</p> <p>[Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 56; Doc. Dig. § 42.*]</p> <p>5. Appeal and Error (§ 1004*) — Allowance of Damages — Review.</p> <p>The Circuit Court of Appeals will not reverse a judgment for the trial court’s refusal to grant a new trial because of alleged excessive damages, unless at first blush the damages appear to be outrageous and excessive, or it is apparent that some improper element was taken into account by the jury in determining the amount.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]</p> <p>6. Assault and Battery (§ 40*) — Damages—Excessiveness.</p> <p>Where a wife, estranged from her husband, went to his room at night, and after retiring was ordered to leave, and on her refusal was attacked by defendants, handcuffed, gagged, roughly handled, and finally carried, halt-dressed, to jail, whore she was further beaten and maltreated, a verdict allowing her §6,000, which she voluntarily reduced to $3,000, was not excessive.</p> <p>[Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by Claude U. Proffitt against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

'In Error to the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge. Action by Ernest C. Heckert against the Central District & Printing Telegraph Company. Judgment for defendant, and plaintiff brings error.

<p>1 Criminal Law (§ 200*) — Former Acquittal — Identity op Owenses— Conspiracy — Aiding and Abetting.</p> <p>By a prior indictment, on which accused was acquitted, he was charged with conspiring with B. to import opium into the United States for smoking; the indictment charging as an overt act that K., after the formation of the conspiracy and during its continuance, to effect the object thereof, on March 6, 1913, did have in possession, conceal, and fraudulently transport into the United States 64 five-tael tins of-opium prepared for smoking, contrary to law, etc. By a subsequent indictment against accused, it was charged that on March 6, 1913, B. committed the offense of receiving, concealing, buying, selling, and facilitating the transportation of the same 64 five-tael tins of opium for smoking after the same had been imported into the United States contrary to law, which in effect was the same overt act charged against B. in the first indictment, and then alleged that accused aided and abetted B. in the commission of that offense. Seld, that there was no identity between the offenses charged in the two indictments, and hence that accused’s acquittal under the former indictment was no bar to his conviction under the latter.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.*]</p> <p>2. Criminal Law (§ 772*) — Instructions—Prior Acquittal.</p> <p>Accused having previously been acquitted of conspiracy to import opium into the United States contrary to law, on the trial of an indictment for aiding and abetting another to import the same opium into the United States, the court charged that the jury should separate any plan or combination of the men that was charged in the indictment for conspiracy, of which accused had been acquitted, from the charge in question, that accused had aided B. in receiving the opium, and that unless accused’s conversations with B. amounted to more than a general keeping in touch with him, or a general agreement, and unless accused knowingly gave him knowledge of where he could get opium, then the jury should not consider it, and if they had a reasonable doubt they should not consider it as supporting the charge of aiding, because he, having been acquitted, was entitled to that reasonable doubt, was too favorable to ae-eused, and not .objectionable by him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dee. Dig. § 772.*]</p> <p>3. Criminal Law (§ 384*) — Appeal—Bulings on Evidence — Beview.</p> <p>Where a criminal prosecution rests, in part at least, on circumstantial evidence, the court’s rulings admitting offered evidence of that character will be sustained, if it tends even remotely to establish the ultimate fact.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 848; Dec. Dig. § 384.*]</p>

Petition for Revision of Order of the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge. Petition by the Cooper Grocery Company to superintend and revise an order denying petitioner’s right to a lien on certain of the assets of McKinney & Erskine, bankrupts, under a deed of trust not filed or recorded, to which claim of lien M. C. H. Park, trustee of the bankrupts, filed objections.

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action by the Marnet Oil & Gas Company against William H. Sta-ley and others. From a judgment dismissing the bill without prejudice to complainant’s right to file its claim by intervention in bankruptcy proceedings pending against defendant Staley, plaintiff appeals.</p>

Orr, Judge. In the matter of bankruptcy proceedings of Landelin J. Benz. From an order establishing the priority of certain claimants as to a fund derived from the sale of certain of the bankrupt’s assets, the Marine National Bank and William Arrowsmith, as executor of Penelope Mc-Crea, appeal.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Georgia; Emory Speer, Judge.</p> <p>Suit in equity by Benjamin F. Einstein and Henry Rice, trustees, and others, against Birney C. Parsons and Francis M. Edwards, partners as Parsons & Edwards, the Georgia Southern & Florida Railway Company, and others. Decree for complainants, and certain defendants appeal.</p>

<p>1. Municipal CORPORATIONS (§ 817*) — Torts—Evidence op Negligence.</p> <p>In an action against a municipal corporation to recover for an injury to plaintiff, caused by the giving way of the anchorage of a banner which had been stretched across a street by third persons, the doctrine of res-'ipsa loquitur cannot be invoked as against the defendant</p> <p>(Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. § 817.*]</p> <p>2. Municipal Corporations (§ 819*) — Action por Injury to Person on Street — Sufficiency op Evidence.</p> <p>When plaintiff was passing along ■ a street in defendant borough on a day when there was an unusually strong wind, a chimney on a four-sto'ry building, to which the end of a cable, from which a political banner was hung over the street, was attached, fell, and plaintiff was injured by falling bricks. The bariner was erected by third persons, and there was no evidence that defendant or its officers had any knowledge of the manner in which the cable was anchored, and it could not be seen from the street. Held that, in the absence of any local regulation prohibiting it, the banner was a lawful structure, and defendant was not liable because it did not make an inspection to determine the security of the fastenings.</p> <p>I Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dec. Dig. § 819.*]</p> <p>3. Municipal Corporations (§ 788*) — Defects or Obstructions in Streets —Duty of Inspection.</p> <p>A municipality is not required to look for defects or dangers in its streets, but the measure of its duty is only to observe such as a reasonable supervision would disclose.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1041-1643, 1646, 1652; Dec. Dig. § 788.*]</p>

Morton, Jr., Judge. Habeas corpus by Chung Kin Tow against Frederick F. Flynn to obtain petitioner’s release from an extradition warrant issued by the Governor of Massachusetts, directing petitioner’s removal to the state of Illinois to answer a complaint charging him with murder. From a decree denying the writ, petitioner appeals.

Burns, Judge. Action by the United States, for the use of T. H. Kessler & Co., against the Title Guaranty & Surety Company, in which Joseph Netzer and others intervened. Judgment for defendant, and the use plaintiffs and interveners bring error.

<p>Appeal and Eebob (§ 1073*) — Review—Harmless Error.</p> <p>The inclusion of interest in a directed verdict for damages for breach of contract held without prejudice, where the court might properly have directed a verdict for a larger sum under a stipulation for damages in the contract. ,</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. § 1073.*]</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by John C. Taliaferro and Edwin Norton against the Washington Tin Plate Company. Decree for complainants, and defendant appeals.</p>

<p>Bankruptcy (§ 184*) — Validity of Chattel Mortgage — Failure to Record.</p> <p>Bankrupt and his brother entered into a mercantile partnership, and claimant, who was his brother’s wife, furnished the money with which certain fixtures were purchased by the firm. Later bankrupt bought his brother’s interest, and as part payment gave his note to claimant for the amount advanced by her, reciting that it was secured on all of the property in,his store. This note was not filed for record until eight months after its execution and one month prior to the bankruptcy. Held, that the instrument was a chattel mortgage, and under the law of New York, while valid as against the bankrupt, was void as against his creditors whose claims antedated its filing, and therefore, under Bankr. Act July 1, 1898; § 67a, c. 541, 80 Stat. 564 (Comp. St. 1913, § 9651), also as against his trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 184.*]</p>

At Raw. Action by W. M. Anderson against the Western Union Telegraph Company. On motion to remand. This action was instituted in a state court to recover damages in the sum of $5,000; the writ being returnable to the fall term of that court, which began on the 19th day of October, 1914. The statutes of the state of Arkansas require a defendant, when served with process 10 days before the commencement of the term, to plead on or before the third day of that term.

<p>In Admiralty. Suit by Charles Taylor against the barge Badger.</p>

<p>Criminal prosecution by the United States against John Burke and Jacob L. Salas. On demurrer to indictment by defendant Salas.</p>

Action by the Delta Lumber Company, a corporation under the laws of West Virginia, against the Schwarz Wheel Company, a Pennsylvania corporation. On motion for a new trial.

<p>In Equity. Suit by the United States against Homer Hodges and Mrs. Homer Hodges.</p>

<p>In Equity. Suit by the Louisville & Nashville Railroad Company against the United States, in which the Interstate Commerce Commission and the Stonega Coal & Coke Company are interveners.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of Harry Liby. On petition to review a referee’s order disallowing a bankrupt’s exemption.</p>

<p>Removal or Causes (§ 12*) — Diversity of Citizenship — District of Suit.</p> <p>The provision for tbe removal of causes in tbe Judiciary Act of Í887 (Act March 3, 1887, e. 373, 24 Stat. 552 [Comp. St. 1913, § 1010]), which gives right of removal to a nonresident defendant in civil suits “of which the Circuit Coui'is of the United States are given jurisdiction by the preceding section,” refers to the iirst part of section 1, which confers juris-dietion on all Circuit Courts of civil suits of the character therein specified, and not to the- second part, which relates to venue, and not to essential jurisdiction; and a suit between citizens of different states, brought in a court of the state of which the plaintiff is a citizen and resident, although not in the district of his residence, if otherwise removable, may be removed by the nonresident defendant, notwithstanding the fact that under the venue provision of section 1 it could not have been originally brought in the federal court into which it is removed. The same right of removal exists in such case under Judicial Code (Act March 8, 1911, c. 231, 36 Stat. 1091) § 28 (Comp. St. 1913, § 1010).</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dee. Dig. § 12.*]</p>

<p>In Equity. Suit by Ida A. Van Dyke and Cleve W. Van Dyke against W. Paul Geary, Amos W. Cole, and Frank A. Jones, members of the Corporation Commission of the State of Arizona, the Corporation Commission, and George P. Bullard, Attorney General of the State of Arizona, and Norman J. Johnson, County Attorney of Gila County, State of Arizona.</p>

<p>1. Trade-Marks and Trade-Names (§ 41*) — Property—Rights—Regulation.</p> <p>Property in trade-marks is recognized at common law, and may bo made tho subject of legislation by the states; the power of Congress to regulate such subject being derived from the interstate commerce clause of the federal Constitution (Const, art. 1, § 8, cl. 3).</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 46; Dec. Dig. § 41.*]</p> <p>2. Trade-Marks and Trade-Names (§ 41*) — Regulation—Power of Congress.</p> <p>Jurisdiction of Congress over trade-marks is limited to interstate commerce transactions.</p> <p>rsd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 46; Dec. Dig. § 41.*J</p> <p>3. Courts (§ 299*) — -Registration of Trade-Mark — Jurisdiction—Allegations in Pleadings.</p> <p>Registration of trade-marks protects the use thereof only in interstate commerce transactions, so that when a controversy involving the infringement of n trade-mark is between citizens of the same state, and the jurisdiction of the federal court in which the suit is brought depends on the averment that the case arises under the laws of the United States, the cause of action must lie an infringement of the proprietary right which arises out of tho registration, and facts necessary to confer jurisdiction must be averred.</p> <p>I Uil. Note. — For other* cases, see Courts, Cent. Dig. § 841; Dec. Dig. § 209.*]</p> <p>4. Courts (§ 299*1 — Federal Courts — Jurisdiction — Laws of United States — Trade-Mark Infringement.</p> <p>Where, in a suit for infringement of a trade-mark, federal jurisdiction depended on an allegation Unit tlio case arose under the laws of the United States, but tho only averment that the trade-mark was used in interstate commerce was that the mark was registered under an act of Congress, and that under such trade-mark complainant’s product had been known throughout the country, and that defendant’s violation thereof had caused within the district and elsewhere through the United States great and irreparable injury to complainant, it did not sufficiently aver interstate use, so as to confer jurisdiction.</p> <p>LI5d. Note. — For other eases, see Courts, Cent. Dig. § 841; Dec. Dig. § 299.*]</p>

<p>In Equity. Suit by William S. Richards against James Harrison, Hettie W. Harrison, and the Title Guaranty & Surety Company. On motion for judgment on appeal bond.</p>

<p>1. Bankruptcy (§ 293*) — Jurisdiction op Court — Summary Proceedings.</p> <p>In a summary proceeding by a trustee to require a third person to turn over money and property alleged to belong to the bankrupt estate, the court of bankruptcy bas jurisdiction to determine the question whether respondent has such money or property; a denial of possession not being the assertion of an adverse claim.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. § 293.*]</p> <p>2. Bankruptcy (§ 15*) — Partnership—Jurisdiction over Partners.</p> <p>A court of bankruptcy, in proceedings against a partnership, has no jurisdiction to administer upon the estate of an alleged secret partner, when he is neither declared a bankrupt nor found insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 21; Dec. Dig. § 15.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of the Tittle Elk Togging Company, a corporation. On petition to review a referee’s order refusing to sustain the alleged priority of a claimant’s lien over the liens of laborers.

<p>Commerce (§ 27*) — Eegulations—Railroads—“Interstate Commerce.”</p> <p>.Plaintiff was injured by a falling timber while engaged in tearing down part of a railroad roundhouse, which had been rendered useless by a fire. The active function of the roundhouse as an instrumentality in interstate commerce had ceased to exist; the work of removal being necessary, that a new building might be erected for railroad purposes, and which would likely be used in connection with interstate commerce. Held, that plaintiff was not engaged in “interstate commerce” at the time of Ms Injury, and had no cause of action under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. Sti 1913, §§ 8657-8665]).</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>

Appeals from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge. Suit by Rensselaer D. Curtis against the Walpole Tire & Rubber Company and others.

<p>1. Indictment and Information (§ 125*) — Duplicity — Assault with Weapon on Mail Custodian.</p> <p>A count in an indictment under the latter part of Cr. Code' (Act March 4, 1909, c. 321) § 197, 35 Stat. 1126 (Comp. St. 1913, § 10367), charging that defendant attempted to rob a mail clerk of mail matter in his custody, and in the course of such attempt put the life of the clerk in jeopardy by the use of a dangerous weapon, is not duplicitous; the attempt to rob being an essential element of the offense of putting the life of the clerk in jeopardy, which must necessarily be charged.</p> <p>[IM. Note. — For other cases, see Indictment arid Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]</p> <p>2. Cbiminal Law (§ 309*)- — Evidence—Presumption or Good Character.</p> <p>In a criminal case, where no evidence is offered in regard to defendant’s character, there is no presumption that his character is good, which can be considered by the jury as evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 738; Dee. Dig. § 309.*] •</p>

<p>1. Ceiminal Law (§ 814*) — Instructions—Applicability to Evidence.</p> <p>On the trial of a defendant, charged with having introduced liquor into .the Indian country in violation of Act July 23, 1892, c. 234, 27 Stat. 260, as amended by Ac.t Jan. 30, 1897, c. 109, 29 Stat. 506, or with having carried liquor into Indian Territory in violation of Act March 1, 1895, c. 145, 28 Stat. 693, an instruction that defendant might be convicted if the jury found that he had in his possession liquor which had recently been Introduced into the district from a point without the state and district was erroneous, as not applicable to the evidence, where there was no evidence as to the time when the liquor found in defendant’s possession was introduced or carried into the district.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]</p> <p>2. Criminal Law (§ 814*) — Evidence—Presumption op Good Character.</p> <p>In the absence of any evidence as to the character of defendant in a criminal case, an instruction that the law presumes his good character, “and such presumption is to be considered as evidence in favor of the accused in considering the question of his guilt or innocence,” Jiedd properly refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]</p> <p>3. Woeds AND Phrases — "Recent.”</p> <p>‘■Recent,” as used in connection with the presumption arising from the possession of stolen goods, is a term not capable of exact or precise definition, and varies within a certain range with the conditions of each particular case, and is a question of fact wholly for the jury (citing Words and Phrases, Recent).</p>

Dooling, Judge. In the matter of the petition of the Shipowners’ & Merchants’ Tugboat Company, owner of, the tugs Dauntless and Hercules, for limitation of liability; the Hammond Dumber Company, damage claimant. From a decree dismissing the petition, petitioner appeals.

