Volume 219 — Federal Reporter

<p>1. Post Office @=>15 — Second-Class Matter — -“Legitimate List oí Siin-SORIBEa!S.,!</p> <p>The phrase “legitimate list of subscribers,” used in Act Cong. March 3, 1879, e. 180, § 14, subd. 4, 20 Stat. 359 (Comp. St. 1913, § 7306), providing that a publication, in order to be entitled to second-class rates, must be originated and published for the dissemination of information of a public character and have a legitimate list of subscribers, moans a list of subscribers taken at more than a nominal price, and that the jirice musí: have been paid by the subscriber, or some one in Ms behalf, or be under obligation to pay the price, and that subscriptions taken at a nominal price or without price do not answer the requirements of the statute in that particular and cannot be counted in making up a legitimate list.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 22; Dec. Dig. @=>15.]</p> <p>2. Post Office @=-15 — Second-Class Matter — Paid Subscriptions.</p> <p>On an application to admit a publication to second-class postal rates, evidence that a substantia] number of subscriptions are overdue, or that the price paid or agreed to be paid for them is,nominal, or that they ara paid for by others than the recipients of the publication, or were obtained by the payment of large commissions or in connection with an offer of a premium, or other consideration, is material in determining whether the publication is primarily designed for advertising purposes for free circulation or for circulation at nominal rates, so that the entire publication should be excluded from second-class privilege at a cent a pound.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 22; Dec. Dig. @=>15.]</p> <p>3. Post Office @=>4 — Regulations Authority of Postmaster General.</p> <p>The postmaster general has authority to make postal regulations not inconsistent with the Postal Act, under Rev. St. § 161 (Oomp. St. 1913,, § 235), providing that the head of each department may prescribe regulations, not inconsistent with law, for the government of his department, conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.</p> <p>LEd. Note. — For other cases, see Post Office, Cent. Dig. § 3; Dec. Dig. @=>-4.]</p> <p>4. Conspiracy @=>47 — Defrauding Government — Second-Class Bates — Application — False Proof.</p> <p>In a prosecution for conspiracy to submit false evidence to the Post Office Department in support of an application to admit a publication to second-class rates, evidence held insufficient to warrant a finding that proofs submitted by defendants as to their subscription list were Knowingly false in that facts were omitted which they were informed by the Post Office Department were immaterial.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. @=>47.]</p> <p>5. Criminal Law @=>728 — Witnesses @=>305 — Privilege of Accused.</p> <p>Under the federal rule that cross-examination of a witness is limited to the matters concerning which he has been examined in chief, where accused, being tried on two indictments, testified in his own behalf as to a single fact only with reference to one of the charges, it was error to hold that he thereby waived his constitutional right not to testify as to any and all the matters charged against him and for the district attorney in argument to refer to his failure to testify fully and to draw unfavorable inference therefrom.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. @=>728; Witnesses, Cent. Dig. §§ 1053-1057; Dec. Dig. @=>305.]</p> <p>6= Criminal Law @=>402 — Evidence—Best and . Secondary Evidence.</p> <p>A copy of a letter on which the addressee and the writer were designated by initials only, discovered in the Chicago office’ of a corporation of which defendants were officers, but not found in the possession of either of them, and for the admission of which no legal foundation was laid, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 887, 888; Dec. Dig. @=>402.]</p> <p>Putnam, Circuit Judge, dissenting.</p>

<p>1. Corporations <@=>125 — Transfer of Stock — Necessity of Resxstration. Registration of a transfer of stock on the books of the corporation is not essential to a valid transfer of title, and an indorsement and delivery of the certificates of stock, with continued possession thereafter by the transferee, is sufficient under Civ. Code Cal. § 3440, which makes a transfer of personal property invalid as against creditors unless accompanied by an immediate delivery and followed by a continued change of possession.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 470-478, 477; Dec. Dig. <@=>125.]</p> <p>2. Corporations <@=>125 — Transfer of Stock — Validity—Continued Possession by Transferee.</p> <p>Where a husband indorsed certificates of stock in a corporation issued in his name and delivered the same as a gift to his wife, who retained possession of them during several years, except on two occasions when she redelivered them to her husband for temporary purposes, after which they were returned to her, such temporary redelivery did not break her continuity of possession so as to invalidate the transfer under Civ. Code Cal. § 3440, which requires a continued change of possession.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 470-473, 477; Dec. Dig. <@=>125.]</p> <p>3. Bankruptcy <@=>303 — Gift from Bankrupt to His Wife — Validity.</p> <p>Evidence considered, and held to sustain the claim of a bankrupt’s wife to the ownership of stock, which was transferred from his name to hers on the books of the corporation when he was insolvent, on the ground that the certificates were indorsed and delivered to her as a gift several years before, when they were first issued, and when he was solvent, and that she retained possession of them at all times thereafter and kept them in a private safe to which he did not have access.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. <@=>303.]</p>

<p> (Syllabus by the Court.) </p> <p>1, Intjsbnai. Revenue <g=s>9 — -Goki>obation Tax — “Income.”</p> <p>The owners of lands practically valuable only for the ore in them, years before January 1, 1909, when the Corporation Tax Act took effect, made mining leases thereof by which they granted the absolute right to dig and have the ore therein and to remove it within long terms, such as 25 and 50 years, and the lessees covenanted to pay yearly fixed amounts, such as 25 or 30 cents a ton for the ore extracted, and minimum yearly amounts to be credited on ores subsequently extracted in case sufficient amounts were not extracted to come to the minimums in any year. Thereafter, in the year 1900, these owners, for the purpose of collecting their claims against the lessees under their covenants to pay for the ores, and for the purpose of converting their property into money aud distributing it among themselves, organized three corporations, conveyed these claims and the land to them in three lots, one lot to each corporation, and took from them therefor all the stock of these corporations in proportion to their undivided interests in the property. The corporations engaged In no mining, or trading, or other like business, but confined their operations to collecting tile claims against the lessees, protecting and preserving the property, converting it into money, and distributing the proceeds among its stockholders. In 1909, 1910, and 1911 the corporations collected the amounts which fell due in those years on the claims against the lessees under their covenants in the leases, which amounted to several hundred thousand dollars, and received some small amounts for the sale of some stumpage and a few town lots.</p> <p>Held, the amounts thus received by the corporations were not included in “income,” within the meaning of that word in the Corporation Tax Act, but were parts of the property or capital of the corporations in a different form.</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, Income.!</p> <p>а. Internal Revenue @=9 — Corporation Tax — Allowance foe Depreciation.</p> <p>If the amounts collected by the corporations on the claims against the lessees under their covenants were income, then the property or capital of the corporations was reduced in amount and value by those amounts, and the corporations were entitled to an allowance thereof for the depreciation of their property.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-2S; Dea Dig. @=9.]</p> <p>3. Internal Revenue @=9 — Corporation Tax — “Doing Business.”</p> <p>Corporations that are the owners of property not engaged in business with themselves, that are engaged in* no 'mining, trading, or other like business, but confine their operations to acts necessary or incidental to the protection and preservation of their property, to its conversion into money, and the distribution thereof among its stockholders, are not “doing business,” within the meaning of the Corporation Tax Act, and are not subject to the tax it prescribes.</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, Doing Business.]</p> <p>4. Mines and Minerals @=62 — Mining Leases — Sales of the Ore.</p> <p>Mining leases, whereby the lessees are granted the absolute and exclusive right to extract and have the ore in the land and to remove it during terms, such as 25 and 50 years, so long as to be practically equivalent to unlimited times, are in reality sales of the ore, and the royalties reserved in the leases are in fact the purchase prices thereof.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 173, 175-180; Dec. Dig. @=62.]</p> <p>5. Appeal and Error @=854 — Ground for Reversal — Erroneous Reason.</p> <p>A right judgment, which is warranted by the record and the facts, and was rendered without error in the trial or rendition, may not be reversed on the sole ground that the trial court gave a wrong reason for the just judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. @=854.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>б. Internal Revenue @=9 — Corporation Tax — “Income.”</p> <p>The word “income” is used in Corporation Tax Act of Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, §§ 6300-6307), in contradistinction to property and invested capital. It is not synonymous with the word “receipts,” and does not include receipts from the conversion, without profit, of the corporate property into money.</p> <p>[Ed. Note.- — For other eases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <3=9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Income.]</p>

<p>1. Courts <§=>7 — Nature or Action — “Local” or “Transitory Action.”</p> <p>An action of ejectment under the Kentucky Code, which permits also the recovery of damages for detention, is a “local” and not a “transitory action.”</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 14, 16, 22-31; Dec. Dig. <§=>7.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Local Action; Transitory Action.)</p> <p>2. Courts <§=>269 — Jurisdiction or Federal Courts — Local Actions.</p> <p>Under Judiciary Act March 3, 1875, c. 137, §§ 1, 8, 18 Stat. 470, 472, as amended by Act March 3, 1887, c. 373, § 1, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 438 (Comp. St. 1913, §§ 991 [1], 1039), as before their enactment, a federal court of the district in which tile property, which is the subject-matter, is situated, has jurisdiction of the local actions described in said section 8, where the necessary diverse citizenship exists, without regard to the residence of the parties.</p> <p>fEd. Note. — For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. <2=3269.)</p> <p>3. Boundaries <§=>40 — Location or Lines — Questions eor Jury.</p> <p>The location of the lines of a survey held, under the evidence, a question of fact for the jury, under the Kentucky rule of decision that, where the language used is ambiguous, the lines the surveyor intended to describe by such language must govern.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-201; Dec. Dig. <§=>40.j</p> <p>4. Courts <@=>96 — Rule or Stare Decisis.</p> <p>Under the rule of stare decisis, a decision of the Circuit Court of Appeals in a suit in equity, in which it considered the questions of both fact and law, determining the lines of an old survey, is binding only as to the matters of law decided, and in a subsequent action at law between different parties, but involving the same survey, where there is additional evidence raising new questions of fact, the prior decision does not preclude the submission of such questions to a jury.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 325, 327, 328, 334; Dec. Dig. <§=>96.j</p> <p>5. Words and Phrases — “Jurisdiction.”</p> <p>Jurisdiction is the power to proceed by authorized service.</p> <p>[Ed. Note. — -For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.)</p>

In the matter of bankruptcy proceedings of J. Sapinsky & Son.

Killits, Judge. Involuntary bankruptcy petition of Joseph Tarault. From an order dismissing the petition, and denying an adjudication, Andrew Emerine, Sr., and others appeal.

Elliott, Judge. Suit by the Belle Fourche Valley Water Users’ Association against Frank C. Magruder and others. From an order refusing to set aside a restraining order and granting an interlocutory injunction, defendants appeal.

<p>1. Criminal Law <©=s>242 — -Removal to Another District for Trial — Jurisdiction of Commissioner.</p> <p>Under Rev. St. § 1014 (Comp. St. 1913, § 1G74), providing that for any crime or offense against the United States the offender may, by any justice or judge of the United States, or by any commissioner of the Circuit Court to take bail, agreeably to the usual mode of process against offenders in the state where he may be found, be arrested and imprisoned or bailed for trial before such court of the United States as by law has cognizance of the offense, and that, where any offender is committed in any district other than that in which the offense is to be tried, it shall be the duty of the judge of the district where the offender is imprisoned to issue a warrant for Ms removal to the district where the trial is to be had, a commissioner has no authority to order the removal of an accused person to another district, but has authority only to issue a warrant committing him to the custody of the marshal for trial in the district to which he is to be removed, until a warrant for his removal is issued by the District Judge, or until he is otherwise dealt with, according to the law.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 509, 510; Dec. Dig. <§=»242.]</p> <p>2. Criminal Lajv @=»242 — Removal to Another District fob Trial- — Proceedings on Application for Rf.moval — Evidence.</p> <p>Under Rev. St. U. S. § 1014 (Comp. St. 1913, § 1674), and the Massachusetts practice before committing magistrates, a person arrested for a crime against the United States, triable in another district, must, either before the commissioner on whose warrant he is arrested, or before the District Judge on application for his removal to such other district, be afforded an opportunity to present evidence to show a want of probable cause for believing him guilty, as the indictment is prima facie evidence only of probable cause, and the procedure contemplated by Rev. Laws Mass. c. 217, § 28, providing that a warrant, issued against a person indicted in one county, shall run throughout the state, and that, if the offender is found in another county than the one in which the indictment was obtained, he may be there apprehended, and section 29, providing that, if defendant requests to be taken before a magistrate of the county in which he is arrested for the purpose of entering into recognizance without a trial or examination, it shall be the duty of the officer to take him. before a magistrate of sucb county, is not tbe procedure referred to in section 1014.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 509, 510; Dec. Dig. @=»242J</p> <p>Putnam, Circuit Judge, dissenting.</p>

Hollister, Judge. Bill by Edgar M. Johnson, trustee of the Cincinnati Equipment Company, a- bankrupt, against the Fifth Third National Bank and others. Held: apparently following an announcement at the hearing, that because of its failure to allege all the facts necessary to state a ca.se of voidable preference the bill must be treated as presenting- only the proposition that the conveyance was one operating to hinder, delay, and defraud creditors.

<p>In Error to the District Court of the United States for the District of Colorado; John A. Riner, Judge.</p> <p>Action by the Town of Holly against the Bankers’ Surety Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Dbains <S=s>76 — Drainage Board — Notice, oe Hearing — Publication.</p> <p>Under the rule of decision in Rev. St. Neb. 1913, § 1877, relating to the apportionment of benefits for a drainage improvement, and providing that “a notice shall be inserted for at least one week in a newspaper published at the county seat stating the time when, and the place where, the directors shall meet for the purpose of hearing all parties interested In the apportionment of benefits by reason of the improvement, the word “for” Is equivalent to “during,” and notice is required to be published at least during the week immediately preceding the meeting. If the publication is made in a weekly paper and the first publication is more than a week before the date of the meeting, it must be continued in the subsequent issues until that time.</p> <p>lEd. Note. — For other cases, see Drains, Cent. Dig. §§ 76-81; Dec. Dig. <§=»76.</p> <p>For other definitions, see Words and Phrases, First and Second Series, For.)</p> <p>Reed, District Judge, dissenting.</p>

Appeals from the District Court of the United States for the District of Colorado; John A. Riner, Judge. Suit by the Central Trust Company of New York, trustee, against the Colorado Midland Railway Company, the Denver & Rio Grande Railroad Company, the Rio Grande Junction Railway Company, and George Jay Gould. From a decree dismissing the bill as to the two last-named corporations, complainant appeals.

<p>Public Lands @=>19 — Bight of. Passage fob Stock — Unlawful Obstruction.</p> <p>Act JTeb. 25, 1885, c. 149, § 3, 23 Stat. 322 (Comp. St. 1913, § 4999), which provides that “no person by force, threats, intimidation, or by any fencing or inclosing or any other unlawful means, * * * shall prevent or obstruct free passage or transit over or through the public lands,” prohibits every method that works a practical denial of access to and passage over the public lands either by persons or stock, and the owner of a large quantity of railroad grant lands, comprising the odd-numbered sections, while the alternate sections are public lands, the entire tract being unineloscd, cannot by a warning notice deprive a stock owner oí a reasonable right of way for his stock across the tract, or make him a trespasser and liable in damages because, in crossing, his stock necessarily passes over and consumes grass from some of the land of the private owner.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 25, 26; Dec. Dig. <3^>19.]</p> <p>Sanborn, Circuit «Judge, dissenting.</p>

Tn Error to the Circuit Court of the United States for the District of Wyoming. Actions at law by the Uinta Development Company against <|)aniel Madiay and against the Stewart-Harding Sheep Company. Judgments for plaintiff and defendants bring error.

