Volume 220 — Federal Reporter

W. Sawtelle, Judge. Suit by Charles W. Clark against the Arizona Trust Company, in which the Arizona Mutual Savings & Loan Association and others were permitted to intervene. From a decree marshaling the assets and providing for the distribution of assets of the Loan Association, and denying the application of the Farmers’ & Merchants’ Bank of Phoenix, Ariz., to intervene (217 Fed- 640), it appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cush-man, Judge.</p> <p>Action by William Black against the Central National Fire Insurance Company of Chicago, Ill., a corporation. Judgment for plaintiff, and defendant brings'error.</p>

C. Van Fleet, Judge. Action at law by the Goldfield Consolidated Milling & Transportation Company against the Southern Pacific Company and the Tonopah & Goldfield Railroad Company. Judgment for plaintiff, and defendants bring error.

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Suit in admiralty by the Seither Transit Company against the Great Lakes Coal & Dock Company. Decree for libelant, and respondent appeals.</p>

<p>1. Dim «&wkey;91 — Damages—Mitigation—Lies Insurance.</p> <p>In an action for the death of an employé, brought under the Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]) for the benefit of .his father and mother, evidence that the mother collected ,¥2,500 insurance on the decedent’s life was not admissible in mitigation of damages.</p> <p>' [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 99-101; Dec. Dig. <&wkey;91.]</p> <p>2. Appeal and Error <5&wkey;1050 — Harmless Error — Admission of Evidence.</p> <p>In an action under the Employers’ Liability Act for the death of an employe, the admission of evidence that decedent’s mother, one of the persons for whose benefit tbe action was brought, received insurance on decedent’s life, held not harmless under the evidence, but probably to have affected the amount of the verdict.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153 -4157, 4166; Dee. Dig. &wkey;1050.]</p>

Dayton, Judge. Action by James A. Moffett, administrator of Cecil J. Cain, deceased, against the Baltimore & Ohio Railroad Company. Judgment for defendant on a directed verdict, and plaintiff brings error. This act was brought in the Northern District of West Virginia in pursuance of the federal Employers’ Liability Act to recover damages for death resulting from negligence of defendant.

Petition for Revision of 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 of J. W. Hall. Petition to superintend and revise in matter of law an order enjoining the Progressive Building & Doan Company, Incorporated, from enforcing an assignment of the bankrupt’s wages.

Action by Charles J. Schleif against the Puget Sound Traction, Light & Power Company. Judgment for plaintiff, and deféndant brings error. The plaintiff in the action in the court below was working for certain contractors constructing a water gate or manhole from the surface of a street in the city of Seattle to the water pipes of the city water system, which were laid underground. The defendant operated a double-track electric street railway upon that street.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California; Frank H. Rudkin, Judge.</p> <p>Action by A. H. Nelson against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>The defendant in error recovered in the court below a judgment against-the plaintiff in error for damages on account of moneys expended for services of doctors and nurses, and the cost of drugs and medicine and hired help, and for the loss of services of his wife, all growing out of an injury suffered by his wife while she was a passenger on one of the cars of the defendant in error. The complaint alleged that prior to the commencement of the action the defendant in error and his wife had sued the same defendant for the injuries to her person suffered by the wife in the accident which is referred to in the ease at bar. The plaintiff set out the pleadings and judgment in the former case, and pleaded the judgment roll in that action as res adjudicate, and as conclusive upon and an estoppel in respect to all issues in the case at bar concerning the negligence of the defendant and the effect of the negligence of either of said parties as the proximate cause of the injury complained of, and averred that upon the strength of that judgment it should be adjudged and determined that the defendant was guilty of negligence which was the proximate cause of the injury complained of, and that the plaintiff was not guilty of any want of ordinary care or negligence which contributed to the injuries to his wife. The answer alleged that the plaintiff’s wife had been guilty of negligence which was the proximate cause of her injuries, and denied that the judgment roll in the former case was res adjudi-cata, or conclusive, or estoppel, in respect to any issues in the present case. On the trial the judgment roll was introduced in evidence over the objection of the plaintiff in error, and the defendant in error offered evidence of the amount of damages and rested. The defendant introduced no evidence. The court instructed the jury that the judgment roll was conclusive on the question of the use of due care on the part of the plaintiff’s wife, and conclusive that the negligence of the defendant was the proximate cause of the injury both to the plaintiff’s wife and to the plaintiff in the present ease, and that the jury must find for the plaintiff in some sum.</p>