<p>In Error to the District Court of the United States for the Northern District of Ohio; William E. Day, Judge.</p> <p>Action at law by Harry J. Kurtz against the Lake Shore Electric Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p> <p>Suit in equity by the Rathbun-Jones Engineering Company against the People’s Light Company. Decree for complainant, and defendant appeals.</p>

<p>AT.TT.wa (§ 68*) — NATURALIZATION—APPLICATION—TIME.</p> <p>Naturalization Act June 29, 1906, e. 3592, § 4, 34 Stat. 596 (Comp. St. 1913, § 4352), provides for a declaration of intention to become a citizen, but that no alien wbo has declared his intention to become a citzen shall he required to renew such declaration, and that not less than two or more than seven years after he has made such declaration he shall make and file in duplicate a petition in writing to be made a citizen, provided that, if he has filed his declaration before the passage of the act, he shall not be required to sign the petition in his own writing, etc. Held, that a declaration made prior to the act is valid, no matter how long prior thereto it may have been made, but that after the passage of the act the person making the declaration has no superior rights to a subsequent declarant, and in both cases final application for citizenship must be made, within seven years after the passage of the act.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dee. Dig. § 68.*]</p>

<p>Patents (§ 828*) — Validity and Infringement — Thin Leaf or Fabric.</p> <p>The Gregory patent,' No. 848,301, claim 2, for a tbin leaf or fabric composed entirely of soluble cotton and a coloring matter incorporated therein, intended to be used for decorative purposes instead of metal leaf, held valid and infringed.</p>

<p>Patents (§ 328*) — Validity and Infringement — Signal Lamp.</p> <p>The Hamm patent, No. 651,782, for a signal lamp, held void for anticipation and lack of patentable invention.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; James S. Young, Judge.</p> <p>Suit in equity by the Charles Hunnicutt Company against the A. B. Gaston Company, a partnership, and the A. B. Gaston Company, a corporation. Decree for defendants, and complainant appeals.</p>

<p>1. Patents (§ 328*) — Infringement—Printing Plate Holder.</p> <p>Tbe Storm patent, No. 673,485, for a printing plate bolder, the essential feature of which is that the block supporting the clamp which holds the plate in place on the base is removable from the groove in the base in which it slides at any point, but can be fixed in position by turning a screw, construed, and held not infringed.</p> <p>2. Patents (§ 22*) — Infringement—Substitution of Equivalents.</p> <p>While the nonuse of a patented device does not estop the owner of the patent from asserting rights thereunder, it is not entitled to the liberal application of the doctrine of equivalents which might be invoked if the device had gone at once into extensive use.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 24; Dec. Dig. § 22.*]</p>

Rohe & Bro., a corporation, and Jacob Fowler, were indicted for violating Meat Inspection Act June 30, 1906, and demurred to the indictment. The indictment here is in three counts, the first of which charges that defendants offered for transportation in interstate commerce from New York City to Charleston, S. C., certain hams which were, and which defendants knew to be, unfit for human food, and which they know were intended for human consumption.

Habeas corpus on petition of Chung Kin Tow to obtain his release from detention under an extradition warrant issued by the Governor •of Massachusetts.

Criminal prosecution by the United States against Charles D. Hou-gendobler. On motion by defendant for new trial and in arrest of judgment.

<p>At Law. Action by the Connecticut General Life Insurance Company against Robert O. Eaton, as Collector of Internal Revenue for the District of Connecticut. Trial to court.</p>

<p>1.' INTERNAL REVENUE (§ 9*) — EXCISE TAX ON CORPORATIONS — MUTUAL LIFE Insurance Company — “Dividend”—“Income Received.”</p> <p>In the case of a mutual life insurance company doing business on tbe level premium plan, which at the end of a year, when the actual cost of carrying a policy is ascertainable, credits the policy holder with the surplus premiums paid, which may be applied in payment of renewal premiums or in other ways provided, such surplus does not represent “income received” by the company during the year, nor “dividends” paid to policy holders, and is not taxable under Corporation Tax Act Aug. 6, 1909, •c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, §§ 6300, 6301).</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Dividend.]</p> <p>2. Internal Revenue (§ 9*) — Excise Tax" on Corporations — Deductions from Gross Income — Expenses of Business.</p> <p>Amounts expended by a business corporation in enlarging or making improvements in its office or premises, not in the nature of permanent improvements to tlie property, but to facilitate the transaction of a growing business, should properly be deducted as necessary expenses of the business in computing the taxable net income of the corporation, under Corporation Tax Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, §8 6300, 6801).</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*]</p> <p>3. Internal Revenue (§ 9*) — Excise Tax on Corporations — “Net Income.”</p> <p>The “net income” of a corporation for any year, taxable under Corporation Tax Act of Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. .1913, §§ 6300, 6301), is limited to such income, less allowable deductions, as was actually received during that year, and does not include items which may have been earned, or have become due, but have not been collected.</p> <p>[Ed. Note. — Eor other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dee. Dig. § 9.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Net Income.]</p> <p>4. Internal Revenue (§ 9*) — Excise Tax on Corporations — Profits and Losses on Real Estate.</p> <p>A mutual life insurance company from time to time acquired real estate through foreclosure of mortgages securing loans made thereon, which property was carried on the books at a valuation equal to its original cost to the company, and was listed as assets at such valuation in reports to the various state commissioners. In its reports to the Commissioner of Internal Revenue under Corporation Tax Act Aug. 6, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, §§ 6300, 6301), the company listed as profits or losses, as the case might be, the difference between the book value and the selling price of such of the real estate as it had ábld during the year. Held that, under the provision of the act for the deduction from gross income of “all losses actually sustained within the year and not compensated by insurance or otherwise,” in fhe absence of evidence to the contrary, the profits and losses on such sales should be treated as having been made or sustained during the year, and the company was chargeable in its gross income with the profits made, and entitled to a deduclion of the full amount of the losses.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*]</p>

Samuel M. Wetmore and others were indicted for conspiracy with intent to defraud the United States. On motion to quash the indictment.

<p>At Law. Action by David J. Black against the Canadian Pacific Railway. Verdict for plaintiff. Defendant moves for a new trial.</p>

Philip Rubin and others were indicted for conspiracy to conceal the assets of a bankrupt, and they move to quash the indictment. Sustained.

<p>In Admiralty. Suits by Wilhelm Wilhelmsen against the steamship Thielbek and the Port of Portland, by the steamship Thielbek and Knohr & Burchard against the Port of Portland and the steamship Thode Fagelund, and by E. de Nemour-Du Pont Powder Company and by W. R. Grace & Co. against the Thielbek and the Port of Portland. Causes consolidated. Decree against the Fagelund and the Port of Portland.</p>

<p>1. Aliens (§ 32*) — Exclusion op Chinese — Appeal—Authority to Determine.</p> <p>A Chinese person, excluded from entry into the United States by an order of local officers, being given the right of appeal to the Secretary of Labor, is entitled to have his appeal determined by such officer, unless, by reason of his death, resignation, absence, or sickness, the Assistant Secretary or some other officer designated by the President is authorized, in accordance with Rev. St. § 177 (Comp. St. 1913, § 259), to perform his duties.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. § 32.*]</p> <p>2, Aliens (§ 32*) — Exclusion op Chinese — Review op Order on Writ op Habeas Corpus.</p> <p>A Chinese person, excluded from entry into the United States by local officers, may raise the question by petition for a writ of habeas corpus whether an appeal taken by him was determined by one having legal authority;' the determination of such an appeal by one unauthorized being a denial of a fair hearing and of due process of law.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dee. Dig. § 32.*]</p>

<p>1. Corporations (§ 636*) — Foreign Corporations — Right to Do Business Within State — Franchise Tax.</p> <p>A state may impose on particular classes of foreign corporations a franchise or privilege tax as a condition to their right to do business within the state.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. § 636.*]</p> <p>2. Corporations (§ 648*) — Foreign Corporations — Doing Business Within State — Franchise Tax — Amount.</p> <p>The validity of a franchise tax imposed on the right of a foreign corporation to do business within a state does not depend on the mode which the state may adopt in fixing the amount which it will exact for the franchise for any year.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2516; Dec. Dig. § 648.*]</p> <p>3. Commerce (§ 69*) — Corporate Franchise Tax — Doing Business Witiíin State.</p> <p>Rev. St Tex. 1911, arts. 3837, 7394, imposing a franchise tax on any foreign corporation, as a condition to its right to do business in Texas, of a given percentage of all the corporation’s capital and surplus, representing all of its property, wherever situated, and all of its business, both intrastate arid interstate, thereby placing a tax on the corporation’s property rights beyond the jurisdiction of the state for taxation purposes, are unconstitutional.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113-119; Dee. Dig. § 69.*]</p>

In Equity. Suit by William E. Blake and Willie Mallory Chamberlain, executors of Frank W. Chamberlain, deceased, against the Foreman Bros. Banking Company and others. On motion to dismiss.

<p>Salvage (§§ 7, 31*) — Service Entitled to Compensation — Rescue ov Giujw AND Tow OF BURNING TUG.</p> <p>The rescue in Puget Sound by a power schooner of the master andcvcw of a burning tug and of a barge in her tow, worth with cargo ,$3,100, held a salvage service, and an award of $300 made therefor; it appearing that the salving schooner incurred little or no risk, and that there was other assistance near which made certain the rescue of the men.</p> <p>pid. Note. — Jfor other cases, see Salvage, Cent. Dig. §§ 13,16, 26, 75-77 Dec. Pig. §§ 7, 31.*]</p>

<p>In Equity. Suit between the Duplex Metals Company and the Standard Underground Cable Company. On plaintiff’s exception to the taxation of costs.</p>

<p>1. Judges (§ 22*) — Expense Allowance oe Commerce Coubt Judges.</p> <p>Tbe provision of Judicial Code (Act March 3, 1911, c. 231) § 209, 36 Stat. 1146, that “each of tbe judges during tbe period of bis service 'in tbe Commerce Court shall, on account of the regular sessions of tbe court being held in tbe city of Washington, receive in addition to bis salary as Circuit Judge an expense allowance at tbe rate of one thousand five hundred dollars per annum,” was no,t repealed by tbe failure of Congress to make an appropriation for the payment of such allowance after August 24, 1912, and tbe United States is liable to a judge for tbe amount accrued thereunder during tbe time of bis subsequent service as a member of tbe court.</p> <p>[Ed. Note. — Por other cases, see Judges, Cent. Dig. §§ 75-88, 179; Dec. Dig. § 22.*]</p> <p>2, Courts (§ 302*) — Jurisdiction of Federal District Court — Claims Against United States.</p> <p>A suit by a judge to recover such allowance is not within Judicial Code (Act March 3, 1911, c. 231) § 24, par. 20, 36 Stat. 1093 (Comp. St. 1913, § 991 [20]) which excepts from suits against the United States of which the District Courts are given jurisdiction “cases brought to recover fees, salary or compensation for official services of officers of the United States,” and may be maintained in a District Court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 843, 986; Dec. Dig. § 302.*]</p>

Day, Judge. Suit in equity by E. E. Carpenter, Franklin Leonard, Jr., and Joseph T. McCaddon against the Wheeling & Lake Erie Railroad Company, W. M. Duncan, its, receiver, and others. Decree for complainants, and defendant Railroad Company and its receiver appeal.

Dietrich, Judge. Suit in equity by the United States against the Chicago, Milwaukee & St. Paul Railway Company of Idaho. Decree for the United States, and defendant appeals.

Willard, Judge. Action for penalties by the United States against the Great Northern Railway Company. Judgment for the United Stales, and defendant brings error. The United States sued the defendant railway company, a common carrier by railroad of property in interstate commerce, to recover penalties for three separate alleged violations of the act of Congress approved March 4, 1907 (34 Stat. 1415, c. 2939 [Comp.

<p>In Error to the District Court of the United States for the District of Oregon; R. S. Bean, Judge.</p> <p>Action by the Dadd & Tilton Bank against the Lewis A. Hicks Company. Judgment for defendant, and plaintiff brings error.</p>

Action at law by j. W. Turk individually, the Insurance Company of North America, and J. W. Turk, for the use of the Insurance Company, against the Illinois Central Railroad Company and the Chicago, St. Louis & New Orleans Railroad Company. Judgment for defendants, and plaintiffs bring error.

<p>In Error to the District Court of the United States for the Northern District of Ohio, Eastern Division; William L.. Day, Judge.</p> <p>At Law. Action by Ivan Sertic against L. A. Cobb, receiver of the Columbian Hardware Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; William H. Hunt, Judge.</p> <p>Action at law by Thomas McManus against the Freedom Casket Company. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge. Separate suits in equity by the Stewart Mining Company against Jonathan Bourne, Jr., and Lillian E. Bourne, his wife, and against the Sierra Nevada Mining Company. Decrees for defendants, and complainant appeals.

<p>Appeal from the District Court of the United States for the Northern Division of the District of Idaho; Frank S. Dietrich, Judge. .</p> <p>Suit in equity by the Stewart Mining Company against the Bunker Hill & Sullivan Mining & Concentrating Company. Decree for defendant, and complainant appeals.</p>

<p>1. Judgment (§ 585*) — Itros Judicata.</p> <p>Where a second action is* on the same claim or demand as the first,, and is between the same parties or their privies, the judgment in the first, if rendered on the merits, constitutes an absolute bar to the prosecution of the second.</p> <p>[E<1. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062-1064, 1067, 1073, 1084, 1085, 1093-1095, 1132; Dec. Dig. § 585.*]</p> <p>2. JUDGMENT (g 670*)-PBIOB SUIT-CAPACITY OF PARTIES.</p> <p>Where, in a prior suit to quiet title to real property, L. was joined as a defendant, and, though his capacity as trustee was not disclosed in the-title, such was the interest attributed to him in the body of the bill, the judgment in favor of the complainant in that suit was a bar to a subsequent suit by complainant as trustee for the same beneficiaries.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1181, 1185 % Dec. Dig. § 670. *J</p> <p>3. Judgment (§ 585*1 — Conceustveness-Res Judicata.</p> <p>Where, in a prior suit to quiet title, complainant was joined as a defendant, and sued as trustee for certain infant children, it was his duty to set up whatever claims of title he had; and his failure in -that suit to rely on a certain deed did not entitle Mm, after an adverse decree, to maintain another suit to establish the trust, based on such deed.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §g 1062-1064, 1067, 1073, 1084, 1085, 1092-1095, 1132; Dee. Dig. § 585.*]</p>

<p>1. Appeal and Error (§ 87*) — Orders Appealable — Matters op Discretion —Application to Intervene — Denial.</p> <p>.</p> <p>Tbe- rule that the denial of a petition to intervene is discretionary, and not appealable, is subject to the qualification that the discretion must be exercised in accordance with recognized judicial standards.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 559-569, 577-596; Dec. Dig. § 87.*]</p> <p>2. Parties (§ 41*) — Intervention—Right to Intervene.</p> <p>Where claimant’s rights are finally disposed of, and intervention is necessary for their protection, the right to intervene is absolute.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 68; Dec. Dig. § 41.*]</p> <p>3. Railroads (§ 1S6*) — Stock—Mortgages—Foreclosure—Sale—Intervention.</p> <p>Where the only asset of a railroad company was a proportionate amount of the capital stock, of a railway company of the same name, the railroad company having mortgaged the stock to secure its' bonds, and In proceedings to foreclose the mortgage the value of the stock depended largely on the purchaser’s getting control of the railway company, and the interest of a protective committee, with which it was alleged the trustee was acting, was adverse to that of nondepositing bondholders, it was error to deny the petition of one representing substantial rights of nonde-positing- holders to intervene, to contest the mode and terms of the sale.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 615, 616; Dec. Dig. § 180*1</p> <p>4. Appeal asd Error (§ 87*) — Orders Appealable — Final Order — Determination op Rights — Retition op Intervention — Leave to Intervene — • Denial.</p> <p>Where orders denying the petition of one representing nondepositing bondholders to intervene in proceedings to foreclose a mortgage on certain railway stock completely disposed of petitioner’s claims and left nothing to be done as to them in the litigation, the orders were final and appealable, under Judicial Code (Act March 3, 1911, c. 231) § 128, 86 Stat. 1133 (Comp. St. 1913, § 1120), though the sale, to which objections were made, was subject to confirmation after it had been held.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 559-569, 577-596; Doc. Dig. § 87.*</p> <p>Finality of judgments and decrees for purposes of review, see notes to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.]</p> <p>Lacombe, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; William E. Day, Judge.</p> <p>Action by Eeona T. Donovan against the Breakwater Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error (§ 323*) — Necessary Parties Appellant — Parties Having Separate Interests.</p> <p>Where the respective interests of several defendants, which are affected ,by a judgment or decree against all of them, are separate and different, one may appeal without joining the others.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1796, 1798-1805; Dec. Dig. § 323.*]</p> <p>2. Courts (§ 329*) — Jurisdiction op Federal Courts — Amount in Controversy.</p> <p>A federal court is without jurisdiction of a suit brought by a property owner, in behalf of himself and all other property owners who might join, to enjoin an electric railroad company from exercising the privilege of crossing certain streets and highways, granted by the municipal authorities, where no others joined as complainants, and it is not alleged or shown that the injury to complainant’s property rights from the exercise of the privilege granted would exceed $3,000.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § S97; Dec. Dig. § 329.*</p> <p>Jurisdiction of federal courts as determined by the amount in controversy, see - notes to Auer v. Lombard, 19 C. C. A. 75; Tennet-Stribling Shoe Co. v. Roper, 36 C. C. A. 459; O. J. Lewis Mercantile Co. v. Iilep-nor, 100 C. C. A. 288.]</p>

<p>INSURANCE (§ 678*)-NlíW INSURANOE — OFTER-CONSTRUCTION.</p> <p>An insurance company having passed into the hands of receivers, they secured an offer from defendant to issue new policies to such holders of insurance in the insolvent company on a specified date as might accept the terms of the proposal, which contained an article providing that the receivers did not affect the rights or interests of any policy holder in the old company, or assignee thereof, or beneficiary named therein; the word “policy holder” being used to mean the person whose life is insured under any policy, and being subject in case of impairment of health to a new examination and an impairment lien. Held, that such clause should be construed to mean that nothing in the agreement between the rcceiv-ers and defendant should affect the rights of any one under the insolvent company’s policies, be he the insured, his assignee, or beneficiary, and as the right to new insurance arose, not out of the policies in the insolvent company, but out of the agreement between defendant and the receivers, it was limited to the policy holder himself, and hence could not be accepted for an insane policy holder by Ms guardian, under the order of the court having jurisdiction of the guardianship.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1810; Dec. Dig. § 678.*]</p>

This cause comes here to review a judgment of the District Court, Eastern District of New York, entered on the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought by an ernployé to recover for personal injuries predicated on the alleged negligence of the employer.