<p>Fbaudulent Conveyances <@=>108 — Teansactions Subject to Attack by , Ceeditobs.</p> <p>A firm, consisting of a father and son, and each of its members, were insolvent, and its creditors were pressing for payment. Defendant was the president of a bank, which had received for collection many drafts on the firm, most of which were returned unpaid, and he was also an indorser on a note of the firm. The father, at a meeting of the creditors, agreed to take an inventory in support of his claim that the firm had more goods than the creditors admitted, but immediately sold his interest in the firm property, worth over $10,000, to the son for his equity in real estate worth about $350. The son immediately traded the stock and fixtures to defendant for a farm belonging to defendant’s brother, title to which was held by the bank as security for a debt; the note on which defendant was an indorser being also deducted from the value of the stock and fixtures. Though in connection with this trade an inventory was taken, the representative of the creditors was excluded. There were no buildings on the land conveyed to the son, but in the month of January he moved thereon a building formerly used as a boathouse, and early (in February occupied it and claimed the land as a homestead. Held that, though each transaction may have been lawful in itself, findings were justified that the various transactions were parts of a plan to hinder, delay, and defraud the creditors, and to enable the son to secure from the partnership assets a personal exemption in the impending bankruptcy proceedings, which, except for the dissolution of the firm, he could not have obtained, and that defendant, knowing the situation, secured a preferential payment of the note on which he was indorser, and aided the debtors in accomplishing their design.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 333-336; Dec. Dig. <@=>108.]</p>

<p>Appeal from the District Court of the United States fo.r the Eastern District of Virginia, at Richmond, in Bankruptcy; Edmund Waddill, Jr., Judge. ,</p> <p>'In the^matter of Fred Cox, bankrupt; Maxwell G. Wallace, trustee. From an order of the District Court, Levey C. Cox, Snow S. Cox, and Mamie J. Casper appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by the National Fireworks Distributing Company against the Crescent Specialty Company. From an order granting a preliminary injunction, defendant appeals.</p>

S. Bean, Judge. Suit for collision by Olaf Die, master of the Norwegian steamship Selja, on behalf of himself and the owners, officers, and crew, against the steamship Beaver; the San Francisco & Portland Steamship Company, claimant. From the decree, libelant appeals.

Bean, Judge. Suit for collision by the Portland & Asiatic Steamship Company, charterer of the steamship Selja, against the steamship Beaver; San Francisco & Portland Steamship Company, claimant. Decree for libelant, and claimant appeals.

<p>1. Hines and Minerals @=>55 — Deeds—Forgery—Sufficiency of Proof.</p> <p>Evidence considered, and heDd to sustain the finding of a trial court that a deed to the coal and minerals under a tract of land was not a forgery, but was executed by the owner of the land.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. @=>55.]</p> <p>2. Deeds @=>116 — General Warranty — After-Acquired Title.</p> <p>Under the law of West Virginia, a conveyance of land by deed with a general warranty, executed by the equitable owner, operates to pass to the grantee an after-acquired legal title.</p> <p>[Ed. Note. — For other cases,'see Deeds, Cent. Dig. § 330; Dec. Dig. @=>116.]</p> <p>3. Mines and Minerals @=>49 — Adverse Possession — Occupation of Surface.</p> <p>Possession of the surface of land is not adverse to the title to the coal thereunder, where the estate in the coal has been severed as to title.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 135; Dee. Dig. @=>49.]</p>

<p>1. Commerce <@=>27 — Death op Servant — Employers’ Liability Act — Interstate Commerce — Switchman.</p> <p>Where decedent, a switchman, was struck and killed at night by the operation of a freight train backwards at a high rate of speed, while he was aligning switches for his switch engine to switch more cars, after a cut had been disposed of, and it was conceded that the cars handled by decedent just prior to his death carried both interstate and intrastate freight, the jury were authorized to find that he was engaged in interstate commerce at the time of his death, and therefore within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]).</p> <p>[Ed. Note. — For other eases, 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>2. Appeal and Error <@=>744 — Assignments op Error — Filing—Time.</p> <p>Assignments of error must be filed at the time of settling the bill of exceptions, as required by Circuit Court of Appeals rule 10 (150 Fed. xxvii, 79 C. C. A. xxvii), or they may be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3043-3048; Dec. Dig. <@=>744.]</p>

Day, Judge. Action by Catherine Moir, as administratrix of the estate of ThomasMoir, deceased, against the Crucible Steel Forge Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of- the United States for the District of Wyoming; John A. Riner, Judge.</p> <p>Action by the Wyoming Trout & Produce Company against the Denver-Laramie Realty Company. Judgment for plaintiff, and defendant brings error.</p>

Tuttle, Judge. Petition by Wayne MeGinley and others to have the Savage Motor Car Company adjudicated a bankrupt. From an order denying a petition for the modification of an injunction, Katie I. Fishback and another appeal. Robert W. Fishback, with Cummings and Taylor, promoted, and became officers and managers of, the Savage Motor Car Company, a corporation which engaged in business at Detroit.

Riner, Judge. Roy Montgomery was convicted of having caused the transportation in interstate commerce of two women for immoral purposes, and he brings error.

<p>1. Statutes <©=276 — Federal Courts — Jurisdiction—“Ant Eight Accruing or Accrued.”</p> <p>Judicial Code, § 299 (Act March 3, 1911, c. 231, 36 Stat. 1169 LCoimp. St. 1913, § 1276)), provides that the repeal of existing laws or the amendments embraced, in the act shall not. affect any act done or right accruing or accrued or suit or proceeding instituted or pending on writ of error, etc., when the act took effect, but that all suits and proceedings for causes arising or acts done prior to such date may be commenced and prosecuted within the same time and with the same effect as if the repeal or amendments had not boon made. Held, that the clause “any right accruing or accrued” referred to suits and proceedings for causes arising or acts done prior to the date of the taking effect of the act, excluding suits on causes of action which had not arisen while the former law was in force, and forbidding tbe conclusion that the right existed when the cause of action asserted had not accrued when the Judicial Code went into effect, but was in process of accrual, with some things remaining to be done before a right to sue accrued.</p> <p>[Ud. Note. — For other eases, see Statutes, Cent. Dig. §§ 371, 372: Dee. Dig. <@=276.]</p> <p>2. Courts <@=329 — Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Averments that the mal ter in dispute, when the bill was filed on June ,K', 1912, exceeded, exclusive of interest and costs, the sum or value of $2,000, did not show that a canse of action involving $2,000 had accrued to complainant; while the law prior to Judicial Code, § 24, raising the jurisdictional amount, was in force.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 897; Dec. Dig, <S=>329.</p> <p>Jurisdiction as determined by 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. Klepner, 100 C. C. A. 288.]</p>

<p>Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Richmond, in Bankruptcy; Edmund Waddill, Jr., Judge.</p> <p>In the matter of the Foster Motor Car Company, bankrupt; James W. Gordon and John B. Lightfoot, receivers. An order of the referee for the payment of a dividend was affirmed by the District Court, and C. E. Young files a petition to superintend and revise the proceedings.,</p>

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

<p>On application- for rehearing.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk, in Bankruptcy; Edmund Waddill,. Judge.</p> <p>•In the matter of Rison’s, Incorporated, bankrupt. An order .of the referee adjudging that a deed of trust was not a lien, and that the bond secured thereby should be delivered to the trustee, was affirmed, by the District Court, and S. Isabel Rison appeals.</p>

Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Norfolk, in Bankruptcy; Edmund Waddill, Judge. In the matter of Rison’s,.Incorporated, bankrupt.

This cause comes here upon appeal from a decree dismissing a bill for infringement of United States copyright. The complainant, a writer in the employ of the Sun Printing & Publishing Company, published in the Evening Sun of June 23, 1908, a story which purported to be a “real life drama,” a narrative of events occurring in the presence of tho narrator in an unnamed little town in the interior of Massachusetts.

<p>In Error to the District Court of the United States for the District •of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action by Gordon Thomas against the Boston & Maine Railroad. Erom a judgment sustaining a demurrer to the declaration (218 Fed. 143) plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge.</p> <p>In the matter of Benjamin G. Williams, bankrupt; George R. Hogue, trustee. From an order confirming an order of the referee, denying an application to be released from a bid at a sale of the bankrupt’s property and ordering a resale in default of compliance with such bid, the bankrupt and another appeal.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; George H. Bingham, Judge.</p> <p>Action by the New York Central & Hudson River Railroad Company and others against James D. Gill, Internal Revenue Collector. Judgment for defendant, and plaintiffs bring error.</p>

<p>Aliens <§=>59 — Immigration Laws — Contract Labor — Civil or Criminal Remedy.</p> <p>Act Peb. 20, 1907, c. 1134, § -2, 34 Stat. 898, as amended by Act March 26, 1910, c. 128, § 1, 36 Stat. 263 (Comp. St. 1913, § 4244), provides, in section 4 (Comp. St. 1913, § 4248), that it shall be a misdemeanor for any person to prepay transportation or assist or encourage the importation of contract labor into the United States, and in section 5 (Comp. St. 1913, § 4250)' declares that a violator of section 4 shall forfeit and pay for such offense $1,000, which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor in his own name and for his own benefit, including any alien thus promised labor or service of any kind, as debts of like amount are recovered in the courts of the United States, and it shall be the duty of the district attorney of the proper district to prosecute every such suit when brought by the United States. Held, that the two sections, construed together, indicated an intention of Congress to provide a fine of $1,000 as a punishment for the misdemeanor, and that the provision for a civil remedy did not exclude a criminal prosecution ; the government being authorized to proceed either by indictment to punish the misdemeanor or by civil remedy to collect the penalty as a debt.</p> <p>[Ed. Note. — Por other cases, see Aliens, Cent. Dig. §§ 115, 116; Dec. Dig. <§=s59.</p> <p>Importation of contract labor, see note to United States v. Parsons, 66 C. C. A. 133.]</p>

<p> (Syltabua by the Court.) </p> <p>1. Patents <©=>168 — Claims—Acquiescence in Rejection — Estoppel.</p> <p>While one who acquiesces in the rejection of his claim on references is estopped from maintaining that an amended claim covers the combinations and devices shown in those references, or that it has the breadth of the rejected claim, he is not estopped from claiming and securing by an amended claim every improvement and combination he has invented that was not disclosed by the references on which his original claim was rejected.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. <©=>168.</p> <p>Amendment of application for patent, see notes to Cleveland Foundry Co. v. Detroit Vapor Stove Co., 68 C. C. A. 239; Hestonville, M. & F. Passenger Ry. Co. v. McDuffee, 109 C. C. A. 613.]</p> <p>2. Patents <©=>168 — Claims—Acquiescence in Rejection — Estoppel.</p> <p>Acquiescence in the rejection of a claim for a beamless “flooring composed of concrete having metallic network inclosed therein” on the citation of the patent to Seeley, No. 467,141, for various forms of beams to support a floor and the substitution of a claim for a beamless flooring consisting of concrete having metallic network consisting of strips of wire netting inclosed therein, did not estop the patentee from maintaining that a flooring consisting of concrete having metallic network consisting of belts of small iron rods from three-eighths to one-half an inch in diameter inclosed therein disposed and operating in the same way and accomplishing the same results as the strips of wire netting of the patentee was an infringement of his patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. <©=>168.]</p> <p>3. Patents <©=>91 — Anticipation—Pbooe.</p> <p>The burden is on him who alleges priority of discovery of an invention which has been patented to another to establish that fact. And where the claim of such priority is first made many years after a patent issued, and it is supported by oral evidence only, the proof must be beyond a reasonable doubt.</p> <p>Where the evidence is principally oral, accompanied by sketches or writings, the genuineness and dates of which are dependent upon oral testimony only, the proof must be at least clear, convincing, and satisfactory.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 121-123; Dec. Dig. <©=>91.]</p> <p>4. Patents <©=>283, 289 — Continuing Trespasses — Defense—Laches.</p> <p>Delay and silence during the life of a patent, unaccompanied by such acts or omissions to act by the owner as amount to inducing deceit and thereby to an equitable estoppel, will not deprive such owner of his right to recover for an infringement of his patent</p> <p>It is no defense to a suit for an injunction and an accounting on account of the continuing trespasses of an infringer that the latter has long been trespassing on the rights of the owner with impunity.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 448-450, 452, 467-469; Dec. Dig. <©=>283, 289.]</p> <p>5. Patents <3=328 — Validity—Infringement.</p> <p>Claims 1, 3, and 4 of letters patent No. 698,542, issued April 29, 1902, to Norcross for a metallic-concrete flooring without supporting beams, are valid and are infringed by floorings constructed in the way described in letters patent Nos. 985,119 and 1,003,384.</p>

<p>1. Patents <©=>318 — Infringement—Accounting fob Profits.</p> <p>On an accounting for profits of infringement of a process patent, the defendant is entitled to credit for the total cqst of the product made by him, and is chargeable with the proceeds of its sale; but he must account for all the product so made, and is not entitled to credit for the cost of production of any part not accounted for.</p> <p>|Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. <©=>318.</p> <p>Accounting by infringer of patent for profits, see notes to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8; Clark v. Johnson, 120 C. C. A. 389.]</p> <p>2. Patents <©=>322 — Accounting for Profits of Infringement — Findings of Master.</p> <p>In considering exceptions to a master’s report on matters of fact affecting the accuracy of his findings in respect to profits, gains, and savings made by the use of an infringing apparatus or process, the conclusions of the master, depending on the weighing of conflicting testimony, have every reasonable presumption in their favor, and are not to he set aside or modified, unless there clearly appears to have been error or mistake on his part.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. §§ 590-595; Dec. Dig. <@=>322.]</p> <p>3. Patents <@=>819 — Infringement—Commutation of Damages.</p> <p>On an accounting for damages for infringement of apparatus and process patents, where the price at which the infringing product was produced by both complainant and defendant was stipulated, but it appeared that complainant procured its product to be made by another, for which it paid a fixed price, such cost price must be taken as the basis for computing its damages.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 577-586; Dee. Dig. <@=>319.]</p>

Whitaker Thompson, Judge. Suit in equity by Herman D. Hohlfeld, individually and trading as the Hohlfeld Manufacturing Company, against James B. Patterson, individually and trading as the Patterson Manufacturing Company. Decree for complainant, and defendant appeals.

<p>1. Patents <@=>328 — Validity and Infringement — Pyrophoric Alloy.</p> <p>The Welsbach patent, No. 837,017, for a pyrophoric alloy, is a pioneer patent, and entitled to that liberal application of the doctrine of equivalents which is usually accorded to such patents; also held infringed.</p> <p>2. Patents <@=>179 — Construction of Terms — “Iron.”</p> <p>In a claim in a pioneer patent for an alloy “containing cerium alloyed with iron,” the word “iron” should be construed to mean iron' or its equivalent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § -255; Dec. Dig. <@=>179.</p> <p>For other definitions, see Words and Phrases, Iron.]</p> <p>3. Patents <@=>179 — Construction—Equivalents.</p> <p>A patentee is not confined to those equivalents to which he has expressly referred in his specification.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 255; Dea Dig. <@=>179.]</p> <p>'4. Patents <@=>179 — Construction—Limitation of Claims.</p> <p>Where a pioneer patentee claims an alloy of one or more rare earth metals with one or more nonrare earth metals, he is not restricted to ‘ named varieties of either, unless he has himself restricted his claim by something in his specification.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 255; Dec. Dig. <@=>179.]</p> <p>5. Patents <@=>179 — Scope—Equivalents.</p> <p>In a patent for an alloy described as an alloy of cerium “with certain other metals, in particular iron,” the equivalency of other metals with iron is to be found, not in their chemical structure, but in their functional efficiency, when combined with cerium in a metallic alloy.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 255; Dea Dig. <S=>179.]</p> <p>6. Patents <@=>179 — Equivalents.</p> <p>Although some nonrare earth metals will produce with cerium a less efficient pyrophoric alloy than does iron, and although proportions must be varied with different constituents to produce better results, each of such metals, with the exception of those found in such small quantities that they are known merely in the laboratory and have not been experimented with, is a fair equivalent of iron in a patented compound.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. § 255; Dea Dig. <@=>179.1</p> <p>7. Words and Phrases — “Alloy.”</p> <p>An “alloy” is a compound of two or more metals.</p> <p>8. Words and Phrases — “Pyrophoric Alloy.”</p> <p>A “pyrophoric alloy” is one which gives forth sparks on being rhbbed with a file or otherwise abraded.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit by the Forum Investment Company, the American Cement Stave Silo Company, and J. Emil Nelson against the Cement Stave Silo Company, Sterling T. Playford, and L. H. Paul. Decree for defendants, and complainants appeal.</p>

<p>1. Patents <§=>328 — Infringement—Barrel Jack.</p> <p>The granting of a preliminary injunction restraining infringement of the Daugherty patent, No. 1,111,219, for a barrel jack, hold, on the evidence, within the discretion of the trial court.</p> <p>2. Patents <§=>294 — Suit for Infringement — Preliminary Injunction.</p> <p>Where it is shown that defendants examined the device of complainant’s patent while the application for the patent was pending, and before its issuance commenced making and selling the alleged infringing device, which is in no substantial respect different from that of the patent, it is within the discretion of the court to grant a preliminary injunction, although the patent is of recent issuance and its validity has not been adjudicated.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 473; Dec. Dig. <§=>294.]</p>

Young, Judge. Suit by the Standard Truck Company and others against the Pittsburgh Railways Company and others. Decree for defendants, and complainants appeal.