Day, Judge. Jacob L. Goldman was convicted of a misuse of the mails, and he brings error. This writ is prosecuted to reverse sentence entered upon conviction foi misuse of the mails. The indictment contains two counts, and they in effect are the same, except that one of the two letters involved appears in the first count and the other in the second. The indictment enters greatly into details and is very long.

<p>1. Griminai, Daw &wkey;»1149 — Appeulate Proceedings — Review—Motion to Quash Indictment.</p> <p>It is a rule of the federal courts that a motion to quash an indictment is ordinarily addressed to the discretion of the court, and its action will not bo reviewed by an appellate court, except in cases where the failure to properly exercise judicial discretion amounts to a denial of justice.</p> <p>|Ed. Note. — Eor other cases, see Criminal Law, 'Cent. Dig. §§ 3039-3043, 3058; Dec. Dig. &wkey;1149J</p> <p>2. Conspiracy <&wkey;43 — Sumtciency op Indictment.</p> <p>In an indictment under Or. Code (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (Comp. St. 1913, § 10201), for conspiracy to commit an offense against the United States by concealing property from a trustee in bankruptcy, in violation of Bankr. Act July 1, 1898, c. 541, § 29b(l), 30 Stat. 554 (Comp. St. 1913, § 9613), an averment of the appointment of a trustee is not an essential allegation, since the crime charged might be committed, although no trustee was ever appointed.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig.- <&wkey;43.]</p> <p>3. Indictment and Information <&wkey;125 — Indictment—Duplicity.</p> <p>An. indictment charging a bankrupt and another with conspiracy to conceal property from the bankrupt’s trustee, and also alleging such concealment by the bankrupt, is not bad for duplicity.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 33AAOO; Dec. Dig. &wkey;125.]</p> <p>4 Conspiracy &wkey;>37 — Merger of Offenses.</p> <p>The doctrine of merger of offenses does not apply as between misdemeanors, and hence a misdemeanor which is the object of a conspiracy is not merged in the latter offense, nor is the offense of conspiracy merged in the consummated misdemeanor.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 68-70; Dec. Dig. <&wkey;>37.]</p>

J. Cochran, Judge. . . Action at law by T. R. Shadoan, administrator of McKinley Shad-oan, deceased, against the Cincinnati, New Orleans & Texas. Pacific Railway Company. Judgment for defendant, and plaintiff brings error.

<p>Petition to Revise Order of the District Court of the United States • for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Bankruptcy proceeding against Claud F. Crawford and another. On petition to revise an order requiring the bankrupts to pay over money to M. Sternberg, trustee.</p>

<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 at law by John B. Stevens & Co., a corporation, against the Frankfort Marine, Accident & Plate Glass Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Easements <&wkey;>15 — Rights Passing by Implication — Necessity.</p> <p>In every private grant there passes by implication that which is reasonably necessary to the enjoyment of the thing granted; nor is it essential to an implied grant that there be an absolute physical necessity for the right demanded.</p> <p>[Ed. Note. — For other cases, see Easements, Cent Dig. §§ 42-58; Dec. Dig. <&wkey;15.]</p> <p>2. Mines and Minerals <&wkey;55 — Easements—Tunnels—Deposit oe Waste— Implied Grant!</p> <p>Where defendant by deed acquired the- right to bore a tunnel through plaintiff’s property and use the tunnel for the operation of defendant’s mines, the right to use the surface of plaintiff’s property for the deposit of waste and débris brought from the tunnel might be implied from reasonable necessity, to be determined as a question of fact from all the circumstances in the case.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; De.c. Dig. <&wkey;55.]</p> <p>S. Mines and Minerals <&wkey;55 — Implied Grant — Reasonable Necessity— Question eoe Jury.</p> <p>Where defendant was granted the right to bore a tnnnel through plaintiff’s property and use the some for tho operation of an adjoining mine, whether there was a reasonable necessity for the use of plaintiff’s property for the deposit of waste and dSbris from the tunnel, so as to raise an implied grant, and the extent and mode of use of the surface to which defendant was entitled, if any, held for the jury.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. <&wkey;>55.]</p> <p>4. Estoppel &wkey;>54 — Equitable Estoppel — Knowledge op Facts.</p> <p>On an issue as to whether defendant had an implied grant of an easoment to use plaintiff’s property for dumpage of waste from a mine tunnel, the right to maintain and use which had been deeded to him, evidence, to raise an estoppel, that plaintiff had made no objection to defendant’s use of the surface as a dumping ground for many years prior to suit, was properly excluded, in the absence of proof that plaintiff had knowledge of defendant’s use of the surface.</p> <p>LEd. Note. — For other cases, see Estoppel, Cent. Dig. §§ 128-135; Dec. Dig. @=354.]</p> <p>Youmans, District Judge, dissenting.</p>