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

<p>1. Fraud (§ 34*) — Action—Condition Precedent — Necessity of Reformation of Instrument.</p> <p>In the federal courts a party cannot in an action at law be relieved from tbe effect of a sealed instrument because of fraud, except where the fraud was connected with the actual execution of the instrument, and to be relieved, because of collateral fraudulent representations, must resort to equity; and hence a wife, induced to execute a separation agreement by the husband’s false representations as to the amount of his income, could not sue for damages without having the separation agreement reformed or set aside in equity, especially where the agreement contained an express covenant not to sue for anything occurring prior to its execution.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 29; Dec. Dig. § 34.*]</p> <p>2. Abatement and Revivad (§ 52*) — Reformation of Instruments — Parties as to Whom Instrument May be Reformed.</p> <p>The death of a husband did not affect the right of a court of equity to reform or set aside a separation agreement, by which'he agreed to make certain quarterly payments to the wife during his life, and to make provision in his will for the continuation of such payments during the wife’s life or until her remarriage.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 248-254; Dec. Dig. § 52.*]</p> <p>3. Reformation of Instruments (§ 47*) — Relief Awarded — Damages.</p> <p>Where a court of equity reforms a contract, it may do complete justice between the parties by awarding damages for the breach of the contract as reformed.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 195-198; Dec. Dig. § 47.*]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

<p>Master and Servant (§ lie*) — Appliances Used in Building Operations— Construction ov Statute — “Structure.”</p> <p>Gen. Code Ohio, § 12593, which provides that whoever, employing another to labor “in erecting, repairing, altering or painting a house, building or other structure, knowingly or negligently furnishes, erects or causes to be furnished for erection * * * unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances which will not give proper protection to the life and limb of a person so employed,” shall be subject to a fine, is broad enough to apply to any “structure” in the erection of which it is necessary to use scaffolding, hoists, etc., and includes within its scope an iron tank, in erecting which a derrick was . used to hoist the plates into position.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.*</p> <p>Eor other definitions, see Words and Phrases, Eirst and Second Series, Structure.]</p>

<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 Christiana Werthner and another against the Girard Avenue Farmers’ Market Company. Judgment for plaintiffs, and defendant brings error.</p>

This cause comes here upon writ of error to review a judgment of the District Court, Western District of New York, entered upon a verdict in favor of defendant in error, who was defendant below. The action is brought under the federal Employers’ Liability Act, to recover damages on account of the death of plaintiff’s intestate (hereinafter referred to as deceased), which, the complainants alleges, resulted from the negligence of defendant.

<p>1. Post Office (§ 49*) — Larceny fkom Maim — Evidence.</p> <p>Evidence held to sustain a conviction of a mail carrier for larceny from the mails.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. § 49.*]</p> <p>2. Cbiminaí, Law (§ 868*) — Trial—Exhibits—Taking to Jury Room.</p> <p>It was not error to permit a jury to take a broken box, introduced as an exhibit, to the jury room, without specific instructions as to how they were to examine it, where' no objections were taken at the time, or instructions concerning it requested.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2070; Dec. Dig. § 868.*]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, in favor of defendants in error who were plaintiffs below. The judgment was entered upon a verdict directed by the court at the close of the trial.</p> <p>The plaintiffs are assignees of the firm of Weber and Lea, and the word “plaintiffs,” when used hereinafter, denotes the last-named firm. The action was brought to recover balance alleged to be due for various shipments of imported cork waste alleged to have been sold and delivered by plaintiffs to defendants. The defendant does not question the delivery and acceptance of the merchandise, but avers by way of recoupment and set-off that it had been delivered only a part of a large quantity which plaintiffs had contracted, but had failed, to deliver and defendant claimed damages on account of such nondelivery in excess of plaintiffs’ demand. This is the second time the cause has been before this court. On the first trial a verdict was directed in favor of the defendant. Our opinion Reversing the judgment then reviewed will be found in 206 Fed. 456, 124 O. O. A. 362.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

This cause comes here upon appeal from decrees of the District Court, Southern District of New York, dismissing the bills in two suits for infringement of patent.

<p>In Equity. Suit by H. U. Bartlett against the Okla Oil Company and others. On motion to dismiss amended bill.</p>

<p>Indians (g 16*) — Homestead ov Deceased Allottee — Royalty from Oil and Gas Lease.</p> <p>Act May 27, 1908, c. 199, § 9, 35 Stilt. 312, provides that, if any member of the Five Civilized Tribes of Indians of half or more Indian blood “shall die leaving issue surviving born since March 4, 1906, the, homestead of such deceased allottee shall remain inalienable * * * for the use and support of.' such issue during their life or lives until April 2(S, 1931.” Section 2 of the act authorizes the leasing- of restricted lands for oil and gas with the approval of the Secretary of the Interior. Held, that the provision of section 9 restricting alienation of the homestead for the use and support of the issue of the deceased allottee contemplates its use only for agricultural or grazing purposes, or such other use as would not conflict with the provision against alienation of the land, and does not authorize its leasing for oil and gas, which is to that extent inconsistent with the restriction, but that,such authority is found only in ejection 2; that where such a homestead is leased by the heirs in whom the title is vested, with the approval of the Secretary, the royalties received from the oil or gas produced belong to the heirs according to their several interests.</p> <p>[IDd. Note. — For other cases, see Indians, Gent. Dig. § 45; Dee. Dig. § 16.*]</p>

In Equity. Suit by Milton Gatzert against Michael R. Rticey, as executor of the will of John Carney, deceased, James Carney, and Elizabeth Carney Pratt, commonly known as Eizzie Pratt. Decree for complainant.

Hollister, Judge. Suit in equity by Frank Lively, receiver, against John R. Picton, as an individual and as trustee, and the German National Bank. Decree for defendants, and complainant appeals.

Sater, Judge. Suit in equity by Caroline E. Peters, as administratrix de bonis non with the will annexed of the estate of George M. Peters, deceased, against Daniel McEafen, receiver of the Columbus Buggy Company, Valentine & Co., and the Columbus Buggy Company. Decree for defendants, and complainant appeals.

Petition for Revision of ’Order of the District Court of the United States for the Eirst Division of the Northern District of California. In Bankruptcy. In the matter of bankruptcy proceedings of P. S. Mayhew. On petition to review an order allowing homestead exemption to the bankrupt and his wife, to which Arthur H. Brandt, the bankrupt’s trustee, filed objections. On April 18, 1912, If.

Petition to Superintend and Revise from tbe District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge. In the matter of the Clark-Herrin-Campbell Company, alleged bankrupt. On petition by said company against the H. B. Claflin Company and others, petitioning creditors, to superintend and revise an order of the District Court.

This cause comes here upon appeal from an order of the District Court for the Western District of New York, denying the appellant’s application for a writ of habeas corpus.

<p>1. Master asd Servant (§ 233*) — Action for Injury to Servant — Contributory Negligence — Choice oe Ways.</p> <p>Plaintiff had worked in defendant’s foundry for 11 years, when he was injured by falling into a pit, which was of the usual kind used in foundries, circular in shape, with an earth core in the center, on which was mounted a revolving crane. Plaintiff was familiar with the pit and the surrounding floor, which was of earth and uneven. There were two ways of passing to the core of the pit; one called the front way, and the other the back way. Plaintiff was directed by the foreman to wheel sand onto the core “by the back way, the same” as another employs did on the day before. To do this it was necessary to pass around one side of the pit. There was a tramway, with the rail within from six inches to two feet of the edge of the pit, and plaintiff wheeled his first load in that space, as he had seen the man do the day before, but in returning he went on the other side of the rail, where there was ample space. It was while he was wheeling his second load along the edge of the pit that he fell in. owing to the unevenness of the ground. There was nothing to prevent him from using the space on the other side of the rail, which was perfectly safe, except the slight inconvenience of crossing the rail with his harrow. Held, that the direction of the foreman could not be construed to require him to take the narrow and dangerous way, and that in doing so, when there was a safe way equally open and well known to him, he was chargeable with negligence as matter of law, which precluded his recovery.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-686, 701-742; Dec. Dig. § 233.*]</p> <p>2. Negligence (§ 136*) — Actions eor Negligence — When Question of Daw.</p> <p>Where the facts are such that from them all reasonable men would draw the same conclusion, and that upon the testimony no recovery can be had upon any view which can properly he taken of it, the question of negligence ceases to be one of fact for the jury, and becomes one of law for the court to determine.</p> <p>FEd. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p>

Dyer, Judge. . Suit by S. M. Locke against C. L. Reynolds and another, with cross-bill by defendants against Locke and others. Decree for complainant, and defendants appeal.

The complaint was dismissed, as to the defendants Blackwell’s Durham Tobacco Company and the American Snuff Company and a verdict was directed in favor of the American Tobacco Company and the Metropolitan Tobacco Company. An action similar to this was brought in the state courts and the complaint was dismissed. The dismissal was sustained by the New York Court of Appeals. 195 N. Y. 565, 88 N. E. 289.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Robert J. Bennett against Jacob Ruppert. Judgment for plaintiff, and defendant brings error.</p>

Petition to Revise Order of the District Court of the United States for the Western District of New York. On petition to revise an order of the District Court for the Western District of New York affirming an order made by Mark T. Powell, referee in bankruptcy, allowing the claims of creditors Mary M. Gage and Albert F. Robson against the individual estates of Charles W. Robson and John Monroe, who were members of the firm of Robson & Monroe.

Petition to Revise and Appeal from the District Court of the United States for the Southern District of New York.

<p>1. Judgment (§ 287*)- — Dismissal as to One Party — Ewect as to Otih® Party.</p> <p>Where defendant railroad company, in performance of a contract to transport a regiment, furnished a car with a defective door, and plaintiff, while lawfully riding in the car, was injured by his foot becoming caught by the door while the car was being transported by a terminal company, which had nothing to do with the inspection or maintenance of the car, a dismissal ms to the terminal company did not also require a dismissal as to the railroad company.</p> <p>[Ed. Noto. — For other cases, see Judgment, Cent. Dig. §§ 415, 418-121, 429; Dec. Dig. § 237.*]</p> <p>2. Carriers (§ 318*) — Injury to Passenger — Defective Car — Evidence.</p> <p>Evidence held to sustain a verdict in favor oí a passenger, riding in a freight car, for alleged injuries suffered by reason of a defect therein.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307--1314; Dec. Dig. § 318.*]</p> <p>3. Carriers (§ 242*) — Transportation of Freight — Caretakers.</p> <p>Where defendant contracted to transport a regiment, with its horses, equipment, baggage, etc., it would be assumed, in the absence of anything to the contrary, that the commanding officer was authorized to say what men should go in the car with the horses, and hence a civilian driven' attached to the regiment, while riding in the car under orders, was not a trespasser.</p> <p>[Ed. Note.--For other cases, see Carriers, Cent. Dig. § 980; Doc. Dig. § 242.*</p> <p>.Relation of carrier to persons carried under contract with their employers, see note to Chicago & N. W. Ry. Co. v. O’Brien, 07 0. 0. A. 427.]</p>

<p>In Error to the District Court of the United States for the Eastern District of New York.</p> <p>Action by the Abrast Realty Company against William J. Maxwell. Judgment for plaintiff (206 Fed. 333), and defendant brings error.</p>

<p>In Equity. Suit by tbe De Laski & Thropp Circular Woven Tire Company against the William R. Thropp & Sons Company. On final hearing.</p>

<p>In Equity. Suit by Charles R. Schmidt against the Central Foundry Company and Waddill Catchings, its receiver. On final hearing.</p>

Suit by the City of Montgomery, Ala., against the Postal Telegraph-Cable Company, and ancillary bill by the Postal Telegraph-Cable Company against the City. On motion to remand to the state court.

<p>Constitutional Law (§ 42*) — Power of Court to Determine — “Blue Sky Law.”</p> <p>A court of equity will not inquire into the constitutionality of a state “blue sky law” (Laws Mont. 1913, c. 85), at suit of a corporation whose plan of doing business indicates on its face that it is intended to defraud.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*]</p>

<p>Municipal Corporations (§ 230*) — Powers—Contracts—Authority—Form —Ordinance or Motion.</p> <p>Astoria City Charter, § 38, conferred on the city council power to maintain a fire department and provide apparatus, and appropriate money to pay the expenditures from any fund applicable thereto, provided that no bill should be contracted by any officer of the city without first sending to the council a written requisition therefor, and if the council deemed the supplies necessary they should authorize the proper committee to purchase them, and further provided that the authority given to the council by such section could only be exercised by ordinance, unless otherwise provided. Section 124 declared that the city should not be bound by any contract unless authorized by ordinance and made in writing or by order of the council. A committee of the council in charge of the fire department recommended the purchase of apparatus, on which the council by motion authorized the committee to act, and later the committee recommended to the council that it be authorized to contract with plaintiff’s agent for the apparatus, on which authority the contract for the apparatus was made. Held, that the contract was not void, because the authority was conferred pursuant to a motion, instead of by ordinance, in conformity with the requirements of section 124.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 654-656; Dec. Dig. § 230.*]</p>

<p>1. Commeeoe (§ 57*)- — Constitutional Law (§§ 240, 276*) — Regulation of Business — Due Peocess of Law — Constitutionality of “Blue Sky Law” — “Domestic Investment Company” — “Foreign Investment Company.”</p> <p>Act W. Va. Feb. 11, 1913 (Laws 1913, c. 15; Code 1913, c. 55B), known as the “Blue Sky Law,” provides in section 1 that “every corporation, every copartnership, every company, every individual, and every association” with certain exceptions as to banks, insurance companies, etc., which soils or negotiates for the sale of “any stocks, bonds, debentures or other securities of any kind” other than'bonds of the United States, or of other political or municipal corporations, or “notes secured by mortgages on real estate within the state,” to any person in the state, shall be known as “domestic investment companies,” or “foreign investment companies” if organized in another state or a foreign country. It then provides that it shall be unlawful for any such company to do any of the business specified in section 1, without first applying to the State Auditor, making a showing of financial condition and solvency and obtaining a license, for which a fee is charged. It is also required to make annual reports, and penalties are imposed to be enforced by criminal prosecution for violation of the act. Held that, in view of its explicit and unambiguous language, the act cannot be construed as applying to corporations alone, and that as applied to individuals, partnerships, or voluntary associations of individuals, it is in violation of the Constitution of the United States and invalid as abridging their right as citizens to contract, thus depriving them of their property without due process of law, denying them the equal protection of the laws, and imposing a restraint and burden on interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 72-76, 88, 90, 92-102; Dec. Dig. § 57 ;* Constitutional Law, Cent. Dig. §§ 688, 692, 693, 697-699, 815, 840; Dec. Dig. §§ 240, 276.]</p> <p>2. Commerce (§ 35*) — Subjects op Interstate Commerce — Stocks, Bonds and Securities.</p> <p>Stocks, bonds, debentures, and other securities are subject-matters of interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 17, 34, 35; Dec. Dig. § 15.*]</p> <p>3. Constitutional Law (§ 207*) — Privileges—Citizens oe Several States —Corporations—“Citizen.”</p> <p>Corporations are not “citizens” within Const. U. S. art. 4, § 2, providing that the citizens of each state shall be entitled to all the. privileges and immunities of citizens in the several states.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. |§ 625-648; Dec. Dig. § 207.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Citizen.]</p> <p>Woods, Circuit Judge, dissenting.</p>

<p>In Equity. Suit by the United States against the Keystone Watch Case Company and others. Decree for the United States.</p>

<p>At Law. Action by Delia M. Valeri against the Pullman Company. On motion by defendant to dismiss complaint.</p>

In Admiralty. Suit by E. N. Charlesworth and others against the American steamer Knickerbocker, submitted with suit by the Stimson Mill Company, as owner of the steam tug Tillicum, against said steamer.