Landis, Judge. Suit in equity by the Tabor Manufacturing Company against the International Molding Machine Company. Decree for complainant, and defendant appeals. Action on patent No. 824,317, on a molding machine, granted to Harris Tabor, assignor to the appellee, June 26, 1906. Decree for appellee, finding the patent valid and infringed. Affirmed.

<p>Patents <©=>328 — Invention—Vegetable Paring Machine.</p> <p>The Robinson patent, No. 942,932, for a vegetable paring machine, in view of the prior art, is void for lack of invention.</p>

<p>In Equity. Suit by the H. K. Porter Company against the Baldwin Locomotive Works and the Four States Coal & Coke Company. On final hearing. Decree for defendants.</p>

<p>In Equity. Suit by the Farmers’ Handy Wagon' Company against the Beaver Silo & Box Manufacturing Company. On final hearing.</p>

<p>1. Patents @=>202 — Suit vos Inbbinoement — Estoppel to Maintain — Implied License.</p> <p>A corporation of which complainant was president entered into a contract with defendants by which they were authorized to use as contractors in the construction of a bridge certain inventions covered by patents owned by complainant, for which they were to pay as a license fee ten per cent, of the contract price of the bridge. The corporation was also to furnish steel work for the bridge, and a controversy arose over that part of the contract. By agreement the time for payment of the license fee was extended until the bridge should be completed and its stability demonstrated. Complainant was fully cognizant of the terms of the contract and conducted some of the negotiations therefor. Held, that he was bound by the contract, and could not ignore it and maintain á suit for infringement of the patents before the time for payment of the license fee as extended had expired.</p> <p>[Ed. Note — For other cases, see Patents, Cent. Dig. §§ 281-289; Dec. Dig. <§=>202.]</p> <p>2. Patents <§=>209 — Implied License — Estoppel.</p> <p>No particular form of words is necessary to constitute a license to use a patented invention, and a license may be implied on principles based on the doctrine of acquiescence or estoppel.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 300, 303; Dec. Dig. <§=>209.] ■</p>

<p>In Equity. Suit by Edgar S. Ryder and others against the Beaver Silo & Box Manufacturing Company. On final hearing. Decree for complainants.</p>

<p>In Equity. Suit by the Iowa Washing Machine Company against E. C. Saecker. On final hearing.</p>

<p>In, Equity. Creditors’ suit by Paul A. English, Arthur English, and Otto B. English against' Ella Wyman Brown and the United States Gypsum Company. Decree for complainants.</p>

<p>1. Courts <@=>346 — Procedure—Attachment—Statutory Provisions.</p> <p>Rev. St. § 915 (Comp. St. 1913, § 1539), providing that in common-law causes in the Circuit and District Courts plaintiff shall be entitled to similar remedies by attachment or other process against the property of defendant provided by the laws of the state, merely authorizes the issu-. anee of ancillary attachments far the purpose of impounding the property of defendants, of whose person the court may otherwise acquire jurisdiction, and the federal courts are not authorized to issue foreign attachments as the original process for commencing a suit against defendants not amenable to personal service of process.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 918; Dec. Dig. <@=> 346.]</p> <p>2. Attachment <@=>12 — Actions in Which Authorized — Suits in Equity.</p> <p>Attachment is a purely statutory remedy, entirely unknown to the immemorial practice or usage of courts of equity, and is essentially a legal remedy, which in the absence of statutory authority is not available in equity.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 38, 39; Dec. Dig. <@=>12.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Attachment.]</p> <p>3. Courts <@=>346 — Procedure—Attachments—Suits in Equity.</p> <p>In the absence of any provision in the rules of the District Court for writs of attachment in suits in equity, such remedy is not available, as there is no statutory authority therefor under Rev. St. § 915 (Cómp. St. 1913, § 1539), providing that “in common-law causes” in the Circuit and District Courts plaintiff shall be entitled to similar remedies by* attachment as provided by the laws of the state, and section 914, providing that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes in the Circuit and District Courts, shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding in the state courts, nor has the .Supreme Court provided for such remedy under the authority given it by section 917 to prescribe the forms of writs and other process, etc.</p> <p>[Ed. Note. — Far other cases, see Courts, Cent Dig. § 918; Dec. Dig. <@=>346.3</p> <p>4. Attachment <@=>113 — Pleadings—Allegations as to Grounds of Attachment.</p> <p>In a suit in the United States court for one of the districts of Tennessee, a bill alleging that defendant was threatening, preparing, and attempting to remove certain property from the jurisdiction of the court did not state a ground of attachment, within Shannon’s Code Tenn. § 5211, authorizing an attachment where defendant is about to remove, or has removed, himself or property from the state, etc.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 307-311; Dec. Dig. <@=>113.3</p> <p>As to Jurisdiction.</p> <p>5. Courts <@=>328 — United States Courts — Jurisdiction—Amount Involved —Joinder of Causes.</p> <p>The enforcement of liens on a steam shovel, for the purchase price thereof and work thereon, was a matter of purely equitable cognizance, while causes of action for goods sold and on an account stated, entirely disconnected from the claims relating to the steam shovel, were of purely legal cognizance; and neither equity rule 26 (198 Fed. xxv, 115 C. C. A. xxv), authorizing the joinder in one bill of as many causes of action cognizable in equity as plaintiff may have against defendant, nor rule 23 (198 Fed. xxiv, 115 C. C. A. xxiv), providing that, if in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the principles applicable, without sending the case or question to the law side of the court, authorized the joinder of such causes of action in one suit, for the purpose of bringing the amount involved within the jurisdiction of the United States District Court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. <@=>328.].</p> <p>6. Courts <@=>328 — United States Courts — Jurisdiction—Amount Involved —Enforcement of Lien.</p> <p>In a suit to enforce liens against a steam shovel, the amount involved was the amount claimed, and not the value of the shovel.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. <@=>328.]</p> <p>7. Courts <@=>280 — Want of Jurisdiction — Waiver of Objections.</p> <p>Under Judicial Code (Act March 3, 1913, c. 231) § 37, 36 Stat. 1098 (Comp. St. 1913, § 1019), providing that, if in any suit commenced in a District Court it shall appear to the satisfaction of the court at any time that it does not really and substantially involve a controversy properly within its jurisdiction, the court shall proceed no further therein, but shall dismiss the suit, there being an entire want of equitable jurisdiction over causes of action for goods sold and on an account stated, sought to be joined with causes of action for the enforcement of liens on a steam shovel, the court should so hold of its own motion, though the question was not raised by the pleadings or suggested by counsel, and, where without such causes of action the amount involved was less than the jurisdictional amount, should dismiss the suit; the case not being one in which the defense of a plain and adequate remedy at law might be waived by defendant.</p> <p>[Ed. Note. — For other cases, 'see Courts, Cent. Dig. §§ 816-818; Dec. Dig. <@=>280.]</p> <p>8. Courts <@=>268 —■ United States Courts — Jurisdiction — District in Which Suit Should be Brought.</p> <p>There is no provision of law under which a defendant, residing in the Eastern district of Tennessee, can be summoned to appear in the Middle district, and defend against transitoiy legal causes of action by a resident of another state, even though such causes of action could be joined with causes of action for the enforcement of liens on property within the Middle district.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 806, 807, 812; Dec. Dig. <@=>268.]</p>

<p>1. Constitutional Law <©=>275 — “Equal Protection of the Law” — Discrimination Against Aliens.</p> <p>The act oí Arizona adopted November 3, 1914, by a vote of the people, section 1 of which provides that any company, corporation, partnership, or individual employing more than five workers at any one time, regardless of the kind or class of.work, shall employ not less than 80 per cent, qualified electors or native-born citizens of the United States or some subdivision thereof, denies the “equal protection of the laws” to persons within the jurisdiction of the state, in violation of Const. U. S. Amend. 34, as aliens as well as citizens are entitled to the benefits of that amendment.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 830, 835, 839, 843-846; Dec. Dig. <©=>275.</p> <p>For other definitions, see Words and Phrases, First and Second Series. Equal Protection of the Law.]</p> <p>2. Master and Servant <©=>11 — Regulations—Employment of Aliens.</p> <p>Such statute is evidently not intended to be a regulation within the police powers of the state, and is not a valid exercise of police regulation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. <@=>11J</p> <p>3. Equity <©=>97 — Parties—Suing on Behalf of All Parties Interested.</p> <p>A suit by an alien to restrain the enforcement of a state law requiring employers to employ not less than 80 por cent, qualified electors or native-born citizens, in which he alleged that his employer was willing and anxious to retain him in his employ, but that the Attorney General and county attorney threatened to prosecute the employer, was not an action ini which plaintiff could sue on behalf of all others similarly situated, under equity rule 38 (398 Fed. xxix, 115 C. O. A. xxix), providing that, when the question is one of common or general interest to many persons, constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 257; Dec. Dig. <©=>97.]</p> <p>4. Courts <©=326 — United States Courts — Jurisdiction—Amount in Controversy.</p> <p>Under the provision of Judicial Code (Act March 3, 1911, c. 231) § 24, 36 Stat. 1091 (Comp. St. 1913, § 991), giving the District Court jurisdiction of all suits authorized by law to be brought by any person to redress the deprivation under color of any state law of any right, privilege, or immunity secured by the Constitution of the United States, or any right secured by any law of the United States providing for equal rights of persons within the jurisdiction of the United States, the District Court had jurisdiction of an alien’s suit to enjoin the enforcement of a state law requiring employers to employ at least 80 per cent, of qualified electors or native-born citizens, without regard to the amount in controversy.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 888; Dec. Dig. <®=326.]</p> <p>5. Injunction <©=85 — Unconstitutional Statutes — Inadequacy of Bemedy at Law.</p> <p>Equity will enjoin the enforcement of an unconstitutional statute requiring employers to employ at least 80 per cent, qualified electors or native-born citizens, on behalf of an alien thereby discriminated against, as he has no other remedy, either by an action at law for damages, or in criminal proceedings which might be instituted against his employer, for the enforcement thereof, as he would not be a party to such a proceeding and could not be heard therein.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. <@=85.]</p> <p>6. Courts <©=508 — Legal Proceedings — Criminal Prosecutions.</p> <p>While, as a general rule, a court of equity will not restrain the prosecution of criminal cases, where the United States District Court acquired jurisdiction of a suit to enjoin the enforcement of an unconstitutional state law, requiring employers to employ citizens in preference to aliens, before any criminal- proceedings were instituted for the enforcement thereof, it would maintain its jurisdiction to the exclusion of criminal proceedings in the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1418-1423, 1425-1430; Dec. Dig. <@=508.]</p> <p>7. Courts <©=494 — United States Courts — Jurisdiction—Declining Jurisdiction.</p> <p>Where an alien elected to sue in the United States District Court to enjoin the enforcement of a state law requiring employers to employ citizens in preference to aliens on the ground that it violated the federal Constitution, it was the duty of that court to hear and determine the issues involved, and it could not refuse to do so in order that the determination of such questions should be left to the state courts, which had not passed upon the questions involved, and in which,no proceeding or action involving such questions was pending when such suit was brought.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1355-1371; Dec. Dig. <©=494.]</p>

<p>At Law. Action by Nicola Cerri, administrator of the estate of William McCracken, deceased, against the Akron-People’s Telephone Company and the Village of Cuyahoga Falls. Hearing on question of jurisdiction.</p>

<p>In Bankruptcy. Involuntary bankruptcy proceedings against John W. Disney, J r., and others, trading as J. W. Disney & Sons, and John W. Disney, Jr., and others, individually.</p>

<p>At Law. Action by the Public Service Railway Company and another against Herman C. H. Herold, removed to this court by certiorari. Judgment for defendant.</p>

In Equity. Suit by H. E. Baxter, as trustee of J. A Harvey, bank-rapt, against Bevil Phillips & Co. and others. On petition to allow an appeal and to issue a writ of error.

<p>In Equity. Suit by Charles A. Dana, as executor, etc., against Edwin D. Morgan and the Corralitos Company. On defendants’ motion to determine the validity of certain defenses waived by defendants’ answer, which are as follows:</p> <p>(1) The amended complaint does not comply with equity rule No. 27 (198 Fed. xxv, 115 C. C. A. xxv).</p> <p>(2) The matters set forth in the bill of complaint herein are res judicatse by reason of the entry of judgment in a certain suit in the Supreme Court of the state of New York referred to in the pleadings.</p> <p>(3) That tile contract sought to be set aside by tbe bill of complaint herein has been ratified by the stockholders of the defendant company, and is therefore not open to the attack made by the said bill of complaint. .</p> <p>(4) That the said bill should be dismissed by reason of the laches of the complainant.</p>

<p>Bankruptcy <@=»166 — Preferences — Action by Trustee — “Reasonable Cause to Believe.”</p> <p>The words “reasonable cause to believe” that a bankrupt intended to-prefer a creditor, as used in Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, as amended by Act June 25, 1910, c. 412, 36 Stat. 838, authorizing the trustee to recover a payment as a preference in case the creditor had reasonable cause to believe that the payment would effect a preference, etc., means not merely that the creditor had cause to suspect that the debtor was insolvent, but that he must have had knowledge of facts sufficient to induce a well-grounded belief of such fact, and that the payment would effect a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. <S=166.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Eeasonable Cause.]</p>

At Law. Action by Obadiah E. Armstrong and another, copartners trading as Armstrong & Demarest, against James M. H. Walters, trading as J. M. H. Walters. On motion to dismiss for want of jurisdiction because of the value of the matter in dispute.

<p>In Equity. Suit by the Lambert Pharmacal Company against the Kalish Pharmacy. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by the Lambert Pharmacal Company against the Bolton Chemical Corporation. Decree for plaintiff.</p>

<p>Action by the United States of America against International Mercantile Marine.</p>

<p>Intoxicating Liquors @=>146 — Wrongful Sale — Interstate Commerce— Shipping into Dry Territory — .Advertising through Mails — Personal Use.</p> <p>That a licensed wholesale liquor dealer residing in Ohio mailed advertising matter into dry territory in West Virginia, soliciting a West Virginia citizen to purchase liquor for his individual use, and shipped liquor to the buyer in West Virginia, did not constitute a violation of Yost Law W. Va. (Laws 1913, c. 13) §§ 3, 8, nor Wilson Act Aug. 8, 1890, e. 728, 26 Stat. 313 (Comp. St. 1913, § 8738), or Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (Oomp. St. 1913, § 8739), regulating the transportation of liquors.</p> <p>I'Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. @=>146.]</p>

<p>In Equity. Suit by the James Clark Distilling Company of Cumberland, Md., against the Western Maryland Railway Company. Decree for complainant.</p>

<p>In Equity. Suit by the James Clark Distilling Company of Cumberland, Md., against the American Express Company, to restrain defendant from refusing to transport intoxicating liquor from Maryland into West Virginia. Decree for complainant.</p>

<p>In Bankruptcy." In the matter of bankruptcy proceedings of the Moark-Nemo Consolidated Mining Company.</p>

<p>1. Master and Servant <@=>13 — Railroads—Hours of Service Law — Regulation — “On Duty.”</p> <p>Where a railroad operator was always subject to call whenever his services were required, both during meal hours and at other times, he was “on duty,” so that the periods allowed him by the railroad company for meals and other purposes did not interrupt the continuity of his service, within the Hours of Service Law (Act March 4, 1907, c. 2939, 34 Stat. 1415 [Comp. St. 1913, § 8677]).</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <@=>13.</p> <p>For other definitions, see Words and Phrases, Second Series, On Duty.]</p> <p>2. Master and Servant <@=>13 — Railroads—Hours of Service Law — Delay of Trains — “Emergency.”</p> <p>Delays in the departure of trains caused by the lateness of other trains on connecting lines do not constitute an “emergency” within the Hours of Service Law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <@=>13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Emergency.]</p> <p>3. Master and Servant <@=>13 — Railroads—Hours of Service Law — Accidents.</p> <p>Delay of the departure of a circus train which circumstances required should be loaded on the main line, due to the act of the circus company’s intoxicated employés in running a wagon off a flat car, was an ordinary accident which furnished neither justification nor excuse for a violation of the Hours of Service Law.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <@=>13.]</p>

At. Law. Actions by Walsh’s administratrix and by one Theolete against the Joplin & Pittsburg Railway Company. On motion to re-tax costs after a remand to the state court.