Van Valkenburgh, Judge. Action at law by Herbert FI. Austin against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error. The plaintiff in error, hereinafter called the plaintiff, sued the defendant railway company to recover damages for a personal injury which he alleged was caused by the negligence .of a coemploye in the service of the railway company.

E. Wolverton, Judge. Suit by N. Coy against the Title Guarantee & Trust Company, a corporation, and others, in which Multnomah County, Or., and others, intervened. From an order (212 Fed. 520) allowing a claim for taxes assessed against the corporation’s property while in the hands of R. S. Howard, Jr., receiver, said receiver appeals.

<p>1. Admiralty <&wkey;13 — Jurisdiction—“Maritime Contract.”</p> <p>A contract to render service as a seaman on a vessel owned by a salmon company on a voyage from San Francisco to its cannery in Alaska and return, and also as fisherman, beachman, trapman, and such other service as might be required by the company’s superintendent, is a “maritime contract,” and a suit thereon is within the jurisdiction of a court of admiralty.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent Dig. §§ 16A-176; Dec. Dig. &wkey;>13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.</p> <p>Jurisdiction as to matters of contract, see notes to The Richard Wins-low, 18 C. C. A. 347; Boutin v. Rudd, 27 C. C. A. 530.]</p> <p>2. Seamen <5&wkey;29 — Injury'in Service — Medical Treatment and Care.</p> <p>A finding of the trial court that a shipowner did not furnish a seaman injured in its service with proper medical attention and care held sustained by the evidence.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188-194; Dec. Dig. <§=»29J</p> <p>.3. Seamen <&wkey;29 — Injury in Service — Suit for Failure to Furnish Proper Care.</p> <p>Where the personal negligence of a shipowner in failing to furnish proper medical attention and care to an injured seaman is alleged and proved, the court may make an allowance to the seaman for expenses of his care and for loss- of time after the expiration of his term of service.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 1S8-194; Dec. Dig. <@=29.</p> <p>Rights and liabilities of seamen as to medical treatment, see note to The Cuzco, S3 C. C. A. 186.]</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California.</p> <p>Action by William H. Moore, Jr., trustee in bankruptcy of Philip T. Davidson, against H. Breit, to recover a preference. Judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge. Three separate suits by the United States against the Stonebraker-,Zea Cattle Company. Decrees for the United States in each case, and the defendant appeals.

<p>Petition to Revise Order of the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>In the matter of bankruptcy proceedings of the Pewabic Consolidated Gold Mines Company. Application of David B. Sauve, as trustee, etc., to sell the bankrupt’s property free from liens. Application by the Clark Plardware Company and others to set aside the appraisement. An order was entered denying the motion, and granting the application of the trustee, and the objecting creditors filed a petition to revise.</p>

On Motion to Quash Writ of Error to the Supreme Court of the State of New Mexico. Benito Lovato was convicted of an offense, and he brings error. • On motion to quash the writ for want of jurisdiction.