At Law. Action by Albert N. Damon and others against John Sullivan. On demurrer to parts of answer. Action to recover possession of 80 acres of land in O’Brien county, this state, and damages for the wrongful detention thereof. Submitted on plaintiff’s demurrer to that part of defendant’s answer which pleads adverse possession and the statute of limitations based thereon.

<p>1. Master and Servant (§ 258*) — Actions for Injuries — Petition—Sufficiency.</p> <p>In an action for injuries to an employe in a lumber yard, thrown from a platform in front of an approaching train by a collision between an empty truck which he was pushing and a loaded truck drawn by a horse, a petition, alleging that the horse was driven wantonly, heedlessly, carelessly, and negligently, and that the driver carelessly, wantonly, and recklessly failed and neglected to give plaintiff notice of the danger, stated a cause of action for ordinary, as distinguished from wanton or willful, negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]</p> <p>2. Pleading (§ 257*) — Amendment—Necessity of Amendment.</p> <p>Where defendant denied the allegations of petition for negligence and affirmatively alleged that plaintiff, with full knowledge that a loaded truck was coming and with sufficient room to place himself out of danger, without any necessity needlessly exposed himself to whatever dangers were incident to the operation of the loaded truck, the court did not err in refusing to permit an amendment affirmatively alleging contributory negligence, since the answer in substance alleged contributory negligence, and the charge gave defendant the benefit of that defense, all known witnesses testified fully, and there was -nothing to suggest that any further evidence of contributory negligence could have been produced.</p> <p>¡Ed. Note. — For other cases, see Pleading, Cent. Dig. § 764; Dec. Dig. § 257.*]</p> <p>3. Master and Servant (§ 203*) — Liability for Injuries — Assumption of Risk.</p> <p>An employs in a lumber yard was pushing an empty truck along a platform, and when about to meet a loaded truck turned close to the edge of the platform. The loaded truck did not turn out far enough and collided with the empty truck, and either as a result of the collision or of the swing of the loaded truck as it pulled away such employs was thrown from the platform in front of an approaching train. Held, that he did not assume the risk of such injury, as he had no reason to anticipate that he would be negligently knocked from the platform.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>4. Master and Servant (§ 228*) — Liability for Injuries — Proximate Cause.</p> <p>The injured employe’s conduct bore no causal relation to the injury distinguishable from his negligence contributing thereto, which, if slight, did not bar a recovery under the express provisions of Page & A. Gen. Code Ohio, § 6245 — 1..</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p> <p>5. Courts (§ 405*) — Review—-Turtsdictional Questions.</p> <p>Though no question of jurisdiction was suggested to the court below or to the Circuit Court of Appeals, that court might not overlook jurisdictional defects disclosed by the record.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1090, 1101, 1103; Dec. Dig. § 405.*]</p> <p>6. 'Removal of Causes (§ 86*) — Insufficiency op Petition — Effect.</p> <p>In an employé’s action for injuries, commenced in an Ohio state court, the petition alleged that defendant was a Michigan corporation operating a factory in Ohio, but did not allege plaintiff’s residence or citizenship, except that he was temporarily employed in such factory. Defendant’s petition for removal to the federal court, filed about one month after-the suit was commenced, alleged that plaintiff “is” a citizen of Ohio. Plaintiff, without moving to remand, filed an amended petition which defendant answered on the merits, and after a trial judgment was rendered for plaintiff. It was stipulated at the trial that plaintiff then resided at B. in Ohio, and he testified that he lived there, and that shortly before the accident he had been working at other places in Ohio. Held that, while the petition for removal was defective for failure to show that plaintiff was a citizen of Ohio when the action was commenced, this did not require a reversal of the judgment, since a petition which seems'to be intended to state good cause for removal, but is merely imperfect in reciting one of the necessary facts, and which is accepted by the state court as sufficient, removes the case and gives jurisdiction to the federal court, and, if the existence of diverse citizenship can fairly be presumed from the entire record, the judgment will be affirmed as in cases commenced in the federal court, notwithstanding the mere possibility of lack of jurisdiction.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. § 86.*]</p>

McCall, Judge. Action by Mrs. W. G. Stephens, by next friend and husband, W. G. Stephens, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

This was an action in the District Court for the Eastern District of New York, commenced on November 4, 1912, for damages arising from an accident while in the defendant’s employ. The original complaint stated that the plaintiff, was a resident and citizen of the county of Kings, and that the defendant was a resident and citizen of the state of. Pennsylvania.

<p>1. Pleading (§ 90*) — Plea—General Issue and Otiieb Defenses.</p> <p>The rule that, where the law authorizes a defendant to set up several pleas, he may use each plea in his defense, and the admissions unavoidably contained in one cannot be used against him in another, applies only where the defenses so made are inconsistent. Where they are consistent, as where a plea of the general issue is coupled with another defense explanatory thereof, the rule does not apply.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 184, 185, 187, 190, 194; Dec. Dig. § 90.*]</p> <p>2. Carriers (§ 316*) — Action for Injury to Passenger — Burden of Proof.</p> <p>Evidence that a passenger on a steamboat was stabbed by an employs of the boat, who was at the time with other employSs at a place where they had been called in the performance of their duties, was sufficient to raise a presumption of negligence on the part of the carrier, and place upon it the burden of proving a plea that the employe acted in self-defense.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1261, 1262, 1283, 12S5-129-1; Dec. Dig. § 316.*]</p> <p>3. Trial (§ 295*) — Instructions—Construction as a Whole — Action for Injury to Passenger.</p> <p>Instructions given by the court, in an action against a carrier by water for injury to a passenger from an assault by an employe of the boat, considered and, taken together, held free from error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*]</p>

McCall, Judge. In the matter of F. Bejach, bankrupt; C. H. Elliotte, trustee. Appeal from and petition to revise an order of the District Court, brought by the Southern Cotton Oil Company.

<p>1. Depositions (§ 55*) — Grounds fob Suppression — Failure to Conform to Notice as to Time of Taking.</p> <p>Plaintiff, in an action in a federal court in Alabama, elected to take a deposition in accordance with the state law, as authorized by Act March 9, 1892, c. 14, 27 Stat. 7 (Comp. St. 1913, § 1476). Code Ala. 1907, § 4032, as amended in 1911 (Gen. Acts 1911, p. 488) provides that the adverse party at the time of filing cross-interrogatories may demand notice of the time and place of taking the deposition, and may attend and cross-examine the witness orally; also that on failure to give the notice when required the deposition shall be suppressed. Plaintiff gave the notice as demanded by defendant, but the return of the commissioner, which, as required, stated the time and place of taking the deposition, showed that the time was several weeks after that stated in the notice. Held, that under the limitation created by the notice, the return did not show that the deposition was taken under the authority conferred on the commissioner, and that the overruling of a timely motion to suppress the deposition was prejudicial error.</p> <p>tKd. Note. — For other cases, see Depositions, Cent. Dig. §§ 120-124; Dee. Dig. § 55.*</p> <p>Conformity to state practice, see notes to O’Connell v. Reed, 5 C. C. A. 602; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392; Diamond Coal & Coke Co. v. Allen, 71 C. C. A. 110.]</p> <p>2. Depositions (§ 56*) — Alabama Statute — Sufficiency of Demand for Notice of Time and Place.</p> <p>That the written demand for notice was addressed to the plaintiff in another suit and to her attorneys, who were, however, the same attorneys who appeared in both cases, was immaterial, where the notice was attached to and filed with the cross-interrogatories, and in view of the fact that the notice demanded was given by such attorneys.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 90-117; Dec. Dig. § 56.*]</p>

<p>1. Literary Pp.orEr.TY (§§ 3, 5*) — Scbsstario—Photoplay.</p> <p>Where complainants’ assignor, a Danish corporation, composed a written scenario of a play, and then composed a photoplay by actual performance of the scenario recorded by a moving picture camera, from which it took positive films and sold one or more of them in England, whore neither the scenario nor the photoplay was copyrighted, it had a common-law right of property in England in the intellectual conception of the play expressed in words, and in the intellectual conception of the photoplay expressed in actions, and could perforin the written play itself, and license others to perform it, without prejudice to its common-law ownership, and so could perform or license others to perform the photoplay in the same way.</p> <p>TEd. Note. — For other cases, see Literary Property, Cent. Dig. §§ 2, 4; Dec. Dig. §§ 3, 5.*]</p> <p>2. Literary Property (§ 6*) — Moving Pictures — Sale oe Film — Conditions.</p> <p>Where the owner of a scenario and photoplay, neither of which was copyrighted in England, sold a positive film there, the purchaser and his assigns acquired the performing right, and though no one, by virtue of the sale, would acquire the right to re-enact the play and take a negative of it, or make a new negative from the positive film, the seller could not restrict the purchaser’s right by a condition that the film should not be resold or hired for use, except in the country in which it was bought, nor sold for exportation.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>3. Copyrights (§ 41*) — Foreign Scenario in Photoplay.</p> <p>Where the foreign owner of a scenario and photoplay took out a United States copyright on the latter separately, as it was authorized to do, it abandoned its common-law property rights therein.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 40, 48; Dec. Dig. § 41.*]</p> <p>4. Literary Property (§ 6*) — Photoplay—Sale of Films.</p> <p>Where the foreign owner of a photoplay sold a positive film in England, where it was not copyrighted, subject to a void condition against resale for export, and later copyrighted the photoplay in the United States, it could not by such copyright avoid rights previously conferred by the sale of the films in England, and hence could not-treat the purchaser’s assignees in the United States as infringers.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 5; Dea Dig. § 6.*]</p>

Angelí, Judge! Action by Benjamin Gotfredson, as administrator of the estate of Carrie B. Reading, against the German Commercial Accident Company. Judgment for plaintiff for less than the relief demanded, and he brings error. This was an action to recover 85,000 upon a policy of accident insurance.

Tuttle, Judge. Action by Hugh McCurdy Eaton against the County of Shiawassee. Judgment for defendant, and plaintiff brings error. Held: authorized the board of supervisors to issue county bonds and borrow $T5,000 for that purpose. This was done, the contract let, and the courthouse built; the construction running over a period of two years. By reason of additions and changes authorized by the board, but not by the voters, the total cost was more than $125,000.

<p>1. Master and Servant (§ 89*) — Injuries to Servant — Scope of Employment.</p> <p>Where plaintiff, a yard foreman at defendant’s shop grounds, was employed to do clerical work, but for 82 years had been moving things out of the way to prevent damage to defendant’s property when material was being moved, etc., and was injured during the movement of certain engine tires by a failure of those holding the tire to keep it upright until plaintiff had moved a truck from where it was intended to drop the tire, plaintiff was within the scope of his employment in moving the truck, and was therefore entitled to the degree of care applicable to a servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.*]</p> <p>2. Master and Servant (§ 284*) — Injuries to Servant — Scope of Employment — Question for Court and Jury.</p> <p>Where plaintiff’s evidence was all the evidence introduced on the subject of the scope of his authority, and this showed that he was acting within the scope of his authority when injured, the court did not err in omitting to submit such question to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.*]</p> <p>3. Master and Servant (§ 180*) — Injuries to Servant — Railroads—“Repair Work” — Fellow Servant Rule — Statutes.</p> <p>Where it was the custom of defendant railroad company to take engine tires to its O. shops, there dress and ship them to other shops, to be placed on engines, and plaintiff, a yard foreman at the O. shops, was injured while handling tires for such purposes, he was engaged in “repair work,” within Rev. St. Neb. 1913, § 6053, providing that the fellow-servant rule shall not apply to railroad employes engaged in repair work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.*</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; William H. Hunt, Judge.</p> <p>Action by Elizabeth Gertrude McClure against the John Hancock Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1, Internal Revenue (§ 9*) — Corporation Taxes — Deduction—“Taxes Imposed.”</p> <p>Corporation Tax Law Aug. 5, 1909, c. 6, § 38, par. 2, 36 Stat. 112 (Comp.. St. 1913, § 6301), imposes a tax on tbe net income of corporations, but authorizes deduction from the gross amount of income of all sums paid by the corporation within the year for taxes imposed under the authority of the United States- or of any state. Reid, that the term “taxes imposed” must be construed to mean taxes imposed on a corporation which it was compelled to pay out of its own assets, and did not include taxes imposed on the corporation’s • capital stock against the stockholders, though the corporation is required to pay the taxes in the first instance, being authorized to charge the amount so paid against the stock.</p> <p>[Ed. Note. — For other cases, see Internal Eevenue, Cent. Dig. §§ 13-28; Dec. Dig. § 9.*]</p> <p>2. Internal Revenue (§ 25*) — Corporations — Excise Tax — Return —■ “False” — Commissioners’ Power to Amend. ,</p> <p>Corporation Tax Law Aug. 5, 1909, c. 6, § 38, par. 5, 36 Stat. 112 (Comp. St. 1913, § 6304), providing for the collection of a corporation excise tax, authorizes the Commissioner of Internal Revenue, in case a return is false or fraudulent, to amend the same at any time within three years, and assess and collect the correct amount of the tax. Reid, that the word “false,” as so used, did not include only returns fraudulently made, or with intent to defraud, but should be construed as including all erroneous or incorrect returns, and to authorize the correction of an incorrect return within the three-year period, though made under a mistake of law, and though the tax under the return had been paid.</p> <p>[Ed. Npte. — For other cases, see Internal Revenue, Cent. Dig. §§ 72, 73; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, False.)</p>

H. Hunt, Judge. Action by John Stepanovich, by his father and next friend, Marko Stepanovich, against the Pittsburgh & Baltimore Coal Company. Judgment for plaintiff, and defendant brings error.

The complaint embodies 15 causes of action against defendant for alleged violation of the act of Congress limiting hours of service on railroad, approved March, 1907. 34 Stat. 1415. The 15 causes of action are concerned with the crews, 5 men in each, of 3 trains.