<p>Bankruptcy ©=>136 — Concealment of Assets — Payment to Trustee — Conte mpt — -Commitment.</p> <p>Where a bankrupt had been found to have concealed money from his trustee, and had fraudulently and defiantly refused to comply with an order requiring him to pay over the money, and the court in contempt proceedings was satisfied that his failure to comply was not because of his inability to do so but because of his obstinate refusal, it was the court’s duty to order his imprisonment until the order was complied with, or until the further order of the court.</p> <p>|10d. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Doc. Dig, ©=>136.]</p>

<p>1. Bankruptcy <§=>399 — Exemptions—Claim—Time-—Effect op Discharge.</p> <p>A bankrupt’s claim to an exemption should be made when he files his schedules, and in a voluntary case should accompany the same, and cannot be allowed where it was not made until after the bankrupt had obtained his discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. <§=>399.]</p> <p>2. Bankruptcy <§=>399 — Homestead Exemption — Allowance.</p> <p>Where a bankrupt permitted his property to be sold without specifying any portion which he claimed as a homestead exemption, and purchased some of the property himself, he could not have an allowance of $1,600 in cash for a homestead exemption, charging against it the purchase price of the property bought, and receiving the difference from the trustee.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Gent. Dig. §§ 657, 669; Dec. Dig. <§=>399.]</p> <p>3. Bankruptcy <§=>399 — Homestead Exemption — Waiver—Creditors.</p> <p>Creditors of a bankrupt, in whose favor he has waived his homestead exemption, may not have the value thereof turned over to them and distributed after the bankrupt has been discharged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. <§=>399.]</p>

<p>In Admiralty. Suit by Roger Foster against Compagnie Francaise de Navigation a Vapeur, Cyprien Fabre Et Cie. On motion by libelant for bill of particulars.</p>

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

<p>1. States <@=>12 — Boundary Between Oregon and Washington.</p> <p>Sand Island, in the Columbia river, near its mouth, is, and has been since the admission of Oregon as a state in 1859, a part of the territory of that state.</p> <p>[Ed. Note. — For other eases, see States, Cent. Dig. §§ 6-11; Dec. Dig. <@=>12.]</p> <p>2. States <@=>12 — Territorial Jurisdiction — Lands Under Waters — Forming Boundaries.</p> <p>Conceding that the states of Oregon and Washington have concurrent jurisdiction over the waters of Columbia river, where it forms the boundary between them, that fact does not give the state of Washington jurisdiction over the land under the waters of the river in a fixed locality which is within the territorial limits of the state of Oregon.</p> <p>[Ed. Note. — For other cases, see States, Cent. Dig. §§ 6-11; Dec. Dig. <@=>12.]</p> <p>3. Courts <@=>266 — Jurisdiction—Suit to Abate Nuisance — Subject-Matter Beyond Territorial Jurisdiction.</p> <p>Sand Island, in the Columbia river, near its mouth, with its tide lands, are the property of the United States, and wholly within the territorial jurisdiction of the state of Oregon. The government caused a part of the island to bo surveyed into fishing sites, to he leased for seining operations, and two of such sites on the south side of the island were leased to complainant. They were used by extending drag nets therefrom and drawing in and landing the same upon the shore. Defendants, under a license from the state of Washington, planted set nets in front of the sites, anchored to the bottom between the shore and channel, and with floats on the surface. Complainant brought suit in the United States District Court for the Western District of Washington, alleging that such structures wholly prevented its operating its drag nets from the shore, that their maintenance constituted a continued trespass and a nuisance, and prayed for an injunction and for their abatement. Both parties then supposed the locality to he within the territorial jurisdiction of Washington, but a later decision of the United States Supreme Court determined that the state boundary was the center of the channel to the north of the island. Thereupon, the court having taken no action beyond the granting of. a temporary restraining order, complainant moved to dismiss for want of jurisdiction, which motion was opposed, by defendants and denied. Held, that the suit was of a local nature, and, both the structures sought to be abated and the property injured being in another state, jurisdiction of the parties did not give the court jurisdiction over the subject-matter.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 806-808; Dec. Dig. <@=>266.]</p>

<p>1. Contracts <§=>281 — Construction—Contract for Building Steamship— Warranties — “Such Management Agreed upon by the Parties to be Proper.”</p> <p>A contract for the building of a steamship, with a warranty that it should, “under such management as shall be agreed upon by the parties to be proper,” show with a given displacement on a round trip from New York to New Orleans an average speed of 16 knots, with a'total average consumption of coal of a stated quality not exceeding 7 tons per hour, required the parties to agree in advance of a trial trip, so far as they reasonably could, upon proper management and conditions whereby the vessel could be given a fair test as to her ability to fulfill the warranty, and an agreement after the trip that the trial had been a fair one was not essential to render it binding upon the builder.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1281-1283; Dee. Dig. <§=>281.],</p> <p>2. Contracts <§=>281 — Construction and Operation — Contract for Buhding Steamship — Warranty.</p> <p>The provision of such contract for an agreed management on the trial trip precluded the parties, after such agreement had been made, from claiming that the officers and men in charge of the ship were incompetent, or their number inadequate, but not from showing the manner in which the ship was actually handled, for the purpose of determining whether the implied agreement that the tests should be fairly conducted had been complied with.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1281-1283; Dec. Dig. <§=>281.]</p> <p>3. Damages <§=>123 — Breach of Contract — Failure to Fulfill Warranty.</p> <p>On recovery in an action for breach of a warranty of speed and coal consumption in a contract for the building of a steamship, which made it necessary for plaintiff: to substitute new engines and make other alterations incident thereto, after the ship had been put into service, the plaintiff is entitled to recover as elements of damages the cost of such changes and for the loss of the use of the vessel while they were being made.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 320-325; Dec. Dig. <§=>123.]</p> <p>Putnam, Circuit Judge, dissenting.</p>

<p>1. Contracts <§=>205 — Construction—Contract foe Building Steamship-Warranty.</p> <p>Plaintiff contracted to build a steamship for defendant, with a warranty that “under such management as shall be agreed upon by the parties to be proper” it should show, with a given displacement, on a round trip between New York and New Orleans, a certain average speed, with not to exceed a stated average coal consumption. After being turned over to defendant, the vessel made a number of trial trips, but failed on any of them to fulfill the warranty. Held, that the stipulation for agreed management did not shift the responsibility for the conduct of the officers and' crew in the actual handling of the ship from defendant, whose servants they were, and that in an action to recover a deferred installment of the price plaintiff was entitled to show that she was capable of complying with the warranty under proper management, and failed only because of negligent and improper handling, which damaged her motive power.'</p> <p>[Ed. Note. — For other eases, see Contracts, Cent» Dig. §§ 878, 905; Dec. Dig. @=>205.]</p> <p>2. Contracts @=>205 — Construction—Contract for Building Steamship.</p> <p>A provision in the contract that the last installment of the price should become due and payable when the performance of the ship should have equaled, “in’the opinion of” the purchaser, in a satisfactory and substantial manner the requirements of the warranty as to speed and coal consumption, called for actual performance on the part of the ship and to the satisfaction of the purchaser; but the purchaser waived his right to insist on actual performance to his satisfaction, if after delivery of the ship to him its structure was so damaged through his negligence as to render it incapable of complying with the warranty; and under such circumstances the purchaser may be required to pay the installment, on its being established that the ship, when delivered, had the capacity to meet the stipulated requirements as to speed and coal consumption.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 878, 905; Dec. Dig. @=>205.]</p> <p>3. Contracts @=>261 — Breach—Election of Remedies.</p> <p>On a breach of a contract by one party, the other party has his election to rescind or proceed under the contract, and, having elected to proceed, he is bound thereby.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1174r-1180; Dec. Dig. @=>261.]</p> <p>4. Contracts @=232 — Construction by Parties — Alterations Made» by Builder of Steamship.</p> <p>Where the builder of a steamship under contract voluntarily made alterations after delivery in recognition of its obligation under the original contract, the law will not imply a contract on the part of the purchaser to pay for the same.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1071-1094; Dec. Dig. @=>232.]</p> <p>Putnam, Circuit Judge, dissenting.</p>

Anderson, Judge. Action by Elwyn R. Johnson, trustee in bankruptcy of the Warren Construction Company, against the Root Manufacturing Company. Judgment for plaintiff, and defendant brings error. Plaintiff in error, the Boot Manufacturing Company, seeks to reverse a judgment for $6,658.31, recovered by Johnson, as trustee in bankruptcy of Warren Construction Company, on account of a preferential payment of $6,-447.67, with interest thereon.

Act July 1, 1898; Frank S. Dietrich, Judge. In the matter of bankruptcy proceedings o£ the American Falls Canal & Power Company. Petition by Glenn R. Bothwell as bankrupt’s trustee to restrain T. B. Fitzgerald and another from maintaining proceedings in the state court for the appointment of a receiver, with authority to reconstruct a portion of a bankrupt’s irrigation system, in order to afford water to the complainants’ premises.

Foster, Judge. Bankruptcy proceedings against Joseph Webre Company, Limited, in which Victor Loisel was trustee. From an order of the District Court restraining, Edward N. Pugh and another from selling property of the bankrupt, under proceedings in the state court for the foreclosure of a mortgage, Edward N. Pugh and another appeal, and file a petition to superintend and revise.

Marshall, Judge. Action by the United States of America against the Union Pacific Railroad Company. Judgment for the plaintiff, and defendant brings error. This action was brought June 4, 1912. by the United States against the railroad company, to recover damages for the loss of registered mall and mall equipment alleged to have been destroyed through the uegligence of the company. At the trial the facts were agreed upon.

Riner, Judge. Suit to foreclose a deed of trust by the Continental & Commercial Trust & Savings Bank, as trustee, and others against the North Platte Valley Irrigation Company and others. From a decree of foreclosure and from an order denying an application to modify the decree, complainants appeal.

<p>Appeal from the District Court of the United States for the District of New Jersey; Edward G. Bradford, Judge.</p> <p>Suit in equity by Paul L. Crowe against the Oscar Barnett Foundry Company. Decree for complainant, and defendant appeals.</p>

Lewis, Judge. • Action by Fred Klink and others against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant on the pleadings, and plaintiffs bring error.

Dayton, Judge. Suit in equity by Maggie Sheffey and others against the Davis Colliery Company and others. Decree for defendants, and complainants appeal.

Sanborn, Judge. Bill by Augustas C. Buzby, doing business under the firm name of the Keystone Lubricating Company, against the Keystone Oil & Manufacturing Company. Decree for complainant (206 Fed. 136), and defendant appeals.

This cause comes here on writ of error to the District Court of the United States for the Western District of New York to review a judgment entered on February 3, 1914, in favor of the plaintiff, the C. W. Raymond Company, for" the sum of $3,250.50 damages, together with the sum of $255.74 costs.

Whitaker Thompson, Judge. Suit for collision by Abram J. Slocum, master of the schooner City of Georgetown, in which the International Salt Company intervened, against the steamship Prinz Oskar. Decree for libelants, and claimant appeals.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by Frank N. Ireland and another against B. B. Hosier and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. Bankruptcy <@=391 — Actions Against Bankrupt — Permitting Prosecution.</p> <p>Where, prior to bankruptcy, suits were commenced by creditors in the state courts under Beal Property Law N. Y. (Consol. Laws, c. 50) § 98, making the income from .a- trust in excess of that necessary for the beneficiary’s support liable to the claims of creditors, it was not improper for the bankruptcy court to allow the suits to be prosecuted to judgment, as this would be a convenient way of liquidating the claims of the creditors, the amount of which was disputed; but the prosecution thereof beyond judgment should not be permitted.</p> <p>[Ed. Note. — Eor other eases, see Bankruptcy, Cent. Dig. §§ 637-655; Dec. Dig. <@=391.]</p> <p>2. Bankruptcy <@=391 — Actions Against Bankrupt — Permitting Prosecution.</p> <p>Where, prior to bankruptcy, creditors had brought suits to recover the income of a trust fund beyond that necessary for the bankrupt’s support under Beal Property Law N. Y. § 98, and a majority of the creditors in number and amount voted against authorizing the trustee in bankruptcy to bring a similar action on the ground that they did not oelieve it could be maintained by him, orders allowing the prosecution of the creditors’ suits on condition that the amount recovered after the payment of costs and expenses of the suits should be turned over to the trustee for distribution, and that the bankrupt estate in the event of nonsuccess should not be called upon to defray the costs and expenses, were proper and could not be complained of by creditors or the bankrupt.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 637-655; Dec. Dig. <@=391.]</p> <p>3. Bankruptcy <@=391 — Actions Against Bankrupt — Permitting Prosecution,</p> <p>It was not improper to include in one of such orders a provision that it should be without prejudice to any rights of the. suing creditors under an .assignment of the income from one of such trusts, as, if the assignment was void, invalid, or inoperative, as contended by the bankrupt, the provision was harmless, while, if the assignment gave those creditors superior rights, it would be unfair to prejudice them by the order to which they assented for the convenience of all parties.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 637-655; Dee. Dig. <©=>391.]</p> <p>4. Bankruptcy <©=408 — Discharge,—Grounds fob Denial.</p> <p>tinder Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 550 LComp. St. 1913, § 9598]) § 14, subd. b(l), providing for the discharge of a bankrupt unless he lias committed an offense punishable by imprisonment as therein provided, where the state courts had held that under Real Property Law N. Y. § 98, making the income of trust funds beyond that necessary for the beneficiary’s support liable to creditors, a trustee in bankruptcy could not recover such income, and, though the bankruptcy act was subsequently amended, there had been no decision passing upon the effect of the amendment, and a majority of the creditors in number and amount voted against authorizing the trustee to sue for such income on the ground that he could not maintain such an action, it was improper to deny a discharge on the ground that the bankrupt made a false oath and rendered a false account because he failed to set forth such income in his sworn schedules.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 732-736, 759, 762, 703; Dec. Dig. <@=>408.]</p> <p>5. Bankrtjptgy <@=>408 — Discharge—Grounds for Denial.</p> <p>The failure of a bankrupt on demand to assign to the trustee in bankruptcy the income of a trust fund beyond that necessary for his support made liable to creditors by Real Property Law N. Y. § 98, was not ground for denying a discharge, since, if such surplus income passed to the trustee in bankruptcy, an assignment was unnecessary, while, if it did not pass, the bankrupt should not be coerced into assigning it by refusing a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 732-736, 759, 762, 703; Dec. Dig. <©=408. ]</p>

<p>1. Master and Servant <§=217 — Death of Servant — Mining—Assumed Risk.</p> <p>A servant assumed the risk of the fall of a portion of the roof of the main entry of a mine, if, after having been warned of the danger and his attention directly called to the defect, he deliberately passed under it and was killed, though it was the master’s duty to make the place safe.</p> <p>' [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574r-600; Dee. Dig. <§=217. ]</p> <p>2. Jury <@=132 — Qualification of Juror — Implied Bias.</p> <p>Evidence adduced on the examination of a juror on his voir dire, on which the court denied plaintiff’s challenge for implied bias, held not to show an abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 583-5S5; Dec. Dig. <@=132.]</p>

G. Con-nor, Judge. Suit by Eeake S. Covington, trustee in bankruptcy of the estate of E. E. Brigman and B. T. Dawson, copartners, trading as Eagle Pharmacy, bankrupt, against J. W. Brigman. From a decree for the plaintiff in the District Court (210 Fed. 499), the defendant appeals.