<p>1. Bankruptcy <&wkey;65 — Adjudication—Right.</p> <p>Bankr. Act July 1, 1898, c. 541, § 18d, 30 Stat. 551 (Comp. St. 1913, § 9602), provides that, if the bankrupt or any of his creditors shall appear within the time limited and controvert the facts, the judge shall determine as soon as may be the- issues presented, and make the adjudication or dismiss the petition. Held that, wherei the essential allegations of a creditors’ petition were formally admitted, the petitioners were entitled to an adjudication, and it was no objection that after the bankruptcy petition was filed suit was brought by a creditor to foreclose a mortgage on. a portion or all of the bankrupt’s property, even though, the value of the property was less than the lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 54, 121; Dec. Dig. &wkey;>65.]</p> <p>2. Bankbuptct <&wkey;127 — Appointment op Teustee.</p> <p>Whether a trustee should be appointed for a bankrupt’s estate is a matter for determination after an adjudication has been entered.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 183; Dec. Dig. &wkey;>127.]</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge.</p> <p>Action by the United States against the Northern Pacific Railwajr Company to recover penalties. Judgment for plaintiff, and defendant brings error.</p>

<p>Bankruptcy <&wkey;395 — Property Passinq to Trustee — Power over Exempt Property.</p> <p>A court of bankruptcy is without jurisdiction to order the sale for any purpose of property.which it has set apart to a bankrupt as his homestead exemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 658; Dec. Dig. c&wkey;>395.]</p>

<p>1. Cbiminal Law <&wkey;1092 — Bill of Exceptions — Presentation, Examination, and Signing- by Judge.</p> <p>A paper, referred to as a bill of exceptions, and not signed by the juage, nor appearing of record to have ever been examined by or presented to him, cannot be regarded as a bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig: §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092.]</p> <p>2. Cbiminal Law <&wkey;1122 — Appeal—Bill op Exceptions — Review.</p> <p>Where an alleged bill of exceptions contained only a part of the evidence received on the trial, and the charge was entirely pretermitted, errors assigned on the court’s ruling in refusing to give a peremptory instruction in behalf of plaintiff in error could not be reviewed.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dee. Dig. <&wkey;1122.]</p> <p>3. Chimin ai, Law <&wkey;>956 — New Trial — Affidavit.</p> <p>Where an exculpatory affidavit, executed by one jointly indicted and convicted with accused, postdated his conviction, he could avail himself thereof only by submitting it to the trial court on a motion for new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <&wkey;956.]</p>

H. Sawtelle, Judge. Action at law by Richard Silvas, an infant, by Ransom Silvas, his guardian ad litem, against the Arizona Copper Company, Rimited. From a decree dismissing the complaint, plaintiff brings error.

This cause comes here upon appeal from an order entered by the District Court of the United States for the Southern District of New York granting a preliminary injunction restraining defendant from an alleged threatened infringement of letters patént No. 1,090,776, issued March 17, 1914, to Harrison H. Boyce, for an indicating system .for internal combustion engines. • The Stewart-Warner Speedometer Corporation, a corporation organized under the laws of the state of New…

<p>Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Safer, Judge.</p> <p>Suit in equity by the J. F. Rowley Company against the Columbus Pharmacal Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from an interlocutory decree sustaining the validity of two reissued letters patent No. 12,796 (reissue A) and No. 12,797 (reissue B) granted May 26, 1908, to Samuel B. Davidson of Belfast, Ireland, for a centrifugal fan or pump. These patents were assigned to the Sirocco Company, complainant herein.</p> <p>The original patent was granted November 27, 1900, on an application filed September 21, 1898. Attached to the description were 11 sheets of drawings containing 28 separate figures. No model was filed. The patent contained 17 claims. The reissue was applied for March 16, 1908, over 7 years from the date of the original, and the patents were reissued in 3 divisions containing 36 claims. Reissue C is not involved in the present controversy as it is conceded that it is not infringed.</p> <p>The District Court sustained claims 1, 5, 7, 10 and 13 of reissue A and 1, 3, 4, 5, 10 and 14 of reissue B, and allowed the complainant three-fourths of the costs, charges and disbursements. The court ordered a perpetual in junetion against the defendant and referred it to a master to take an account oí the gains, profits and advantages derived by the defendant by reason of its infringement. Judge Kay’s opinion is published in 208 Fed. 147. His opinion holding that it was not incumbent upon the trial judge to pronounce judgment upon claims which were not relied on by the complainant or discussed by either party is reported in 209 Fed. 624. The opinion of Judge Holt holding that the Sirocco Company was not a mere licensee of Davidson but was an assignee, and therefore entitled to reissue the patents, is reported in 184 Fed. 84. The opinion of Judge Noyes sustaining a demurrer to a bill on the reissued patents because of a delay of 7 years in applying for the reissue, but. permitting an amendment excusing the delay, is reported in 171 Fed. 440. The opinion of Judge Hough holding, after the amendment that the reissues were not so clearly void as to justify a decision dismissing the bill on demurrer is reported in 17S Fed. 378.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Grate.</p> <p>The McClave patent, No. 831,178, for a grate designed for burning culm or other very fine coal by the use of double-beveled overlapping grate bars having a narrow, inclined opening between them instead of a vertical one, discloses a device novel in conception, useful in results, and inventive in character, and is valid; also held, infringed.</p>