This cause comes here upon writ of error to review a judgment of the District Court, Western District of New York; in favor of defendant in error, which was defendant below.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Hunt, Judge.</p> <p>Action by Frederick Jeffries against James U. Stuart. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The following is the opinion of the District Court by Hough, District Judge:</p> <p>Respondent insured libelants’ steamer Dorothy by a policy in which the hull was valued at $72,634, and it was agreed to pay loss by perils insured against “if amounting to three per cent.,” or $2,176.02.</p> <p>The Dorothy’s rudder received injury, it was repaired, and the sole question presented is whether the libelants’ loss amounts to $2,176.02.</p> <p>■ “Loss” means that which has been wasted. Its signification is perhaps best tested by considering it as opposed to “gain.”</p> <p>When, however, loss is to be translated into dollars and cents, and the process of so doing has been matter of litigation for centuries, custom and precedent introduce rules that must be observed, however plain mere word definition seems.</p> <p>The cost of replacing that which has been wasted cannot always be the measure of loss under an insurance policy, for on the one hand the actual cost may have been unnecessary or extravagant, and on the other it may be impossible to replace or wholly repair that which has been lost.</p> <p>Therefore both the amount of loss, and the reasonable cost of replacement, are properly questions of fact, to be proven in part by opinion evidence, or testimony as to custom — which is at bottom matter of opinion. The burden of proof is on the assured.</p> <p>What gives rise to litigation here is that the amount of money actually expended by libelants on tbe rudder cannot be claimed on their own evidence to amount to $2,176.02, wherefore they add $300 for permanent depreciation, and sue accordingly.</p> <p>The facts are that it was undoubtedly desirable to repair the rudder with large plates covering most if not all its surface; but such plates were not in stock, much delay would have resulted if repairs had halted while they were being made, time was valuable, and not insured. Consequently libelants, with the approbation of Lloyds’ surveyor, put on small plates, thereby, increasing rivets, shortening the life of the rebuilt rudder, and affecting the sale price of the Dorothy by a sum variously estimated at from $300 to $800.</p> <p>It is not found necessary to discuss or decide whether such a proceeding as this, voluntary, and unnecessary, can be said to amount to that permanent depreciation, for which recovery can be had, under such eases as Giles v. Eagle Ins. Co., 2 Mete. (Mass.) 140. Let it be assumed that some basis for recovery exists, yet it remains true that the measure of damages is not the lessening of sale price, but what it would have cost to make thorough repairs when the partial or imperfect job was done. This case is not one of inability to repair or replace, but of a voluntarily imperfect piece of work; it bears no resemblance to that hogging or deformation of hull, which is present in all the decisions relating to “permanent depreciation.”</p> <p>Applying these principles, libelants cannot claim more for actual payments than their own witness Mr. Congdon declared to be justified, viz.:</p> <p>Towage .....$ 30 00</p> <p>Repair bill. 1,916 98</p> <p>Superintending repairs... 82 00</p> <p>Telegrams by owners in connection with repairs.. 20 00</p> <p>Total . $2,079 98</p> <p>This witness did not, and could not, testify as to what was paid; he only stated the items proper in kind. It was still incumbent on libelants to show that their loss included what they claim.</p> <p>I can And in the evidence nothing to show that $20 was expended in telegrams relating to repairs, and experience leads me to think the amount excessive.</p> <p>It is in my judgment shown that $70 of the superintendence fee is mere bookkeeping. Mr. Graham did superintend, and if he had been specially employed for this job his reasonable charge would be collectable; but if the Dorothy had not been injured libelants would have paid Mr. Graham just the same, he being in their regular employ. Consequently, what they would have paid, at all.events, cannot have been lost by the Dorothy’s injury.</p> <p>Libelants’ loss therefore, as expressed by payments made and proven, is no more than $1,988.98, or $187.04 less than the agreed upon 3 per cent.</p> <p>The final inquiry, therefore, is how much more would have been the cost of putting on large plates, when the rudder was repaired with small ones?</p> <p>Mr. Graham is the only man who, from personal observation, testifies on this point. His statements are largely guesswork, but it is plain that there is no evidence showing that tbe additional cost would have been as much as $187.04.</p> <p>It follows that libelants on their own evidence and their own legal theory have not shown a loss amounting to $2,176.02.</p> <p>Libel dismissed, with costs.</p> <p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a libel. The action was brought to recover on a policy of marine insurance on the steamship Dorothy against underwriters on the,hull. The claim is under the clause of the policy, which provides for “particular average payable on each valuation separately, or on the whole, if amounting to three per cent.,” etc.</p>

B. Witmer, Judge. In the matter of bankruptcy proceedings of John Loughran. From ■ an order (215 Fed. 271) denying the bankrupt’s petition for discharge on objections of the Hazleton Mercantile Company, the bankrupt appeals.

<p>Sales (§ 279*) — Warranty by Manufacturer of Fitness fob Purpose Intended — Construction.</p> <p>Plaintiff contracted to furnish and install for defendant at its laundry ' a water-softening apparatus; the understanding of the parties being that •; it was to be used for treating water from a well which had been sunk by defendant. A sample of the water was furnished to and analyzed by plaintiff, and its hardness found to be what is technically called 35 degrees. Plaintiff then wrote into the contract a guaranty that the water, as per its analysis, “when properly treated in this softener, will be satisfactory for laundry purposes.” Water taken from the well some months afterward, on analysis, showed a hardness of 79 degrees, and, while the apparatus would soften it, so much chemical was required as to render it unsatisfactory for laundry purposes. Held, that the warranty applied only to water of substantially thé same degree of hardness as that previously analyzed, and not to any water which might come from the same well, and that the failure of the apparatus to satisfactorily soften water of 79 degrees of hardness was not a breach thereof.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 783-792; Dec. Dig. § 279.*]</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 Dana J. Brown, as administrator of the estate of John H. Weymouth, against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings error.</p>

Suit by the Louisville & Nashville Railroad Company against the Western, Union Telegraph Company of Illinois, the Western Union Telegraph Company, and the Southeast & St. Louis Railway Company. From an order denying a motion to vacate an injunction forbidding defendants to enter on complainant’s right of .way to construct a telegraph line, they appeal.

<p>Tbial (§§ 115, 133*) — Misconduct of Counsel — Amount Sued fob — Disclosure to Jury.</p> <p>The ruling of the state courts that whereon a court in its charge, or counsel in addressing a jury, have brought to a jury’s notice that a plaintiff claimed a fixed sum, it will be adjudged a mistrial, restated as applicable to the federal courts in the Third circuit.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 279-283, 295, 298, 316; Dec. Dig. §§ 115, 133.*]</p>

<p>Towage (§ 15*) — Stranding of Tow — Liability of Tug.</p> <p>Evidence considered, and held, insufficient to establish the claim that the stranding of the last one of three barges in a 3,400-foot tow on a shoal to the leeward of the South Channel in entering Boston Harbor in a high wind was due to the fault of the tug in navigating negligently before entering the channel.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 30-38; Dec. Dig. § 15.*]</p>

Whitaker Thompson, Judge. Suit in admiralty by Mary E. Fries against the steamboat Columbia; the Delaware River Transportation Company, owner. Decree for libelant, and the owner appeals.

<p>Tbade-Makks and Tkade-Names (§ 59*) — Inekingement—Use op Subname as Tkade-Makk.</p> <p>Where a registered trade-mark consists of a surname, under Act Feb. 20, 1905, c. 592, § 5, S3 Stat. 725, as amended by Act Feb. 18, 1911, c. 113, 36 Stat. 918 (Comp.' St. 1913, § 9490), it is to be treated as an arbitrary word", and is protected, not only against literal, but against colorable, imitations; and under such rule the word “Wiener,” used alone to designate a corset, although it is the surname of the person using it, is an infringement of the trade-mark “Warner.”</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 101, 102; Dec. Dig. § 59.*</p> <p>Right to use one’s own name as trade-mark or trade-name, see notes to R. W. Rogers Go. v. Wm. Rogers Mfg. Go., 17 C. O. A. 579; Kathreiner’s Maíz Kaffie Fab. v. Pastor Kneipp Med. Co., 27 C. C. A. 357; Borden Ice Cream Co. v. Borden’s Condensed Milk Co., 121 O. C. A. 203.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the petition of the New York, New Haven. & Hartford Railroad Company, as owner of the steam tug Transfer No. 21,. for limitation of liability. Otto Schmuck and others, damage claimants, appeal from an order denying a motion to dismiss the proceedings.</p>

This cause comes here upon appeal from a decree of the District Court, Northern District of New York, holding that defendant had infringed United States patent No. 819,373, issued May 1, 1906, to Albert P. Olmstead, for an ice cream disher. Judge Ray’s opinion very fully discusses the questions raised in the cause. It is reported in 207 Fed. 825.

Appeal by defendant below from a decree of the District Court for the Southern District of New York holding valid and infringed claims J, 11, and 15 of United States letters patent No. 665,582, for certain new and useful improvements in lamp sockets, granted to Howard R. Sargent, of Schenectady, N. Y., assignor to the General Electric Company, on January 8, 1901.

<p>Patents (§ 328*) — Infringement—Garment Form.</p> <p>Tile Frankel patent, No. 886,490, for a garment form, held not infringed.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>On writ of error to the District Court for the Southern District of New York to review a judgment for 75 cents and costs, entered in favor of the plaintiff for damages for the infringement of the third claim of letters patent No. 738,688, granted to Hubert Krantz, September 8, 1903, for floor boxes for electric conductors.</p>

<p>In Equity. Suit by Matthew Howard Reed against the Cropp Concrete Machinery Company and Andrew J. Cropp. On final hearing.</p>

<p>1. Patents (§ 322*) — Suit foe Infringement — Accounting.</p> <p>Where, on reversal of a decree in an infringement suit awarding damages to complainant, the cause was remanded, with directions to recommit to a master for a new hearing “on the evidence already submitted and such additional testimony as may be offered,” it was competent for defendant, on the recommitment, to introduce testimony showing that mistakes were made by the witnesses at the former hearing as to the number of infringing articles made and sold by it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 590-595; Dec. Dig. § 322.*]</p> <p>2. Patents (§ 328*) — Suit foe Infringement — Accounting foe Profits.</p> <p>An award made to complainant for profits realized by defendant from infringement of the Westinghouse patent, No. 366,362, for an electric converter, based on the evidence taken by a master.</p>

<p>Patents (§ 292*) — Suits fob Infringement — Accounting—Examination of Books and Papers.</p> <p>In a suit for infringement of a patent for a cherry seeder, where defendant was required to produce certain books of account before the master, it could not, on producing ex parte affidavits that the seeders sold during a certain.period'did not include the infringing features, seal certain parts of the books and refuse to permit an examination until plaintiff proved the sale of infringing seeders during that period, as this would preclude plaintiff of an opportunity to trace seeders sold during such period, and determine whether they were infringements, and the master properly ordered an examination, with permission to defendant to cover up the names of the consignees and tne prices until it was shown that items related to cherry seeders.</p> <p>lEd. Note. — For other cases, see Patents, Cent. Dig. § 446; Dec. Dig. § 292.*]</p>

<p>At Law. Action by H. A. Boyd against the Atlantic Coast Line Railroad Company. On motion to strike defendant’s plea in bar.</p>

<p>1. Bankruptcy (§ 80*) — Acts of Bankruptcy — Receivership—Evidence.</p> <p>Where the act of bankruptcy alleged in an involuntary petition is that prescribed by Bankr. Act July 1, 1S9S, c. 541, § 3a(4), 30 Stat. 546, as amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 (Comp. St. 1913, § 9587), that because of insolvency a receiver has been put in charge of the debtor’s property under the laws of the state, the issue is not directly that of insolvency, but whether the receiver was appointed on that ground, and if the record of the court making the appointment shows that it was made on that ground, extrinsic evidence of insolvency is not necessary.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 124; Dec. Dig. § 90.*]</p> <p>2. Bankruptcy (§ 60*) — Acts of Bankruptcy — Grounds for Appointment of Receiver.</p> <p>A court of equity has no power to take possession of and operate by its receiver the business and property of an industrial corporation, and to enjoin creditors from enforcing their legal remedies except as incidental to the granting of some definite and substantive' relief, and to conserve the property for the benefit of creditors because of the insolvency of thé corporation until it can be sold and the proceeds distributed without undue loss because of piecemeal administration; hence where a receiver for such a corporation is appointed, with power to conduct its business, it must be presumed that the action of the court was based on a finding of insolvency which constitutes an act of bankruptcy under Bankr. Act July 1, 1898, § 3a(4), as amended by Act Feb. 5, 1903, § 2.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 60.*]</p> <p>-3. Bankruptcy (§ 81*) — Acts op Bankruptcy — Appointment op Receiver.</p> <p>Where the act of bankruptcy charged in a petition is that because of insolvency a receiver was put in charge of defendant’s property and the order appointing the receiver does not state the grounds therefor, the record on which it was made must be referred to for, the. purpose of deter- , mining the fact.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 59, 113-118, 125; Dec. Dig. § 81.*]</p> <p>•4. Bankruptcy (§ 60*) — Acts op Bankruptcy — Receivership Because, op Insolvency.</p> <p>Where the real and substantial effect of the appointment of a receiver for a corporation by a state court is that the appointment was made because of insolvency, and the further proceedings should logically be to wind up the corporation and distribute its assets, the jurisdiction of a court of'bankruptcy to adjudge it a bankrupt on the ground of such appointment cannot be defeated because, in the proceedings or pleadings-or orders in the state court, no ground is stated for the receivership, or a ground other than insolvency.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 80; Dec. Dig. § 60.*]</p> <p>•5. Bankruptcy (§ 60*) — Acts op Bankruptcy — Appointment op Receiver Because of Insolvency — “Imminent Danger op Insolvency” — “Insolvency.”</p> <p>The appointment of a receiver for a corporation by a state court under Code Civ. Proc. S. C. 1912, § 303, subd. 4, on the ground that it is “in imminent danger of insolvency,” which means danger-of insolvency from .the standpoint of preserving the assets, is within the meaning of Bankr. Act July 1, 1898, § 3a(4), as amended by Act Feb. 5, 1903, § 2, and constitutes an act of bankruptcy thereunder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 60.* '</p> <p>For other definitions, see Words and Phrases, First and Second Series, Insolvency.]</p> <p>■Q; Bankruptcy (§ 60*) — Acts op Bankruptcy — Appointment op Receiver.</p> <p>Where certain creditors of an industrial corporation, acting in its interest, applied to a state court for the appointment of a receiver, which was made with the consent of the corporation,-the fact that the complaint did not allege any ground of equitable jurisdiction to make the appointment, which could have been .made only on the ground of insolvency, ¡does not, change the effect of the appointment as an act of bankruptcy under</p> <p>• Bankr. Act .July 1, 1898, § 3a(4), as amended by Act. Feb. 5, .Í903, ¡§ .?.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, .Gent. Dig. § ,80; Dec. Dig. § 60.*]</p> <p>7. Bankruptcy-(§ 20*) — Involuntary Proceedings — Assets in-. Possession-of State Court. ....</p> <p>That a state court by its receiver-has taken possession of the property of a corporation does not absolve a federal court from, the. duty of adjudging it a bankrupt, where the requisite grounds are alleged and proved by the petitioning creditors.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. § 20.*]</p> <p>8. Bankruptcy (§ 60*) — Acts op Bankruptcy — Corporation.</p> <p>The fact that the consent of a corporation to the appointment of. a receiver by a state court because of its insolvency was not authorized by formal corporate action does not prevent such appointment from constituting an act of bankruptcy under Bankr. Act July 1,1898, § 3a(4) as amended by Act Feb. 5, 1903, § 2.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 60.*]</p>

<p>1. Fraudulent Conveyances (§ 308*) — Trust Deed — Necessity of Record— “Creditor.”</p> <p>Failure to record a mortgage or trust deed is not a fraud on creditors as a matter of law, under tbe recording act of West Virginia; since tlie term “creditors,” as used in Code W. Va. 1913, c. 74, § 5 (see. 3835), providing that unrecorded conveyances shall be invalid as against creditors, means lien, and not unsecured, creditors.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 923-940; Dec. Dig. § 308.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Creditor.]</p> <p>2. Corporations (§ 542*) — Deed of Trust — Execution—Liability of Directors.</p> <p>Code W. Va. 1913, c. 53, § 52 (sec. 2884), provides that corporate directors shall cause a record of their proceedings in all meetings to be properly kept, and that no member of the board shall vote on a question in which he is interested otherwise than as a stockholder, except the election of a president, or other officer, or employ®, or be present at the board while the same is being considered. Held, that where the secretary ana general manager of a West Virginia corporation executed a deed of trust of its property to secure certain stockholders and directors, including himself, for their liability as indorsers of certain of the corporation’s paper, under a by-law purporting to give him unlimited power to control and manage its business, without any direction or vote at a regular meeting of either stockholders or directors, and withheld the deed from record during a time when debts on behalf of the company sufficient to render it wholly insolvent were incurred, and caused such deed to be recorded only a few weeks before the institution of bankruptcy proceedings, it was fraudulent and void, 'though ratified at a stockholders’ meeting.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2154-2160; Dee. Dig. § 542.*]</p>

<p>At Law. Action by the State of Idaho, for the use and benefit of William Leonard and others, against the American Surety Company of New York. On motion to remand to the state court.</p>

<p>1. Taxation (§ 318*) — Assessment—Time fob Assessment — Statutory Provisions.</p> <p>Laws Idaho 1913, p. 201, § 92, providing that the state board of equalization must assess all property to be assessed by it at its meeting convening on the second Monday of August, and must complete the assessment on the fourth Monday of August, is for the benefit of the public, and not for the protection of the taxpayer, and is directory only; and hence, where the board, while still in regular session, adopted a tentative valuation of a hydro-electric power plant, and referred such valuation to the state tax commission for investigation, report, and recommendation, an, assessment made December 4th, after receiving such report, materially increasing the tentative valuation, was not void.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 630, 631; Dec. Dig. § 318.*]</p> <p>2. Taxation (§ 363*) — Assessment—Right of Taxpayer to Hearing.</p> <p>Under Laws Idaho 1913, p. 202, § 95, providing that every person whose property is to be assessed by the state board of equalization shall, upon request therefor in writing, be entitled to a, hearing before the board in relation to his assessment, where a taxpayer appeared at the board’s regular session in August, presented data, and made an argument with reference to the valuation to be placed upon its property, and the board adopted a tentative valuation of such property, which it referred to the state tax commission for investigation, report, and recommendation, and after receiving such report met, pursuant to the call of the chairman, as provided in the adjournment of its August session, such taxpayer was not entitled to notice before the making of an assessment materially increasing the tentative valuation, in the absence of any claim that it did not know that the valuation fixed in August was tentative, that it requested notice before any change therein was made, or that any promise in respect to a further hearing was made, especially where it never requested in writing a hearing pursuant to section 95.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 603-606; Dec. Dig. § 363.*] ,</p>