Lewis, Judge. Suit by Fermor J. Spencer, as trustee in bankruptcy of the estate of Mrs. H. Townsend & Co., against the First State Bank of Milliken, a corporation, to recover an alleged preference. Decree for complainant, and defendant appeals.

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Bill' by Richard H. Williams, as trustee in bankruptcy of the Forward Laundry Company, against the German-American Trust Company. Decree for defendant, and complainant appeals.</p>

<p>Bankruptcy <£=>139 — Trade Fixtures — Judgment Lien — “Real Property” —Chattels Real.</p> <p>Code Civ. Proc. N. X. § 1430, provides tbat the expression “real property” includes leaseholds where the lessee is possessed at the time of sale of at least five years unexpired term, etc., and section 1251 declares that, except as otherwise prescribed, a judgment binds, for 10 years after filing the judgment roll, the real property and chattels real, in the county in which it is docketed, which the judgment debtor has at the time of so docketing or which he may thereafter acquire. Held, that where, at the date of the bankruptcy, the bankrupt was occupying certain real property under leases each of which had more than 10 years to run, trade fixtures affixed to the floors by nails, bolts, screws, etc., and intended to be used as long as the business continued or until they wore out and were replaced, were chattels real as between the bankrupt and its creditors, and were therefore subject to the lien of judgments recovered against it more than four months before bankruptcy proceedings.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 193, 198, 199, 210-219; Dee. Dig. <@=>139.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Real Property.]</p> <p>Lacombe, Circuit Judge, dissenting.</p>

Suit in admiralty by the Newark Meadows Improvement Company against the steamship J. S. Warden; the Beebe Transportation Company, claimant. Decree for libelant, and claimant appeals.

H. Hunt, Judge. Assumpsit by the Anheuser-Busch Brewing Association against John P. Kleman. Judgment for the plaintiff upon a directed verdict, and defendant brings error.

<p>Master and Servant <@=>252 — Injuries to Servant — Employers’ Liability Act — Notice to Master.</p> <p>Under Labor Law N. Y. (Consol. Laws, c. 31) § 201, as amended by Laws N. Y. 1910, c. 352, requiring an injured employe who desires to recover under that act to serve a notice in writing upon his employer, in casé of a corporation, by delivering or mailing it to the office or principal place of business of such corporation, a notice to an employer, which was a foreign corporation, and which had designated its principal place of business, which notice was mailed to a branch office of the corporation at a place other than its designated place of business, is not sufficient, though it was actually received by the corporation.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. § 806; Dec. Dig. <©=>252.]</p>

<p>Corporations <©=>565 — Insolvency—Receivers—Claims—Proof—Book Entries.</p> <p>A claim by the executrix of the president of an insolvent corporation in the hands of a receiver for salary from January 1, 1908, to May 10, 1910, the date of the president’s death, proved only by entries in the books of the corporation, the first of which was dated January 31, 1910, reading, “a/c salary from Jan. 1, 1908, to Jan. 1, 1910, 24 months, at $500 per month, $12,000,” and followed by five other entries at monthly intervals, “salary for month of January (or some other month), 1910, $500,” was properly disallowed; such entries, unexplained and uncorroborated by other evidence, being insufficient to make out a prima facie case.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2281, 2282; Dec. Dig. <©=>565.]</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill of complaint in a suit brought by the trustee to set aside as preferential a transfer or payment amounting to $3,500, made by the bankrupt to defendant on or about January 16, 1913. The facts will be found in this opinion.

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>This cause comes here on writ of error to review a judgment of the District Court, Western District of New York, in favor of defendant in error, who was defendant below. The action was brought to recover statutory penalties for alleged violation of the federal Hours of Service Daw. At the close of the testimony the trial judge directed a verdict in favor of defendant.</p>

<p>1. Mandamus <®=>39 — Subjects of Relief — Exercise of Judicial Powers.</p> <p>In striking impertinent matter from a pleading as authorized by new equity rule 21 (198 Fed. xxiv, 115 C. C. A. xxiv), a District Court exercises its judicial functions on a question of law, and its action cannot be reviewed on application for a writ of mandamus to compel reinstatement of such matter, but only on appeal from the final decree.</p> <p>[Ed. Note. — For other cases, see Mandamus, Gent. Dig. § 84; Dec. Dig. <§=>39.]</p> <p>2. Certiorari <®=>5 — Nature and Grounds — Availability of Relief by Appeal.</p> <p>Conceding the power of a Circuit Court of Appeals under Judicial Code, § 262 (Act March 3, 1911, c. 231, 36 Stat. 1162 [Comp. St. 3913, § 12391). to issue a writ of certiorari to correct an error of law, such writ will not be issued in an appealable case.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 5, 6; Dec. Dig. @=>5.j</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from a judgment of the District Court for the Southern District of New York dismissing the bill of complaint upon the grounds — First, that it does not state a cause of action. Second, that the District Court has no jurisdiction of such a suit. Third, that there is a misjoinder of causes of action. For opinion below, see 209 Fed. 129.</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. This cause comes here upon petition to revise an order of the District Court, Eastern District of New York. The petitioner was a judgment creditor of William A. Ballance at the time the latter turned over all his assets to the company.

<p>1. Commerce <3=87 — Discrimination—Interstate Commerce Commission-Jurisdiction — Complaint—Amendment.</p> <p>Where a complaint to the Interstate Commerce Commission was filed January 12, 19.10, and dealt only with transactions prior to that date, the Commission had power to permit an amendment of the complaint so as to incorporate transactions occurring to the date of the hearing and to make findings and orders, including such transactions as fully as if a new complaint had been filed to cover the same.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 139; Dee. Dig. <@=87.]</p> <p>2. Commerce <@=86 — Discrimination—Interstate Commerce Commission-Findings.</p> <p>The Interstate Commerce Commission is not required to make formal marked and numbered findings, but its findings may be contained in the colloquial statements of an opinion.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 140; Dec. Dig. <@=86.]</p> <p>3. Carriers <@=201 — Interstate Commerce — Discrimination.</p> <p>Where an interstate carrier permitted reconsignment of hay at a division point free of charge, provided such reconsignment was made within 24 hours after arrival of cars, and charged $2 per car for reconsignment of hay at another point, without,reference to time, such facts sufficiently showed a prima facie ease of discrimination.</p> <p>[Ed. Note. — For other cases, see Carriers, Gent. Dig. §§ 906-915; Dec. Dig. <@=201.]</p> <p>A Carriers <@=201 — Interstate Commerce — Reconsignment Charge — Discrimination — Damages.</p> <p>Though a carrier was guilty of discrimination in making a reconsignment charge of $2 at a point where plaintiff reeonsigned hay in the course of its business over the carrier’s railroad, while it permitted reconsignment free at another point, if made within 24 hours, did not necessarily entitle plaintiff to recover $2 per car reconsigned as damages, in the absence of proof that he in fact suffered the loss.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 906-915; Dec. Dig. <3=201.]</p>

Lewis, Judge. Claim by Ida C. Fleschutz against David B. Sauve, trustee, in the matter of the Pewabic Consolidated Gold Mines Company, bankrupt. From an order of the District Court allowing the claim in part, the trustee appeals.

This cause comes here on appeal from and petition to revise an order of the District Court, Southern District of New York. Petition in bankruptcy was filed.against H. B. Hollins & Co., stockbrokers, on November 13, 1913.

In.Error to the District Court of the United States for the Southern District of Iowa; Thomas C. Munger, Judge. Action by the United States against Edward R. Mason and others. Judgment for plaintiff (211 Fed. 233), and defendants bring error.

<p>1. Trial <©=>420 — Motion voi: Directed Verdict — Waiver.</p> <p>A motion to direct a verdict at the close of plaintiff’s evidence was waived by defendant by introducing evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. <S=d20J</p> <p>2. Appeal and Error <©=242 — Reservation os Grounds oe Review — Necessity ob' Ruling and Exception.</p> <p>The sufficiency of the evidence to support the verdict was not reviewable, even though the statement of defendant’s counsel at the close of all the evidence that ho wished the record to show a formal renewal of a motion for a directed verdict was treated as renewing a motion made at the close of plaintiff’s evidence and waived by introducing evidence, where the record showed no ruling by the court on the motion when so renewed or exception thereto. '</p> <p>[Ed. Note.' — For other eases, see Appeal and Error, Gent. Dig. §§ 14.17-1425; Dec. Dig. <@=242.]</p> <p>3. Appeal and Ereoe <@=>977 — Matters Reviewable — Motion foe a New Trial.</p> <p>In the federal courts, the ruling on a motion for a new trial is not reviewable.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. <@=>977.]</p>

<p>1. Estoppel <§=>83 — Value of Property — Representations.</p> <p>A buyer who acquires property at the price asked, half of which is paid in cash and the other half in stock represented by him and accepted by the seller as the equivalent of cash, is estopped to claim that such price was other than the value of the property, or that the seller was not damaged as a result of the stock being of substantially less value than represented.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 218, 227-229; Dee. Dig. <§=»83.]</p> <p>2. Evidence <§=>265 — Admissions.</p> <p>Where defendant purchased an ice plant from plaintiffs at the price asked and fraudulently induced plaintiffs to accept certain corporate stock as a part of the price, the transaction involved an admission by defendant that the plant was worth the price, so that in plaintiffs’ action for damages they were not required to prove the value of the plant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. <S=>265.]</p> <p>3. Fraud <§=>59 — Damages—Difference Between Actual and Represented Value.</p> <p>Where plaintiffs were induced to accept certain stock in part payment for an ice plant and the stock was of much less value than represented, plaintiffs’ measure of damage was the difference between the actual and represented value of the stock.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. <§=>59.]</p>

<p>Appeal from the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.</p> <p>Action by William H. Gillen against Harry A. Powe. Decree for the defendant, and plaintiff appeals.</p>

<p>1. Bankruptcy @=>126 — Trustee—Approval.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 45, 30 Stat. 557 (Comp. St. 1913, §■ 9629), providing that trustees may be individuals who are respectively competent to perform the duties of the office, and General Order 33 (89 Fed. vii, 32 C. C. A. xvii), providing that the appointment of a trustee by the creditor shall be subject to the approval or disapproval of the district judge, the approval of the trustee selected by the creditors by either the referee or district judge is a matter of discretion, but the choice of the creditors should not bo overruled except for substantial reasons.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 182, 184, 187; Dec. Dig. @=>126.]</p> <p>2. Bankruptcy @=>446 — Revision—Approval of Trustee.</p> <p>Where a trustee selected by the creditor has been approved by the district judge, the appointment will not be disturbed by the Circuit Court of Appeals on petition to revise, unless an abuse of discretion appears.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. @=>446.]</p> <p>3. Bankruptcy <§=>126 — Appointment of Trustee — Approval—Hearing.</p> <p>While ordinarily a request by a creditor to present evidence of the unfitness of the trustee selected by the majority of the creditors should be allowed, it is not an abuse-of the district judge’s discretion to refuse such request, where the circumstances of the trustee’s unfitness \vere_ fully brought out at the creditors’ meeting and the objecting creditors did not indicate that they had any new objection to present.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 182, 184, 187; Dec. Dig. <@=>126.]</p> <p>4. Bankruptcy <§=>120 — Trustee—Officer of Corporation.</p> <p>A stockholder or officer of a bankrupt corporation is not, ipso facto, incompetent to act as its trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 185; Dec. Dig. <§=>120.]</p>

. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur L. Sanborn, Judge. . . Suit in equity by the Lewis Blind Stitch Machine Company against the Arbetter Felling Machine Company. Decree for defendant, and complainant appeals.

<p>1. Patents <@=>318 — Infringement—Accounting—-Burden of Proof.</p> <p>Where profits are made by the use of an article patented as an entirety, the infringer is liable for all the profits, unless he sustains the burden of showing that a portion of them is the result of some other thing used by him.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. <@=>318.</p> <p>Accounting by infringer for profits, see notes to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8; Clark v. Johnson, 120 C. C. A. 389.]</p> <p>2. Patents <@=>318 — Infringement—Accounting—Burden of Proof.</p> <p>Where an infringing invention is used in combination with noninfringing features, and each jointly but unequally contributes to the profits, as the infringed patent creates only a part of the profits, the patentee is entitled to recover only that part of the net gains, and must give evidence reliable and tangible, and not conjectural or speculative, tending to support or apportion the profits between the infringing and noninfringing ' features, or show by equally reliable and satisfactory evidence ■ that the entire value of the whole machine as a marketable article is properly and legally attributable to the patented feature.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. <@=>318.]</p> <p>3. Patents <@=>318 — Infringement—Accounting—Burden of Proof.</p> <p>The burden on a patentee of apportioning the commingled profits on an infringing article between the infringing and noninfringing elements is sustained by proof demonstrating that defendant has so inextricably commingled and confused the parts composing the article that the profits cannot be accurately or approximately apportioned.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. <@=>318.]</p> <p>• 4. Patents <@=>319 — Infringement—Accounting—Sufficiency of Evidence.</p> <p>In an action for infringement of a patent for an improvement on a refrigerator partition by a manufacturer of refrigerator freight cars, evidence as to the relative cost of the partition, the car, and the body thereof, and as to the cost of installing such partition when furnished by defendant’s customers, held to furnish a sufficient basis for the apportionment of profits between the infringing and noninfringing features of the car; and hence a judgment for nominal damages only was erroneous.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 577-586; Dec. Dig. <@=>319.]</p>

<p>Patents <S=»328 — Validity and Infringement — Process of Desiccating Milk.</p> <p>The Stauf patent, No. 666,711, for a method of desiccating milk, held not anticipated, valid, and infringed on motion to vacate order granting preliminary injunction.</p>

In Equity. Bill by the Seaboard Air. Eine Railroad Company against the City of Raleigh and others, for an injunction restraining defendants from enforcing an ordinance requiring plaintiff to remove its track from a sidewalk being a part of Salisbury street, Raleigh, N. C.

<p>1. Corporations <@=>545 — Insolvency—Illegal Issue of Bonds — Fbaud of Dieectoes.</p> <p>Practically all of the stock of a power company was acquired by another electric company, called the railway company, organized for the purpose, under a contract by which it agreed to buy $1,500,000 of second mortgage bonds of the power company. The railway company caused its own officers and directors to be elected officers and directors of the power company and from that time wholly controlled its affairs. The power company then had outstanding a part of an authorized issue of first mortgage bonds. Afterward, through a series of agreements between the hoards of directors of the two companies, the power company released the railway company from its obligation to buy a part of the second mortgage bonds which had not yet been taken, and instead obtained a loan from that company which it secured by depositing as collateral twice the amount in its first mortgage bonds, and also agreed to exchange a large amount in such bonds for second mortgage bonds held by the railway company of the same par value. At that time both companies wore insolvent and the second mortgage bonds of the power company .were practically worthless. The power company was not and could not have been benefited by such transactions. Held, that in making such contracts the directors of the power company were chargeable with a breach of trust, their evident purpose being to secure for themselves and those associated with them in the railway company an illegal preference over other creditors of the power company; that the first mortgage bonds so obtained would not be permitted to participate with those of other holders In the assets of the power company beyond an amount sufficient to cover the money actually advanced to the power company under the contract, deducting therefrom the amount which the railway company was obligated by its prior contract to pay for second mortgage bonds.</p> <p>[Ed. Note.- For other cases, see Corporations, Cent. Dig. §§ 2170-2175 ; Dec. Dig. <@=>545.]</p> <p>2. CoRPORA’noxs <@=>473 — Insolvency—Rights of Bondholders.</p> <p>The rights of bondholders of a corporation are not measured strictly by the terms of the bonds and mortgage after the corporation has become insolvent, but they are entitled to contest the validity of other bonds, issued after insolvency, which would otherwise share with them in the distribution of assets.</p> <p>[Ed. Note. — -For other eases, see Corporations, Cent. Dig. §§ 1842-1853, 1855; Dee. Dig. <©=>473.)</p>

In Eqüity. Suit by the State Bank of Chicago, trustee, against the Idaho-Oregon Light & Power Company and others. Oh petition of intervention of the Idaho Railway, Light & Power Company and O. G. F. Markhus, its receiver.