<p>1. CORPORATIONS (§ 501*) — ACTIONS — RIGHT TO EQUITABLE RELIEF — ACCOUNTING.</p> <p>Where an officer of a corporation wrongfully used and lost its funds in certain gambling transactions in grain through defendant commission company; the corporation was entitled to sue in equity to recover the money so lost, because of the trust relationship arising by operation of law and a necessity for an accounting and possible discovery.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1920-1929, 1931, 1932; Dec. Dig. § 501.*]</p> <p>2. CONSPIRACY (§ 18*) — Civil Conspiracy — Failure op Proof.</p> <p>An allegation of civil conspiracy operates chiefly to affect the introduction of evidence, and to fix liability on parties who would not otherwise be directly liable, so that failure to establish conspiracy, is not ground for abatement; the establishment of liability directly against one or more defendants being sufficient to support an appropriate decree.</p> <p>[Ed. Note.- — For other cases, see Conspiracy, Cent. Dig. §§ 18-24; Dec. Dig. § 18. *J</p> <p>3. Gaming (§ 14*) — Purchase and Sale ok Futures.</p> <p>At common law a contract for the sale of grain for future delivery, the parties intending that it should not be delivered, but that the obligation should be discharged by a payment of differences, was void as a mere wager; while under Kev. St. Mo. 1909, §§ 4780, 4785, relating to such subject, tlie contract is void if either party has such intention.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 25, 2(i; Dec. Dig. § 14.*]</p> <p>4. Gaming (§ 14*) — Dealing in Futures.</p> <p>Commodities may bo bought in good faith for future delivery, and if so bought hedging will be permitted to secure those who make contracts in advance against the fluctuations of the market, even though it be expected that such purchase will be satisfied by set-off, instead of by an actual delivery of the grain; the test being the real intention of the parties with respect to actual delivery.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 25, 26; Dec. Dig. § 14.*]</p> <p>5. Gaming (§ 11*) — Transactions on Board of Trade.</p> <p>Though legitimate operations on Boards of Trade in accordance with the formalities proscribed and established are recognized as valid, the mere adoption of such formulae, even though operative within such boards to compel delivery, if demanded, will not protect a transaction which does not contemplate such delivery, though clothed in the garb of regularity.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 19-21, 23, 26; Dec. Dig. § 11.*]</p> <p>6. Corporations (§ 426*) — Powers—Charter—Illegal Acts — Dealing in Futures — Ultra Vires.</p> <p>Where a corporation organized to operate a flour mill, with power to purchase grain necessary for the operation of the mill, etc., it was entitled to buy grain for future delivery, and hedge such bona fide contract when necessary -to protect itself against the fluctuations of the market; but it had no right to gamble in futures, and such gambling, being prohibited both by the corporation’s charter and the policy of the law, and acts of its officers in using its funds for such illegal purpose, were ultra vires, and not binding on the corporation or its stockholders, nor can they be ratified.</p> <p>[Ed. Note. — For oilier cases, see Corporations, Cent. Dig. §§ 1596, 1702-1704, 1707, 1708, 1710-1716; Dec. Dig. § 426.*]</p> <p>7. Corporations (§ 487*) — Defenses—Ultra Vires. .</p> <p>Where defendant commission corporation, through its regularly constituted officers and agents, permitted a treasurer of plaintiff corporation to use complainant’s funds to gamble in futures through the instrumen-talities afforded by defendant, and defendant received complainant’s funds so unlawfully diverted by its treasurer, defendant could not invoke the doctrine of ultra vires, when sued by complainant to recover the money so diverted, nor escape liability because it had paid out a large part of the fund to others.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893-1898; Dec. Dig. § 487.*]</p> <p>8. Corporations (§ 806*) — Liabilities—Officers and Directors.</p> <p>Where gambling transactions in futures between complainant’s treasurer and defendant corporations were all conducted in the name of defendant as a corporation, and complainant’s money lost therein was all received by defendant corporation, a recovery thereof by complainant was limited to defendant corporation, and could not be had as against, its officers and directors.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 806.*]</p> <p>9. Pabties (§16*) — Real Party in Interest.</p> <p>A corporation, being financially embarrassed by reason of the misuse of its funds by its treasurer in certain gambling transactions in grain through defendant corporation, authorized by resolution the transfer of its cause of action to recover the fund from defendant to one who was a director and its attorney. No formal transfer was made, however, and the resolution was rescinded. Held, that such proceedings did not affect the corporation’s right to maintain the action to recover the funds in its own name.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§. 6, 7; Dec. Dig. § 6.*]</p>

<p>1. Bankruptcy (§ 414*) — Discharge — Objections — Books of Account — Failure to Keep.</p> <p>That cash sales, even wlien payment was received in the presence of the bankrupts’ bookkeeper, were purposely and intentionally omitted from the books, was sufficient to sustain a specification of objection to the bankrupts’ discharge for failure to keep books of account from which their financial condition could be ascertained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. § 414.*]</p> <p>2. Bankruptcy (§ 413*) — Discharge—Objections—Proof—Variance.</p> <p>Failure of the trustee to prove the whole amount alleged in specifications of objection to the bankrupts’ discharge, alleging concealment' of assets, failure to account for assets, and fraudulent omission of property from schedules, was not material.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. § 413.*]</p> <p>3. Bankruptcy (§ 413*) — Application fob Discharge — Objection—Rulings op Referee.</p> <p>Where specifications of objection to the bankrupts’ discharge were filed with the referee, an objection that his report set out a synopsis thereof, instead of setting them out in full, was frivolous.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. § 413.*]</p> <p>4. Bankruptcy (§ 415*) — Application fob Discharge — Hearing—Evidence —Objections—Waiver.</p> <p>An objection to the introduction in evidence, on hearing of objections to bankrupts’ discharge, of the bankrupts’ testimony taken in their general examination, except as against the bankrupt whose testimony was introduced, etc., not made before the referee, is not available on exceptions to the referee’s report, adverse to the application to discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 698-708, 719, 728, 724, 726, 728; Dec. Dig. § 415.*]</p>

<p>1. Seamen (§ 29*) — Liability or Vessel roa Injuey to Longshoreman — Negligence or Fellow Servants.</p> <p>Libelant, with another longshoreman, both employed directly by the ship, were engaged in loading and piling lumber on the deck oí a vessel from a truck, when he was injured by lumber from another truck, which upset while being unloaded by two seamen near by. It was not shown that the trucks in use were unusual, unsuitable, or unsafe appliances, and the evidence tended to show that the truck upset by reason of the manner in which it was being unloaded by the seamen, who commenced unloading from one side, instead of from across the top. Held, that the injury was due to the negligence of fellow servants, for which the ship was not liable.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188-194; Dec. Dig. § 29.*J</p> <p>2. Words and Phrases- — “Box Dolly.”</p> <p>A “box dolly” is a vehicle which, has but one wheel, a wide cylindrical drum in the center of it, and is shaped like a box, the lower part of which extends down as far as the axis of the drum.</p>

<p>1. Corporations (§ 560*) — Receivers—Judgment.</p> <p>Where a receiver was appointed for an insolvent corporation pending an action against the corporation for a tort, judgment could not be granted in that action against the receiver; the court being unable therein to adjust the equities of the parties, if any.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*]</p> <p>2. Corporations (§ 566*) — Insolvency—Claims—Judgment por Tort — Preferences.</p> <p>Where judgment was recovered against a corporation for tort, plaintiff was not entitled to have the same allowed as a preferred claim against the corporation’s assets in insolvency as against the rights of mortgaged bondholders, either under Const. Idaho, art. 11, § 15, providing that the Legislature shall not pass any law permitting the leasing or alienation of any franchise, so as to release or relieve the franchise or property held thereunder from any liability of the lessor, grantor, lessee, or grantee contracted or incurred in the operation, use, or enjoyment of such franchise, or any of such privileges, or independent thereof.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.*]</p>

<p>Civil action by the United States against the Chicago, Milwaukee &' Puget Sound Railway Company. On demurrer to the amended complaint.</p>

<p>R. M. Innes was informed against for alleged knowingly and unlawfully permitting an alien Chinese person to land in the United States, in violation of the Chinese Exclusion Law.</p>

<p>1. SnEEM’i's and Constables (§ 29*) — Fees — Sale or Property — Distress Warrant — Statutes—Repeal.</p> <p>Act Pa. April 3, 1872, § 2 (P. L. 772), providing that tlie fee for collection of rent by distress, or otherwise, to be charged to the landlord apart from the commissions allowed by law, shall be 5 per cent, on the amount actually collected, was repealed by Act Pa. Eeb, 17, 1899 (P. L. 3), providing that the fees of a constable for selling goods levied or distrained should be, for each dollar not exceeding $100, three cents, and for each dollar in excess of $100 two cents, and repealing inconsistent acts.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. § 46; Dec. Dig. § 29.*]</p> <p>2. Bankruptcy (§ 267*) — Distress Warrant — Sale oe Goods — Constable’s Fees.</p> <p>■ Where a tenant’s goods were levied on under distress warrant by a constable, but the landlord’s proceedings were stayed by bankruptcy proceedings against the tenant, and the goods were subsequently sold, not by the constable, but by the receiver in bankruptcy, the constable was not entitled to payment of fees for a sale out of the proceeds.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. § 267.*]</p> <p>3. Sheriffs and Constables (§ 44*) — Fees—Distress—Sale of Goods.</p> <p>Act Pa. May 26, 1891 (P. L. 122), provides that, where a tenant makes an assignment for the benefit of creditors, the landlord shall be first entitled to receive, out of the proceeds of a sale of the goods liable to distress, the rent due at the time of the assignment, provided, if the proceeds of the sale shall not be sufficient to pay the landlord and the costs of the assignment, the landlord shall be entitled to the proceeds after deducting so much for costs as he would be liable to pay on a sale under distress. Held, that where a sale1 of a tenant’s goods is made, and the proceeds are insufficient to pay the rent and Costs, then there is to be deducted from the amount payable to the landlord the sum he would be required to pay on a sale under distress, but there is nothing to authorize a deduction to be paid to a constable having made a distress levy, but who has not made a sale.</p> <p>[Ed. Note. — For other cases, see Sheriffs’ and Constables, Cent. Dig. § 68; Dec. Dig. § 44.*]</p>

<p>Bankruptcy (§ 397*) — Exemptions—-Partnership Property.</p> <p>Under Bnnkr. Act July 1,1898, e. 541, § 6a, 30 Stat. 548 (Comp. St. 1913, § 9590), providing that such act shall not affect the allowance to bankrupts of the exemptions prescribed by the state laws in force at the time of the filing of the petition, a member of a bankrupt partnership was not entitled to an exemption of goods from the stock of merchandise owned by the partnership under the statutes of Mississippi, in the absence of any binding- decision of the Mississippi courts in favor of such exemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 678; Dee. Dig. § 397.*]</p>

<p>In Equity. Suit by Charles H. Mull against the Parrott Bros. Company.' On motion to remand to the state court.</p>

In Bankruptcy. In the matter of the Harding-Coor Company, bankrupt. On petition by the trustee to review an order of the referee allowing the claim of R. J. Harding.

In Bankruptcy. In the matter of bankruptcy proceedings of John E. McCartney. On review of an order of a referee denying the petition of George H. McCartney for possession of 100,000 feet of logs.

<p>At Law. Action by W. T. Cooper and others against the E. L. Welch Company, a Minnesota corporation. On motion by defendant to quash the service.</p>

Whitaker Thompson, Judge. Action by the Welsbach Street Lighting Company of America against the City of Philadelphia. Judgment for plaintiff, and defendant brings error. This is an action in assumpsit on a written contract, whereby the plaintiff below engaged to furnish and maintain at a given illuminating power for a specified period a certain number of incandescent naphtha lamps, and the-defendant below promised to make payment therefor at a stipulated rate.

[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. § 181.*] Appeal from the District Court of the United States for the Northern District of Ohio; William ,L. Day, Judge. In the matter of the Georgian Bay Company, bankrupt; Alfred Clum, trustee. From an order denying his petition for surrender of an account, A. C. Stellwagen, trustee for Margaret Zengerle, appeals.

<p>Commerce (§ 27*) — What Constitutes Interstate Commerce — Employers’ Liability Act — “Engaged in Interstate Commerce.”</p> <p>Defendant railroad company was owned by its codefendant mill company, and its road used as a logging road for the transportation of logs and poles from its timber lands in tbe state of Washington to Puget Sound, where they were placed in the water. A portion of the logs were thereafter sold to other mills, and the remainder manufactured by the mill company into lumber, which, was afterward sold, some for use locally, and some for shipment to other states or countries. The poles, which were intended for piles and electric wire poles, were sold to a dealer, to whom they were delivered in the water, and he rafted and re moved them, afterwards reselling them in the course of his business in that and other states. Held, that the logs, poles, or lumber did not become subjects of interstate commerce until committed to a carrier for transportation to another state, or started on their ultimate passage to that state, and that defendant railroad company was not engaged in interstate or foreign commerce, within the meaning of Employers’ Liability ' Act April 22, 1908, c. 149, § 1, 35 Stat. 65 (Comp. St. 1913, § 8657).</p> <p>[Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 25Dec. Dig, § 27.*</p> <p>Eor other definitions, see Words and Phrases, First §.nd Second Series, Interstate Commerce.]</p> <p>Boss, Circuit Judge, dissenting.</p>

This suit comes here on appeal from a decree of the District Court of the United States for the Southern District of New York entered on the 30th day of December, 1912, in favor of the libelants. The Linen Thread Company is a corporation organized and existing under the laws of the state of New Jersey. The Chelsea Fibre Mills (formerly known as the Chelsea Jute Mills) is a corporation organized and existing under the laws of the state of New York.