In Admiralty. Proceeding by the Indra Line, Limited, owner of the. steamship Indrakuala, for limitation of liability. On issue as to fault for collision with the steamship Julia Luckenbach. Finding against both vessels.

In Bankruptcy. In the matter of Theodore J. Hindin, bankrupt. On exceptions to the report of a special master on the issues raised by objections to the bankrupt’s discharge.

<p>Habeas corpus to review a deportation order issued against Hidekuni Iwata.</p>

In Equity. Suits by the Fidelity Title & Trust Company against the Kansas Natural Gas Company and another, and by John L. McKinney against the Kansas Natural Gas Company. On application by receivers heretofore appointed for the Gas Company for directions as to complying with an order of the Kansas Public Utilities Commission.

<p>1. Trial <S=>33 — Reception of Evidence — Discretion of Court.</p> <p>The admissibility of collateral facts is usually to be determined according to the sound discretion of the trial judge in finding the fact of relevancy.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 85, 86; Dee. Dig. <§=>33.]</p> <p>2. Damages <§=»64 — Actions fob Personal Injuries — Insurance.</p> <p>In an action for personal injuries, evidence that the injured person has received compensation for his injury in the form of payment of an accident insurance policy is incompetent.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 113; Dee. Dig. <S=»64.]</p> <p>S. Evidence <S=>99 — Relevancy—Evidence Admissible in Part.</p> <p>A fact in issue can be proved, though it brings out with it other matters not in issue.</p> <p>[Ed. Note. — For other casés, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. <@=99.]</p> <p>4. Damages <S=>64 — Reduction—Insurance,—Evidence—Form of Question.</p> <p>In an action for personal injuries, evidence that plaintiff, having an accident insurance policy for .$2,000, settled the claim thereunder for the same injuries for $300, was properly excluded, since while if plaintiff had stated to the insurance company or any one else that his injuries were less than he testified them to be at the trial, or if he thus contradicted himself by acts as well as words, such contradictory statements or acts might be proved, the fact of a settlement or the amount received in settlement had no probative value, unless such amount was reduced because of representations as to the fact, character, or extent of the injuries, and the questions asked and the offer of proof should have been directed to the feature having a bearing upon the case on trial.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 113; Dec. Dig. <@=>64.]</p> <p>5. Witnesses <@=>268 — Cross-Examination—Scope,—Discretion of Court.</p> <p>Cross-examination of plaintiff as to such settlement was properly excluded, in the discretion of the court, for the same reason.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. <@=>268.]</p> <p>6. New Trial <@=>35 — Harmless Error — Exclusion of Evidence.</p> <p>The exclusion of such cross-examination did not require a new trial, even though the court, in its discretion, might properly have permitted it, where there was direct evidence as to the extent of plaintiff’s injuries, the evidence properly called for a verdict for plaintiff, and a verdict for defendant or for plaintiff for an insufficient amount would have been set aside, unless some fact, other than the mere fact of settlement, had been disclosed by such examination.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 51-55; Dec. Dig. <@=>35.]</p>

<p>1. Injunction @=>140 — Application fob Temporary Injunction — Affidavits.</p> <p>An application for a temporary injunction must be based upon positive allegations, and allegations upon information and belief should not be considered.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 312; Dec. Dig. @=>140.]</p> <p>2. Mines and Minerals @=>23 — Forfeiture—Default in Assessment Work.</p> <p>Under Rev. St. § 2324 (Comp. St. 1913, § 4620), requiring $100 worth of labor to be performed or improvements made on mining claims each year, and providing that, upon the failure of one of several co-owners to contribute his proportion of the required expenditures, the co-owners who have performed the labor or made the improvements may give notice to the delinquent co-owner, and if he fails to contribute his proportion of the expenditure his interest shall become the property of his co-owners, a bill alleging that plaintiff, defendant P., and certain other parties located certain mining claims, that plaintiff was the owner of an undivided one-eighth interest therein, that defendants served upon plaintiff a notice of forfeiture, requiring payment of $700, in default of which plaintiff’s interest would be forfeited to defendant H., that P. did not expend $5,600, of which the sum demanded was the one-eighth part, for the benefit of such claims, that at least $2,836 thereof was contributed by plaintiff and his colocators, that whatever interest H. had was held for the use and benefit of certáin corporations, and that such corporations had forcibly prevented plaintiff and his eolocators from completing the assessment work, and forcibly ejected and driven them from the claims, made a prima facie showing that defendants had no right to claim or exact forfeiture.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 51-59, 114; Dec. Dig. @=>23.]</p> <p>3. Mines and Minerals @=>38 — Assessment Work — Temporary Injunction —Restraining Recording of “Cloud on Title.”</p> <p>Under Rev. St. § 2324, relative to the forfeiture of the Interest of one-of several co-owners in mining claims for failure to contribute his share of the required.expenditures for improvements, and Civ. Code Cal. § 1426o, providing that the notice of forfeiture provided for in section 2324, with an affidavit of s'ervice, must be recorded with the county recorder in a suit involving the validity of an attempted- forfeiture of a co-owner’s interest, the recording of a notice of forfeiture would be enjoined pendente lite, as it would constitute a “cloud on the title,” which arises when extrinsic evidence would be necessary to defeat a suit in ejectment, founded upon the instrument constituting the alleged cloud.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent Dig. §§ 87%-113; Dec. Dig. @=>38.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Cloud on Title.] ■ •</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Vandewater & Co., Limited, on proceedings to review an order of the referee denying petition of the Prentiss Tool & Supply Company for reclamation of certain personal property.

<p>In Bankruptcy. In the matter of D. McKenzie and another, doing-business as the McKenzie Wine House, alleged bankrupts. On motion to strike.</p>

<p>At Law. Action by tbe United States against the Chicago, Milwaukee & Puget Sound Railway Company. Judgment for defendant.</p>

In Bankruptcy. In the matter of A. Epstein, individually and trading as A. Epstein & Co., bankrupt. On certificate of referee surpeti tion of bankrupt to stay contempt proceedings against him.

<p>1. Judgment <@=>653 — On Motion to Quash — Res Judicata.</p> <p>In a suit for infringement of a patent, the denial of a motion to quash the summons, because of facts demonstrating that the person, upon whom the summons was served, was defendant’s duly authorized agent, was nor, res judicata as to a plea in abatement, on the ground that no act of infringement had been committed within the jurisdiction of the court, as the fact that defendant had a regular and established place of business and a duly authorized agent in the district was not conclusive that an act of infringement had occurred therein.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1160; Dec. Dig. <@=>653.]</p> <p>2. Patents <@=>288 — Patent Infringement — District in Which Suit Must be Brought.</p> <p>Where, though defendant, having its oflieo and factory in Ohio, had an agent within the Northern district of Illinois, no sale of an alleged infringing article had been made by him, except by taking orders and mailing them to the defendant to accept or reject, a suit for infringement could not be maintained in that district, as there were no sales or acts amounting to contributory infringement within the district.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 460-406; Dec. Dig. <@=>288.]</p>

<p>1. Bankruptcy <§=>59 — Acts of Bankruptcy — Preferences.</p> <p>An act of bankruptcy consisting of suffering a creditor to obtain a preference by legal proceedings involves insolvency; suffering tbe creditor to obtain, a preference; failure of tbe debtor to avoid tbe preference five days before sale; and a sale of tbe property affected by such preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. <§=>59.]</p> <p>2. Bankruptcy <§=>59 — Acts of Bankruptcy — Preference by Legal Proceedings — Property Affected by Preference.</p> <p>Where an alleged bankrupt, while insolvent owning real estate which was subject to a mortgage, confessed judgment to a preferred creditor and then permitted a sale of tbe land subject to tbe lien of such judgment to be made under proceedings to foreclose tbe mortgage, there was a sale of property affected by preference sought to be given by tbe judgment, and hence such Bale constituted an act of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. <§=>59.]</p>

In. Error to the District Court of the United States for the Northern District of Ohio, Eastern Division; John M. Killits, Judge. Dan Ulmer was convicted of perjury in testifying before a referee in bankruptcy, and he brings error.

This cause comes here upon writ of error to review a judgment of the District Court of the United States for the Southern District of New York entered on March 19, 1914, sustaining the demurrer to the complaint and dismissing the complaint on the merits.

Petition to Revise Order of the District Court of the United States for the Western District of New York. The Haywood Wagon Company was a stock corporation duly organized and existing under the laws of the state of New York. It was established in the village of Baldwinsville, Onondaga county, N. Y. It had an authorized capital stock of $130,000, and its business was the manufacture of dump wagons embodying certain patented features of acknowledged merit.

This cause comes here upon appeal from a final decree dismissing the bill of complaint and entering final judgment for defendant entered in the United States District Court for the Southern District of New York on January 16, 1912.

<p>1. Criminal Law <§=>274 — Plea—Withdrawal—Permission—Discretion— Demurrer to Indictment.</p> <p>It was not an abuse .of discretion to deny an application for leave to withdraw a plea of not guilty, that accused might demur to the indictment, because the co.urt had previously sustained a demurrer to a similar indictment against another, which ruling was subsequently reversed, since accused could not be prejudiced or helped by such ruling, except as it might finally result in an authoritative declaration of some principle of law affecting every one.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 632, 633; Dec. Dig. <§=>274.]</p> <p>2. Courts <§=>90 — Trial Court — Yiews of Law.</p> <p>A trial court does not irrevocably commit itself to its views .of the law, even in the case in which they are announced, when there is ño invasion of some constitutional safeguard, like immunity from double jeopardy, nor prejudice to defendant in making his defense.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-321, 351; Dec. Dig. <§=>90.]</p> <p>On Petition for Rehearing.</p> <p>3. Criminal Law <§=>1090 — Bill of Exceptions — Necessity.</p> <p>Rulings during the trial of an action at law, not being inherently a part of the record to be reviewed on writ of error, must be embodied in a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. <§=>1090.]</p> <p>4. Criminal Law <§=>1091 — Appeal—Bill of Exceptions — Sufficiency.</p> <p>Where an alleged bill of exceptions contained no reference to rulings at the trial, and did not show whether any rulings were invoked, or whether the court made any, and it did not appear therefrom that an occasion for a ruling arose, or that the court ruled in fact, except as it might be inferred from the reason given by counsel for the exceptions, it was insufficient.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig." <§=>1091.]</p> <p>5. Criminal Law <§=>1091 — Bill of Exceptions — Time of Exceptions.</p> <p>Where a trial occurred in January, 1913, and an alleged bill of exceptions was served and allowed in March, reciting, “The defendant further excepts for the reason that the court erred” in doing thus and so, it was not thereby made to appear that the exceptions were taken at the trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <§=>1091.]</p> <p>6. Criminal Law <§=>1091 — Bill of Exceptions — Taking—Time.</p> <p>Though a bill of exceptions may be drawn and allowed after trial, it must show that the exceptions preserved were taken at the trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 28Í9, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <§=>1091.]</p> <p>7. Criminal Law <§=901 — Trial—Questions or Law or Fact — Demurrer to Evidence — Waiver.</p> <p>Alleged error in overruling defendant’s oral demurrer to tlie government’s testimony is waived, where defendant thereupon introduces testimony in his own behalf.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2124; Dee. Dig. <§=901.]</p> <p>8. Criminal Law <§=1121 — Assignments of Error — Keview.</p> <p>An assignment that tho court erred in denying defendant’s request for a directed verdict was' not reviewable, where there was nothing in the record showing when the request was made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. <§=1121.]</p> <p>9. Criminal Law <§=1129 — Appeal and Error — Assignments of Error.</p> <p>An assignment that the court erred in entering judgment against the defendant, and in favor of the United States, was too general to present any question for feview.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. <§=1129.]</p> <p>10. Criminal Law <§=1091 — -Bill of Exceptions — Motion in Arrest.</p> <p>A motion in arrest of judgment is part of the record, and an exception to an order denying the same is saved in the order, and hence need not be incorporated in the bill of exceptions.</p> <p>• [Ed. Note. — For other cases, see Criminal Law, .Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. <§=1091.]</p> <p>• 11. Criminal Law <§=1156 — Appeal—Motion for New Trial.</p> <p>A motion by accused for a new trial is addressed to the discretion of the court, and an order denying the same will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. <§=1156.]</p>

Burns, Judge. In the matter of bankruptcy proceedings of the Dong Deaf Dumber Company, bankrupt. From a decree awarding to claimants Holland & Weisinger a lien on certain labor claims over objections of E. C. Arledge, trustee in bankruptcy, William A. Bell and others appeal.

Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Richmond, in Bankruptcy; Edmund Waddill, Jr., Judge. In the matter of bankruptcy proceedings against Joseph W. Blanton.

, Judge. In the matter of bankruptcy proceedings of Joseph W. Blanton. From an order denying the petition of Leon M. Nelson, trustee, to recover certain dividends paid on claims of A. Heckscher and others, the trustee appeals.

Cross-Appeals from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge. Suit in admiralty for collision by Herman Grantz, master of the steamship Sigmaringen, against the steamship Jacob Euckenbach, with cross-libel by Edgar F. Euckenbach and others, joint owners of the Euckenbach, against the Sigmaringen. Decree against each vessel for half damages, and both appeal.

<p>In Error to the District Court of the United States for the District of New Mexico; Wm. H. Pope, Judge.</p> <p>Action by Josefita G. De Sedillo against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error.</p>

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

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit by Eva Prince Ellis against A. B. Sullivan and others. Decree for complainant, and defendants appeal.</p>

<p>Municipal Corporations <§=>740 — Injuries to Property — City’s Liability —Statutes—Construction—“Property.”</p> <p>New Jersey Act 1874 (Rev. St. p. 714; P. L. 1864, p. 237; Revision 1877, p. 978; 4 N. J. Comp. St. 1910, p. 4380 ; 3 Gen. St. 1895, p. 2782), is entitled “An act to prevent routs, riots, and tumultuous assemblies,” and section 5 declares that, whenever any building or other real or personal “property” shall be destroyed or injured in consequence of any mob or riot, the city in which it shall occur shall be liable to an action by or on behalf of the owner. Held, that while the word “property,” strictly speaking, in a thing, is different from the thing itself, and includes the right to use, enjoy, and control, which is neither visible nor tangible, and in that sense the word is often used as applied to the right to carry on business, the word as used in such act was not intended to include intangible property, so that a city under such act was only liable for damage to tangible, as distinguished from intangible, property.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1558, 1559; Dec. Dig. <@=>740.</p> <p>For other deiinitions, see Words and Phrases, First and Second Series, Property.]</p>

<p>1. Railroads ©=389 — Injuries to Persons on Tracks — Statutory Duty to Signal — Liability.</p> <p>Under the Tennessee Railroad Precautions Act (Shannon’s Code Tenn. § 1575), making railroads liable for damages to persons or property resulting “from any accident or collision that may occur,” where provisions of the act regarding bell-ringing, whistle-blowing, etc., by locomotives while in cities or towns have not been observed, the liability is absolute, and proof need not be made that the accident was the proximate result of the railroad’s failure to observe the statutory precautions.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dec. Dig. ©=389.]</p> <p>2. Railroads ©=387 — Injuries to Persons on Tracks — Statutory Duty to Signal — Contributory Negligence.</p> <p>Under the Tennessee Railroad Precautions Act (Shannon’s Code Tenn. §§ 1574-1576), contributory negligence of the person injured is not a bar to recovery and may be considered only in mitigation of damages.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1296, 1314-1316; Dec. Dig. ©=387.]</p> <p>3. Railroads ©=>369 — Injuries to Persons near Tracks — Statutory Duty to Signal — Position oe Injured Person.</p> <p>Under the Tennessee Rallroajj_ Precautions Act (Shannon’s Code Tenn. § 1574, subd. 3), establishing the liability of a railroad for personal injuries when it has failed to ring its locomotive’s bell, etc., while approaching or passing through a town, it is not a requisite that the person injured should have been ahead of the train on the track before being struck.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Dig. ©=>369.]</p> <p>4. Railroads ©=>401 — Injuries to Persons on or near Track — Instructions.</p> <p>In an action for death of a child caused by failure of railroad to observe statutory precautions while its train was approaching a city or town, an instruction to find for the defendant if the boy lost his life while trying to “swing” the train, “unless he was of such age as not to apprehend the dangers of so doing,” was sufficiently favorable to defendant, considering the absolute nature of the liability imposed for failing to comply with the act.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. ©=>401.]</p> <p>5. Railroads ©=>389 — Injuries to Persons on or near Tracks — Statutory Duty to Signal — Proximate Cause.</p> <p>A liability arises from failure to observe statutory precautions on part of railroad by ringing the locomotive bell, etc., while approaching a town, even if the jury finds that the observance of the precautions would not have prevented the accident.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1319-1323; Dec. Dig. ©=>389.</p> <p>Care required of railroads as to trespassers on or near tracks, see note to Louisville & N. R. Co. v. Womack, 97 C. C. A. 566.]</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by William Stewart Tod against John M. Kuykendall. Judgment for the plaintiff, and defendant brings error.</p>