<p>1. Commerce (§ 27*) — Employer’s Liability — “Interstate Commerce” — “At Home” — “Drifting.” ,</p> <p>Empty railroad cars were delivered in New York to the railroad to which they belonged, and were then, being in the hands of the owner, according to railroad regulations and practice, “at home.” They were moved, without being billed or destined for any particular place, to points in Pennsylvania, where such cars were usually assembled for distribution and use, and, not being needed at such points, were from time to time moved to other distributing points in that state. They were still “drifting,” or waiting to be assigned for service, when an injury to a brakeman on a train on which they were being moved occurred. Held, that the in-' terstate movement of such cars ceased when they reached the first distributing point in Pennsylvania, and thereafter their movement did not constitute “interstate commerce,” within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 201 [Comp. St. 1913, §§ 8657-8665]).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*</p> <p>• Eor other definitions, see Words and Phrases, Second Series, At Home; also First and Second Series, Interstate Commerce.]</p> <p>2. Commerce (§ 27*) — Employer’s Liability — Statutory Provisions.</p> <p>The movement of empty railroad cars is an operation of commerce, and where the movement is interstate the Employers’ Liability Act applies.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27*</p> <p>Employés engaged in interstate commerce within Employers’ Liability Act, see note to Baltimore & O. R. Co. v. Darr, 124 C. C. A. 571.]</p> <p>8. Master and Servant (§ 278*) — Actions fob Death — Sufficiency of Evidence.</p> <p>In an action for the death of a railway brakeman, due to the breaking of a brake rod, in which it was sought to predicate negligence on the failure to inspect, evidence held insufficient to support a verdict for plaintiff, in that it failed to show how long a defect in the rod had existed, whether it could have been discovered by inspection, and whether any inspection, and, if so, what inspection, was made.</p> <p>LEd. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 954, 95(3-958, 9(50-989, 971, 972, 977; Dec. Dig. § 278.-]</p>

Petition to Revise and Appeal from an Order of the District Court of the United States for the Southern District of New York. On appeal by the trustee from an order, and also upon petition to revise said order, made by the District Court for the Southern District of New York, which awarded priority to8 a claim of the estate of William H. Brill for rent of the premises occupied by the bankrupt, which claim amounted to $2,354.55. The premises are located in Philadelphia.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge.</p> <p>Action by the Stafford Company against the Alta Vista Cotton Mills, Incorporated. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Interest (§ 28*) — Rate—Law Governing.</p> <p>In an action for breach of the covenants in a deed to land in another state, the rate of interest recoverable is that fixed by the law of the forum.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 56-59; Dec. Dig. § 28.*]</p> <p>2. Covenants. (§ 131*) — Breach of Covenant — Measure of Damages.</p> <p>In Massachusetts, the measure of damages for a breach of covenants of seisin is the • consideration paid, with interest from the date of payment, though plaintiff has had undisturbed possession, and has not been called upon to account for mesne profits, and may never' be so called upon.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. § 254; Dec. Dig. § 131.*]</p> <p>3. Taxation (§ 755*) — Tax Deeds — Authority to Make.</p> <p>A Florida tax deed, made in 1869, was void, where it was executed by tho deputy tax collector in his own name, instead of by the collector in his own name.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1506; Dec. Dig. § 755.*]</p> <p>4. Evidence (§ 35*) — Judicial Notice — Taws of Other States — Federal Courts.</p> <p>The rule applied that in the federal courts the trial court is assumed to know tho law of states other than that in which the trial is had, and evidence of such law is immaterial.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 35, 61; Dec. Dig. § 35.*</p> <p>Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, 44 C. C. A. 4.]</p>

<p>1. CORPORATIONS (§ 553*)-INSOLVENCY AND RECEIVER-RIGHTS OF PARTIES.</p> <p>In proceedings in insolvency to liquidate the affairs of a corporation, the rights of all the parties concerned are fixed as of the time of the appointment of the receiver, and all the various equities are to be determined accordingly.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. § 553.*]</p> <p>2. Receivers (§ 77*) — Lien on Property — Extent.</p> <p>Where insolvent imported hides on a credit extended hy bankers, the contract providing that the title and right to possession should be in the bankers until any indebtedness or liability in their favor should have been fully paid, held, that such credit agreement did not limit the bankers to a lien on the proceeds of each importation for the amount of the credit utilized for that shipment, but that they were entitled to charge, on the importers becoming insolvent, as against a balance in the bankers’ hands from several shipments, advances made under the credit on other shipments, though they were not due at that time.</p> <p>[Ed. Note. — For other eases, see Receivers, Cent. Dig. §§ 91, 138-144; Dec. Dig. § 77.*]</p> <p>3. Receivers (§ 77*) — Liens and Priority — Sale of Pledged and Non-pledged Property — Right to Proceeds.</p> <p>Where leather belonging to bankers under an importers’ credit agreement was sold by the importers, together with other leather not subject to the credit contract, and it was impossible to identify the proceeds of each, the bankers, under the doctrine of subrogation, were entitled to enforce their claim against the entire fund.</p> <p>[Ed. Note. — For other eases, see Receivers, Cent. Dig. §§ 91, 138-144; Dec. Dig. § 77.*]</p>

<p>1. Courts (§ 405*) — Jurisdiction—Determination of Question of Jurisdiction.</p> <p>The Circuit Court of Appeals is bound to consider the question of jurisdiction on its own motion.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. § 405.*]</p> <p>2. Courts (§ 327*) — United .States Courts — Jurisdiction—Amount in Controversy.</p> <p>The G. Company owned property on which policies had been issued by 43 insurance companies and which was destroyed by fire. The companies adjusted the loss and apportioned the amount thereof among the different companies; the share of only one, the E. Company, exceeding $2,000. The E. Company and certain of the other companies paid their shares by drafts, which insured indorsed to F. & Co., who collected the amounts thereof. The E. Company brought suit, making all of the other companies who had paid their shares defendants, alleging fraud on the part of the G. Company in connection with the adjustment, and that F. & Co. collected the drafts as agent for the G. Company, and with knowledge of the fraud, and praying that the adjustment be set aside, that the amount in the hands of the F. Company be ascertained, and that company enjoined from disposing of it and required to account, that the defendant insurance companies be required to set up their claims on the fund, and that the trustee in bankruptcy of the G. Company, which subsequent to the adjustment was adjudged a bankrupt, be required to set up his claim and be restrained from suing. Held that, the suit having been brought in 1910, the amount in controversy was sufficient to give jurisdiction to the United States courts.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 889; Dee. Dig. § 327.*</p> <p>Jurisdiction as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459; O. J. Lewis Mercantile Co. v. Klepner, 100 C. C. A. 288.]</p> <p>8. Action (§ 22*) — Form—Law or Equity.</p> <p>The bill presented a case within the jurisdiction of equity, especially as bankruptcy had supervened and the interest of the trustee in some respects was adverse to that of the insurance companies, there was a question as to the amount in the hands of F. & Co. and how that amount should be apportioned between the insurance companies, and whether the adjustment and apportionment originally made ought not to be set aside, and the bill on its face promised to prevent unnecessary suits and to settle several controversies in one litigation.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 124r-139, 143, 145; Dec. Dig. § 22.*]</p>

Campbell, Judge. Suit by the Frisco Lumber Company against O. E. Hodge and another, partners doing business as Hodge & Hunt. From a decree for defendants, plaintiff appeals.

<p>L Internal Revenue (§ 46*) — Distilleries—Illegal Operation.</p> <p>Evidence held to warrant a finding that the running of beer in a distillery into a slop tank, instead of into the mash and fermenting tubs, was not the result of innocent mistake, but was with intent to defraud the United States to the extent of the revenue on the distillate so improperly run into the tank, in violation of Rev. St. §§ 3259, 3263 (Comp. St. 1913, §§ 5995, 6001), and was. therefore sufficient to sustain libel against the distillery.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 117-141; Dec. Dig. § 46.*]</p> <p>2. Appeal and Error (§ 966*) — Continuance—Discretion.</p> <p>Denial of a continuance because of the alleged illness of one of defendant’s counsel, in the exercise of the trial court’s discretion, is not in general ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3837; Dec. Dig. § 966.*]</p> <p>3. Appeal and Error (§ 977*) — New Trial (§ 6*) — Discretion—Review.</p> <p>The allowance or refusal of a new trial in a federal court rests in the sound discretion of the trial court, and is not reviewable.</p> <p>[Ed. Note. — For other cases, see "Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977 ;* New Trial, Cent. Dig. §§ 9, 10; Dec. Dig. § 6.*]</p> <p>4. Internal Revenue (§ 46*) — Libel Against Distillery — Proof Required.</p> <p>On a libel by the United States against a distillery for illegal operation, the government is only required to establish its ease by a preponderance of the evidence, and not by proof beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 117-141; Dec. Dig. § 46.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 17*) — Trade-Mark—Validity—Colored Strand.</p> <p>“A helical stripe or band of uniform width and distinctive color, this color being usually red and produced by painting one of the strands of the rope,” is not a valid common-law trade-mark of a wire rope. A colored strand, not restricted to any color, is not a valid trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 20; Dec. Dig. § 17.*]</p> <p>2. Trade-Marks and Trade-Names (§§ 68, 70*) — Unfair Competition — Fraud.</p> <p>Fraud is the basis of unfair competition. The deceit or the probable deceit of the ordinary purchaser, so that he buys or probably will buy the articles of one manufacturer or vendor in the belief that they are those of another, is an indispensable attribute of a good cause of action for the simulation of the product of one party by that of another.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 79, 81; Dec. Dig. §§ 68, 70*</p> <p>Imitation or simulation of trade-mark or trade-name as unfair competition, see note to John H. Rice & Co. v. Redlich Mfg. Co;, 122 C. C. A. 447.]</p>

<p>1. Indians (§ 38*) — Introducing Liquor into Indian Territory — Criminal Prosecution.</p> <p>Act March 1, 1895, c. 145, § 8, 28 Stat. 697, making it a criminal offense to introduce intoxicating liquor into Indian Territory, is still in force in the portion of Oklahoma which was at the time of its passage a part of the Indian Territory, and is enforceable by prosecution in tne federal court.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. § 38.*]</p> <p>2. Criminal Law (§ 1156*) — Appellate Proceedings — Questions Reviewable — Denial of New Trial.</p> <p>The denial of a motion for new trial in a criminal case in a federal court is not a subject of review in an appellate court.</p> <p>[Ed. Note. — For other-cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dee. Dig. § 1156.*]</p>

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

<p>Bankruptcy (§ 404*) — Application tor Discharge — Failure to Apply— Suhsequent Proceedings. '</p> <p>Where more than six years before petitioner had been adjudged a bankrupt in a like proceeding in another jurisdiction, but failed to apply for and obtain a discharge within tlie time limited, the fact that whether the bankrupt had committed an act which barred his discharge, or whether the debts were of such a nature as to exempt them, was not affirmatively determined in the prior proceeding, did not render the bankrupt’s omission equivalent to a dismissal without prejudice; it being res judicata, so as to bar the bankrupt from obtaining a discharge from such debts in a subsequent proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 679, 681-69Í; Dec. Dig. § 404.*]</p>

<p>1. Libel and Slander (§ 56*) — Portraits—Publication—Good Faith — Partial Defense — Damages.</p> <p>Where defendant published plaintiff’s portrait as that of another in connection with an article describing efforts of such other to save her father from suffering the death penalty imposed on him for murder, the fact that the mistake was committed innocently was not a complete defense to plaintiffs action for libel, but bore only on the measure of damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 153-156; Dec. Dig. § 56*1</p> <p>2. Libel and Slander (§ 123*) — Portraits—Publication—Special Damage.</p> <p>Where defendant innocently published plaintiffs portrait in connection with an article relating to the'work of another young woman to save her father from execution for murder, there was an imputation that the original of the picture was the person mentioned in the text; and as this might tend to prejudice the respectable portion of society against plaintiff, it could not be said as a matter of law that she suffered no Injury, and hence she was entitled to go 1o the jury on the question of dam-ages, without proof of special damage.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356 ■ 364; Dec. Dig. § 123.*]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Ejectment by Eli P. Williams and others against William R. White and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p>

<p>Principal and Surety (§ 117*) — Builder’s Contract — Bond—Funds—Failure to Retain — Discharge oe Surety.</p> <p>Where a building contractor’s bond provided that the owner should make specified payments during the progress of the work, but should retain not less than 10 per cent, of all payments for work performed and materials furnished until the complete performance of the contract, but the owner did not retain the 10 per cent., and prior to the contractor’s default he paid $2,000 more than the advance payments, there was a material alteration of the contract, for which the surety was discharged.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 283-285; Dec. Dig. § 117.*</p> <p>Discharge of surety on building contract by change in obligation or duty of principal, see notes to United States v. Walsh, 52 O. C. A. 427; O’Neill v. Title Guaranty & Trust Co., 113 C. C. A. 214; United States Fidelity Co. v. United States, 116 C. C. A. 196.]</p>

B. Witmer, Judge.. Action by Alvin Chesko, by his father and next friend, Thomas Chesko, and by Thomas Chesko, in his own right, against the Delaware & Hudson Company. From a judgment for plaintiffs, defendant brings error.

Creditor’s bill by William Weld, administrator with the will annexed of the estate of Theodore B. Casey, deceased, against James R. McKay, individually and as trustee under the will of Elizabeth M. McKay, deceased, James M. McKay, individually and. as trustee under the will of Elizabeth M. McKay, deceased, and others. Decree for defendants and complainant appeals.

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action by Virginia C. Thissell and husband against Dorothy W. Crutchfield Woodward and others. Judgment for plaintiffs, and de-</p> <p>fendants bring error.</p>

Petition to Review Order of the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. In the matter of bankruptcy proceedings of one Chotiner. Petition by Elliott Frederick, trustee in bankruptcy, to review order (216 Fed. 916) reversing an order of the referee confirming a sale of the bankrupt’s property to the Washington Real Estate Company.

Appeals from the District Court of the United States for the District of Massachusetts; George H. Bingham, Judge. Suit by Ellis Si Pepper, as receiver, etc., against the Springfield Institution for Savings and others. From a judgment in favor of defendants, plaintiff appeals, and the Springfield Institution for Savings and others prosecute a cross-appeal against the receiver.

<p>1. Criminal Law (§ 510*) — Testimony or Accomplices — Necessity of CorROBORATION.</p> <p>In the federal courts the testimony of a confessed accomplice need not be corroborated to support a conviction, though such testimony should be received with suspicion and with the greatest care and caution, and not taken as that of an ordinary witness of good character, generally and prima facie supposed to be true.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. § 510.*]</p> <p>2. Courts (§ 337*) — United States Courts — State Laws as Rules of Decision.</p> <p>The federal courts in criminal cases are not governed by state statutes. [Ed. Note. — For other cases, see Courts, Cent. Dig. § 908; Dec. Dig. § 337.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>3. Criminal Law (§ 511*) — Testimony of Accomplices — Necessity of Corroboration.</p> <p>On a trial for conspiring to bring certain Chinamen into the United States contrary to law, evidence held to corroborate the testimony of accomplices sufficient to support a conviction, assuming that corroboration was essential.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137: Dee. Dig. § 511.*] '</p>

Rose, Judge. Libel in admiralty by William L. Evans against the steamship Atlantic City and the Clarence Cottman Company, Incorporated. Judgment for libelant, and William Story, master and claimant, appeals.

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edw. R. Meek, Judge.</p> <p>Bill by the Corsicana National Bank against Samuel Wistar Johnson. From a decree dismissing the bill, plaintiff appeals.</p>

Action by Harry M. Auld and another against the C. A. Smith Timber Company and others. Judgment for plaintiffs, and defendants bring error.

Appeals from the District Court of the United States for the Southern District of New York. There are two suits between the same parties, brought for the infringement of certain patents and asking for an injunction, an accounting and damages.

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>On appeal from a decree of the District Court for the Northern District of New York dismissing the bill which was filed for the infringement of letters patent granted to James H. Watson of Craw-fordsviile, Ind., for a corrugated inetal culvert. The patent is dated May 5, 1896, and expired May S, 1913. A demurrer to the bill was sustained by the Circuit Court (172 Fed. 151), but this decision was reversed by this court (183 Fed. 586, 106 C. C. A. 354). The decision on final hearing is reported in 207 Fed. 83'7.</p>

<p>Patents (§ 328*) — Anticipation—Wept Replenishing Mechanism fob Looms. The Smith patent, No. 692,935, for a weft replenishing mechanism for looms, is void, as disclosing no new- principle of operation or patentable improvement over the device of the Northrop patent, No. 600,016.</p>

Whitaker Thompson, Judge.' Action by Benjamin C. Mitchell, individually, and Benjamin C. Mitchell and another, trading as B. C. Mitchell & Son, against the Kemp & Burpee Manufacturing Company. Judgment for defendant (215 Fed. 935), and plaintiffs bring error.

<p>1. Patents (§ 328*) — Validity and Infringement- — Filter Pulp Packing Machine.</p> <p>The Kiefer reissue patent, No. 12,455 (original No. 797,122),- claims 9 and 10, for a filter pulp packing machine for pressing filter cake for beer filters, held valid, but not infringed.</p> <p>2. Patents (§ 328*) — Validity and Infringement — Beer Filter.</p> <p>The Kiel'er patent, No. 993,780, for a filter for straining beer and ale, claim 1, is valid, but in view of the prior art is entitled to only a narrow construction; as so construed, held not infringed.</p> <p>3. Patents (§ 328*) — Validity—Beer Filter.</p> <p>The Kiefer patent, No. 1,015,326, claims 14 to 17, inclusive, and 19 to 22, inclusive, for a filter for straining beer, etc., which were introduced by amendment pending the application, without any supplementary affidavit, are void for lack of description; certain of the elements claimed therein being entirely absent in the proceedings up to that time, not only from the specification, but also from the drawings and claims. Claims 23 to 25, inclusive, for a filter cake as a new article of manufacture, also held invalid, for want of novelty.</p> <p>4. Patents (§ 328*) — Validity—Beer Filter. t</p> <p>The Kiefer patent, No. 3,023,254, for a filter for straining beer and ale, is void for lack of novelty in view of the prior art.</p>

In Bankruptcy. In the matter of John F. Krug and George Klein, individually and as copartners, trading as Krug & Klein, bankrupts. On exceptions to report of referee on special reference of motion to-strike out answer of attaching creditor to petition in bankruptcy.

At . Law. Assumpsit by Arthur C. Brady against Martin E. Kern. On motion for a new trial. Verdict for defendant. Plaintiff’s motion fpr new trial denied, and leave granted defendant to move for judgment on the verdict.

<p>Shipping (§ 132*) — Loss op Cargo in Loading — Liability op Vessel.</p> <p>While a bundle of rubber, consisting of six bales slung to the boom of respondent steamship, was being hoisted on board from a lighter in the port of Bahia, the lighter lurched from the ship, owing to the swell, and the bundle struck her rail and was lost in the sea. The ship furnished the tackle and winchman to operate it and a man who stood at the side and signaled the winchman to hoist when told by the men on the lighter, who, with the lighter, were employed by the shipper. The bill of lading exempted the ship from liability for risk of “transhipment from or to craft.” Held, that this placed the burden of proof on the shipper, and that there was no evidence to show negligence on the part of the ship; the negligence, if any, being that of the lightermen in not steadying the sling as.it rose.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. § 132.*]</p>

Ten actions for statutory penalties by the United States against the Oregon Short Line Railroad Company. Judgment for plaintiff in all of the actions except one;

<p>William Skinner and others were indicted for offenses. On demurrers to defendants’ special pleas in bar.</p>

<p>1. Carriers (§ 189*) — Carriage ' or Goods — Rate—Aggregation.</p> <p>Under an express company’s rule that two or more packages forwarded at tbe same time from the same place to the same consignee must be charged for on the aggregate weight, if a lower charge is made thereby, not all of such shipments shall be taken in making up the aggregate on which the weight is based, but only such as will result in a reduced charge because of the aggregation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. § 189.*]</p> <p>2. Carriers (§ 189*) — Carriage of Goods — Rate—Classification.</p> <p>Where an express company had established a general tariff of charges for merchandise, tariff of rates for other classes of goods, and a commodities tariff, a provision of the commodities tariff that all classes of business not rated higher than merchandise between certain localities are put on a commodities rate applies only to those articles having a special classification, and not to articles under the general classification of merchandise, especially where such interpretation had been adopted by the carrier in making some of its charges.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. § 189.*]</p> <p>3. Interest (§ 39*) — Carriage of Goods — Overcharges—Time from Which Interest Runs.</p> <p>- Where a shipper has been charged an unlawful rate on his shipments, he is entitled to recover the overcharge as of the date it was collected, not tbs date of the demand for refund, and should therefore be allowed interest from the former date, not as interest strictly, but to give him, on the date of his recovery, an amount equivalent to the amount of his damages at the time they were suffered.</p> <p>[Bd. Note. — For other cases, see Interest, Cent. Dig. §§ 83-89; Dee. Dig. § 39.*]</p> <p>4. Carimbes (§ 189*) — Carriage oe Goods — Bates—Tariff.</p> <p>A provision in the commodities tariff of an express company fixing a minimum rate on all classes of business between certain localities, the charges to be graduated according to the scale on shipments under one hundred pounds, applies only to shipments of the commodities class, and not to shipments classified generally as merchandise.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. § 189.*]</p>

In Bankruptcy. Proceedings against the De Soto Coal Mining & Development Company. On petition of the trustee in bankruptcy to review an order of the referee declaring valid certain bonds of the bankrupt corporation.

At Law. Action by Christopher Williams, as receiver of the First National Bank of Bayonne, against Joseph Hochstein. Judgment for plaintiff. The First National Bank of Bayonne became insolvent upon December 8, 1913, and in due course plaintiff became receiver.

At Law. Action by Christopher L. Williams, as receiver of the First National Bank of Bayonne, N. J., against Julius A. Rose. On motion to strike out defendant’s answer. Denied without prejudice. The First National Bank of Bayonne became insolvent upon December 8, 1913, and in due course plaintiff became receiver.

<p>In Equity. Suit by the State of Maine Lumber Company and others against the Kingfield Company and others. On motion to dismiss.</p>

At Law. Action by the Insurance Company of North America against William McCoach, collector of internal revenue. Judgment for plaintiff for a part of the amount sued for.

<p>At Law. Action by the Lee Lash Company against the Northwestern Consolidated Milling Company. On rule to open judgment.</p>

<p>1. Unite® States (§ 67*) — Contractors’ Bonds — Actions—Statutory Provisions.</p> <p>Under Act Feb. 24, 1905, e. 778, 33 Stat. 811 (Comp. St. 1913, § 6923), providing- that, if no suit be brought by the United States on the bond of a contractor for the construction of public works within six months from the completion and final settlement of the contract, laborers and material-men may bring suit thereon in the name of the United States, provided that such suit shall be commenced within one year after the performance and final settlement of the contract, that only one action shall be brought, and any creditor may file his claim therein and be made a party thereto ■within one year from the completion of the contract, and that personal notice of the pendency thereof shall be given to all known creditors, and in addition thereto notice of publication in some newspaper of general circulation for at least three successive weeks, the last publication to be at least three months before the time limited therefor, the limitation of time prescribed for bringing the suit conditions the right to sue and does not merely bar the remedy.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>2. United States (§ 67*) — Contractors’ Bonds — -Actions—Statutory Provisions.</p> <p>That an action on a contractor’s bond under Act Feb. 24, 1905, was not commenced a sufficient length of time before the expiration of one year from the completion of the contract to permit of the prescribed publication of notice to other creditors did not defeat the action, as the provision for such publication is for the benefit of other creditors, and in no way for the benefit of the surety, the contractor, or the United States.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*]</p> <p>3. United States (§ 67*) — Contractors’ Bonds — Actions—Statutory Provisions — “Commenced.”</p> <p>Where, in an action -on a contractor’s bond against the contractor and its surety, an amended complaint was filed substituting for the surety a defendant alleged to have succeeded to the surety’s business and assumed its liabilities, the action was not “commenced” against such defendant, within Act Feb. 24, 1905, requiring such actions to be commenced within one year after the completion of the contract, until the filing of the amended complaint.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. § 67.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Commencement of Action.]</p> <p>4. United States (§ 67*) — Contractors’ Bonds — Actions—Statutory Provisions — “Commenced.”</p> <p>In an action on the bond of a contractor with the United States who completed his contract on ,Tuly 3, 1912, a complaint was filed against the contractor and its surety on June 21, 1913. Process was not issued until September 23, 1913, at which time a subpoena was placed in the hands of an officer and returned unserved because none of the defendants could be found in the district. On July 31, 1914, summons was issued and served upon a defendant which had been substituted for the original surety. Meld, that, if the suit was in equity, it was not “commenced” within one year after the completion of the contract, as required by Act Feb. 24, 1905, since a suit in equity is not commenced until the issuance of a subpoena followed by a bona fide effort to serve it.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec, Dig. § 67.*]</p> <p>5. Process (§ 21*) — Time for Service — Statutory Provisions — “Commenced.”</p> <p>If such action were at law, and hence “commenced” when the complaint was filed, it could not be maintained because the summons was not issued within one year after the filing of the complaint, as required by Rev. Codes Idaho, § 4189.</p> <p>[Ed. Note. — For other eases, see Process, Cent. Dig. § 16; Dec. Dig. § 21.*]</p>

<p>1. Indians (§ 38*) — Crimes—Jurisdiction.</p> <p>An Indian may not be taken from the jurisdiction of the state courts to answer for an offense not committed on an Indian reservation, unless it appears, as a matter of law, that be is being held for an act done or omitted in pursuance of a law of the United States,' as provided by Rev. St. § 753 (Comp. St. 1913, § 1281).</p> <p>[Ed. Note. — Eor other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. § 38.*]</p> <p>2. Indians (§ 38*) — Crimes Committed by Indian — Trial.</p> <p>That petitioner for a writ of habeas corpus, held for alleged violation of a state law, was an Indian policeman, and engaged in the discharge of his duties at the time he committed the alleged crime, did not render him immune from prosecution in the state courts.</p> <p>[Ed. Note. — Eor other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. § 38.*]</p> <p>3. Indians (§ 38*) — Offenses—Trial—“Indian Country” — “Indian Reservation.”</p> <p>Pen. Code 1910 (Act March 4, 1909, c. 321, 35 Stat. 1151 [Comp. St. 1913, § 10502]) § 328, provides that all Indians committing against the person or property of another Indian or other person certain specified crimes within any state and within any Indian reservation shall be subject to the same laws and be tried in the same courts and in the same manner and be subject to the same penalties as are all other persons committing any of such crimes within the exclusive jurisdiction of the United States. Held, that a right of .way granted to a railroad company over the Nez Perce Indian reservation by Act Cong. May 8, 1890, c. 199, 26 Stat. 101, was neither “Indian reservation” or “Indian country,” the two words being synonymous; and hence a homicide committed by an Indian policeman on such right of way was not within the exclusive jurisdiction of the federal courts.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. § 38.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Indian Country; Indian Reservation.]</p>

<p>Ha,step, and Servant (§ 13*) — Statutory Regulation — Hours of Service— “Permit” — “Agent”—“Emuloyís.”</p> <p>Act March 4, 1907, c. 2939, 34 Stat. 1416 (Comp. St. 1913, § 8678) § 2, providing that no telegraph operator shall be required or permitted by interstate carriers to remain on duty Sor longer than 9 hours in any 24-hour period' at places and stations continuously operated night and day, and section 3 (section 8679) providing that the carrier shall be deemed to have had lull knowledge of all acts of all its officers and agents, imposes an absolute duty upon the carrier, and reasonable care or want of knowledge of the violation on the part of the officers and agents of the carrier, other than the operator himself, constitutes no defense, since, while the primary significance of the word “permit” implies knowledge of the thing suffered or allowed to be done, the statute specifically declares that the carrier shall be deemed to have had knowledge, and, in so declaring, it does not, as claimed, distinguish between officers and agents on the one hand and employes on the other, but uses the term “agents,” in its broadest sense, as including every relation in which one person acts for or represents another by his authority, especially in view of the provision that “employes” shall be held to mean persons actually engaged in or connected with the movement of any train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14: Dee. Dig. § 13.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Agent; Employe; Permission.]</p>

James J. Farmer and others were indicted for misuse o'f the mails in furtherance of a scheme to defraud, and demurred to the indictments.

<p>1. Covenants (§ 96*) — Breach—Mistake of Law.</p> <p>Where the receiver of a national bank sold certain real property to complainant, which had previously belonged to the bank, though the title was in the name of the president, contracting to convey clear of all in-cumbrances, and it was afterwards determined that a judgment against the president was a lien on such property, the receiver was not relieved from liability on his covenant, on the theory that the breach resulted from a mistake in a matter of opinion or law.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 111-129; Dec. Dig. § 96.*]</p> <p>2. Deeds (§ 94*) — Covenants—Merger—Contract to Convey — Deed.</p> <p>Where the receiver of a national bank contracted to convey to eomnlain-ant certain premises belonging to the bank, the contract containing a covenant against incumbrances, but the deed executed in performance of the contract was one of special warranty, without a covenant against in-cumbrances, the covenant in the contract did not merge in the deed, so that, on the purchaser losing her title by reason of a pre-existing incum-brance, she was entitled to recover the purchase money, etc., in an action on the covenant in the contract.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 266; Dec. Dig. § 94.*]</p>

<p>In Equity. Suit by the City of Des. Moines against the Des Moines Water Company and others. On application by complainant for modification of a condemnation decree and for an extension of time for payment.</p>

<p>1. COURTS (§ 489*) — Federal and State Courts — Comity.</p> <p>The rules of comity existing between the federal and state courts mean something more than rules of convenience, and, while a federal court has undoubted jurisdiction of a suit to determine the constitutionality of a state statute, except in extreme and exceptional cases the state court, which has concurrent jurisdiction and on which the Constitution and laws of the United States are equally binding, is the appropriate court to deal with the question in the first instance.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 404, 1324r-1330, 1333-1341,. 1372-1374; Dec. Dig. § 489.*] ' ‘ '</p> <p>2. Courts (§ 489*) — Federal and State Courts — Comity—Suit to Enjoin Enforcement of State Statute.</p> <p>A statute of New Hampshire dealing with the subject of railroad fares also created a public service commission, with judicial powers to carry out its provisions. The act provided that, in case a petition for rehearing on any matter should be denied by the commission, an appeal should lie to the Supreme Court of the state. A railroad company filed a petition for rehearing after a decision by the commission, raising the issue of the constitutionality of the statute, which petition was denied. Thereupon the company commenced a suit in the federal District Court, alleging that certain provisions of the statute were discriminatory on their face and unconstitutional. Held that, having first invoked the jurisdiction of the state tribunals, the federal court would not pass on the constitutionality of the statute, or grant an injunction restraining its enforcement, until the company had exhausted its remedies in the state courts, but that until such time the cause should be held in abeyance.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 404, 1324-1330, 1333-1341, 1372-1374; Dee. Dig. § 489.*]</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Crawford Wollen Company. On petition of Terhune, Nearing & Co. to revise the referee’s order determining that petitioners were not entitled to priority under a state statute for the amount of their claim,, but permitting them to file their claim for a preference to the amount of $300 and as an unsecured claim for the balance.</p>

<p>In Bankruptcy. In the matter of Samuel J. Handy, bankrupt. On petition of the Peerless Fertilizer Company to require the trustee to turn over to it open accounts due the bankrupt.</p>

<p>In Equity. Suit by the Clark Montana Realty Company against W'. H. Ferguson and others. Decree for complainant.</p>

<p>In Equity. Suit by Richard B. Kelly against Thomas Dolan and others. On motion to dismiss bill.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Sigmund Elkin. On petition of the trustee to review a referee’s order allowing the bankrupt’s claim of 'exemptions.

<p>Pursue Lands (§ 123*) — Special Limitation — Effect — Fraudulent Patents.</p> <p>Act March. 3, 1891, c. 561, 26 Stat. 1099, providing that suits by the United States to vacate and annul any patent previously issued shall only be brought within five years from the passage oí the act, and suits to vacate and annul patents afterwards issued shall only be brought within six years after the date of the issuance of the patent, does not apply to actions by the United States to recover damages for alleged fraud committed in procuring the government’s title to public lands through fraudulent entry and proof under the Homestead Act.</p> <p>[Ed. Note. — For other eases, see Public Lands, Dec. Dig. § 123.*]</p>

<p>Application by Henry Center for naturalization.</p>

In Bankruptcy. In the matter of the W. A. Silvernail Company, bankrupt. On certificate of the referee to review an order denying the claim of one Waterhouse.

<p>1. Bankbtjptcy (§ 165*) — Ckeditobs Entitled to Pbove Claims — Eeeect oe Pbefebence.</p> <p>Where, within four months before the institution of bankruptcy proceedings, a corporation, being then insolvent, paid a note on which its treasurer was a guarantor, the treasurer received a preference, precluding him. from proving another claim, unless he returned the preferential payment.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dee. Dig, | 165.*]</p> <p>2. Bankbuptcy (§ 303*) — Pkefekenoes—Knowledce oe Insolvency.</p> <p>The treasurer of a corporation, to whom it made a preferential payment while insolvent, will be presumed to have known its true financial condition.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 458-462 ; Dec. Dig. § 303.*]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of A, M. Roughney and Neal Roughney. On motion by the bankrupts for an order directing the clerk to send out an order and notice of the bankrupt’s application for discharge.

<p>In Equity. Suit by R. L. Sabin, as trustee in bankruptcy of the Consumers’ Lumber & Supply Company, against the Larkin-Green .Logging Company. On motion to dismiss for alleged want of jurisdiction in the bankruptcy court to pass the adjudication on which plaintiff’s appointment as trustee was based.</p>

<p>Appeal from the District Court of the United States 1’or the Northern District of Alabama; W. I. Grubb, Judge. Suit in equity by J. Carl Sibert against James Bowron, as trustee in bankruptcy of the Southern Iron & Steel Company. Decree for complainant, and defendant appeals.</p>

Dayton, Judge. In the matter of bankruptcy proceedings of the Evansville Contract Company. On petition by M. J. Bray and others to superintend and revise in matter of law certain proceedings resulting in a decree affirming a referee’s order in favor of the United States Fidelity & Guaranty Company, with separate appeal by Bray and others from the same decree.

<p>In Error to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge. Suit by Herman Kruegel and others against the Standard Savings & Loan Association and others. Decree for defendants, and plaintiffs appeal.

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>_ Appeal from the _ District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court oí. the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding a patent valid and infringed as to claims 6 and 10 thereof. The patent is No. 966,765 issued August 11, 1910, to Harry Read, for a mixing machine.

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon E. Russell, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Texas; Gordon Russefi, Judge. Action by the Hartford Fire Insurance Company and another against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Motion for writ 6f mandamus to the District Court of the United States for the Southern District of New York.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward It. Meek, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p>