<p>1. Contracts <®=^94 — Rescission—Fraud.</p> <p>Where plaintiff induced defendant to contract to purchase medallions and frames from it, to be used in the furtherance of an advertising scheme, plaintiff’s false laudatory statements concerning the merits of the scheme, that plaintiff would furnish frames at'cost, that defendant would be able to charge its customers a sufficient profit on the frames to repay it for the medallions and cost of operating the scheme, and that frames to fit the medallions were made only by one company, which was controlled by plaintiff, the contract fixing no price for the frames, were not such as to justify a rescission.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. @=>941</p> <p>2. Contracts @=>94 — Rescission—Fraud.</p> <p>A misrepresentation by plaintiff’s agent, inducing defendant to contract; with plaintiff for medallions and frames to lie used in an advertising scheme, that the medallions had never been offered to the public in the city of Memphis, if relied on by defendant, was sufficient to justify rescission.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent Dig. §§ 420-430, 1160.. 1164, 1165; Dec. Dig. @=>94]</p> <p>3. Damages @=>175 — Contract—Breach.</p> <p>Where, in an action for defendant's breach of a contract to purchase medallions from plaintiff to he used in an advertising scheme, plaintiff was permitted to show by estimate how many medallions defendant would probably have purchased from it, if it had bought from plaintiff all its requirements as provided by the contract, defendant was then entitled to show how many medallions it had, during the contract, purchased from the substituted manufacturer.</p> <p>IEd. Note. — For other cases, see Damages, Cent. Dig. §§ 469-171; Dec. Dig. @=>175.]</p>

<p>Salvage ©=>17 — Right to Compensation — Ineffective Services.</p> <p>A tug which, in response to an alarm signal, came to the aid of a steamship in port, on which there was a fire, and standing alongside threw a stream of water into a coal port, in which she persisted after being ordered to stop by the master of the steamship because her stream was doing no good but was interfering with others, held not entitled to a salvage award.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. § 30; Dec. Dig. ©=>17.]</p>

<p>1. Carriers @=»23 — Interstate Commerce Law — Application.</p> <p>The interstate commerce law is not intended for the benefit of carriers but to protect passengers, shippers, and consignees against unreasonable rates of passage money and freight, and against unfair discrimination between passengers, shippers, and consignees.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 57-59; Dec. Dig. <§=>23.]</p> <p>2. Carriers <@=»30 — Interstate Commerce — Schedules — Effect — Demurrage.</p> <p>Where interstate railroad carriers furnished lighters at tide water free to shippers to transfer freight to ocean carriers, and the shippers did not employ or control the lighters nor agree to furnish a berth, so that there was no lien on the cargo for demurrage, the railroads, by inserting a charge against the steamship companies in their published tariff for demurrage, could not make them liable therefor.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. <@=>30.]</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge.</p> <p>Suit by the Eagle Glass & Manufacturing Company against William J. Hill and others. From an order granting a temporary injunction, defendants appeal.</p>

Toulmin, J udge. Bill by Latham & Co., continued in the name of William S. Lovell, trustee in bankruptcy of Knight, Yancey & Co., against Knauth, Nachod & Kuhne, to recover alleged assets of the bankrupt, in which defendants filed a cross-bill or bill of intervention. From a judgment dismissing the cross-bill (211 Fed. 374), defendants appeal.

B. McPherson, Judge. Suit in equity by the Hess-Bright Manufacturing Company and others against Hedwig Fichtel and another. Decree for defendants, and complainants appeal.

<p>1. Patents <§=>141 — Validity of Reissue — Broadening Original Claims.</p> <p>A reissue patent cannot be allowed to broaden tbe original patent after the lapse of so long a time as seven years, and after the original patent had been limited by final adjudication.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dec. Dig. <§=>141.]</p> <p>2. Patents <§=>328 — Validity of Reissue — Miners’ Lamp.</p> <p>The Baldwin reissue patent, No. 13,542 (original No. 821,580), for a miners’ acetylene lamp, claim 4, held void as broader than the original patent.</p> <p>3. Trade-Marks and Trade-Names <§=>70 — Unfair Competition — Miners’ Lamp.</p> <p>A decree enjoining unfair competition by defendant in imitating complainant’s miners’ lamp, in form, appearance, and packages, considered and affirmed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. <§=>70.</p> <p>Imitation or simulation d£ trade-mark or trade-name as unfair competition, see note to John H. Rice & Co. v. Redlick Mfg. Co., 122 C. C. A. 447.]</p>

<p>1. Patents <§=328 — Validity and Infringement — Revolving Doob.</p> <p>The Van Kannel patent, No. 656,062, for a revolving door, discloses patentable invention and is valid; also held infringed.</p> <p>2. Patents <§=328 — Invention—Revolving Doob.</p> <p>The Van Kannel patent, No. 836,843, for a collapsible revolving door, held void for lack of invention.</p>

This cause comes here on appeal from a decree of the District Court, Eastern District of New York, in favor of complainant. The suit was brought for alleged infringement of United States letters patent No. 717,641, issued January 6, 1903, No. 752,729, issued February 23, 1904, and No. 814,893, issued March 13, 1906. All three of them cover “improvements in weather strips” and were issued to Clifton Vose; his mother, the complainant, claims to be the assignee of each patent.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing a bill for infringement of letters patent No. 794,296, granted July 11, 1903, to H. E. Gille, for an electric display lamp. The following is the opinion of Learned Hand, District Judge: Tbis case turns altogether upon the interpretation to be given to the phrases “cap covering the tip end” and “cap fitted to the tip end,” contained in claims 1 and 2.

<p>1. Patents <@=328 — Validity and Infringement — Candy Pulling Machine.</p> <p>The Dickinson patent, No. 831,501, and the Jenner patent, No. 804,726, both for candy-pulling machines, held not anticipated and valid. Cláim 1 of the former and claims 7 and 8 of the latter also held infringed.</p> <p>2. Patents <§=174 — Construction—Improvement Patents.</p> <p>A patent for a machine, which is an improvement only, is not entitled to as broad construction as the patent for the original or basic machine.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. § 249; Dec. Dig. <@=174.]</p>

<p>1. Monopolies @=H7 — Statutes—Tbading Stamps.</p> <p>Act Cong. October 15, 1914, c. 823, § 3, 38 Stat. 73J, prohibiting the making of a contract fixing the price'for merchandise on condition that the lessee or purchaser shall not use or deal in the merchandise of a competitor, if the effect of the contract is to substantially lesson competition or tend to create a monopoly, does not prohibit a trading stamp concern from restricting redemption privileges to subscribers under contract with it binding such customers to distribute stamps only to customers.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. <g=s>17.]</p> <p>2. Assignments — Validity — Tbading Stamps — Redemption — “Pbopeiity Right.”</p> <p>Where complainant, a trading stamp concern, issued redeemable stamps only to subscribers under a contract by which the latter agreed to distribute the stamps only to customers, the right to redeem the stamps was a property right transferable by possession, while the license to use them for advertising purposes was not transferable without compensation to complainant, and hence complainant was entitled to enjoin the use of its stamps for advertising purposes by persons who had obtained them from subscribers in violation of the restriction.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 7-10; Dec. Dig. <S=>5.</p> <p>For other deiinitions, see Words and Phrases, First and Second Series, Property Rights.]</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Harry Kligerman. On petition to' review a referee’s findings and adjudication against the validity of alleged mechanic’s lien.

Henry C. Townsend was indicted for assault on a member of his crew on the high seas and filed a plea in bar to the court’s jurisdiction, to which the government demurred.

<p>1. Removal of Causes <@=»19 — Admiralty and Maritime Jurisdiction — Employee’s Liability Act — Action in Personam.</p> <p>Const, art. 3, § 2, provides that the judicial power of the federal courts is extended to all cases of admiralty and maritime jurisdiction, but Judicial Code, § 24 (Act March 3, 1911, c. 231, 36 Stat. 1091 [Comp. St. 1913, § 991]), declares that the federal District Courts shall have original jurisdiction of all civil cases of admiralty and maritime jurisdiction, saving to suitors in all cases the rights to common-law remedy where the common law is competent to give it. Held, that an action purely In personam by a machinist, working upon a vessel floated upon defendant’s dry dock, to recover compensation for injury under the New Jersey Workmen’s Compensation Act (P. L. 1911, p. 134), not being an action for tort or based on defendant’s fault, was not within the exclusive jurisdiction of a federal court sitting in admiralty, but was an action of which the state courts had at least concurrent jurisdiction, and, such courts having first acquired jurisdiction, the action was not removable as one arising under the Laws of the United States, and of admiralty and maritime jurisdiction.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 37-46, 48, 52, 53; Dec. Dig. <@=>19.]</p> <p>2. Admiralty <@=>10 — Federal Courts — Jurisdiction.</p> <p>Admiralty courts will take jurisdiction of a contract only when the substance of the whole contract is maritime.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 131-149, 185-190; Dec. Dig. <@=>10.]</p> <p>3. Admiralty <@=>2 — Jurisdiction—Statutes—Construction.</p> <p>Judicial Code, § 24, provides that the District Courts of the United States shall have original jurisdiction in all civil cases of admiralty and maritime jurisdiction, saving to suitors in all eases the right of common-law remedy where the common law is competent to give it Held, that such saving clause does not embrace a proceedings in rem as used in the admiralty court; such proceeding not being a remedy afforded by the common law, though it does embrace proceedings in personam in which an attachment or writ of sequestration may issue against the vessel</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 18-28; Dec-Dig. <@=>2.]</p> <p>4. Courts <@=>492 — Jurisdiction—Concurrent Jurisdiction — Attachment.</p> <p>Where federal and state courts have concurrent jurisdiction, the one first acquiring jurisdiction will be permitted to retain it.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1345; Dec. Dig. <@=>492.]</p> <p>5. Shipping <@=>204 — Limitation or Liability — “Vessel.”</p> <p>Rev. St. § 3 (Comp. St. 1913, § 3), defines the word “vessel” to include every description of water craft or other artificial contrivances used, or capable of being used, as transportation on water, and sections 42S3-4285 (Comp. St. 1913, §§ 8021-8023) provides for limitation of liability in favor of the owners of any ship or vessel, etc. Held, that a dry dock used for the repair of vessels, though capable of being floated and towed from place to place, was not a “vessel” within such provisions.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 639, 640; Dec. Dig. <@=>204.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vessel.]</p>

<p>Suit by the Old Colony Trust Company, as trustee, etc., against the City of Tacoma.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Rubin Atlas. On motion to approve a report of the referee recommending that the bankrupt’s application for discharge be denied. TMs trouble comes up on a motion to approve the report of the referee recommending that the discharge of the bankrupt be denied.

Rudkin, Judge. Suit by the United States Oil & Land Company against Teresa Bell, as administratrix of the estate of Thomas Bell, deceased, with the will annexed, and others. Bill dismissed, and complainant appeals. Thomas Bell, the uncle of John S. Bell, gave to the latter, in 1874, 14,000 •acres of land in Santa Barbara county, Cal. Thomas thereafter loaned money to John until, in 1885, the latter’s indebtedness to Thomas was over $50,000.

Keller, Judge. Suit for injunction by the State of West Virginia against the Adams Express Company, an association. From a decree of the District Court dismissing the bill (219 Fed. 331), complainant appeals.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by the United States Fidelity & Guaranty Company against Laura Eichel and others. From the judgment, complainant appeals.</p>

<p>In Error to the District Court of the United States for the District of Utah; John A. Marshall, Judge.</p> <p>Action at law by the Utah Copper Company against Fred C. Bassett, County Treasurer. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Principal and Surety <§=>162 — Discharge of Surety — Departure from Contract — Questions for Jury.</p> <p>On an issue as to whether a surety on a contract to purchase coal had been discharged by reason of alleged departure, whether an order for coal given by the buyer was one contemplated by and to be performed under the terms of the contract, or whether the order and its acceptance formed a separate and independent contract, on which questions the evidence was in irreconcilable conflict, held for the jury.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 442-445; Dec. Dig. <§=>162.]</p> <p>2. Principal and Surety <§=162 — Contracts—Alteration.</p> <p>Where a surety for performance of a contract denies liability on the ground that it has been altered, and the evidence as to whether alterations and changes have in fact been made and their nature, is conflicting, whether the contract has been altered, and, if so, whether the alterations are material, are for the jury.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 442-445; Dee. Dig. <§=1621</p> <p>3. Principal and Surety <§=99 — Contract—Alteration—Discharge—“New Contract.”</p> <p>Alteration of a contract! in order to discharge a surety, must be such as to transform it into a new and different contract, requiring the concurrence of the parties making the alteration, and a meeting of minds in forming the new undertaking, since a “new contract” means a new agreement, and contemplates action by both parties making it.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. <®=99.J</p> <p>4. Principal and Surety <§=99 — Contracts—Departure.</p> <p>Where a secured contract providing for the sale of Annabelle coal did not inhibit the parties from making other contracts for the sale of other coals, the fact that the buyer purchased from and sold for the seller other grades of coal, and that the seller had contracted with the buyer for the sale of coal without notice to the surety, did not constitute departures, so as to relieve the surety from liability.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. <§=99.]</p> <p>5. Principal and Surety <§=99 — Change op Contract — Departure.</p> <p>Where a secured contract for the sale of Annabelle coal placed no territorial restrictions for the sale of coal on the buyer, the fact that the buyer, with the knowledge of the seller, purchased its coal for export and for delivery outside the territory prescribed in the contract, and went into the export business in competition with the seller, were not such departures as would relieve the surety from liability.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. <§=99.]</p> <p>6. Principal and Surety <§=162 — Change op Contract — Departure.</p> <p>Where a secured contract for the sale of Annabelle coal provided that the buyer should act as the seller’s sales agent, and should make sales at prices fixed by the seller on specified commissions, whether sales made by the buyer at different prices constituted a departure, so as to relieve the surety from liability, depended on whether the coal so sold was Annabelle coal, and whether such sales were of coal delivered under the contract and made with the selling company’s knowledge, which questions were for the jury.</p> <p>[Ed. Note.' — For other cases, see Principal and Surety, Cent. Dig. §§ 442-445; Dec. Dig. <§=162.1</p> <p>7. Principal and Surety <§=99 — Change of Contract — Departure.</p> <p>Where a secured contract for the sale of coal by plaintiff to D. & Co. provided that the latter should take monthly 50 per cent, of the output of the Annabelle mines, but contained no penalty for a breach of such provision, such breach merely restored to plaintiff the right to enter D. & Co.’s otherwise exclusive territory and sell in competition with them the portions of the coal which they failed to take under their contract, so that a breach of such covenant did not constitute a departure from or an alteration of the contract terms, relieving the surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. <§=99.</p> <p>Discharge of surety by alteration of instrument, see note to Zeigler v. Hallahan, 66 C. C. A. 6.]</p> <p>8. Principal and. Surety @=>99 — Change oe Contract — Departure.</p> <p>Whether' plaintiff’s act in accepting notes from D. & Co. for coal delivered under a secured sales agency contract, instead of requiring payment on the 20th of the month for coal sold in the previous month, as the contract provided, constituted a departure relieving the surety from liability, depended on whether the notes were given and accepted in payment, and whether the change in the manner of payment so operated to affect the rights and liabilities of the surety- as to discharge it from liability under -the relaxation of the rule of strictissimi juris, .when applied to undertakings of corporate sureties for profit, the first of which questions was for the jury. v</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. @=>99.]</p> <p>9. Principal and Surety @=>99 — Change op Contract — Departure.</p> <p>Where a secured sales agency contract only prevented plaintiff from selling Annabelle coal in the territory given to D. & Co., the fact that plaintiff shipped other, coal into D. & Co.’s territory did not constitute a .departure from the contract, relieving the surety.</p> <p>• [Ed. Note.- — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. @=>99.] .</p> <p>10. Principal and Surety @=99 — Change op Contract — Departure.</p> <p>Where a secured sales agency contract applied solely to Annabelle coal, the fact that the selling agents purchased coke produced from other mines, and that the coal company sold coke to such agents under orders providing different terms of profit and rates of payment than those specified in the contract, did not constitute a departure.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 158-161; Dec. Dig. @=99.]</p>

<p>Appeals from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suits in admiralty by the State of Maryland, to the use of Frances Goralski, widow, Mary Goralski, infant, Joseph Gielner, and Andrew Gielner, against the General Stevedoring Company, the Joseph R. Foard Company of Baltimore City, the Mayor and City Council of Baltimore City, and the Munson Steamship Line, and by Gustave Lies against the same respondents and the Maryland Steel Company, with 16 other cases. Decrees for libelants against the General Stevedoring Company and the Foard Company, and for the other respondents, and numerous parties appeal.</p>

<p>In Error to -the,District Court of the United States for the Southern Division of the Northern District of Alabama; William I. Grubb, Judge.</p> <p>. Action by E. A. Aldridge against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Criminal prosecution by the United States against E. G. Bombarger. Judgment of conviction, and defendant brings error.</p>

Suit by the Prest-O-Uite Company against Herman E. Heiden and another, doing business as the Little Rock Headlight Company. Erom a decree for defendants, plaintiff appeals.

Killits, Judge. In the matter of the Miller Bros. Grocery Company, bankrupt. From an order (208 Fed. 573), reversing an order of the referee and allowing in full the claim of the Damson Company, the trustee appeals.

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Mississippi; Henry C. Niles, Judge.</p> <p>Action by Charles S. Gladden against J. T. Gabbert and another. Judgment for defendants, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by the Oak Grove Construction Company against Jefferson County. From a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by Andrew Reed against Edwin A. Welty. Judgment for plaintiff, and defendant appeals.</p>

Sessions, Judge. In the matter of the Huron Mining Company, bankrupt; Joseph S. Courtney, trustee. The G. W. Youngs Mining Company appeals from an order of the District Court disallowing its claim for a lien. The MacKinnon heirs owned lands supposed to contain iron ore.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Action by M. G. Henry against the Tacoma Railway & Power Company. Judgment for defendant, and plaintiff brings error.</p>

Orr, Judge. • In the matter of bankruptcy proceedings against Max Janavitz. From an order refusing a motion for discharge, opposed by the Arbuthnot-Stephenson Company, the bankrupt appeals.-'

<p>Commerce <S=>31 — Foreign Commerce — Regulations—Importation op Opium —Constitutionality op Statute.</p> <p>Act Feb. 9, 1909, c. 100, § 2, 35 Stat. 614 (Comp. St. 1913, § 8801), making punishable one who receives, conceals, buys, or sells opium prepared for smoking, knowing it to have been imported contrary to law, is a valid exercise of the power to regulate foreign commerce, since the acts therein prohibited encourage and induce the unlawful importation.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 24; Dec. Dig. <§=>31.]</p>

Call, Judge. Actions by Raymond L. Porter against E. W. Ellis and against the Titusville Fruit & Farm. Rands Company. Judgment for the defendant in each action, and plaintiff brings error.

Whitaker Thompson, Judge. Abe Eipman was convicted of conspiracy to conceal assets from his trustee in bankruptcy, and brings error.

Niles, Judge. In an equitable proceeding, wherein the Yaryan Naval Stores Company and others were parties, the Harry Bros. Company intervened. From an order dismissing the plea of intervention, intervener brings error.

Foster, Judge. Habeas corpus, on petition of John L. Collins, to obtain his release from the Board of Control of the Louisiana State Penitentiary and others. From an order dismissing the writ, petitioner appeals.

<p>In Error to the District Court of the United States, for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Ejectment by William A. Dallam against Isaac A. Stewart. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents <@=>177 — Construction—General and Specific Claims.</p> <p>When a patent contains a general claim for a combination of certain mechanical elements and a specific claim for a combination of a specified form, composition, or construction of one of those elements with the other elements of the general claim, the legal presumption is that the two claims secure different combinations, and the general claim is not limited to the specified form, composition, or construction claimed in the specific claim, but protects the element and its mechanical equivalents, though in form, composition, or construction differing from that of the specific claim.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 253, 254; Dec. Dig. <@=>177.]</p> <p>2. Patents <@=>235 — Infringement—Change of Form or Composition.</p> <p>Mere changes of the form or composition of a device, or of some of the mechanical elements of a combination, will not avoid infringement, where tlie principle or mode of operation of the patented improvement or combination is adopted, unless the form or composition is the distinguishing characteristic of the invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 371; Dec. Dig. <@=>235.]</p> <p>3. Patents <@=328 — Anticipation—Grass Collector for Lawn Mowers.</p> <p>The Boss patent, No. 1,039,355, for a grass collector for lawn mowers, is void for anticipation by patent No. 701,255, claim 2, to the same patentee.</p> <p>4. Trade-Marks and Trade-Names <@=71 — Unfair Competition — Right to Promotion.</p> <p>While a geographical or descriptive name may not be exclusively appropriated as a trade-mark, yet a manufacturer, having adopted such a name as a designation for his goods, is entitled to be protected therein as against unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dee. Dig. <@=71.]</p> <p>5. Trade-Marks and Trade-Names <§=71 — Unfair Competition.</p> <p>Where complainant had extensively advertised and built up an extensive trade in its grass catchers for lawn mowers under the name of “Easy Emptying,” the use of such designation by defendant in its catalogues and circulars for a different device, whereby purchasers were misled, heM unfair competition, which entitled complainant to an injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. <@=71.</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. 'Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

802,631, for an apparatus for burning Portland cement clinker, granted to Thomas A. Edison, October 24, 1905. The only claims now relied upon are 2, 5, 6, and 8. Claims Í, 7, and 11, which were relied on in the District Court, have been withdrawn. The opinion of the District Judge is reported in 208 Fed. 20.

<p>Patents (@=>328 — Validity and Infringement — Gas-Cleaning Process and Apparatus.</p> <p>The Ernst patents, No. 896,365, for a gas cleaner apparatus, and No. 900,062, for a process for cleaning gases, held valid as against defendants, who are estopped to deny their validity, and also infringed.</p>

<p>In Equity. Suit by the Elliott Company against John F. Robertson, trading as the John F. Robertson Company. On final hearing. Decree for defendant. *</p>

<p>In Equity. Suit by Edwin Thacher against the Mayor and City Council of Baltimore. On final hearing. Decree for complainant.</p>

<p>1. Trade-Marks and Trade-Names @=89 — Unlawful Competition — Sale of Material.</p> <p>Where defendant manufacturing company made and sold to O. dust cloths, which the latter sold so that they could be and actually were used by C. to mislead the public to believe that they were cloths of peculiar quality, manufactured and sold by complainant, such manufacturing company was a joint tort-feasor with C., and guilty of contributory infringement of complainant’s rights.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 99; Dec. Dig. @=S9.J</p> <p>2. Trade-Marks and Trade-Names @=67 — Unlawful Competition.</p> <p>Complainant, in order to protect his rights to the use of particular dress of an article sold by him, need not have an exclusive right in any one element of the dress or packing of the article, size, shape, coloring, lettering, wording, or symbol, so long as the ensemble has come to be a public guaranty of origin and quality.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 78; Dec. Dig. @=67.]</p> <p>3. Trade-Marks and Trade,-Names @=97 — Unlawful Competition — Injunction.</p> <p>Where there is added to the defendant’s dress of a competing article an inscription which both in its pictorial aspect and its meaning is calculated to confuse, if not to deceive, the public to believe that the article is that manufactured by complainant, he is entitled to an injunction; the sole question being, does the adoption of the collocated features of complainant’s style of dress disclose a differentiation from that previously adopted, and by which the public has come to recognize complainant’s product? the test being whether ordinary purchasers would be misled by the similarity between the two designs.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. @=97.]</p> <p>4. Trade-Marks and Trade-Names @=84 — Unlawful Competition — Good Faith.</p> <p>In a suit for unlawful competition, the fact that defendants may have acted in good faith and believed that they were not infringing plaintiff’s rights is immaterial.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 93, 97; Dec. Dig. @=84.]</p> <p>5. Trade-Marks and Trade-Names @=84 — Unlawful Competition — Defenses — Damages.</p> <p>The fact that careful buyers may not have been deceived by defendants’ alleged unlawful competition is no defense, but only goes to minimize the loss.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 93, 97; Dee. Dig. @=84.]</p>

<p>Alexander Aczel and others were indicted for conspiracy and for using the mails to carry out a scheme to defraud.</p>

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and the Metropolitan Street Railway Company, with four other causes. Held: the lessor became entitled, which is in accordance with the rule as above expressed, when applied to the particular facts of that case.

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and others. In the matter of the claim of the Metropolitan Street Railway Company against the New York City Railway Company. On settlement of decretal order.

<p>In Equity. Suit by the Montgomery Light & Water Power Company against the Montgomery Traction Company. On final hearing. Decree for complainant.</p>

<p>1. Courts <§=>866 — Exemptions—Construction op State Daws. -</p> <p>In a bankruptcy proceeding, the federal court is concluded by the construction of state exemption laws by the state court of last resort.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. Dig. <§=>366.]</p> <p>2. Exemptions <§=>52 — Sjeuection in Diku op Exempt Property — “Otueb Property.”</p> <p>Though “other property,” in Rem. & Bal. Code Wash. § 563, subd. 4, exempting from execution and attachment to each householder two cows with their calves, etc., and providing that, in case such householder shall not possess or desire to retain such animals, he may select from his property and retain other property not exceeding $250 in value, has been construed by the Supreme Court of the state as not including money, a debtor may select, in lien of the animals specified, any other personal property other than money; the rule of ejusdein generis having no application.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 40; Dec. Dig. <§=>52.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Other.]</p> <p>3. Exemptions <@=>4 — Statutory Provisions — Liberal Construction.</p> <p>Courts have no power to add to or take from exemption statutes, but such, statutes must be liberally construed with a view of effectuating the object of the lawmakers.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 4; Dec. Dig. <§=»4.]</p> <p>4. Statutes <@=>205 — Construction—Meaning oe Language Used.</p> <p>Words or phrases used in a statute are not to be taken separately, but are to be considered in relation to the entire statute, under the general meaning applied to the main purpose.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 282; Dee. Dig. <@=>205.]</p> <p>5. Exemptions <@=>52 — Statutory Provisions — Selections in Lieu oe Property Mentioned.</p> <p>Even though the maxim, “Noseitur a sociis,” applies to' Rem. & Bal. Code Wash. § 563, subd. 4, exempting from execution and attachment certain animals, and providing that, if the householder shall not possess or desire to retain such animals, he may select from-his property and retain other property not exceeding $250 in value, any property possessed by a debtor, described or referred to in that section, may be selected in lieu of such animals, though not described or referred to in subdivision 4.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 40; Dec. Dig. <@=>52.]</p>

<p>1. Commerce <@=88 — Interstate Commerce Commission — Orders—Conformity to Complaints.</p> <p>Under Interstate Commerce Act Eeb. 4, 1887, c. 104, § 3, 24 Stat. 380 (Comp. St. 1913, § 8565), making it unlawful for any common carrier to subject any particular locality to any undue or unreasonable prejudice or disadvantage, section 13 providing that any person, etc., complaining of anything done or omitted by any common carrier in contravention of that act, may apply to the Commission by petition, and giving the Commission the same powers on its own motion as when appealed to by complaint or petition, and section 15 providing that when the Commission shall be of the opinion that any practices of any carrier áre unjust, unreasonable, unjustly discriminatory, or unduly preferential or prejudicial, or otherwise in violation of that act, it may make an order that such carrier or carriers shall cease and desist from such violations, where a manufacturer of cement at Evansville filed a complaint charging that a carrier’s rate on cement from that point to Jersey City discriminated against it and against Evansville, and the Commission, having found that such rate discriminated against Jersey City, granted a rehearing, and upon the rehearing made a like finding and ordered the carrier to cease charging such rate, its order was not in excess of the Commission’s power, because the complaint was not made by Jersey City nor by any citizen thereof as the Commission is more of an administrative than a judicial tribunal, and is not restricted in its procedure by the technical rules prevailing in judicial tribunals nor restricted in its finding or its order to the precise point in dispute presented by the pleadings, but may extend its inquiry and affix its order to other matters germane to the matter in inquiry and involved in the consideration of the principal point in controversy, provided the parties are not taken by surprise and are afforded an opportunity to present evidence, and the carrier was afforded an opportunity on the rehearing, if not on the original hearing, to defend against the charge of discrimination against Jersey City, while discrimination against Jersey City, by reason of a rate between Evansville and that point, was necessarily related to the question of discrimination against Evansville by reason of the same rate.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. <§=»88.j</p> <p>2. Commerce <S=>88 — Interstate Commerce Commission — Powers—Discriminatory Hates.</p> <p>Where a railway company united with other companies carrying cement from a particular district in fixing relatively uniform rates to all points east and south, except Jersey City, and charged the same rate as such other companies to Jersey City on cement destined for transshipment to coastwise points, but charged a higher rate for cement shipped to Jersey City for local consumption, an order finding that this last-mentioned rate discriminated against Jersey City, and ordering tile company to cease charging such discriminatory rate, was not beyond the powers of the Interstate Commerce Commission on the theory that it based a finding of discrimination on the mere fact that such railroad company did not conform to the rates charged by competing companies, as the discrimination consisted in the railroad company’s own act in excepting Jersey City from the advantages of relatively equal rates accorded all other localities, especially as the function and jurisdiction of the Commission is the regulation ‘ of commerce and not the regulation of railroads, except in so far as they are instruments of commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. <@=>88J</p>

<p>In Equity. Suit by the Destructor Company against the City of Atlanta. On motion to dismiss the bill.</p>

At Law. Action by James R. Watts against the S. M. Hamilton Coal Company. On application by plaintiff to compel his attorney of record to deliver certain papers to him and for an order opening a judgment of dismissal and restoring the action to the trial calendar.

<p>Action by the United States against the Chicago, Milwaukee & Puget Sound Railway Company, to recover a penalty. On demurrer to the complaint.</p>

In Admiralty. Suit for collision by A. Westergaard, master of the steamship-M. I. Mandal, against the steamship Putney Bridge, E. T. Atkins, master, and cross-libel. Decree in favor of the Putney Bridge.

<p>Banks and Banking <@=248 — Liability or StockHoldebs — Rescission or Pubchase or Stock.</p> <p>Under Rev. St. § 5151, providing that shareholders of every national banking association shall be individually responsible for all contracts of the association to the extent of their stock, in addition to the amount invested therein, upon the failure of a national bank, the rights of creditors attach, and a purchaser of stock who has held it for several months, and made no complaint until after the appointment of a receiver, cannot thereafter, as against creditors, have the purchase rescinded because of false representations by the bank’s president as to the solvency of the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 913-915, 919-931; Dec. Dig. <@=248.]</p>

Criminal prosecution by the United States against Charles Hee. On petition by defendant to have certain personal property, alleged to have been illegally seized by revenue officers, returned to him.

<p>In error to the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge. Action by Thomas Hughes against the Houston Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Oregon.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Southern District of California.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri. Bill by David Yost against Dallas County. Bill dismissed, and complainant appeals. Questions certified to Supreme Court. Questions answered. 286 U. S. 50, 35 Sup. Ct. 235, 59 L. Ed. -. On motion for certificate of additional questions.</p>