<p>Patents <§=>328 — Infringement—Grain Separator.</p> <p>The Froslid patents, No. 668,175 and No. 684,751, each for a grain separator, heM infringed as to claim 1 of each patent.</p>

<p>In Equity. Suit by the Stromberg Motor Devices Company against the Zenith Carburetor Company. On final hearing.</p>

In Equity. Suit by. Wright’s Automatic Tobacco Packing Machine Company against the American Tobacco Company. On final hearing. Decree for complainant. Bill in equity to enjoin infringement of patent, and to recover damages, and secure an accounting for profits.

<p>Patents <&wkey;>328 — Validity and Inerindement — Rod Packing Ring.</p> <p>Tlie King patent, No. 914,426, for a rod packing ring of soft metal for packing piston rods, etc., discloses invention and is valid, but, in view of the prior art, must be given a very narrow construction; as so construed, held not infringed.</p>

In Equity. Suit by the Estate of P. D. Beckwith, Incorporated, a corporation, against Zura Riley and others, for infringement of letters patent No. 931,374, for improvement in heating stoves, granted August 17, 1909, to Arthur K. Beckwith. On final hearing. Decree for complainant.

<p>Bill by John Scott Boyd, Junior, and others, against the New York & Harlem Railroad Company, and the New York Central & Hudson River Railroad Company, and others, to restrain a consolidation between the New York & Iiarlem Railroad Company and the New York Central & Hudson River Railroad Company. On motion by complainants under Equity Rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) for decision of points of law in respect to the cause or causes of action stated in the bill, raised by portions of the answer of defendants or some of them.</p>

In Admiralty. Suits by Charles L. Walker, managing owner of tug Lizzie Crawford, and by John P. Murray, master of the steam tug Delaware, against the schooner barge Neshaminy; Philadelphia & Reading Railway Company, claimant. Decrees for libelants.

<p>1. Bankruptcy <©=»426 — Dischargeable Debts — “Fraud.”</p> <p>The word “fraud,” as used in Bankr. Act July 1, 1898, c. 541, § 17 (2)r 30 Stat. 550 (Comp. St. 1913, § 9601), providing that debts created by fraud shall not be dischargeable in bankruptcy, means fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud-in law, existing without the imputation of bad faith or immorality.</p> <p>[Ed. Nóte. — For other cases, see Bankruptcy, Cent. Dig. §§ 787, 791-807 ; Dec. Dig. <@=s>426.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Fraud.]</p> <p>2. Bankruptcy <§=>428 — Concuustveness—Gist or Action — Fraud.</p> <p>A judgment for plaintiff in an action for deceit is conclusive on defendant that the judgment is based on fraud, and therefore not discharge-able in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 818; Dec. Dig. <§=>423.]</p> <p>3. Bankruptcy <§=>428 — Debts Discharged — Judgment for Deceit.</p> <p>A judgment recovered .against a bankrupt for deceit in the sale of a farm is a debt arising out of a bankrupt’s active fraud, and is therefore not dischargeable in -bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 818; Dec. Dig. <§=>423.]</p> <p>4. Bankruptcy <§=>50 — Dismissal—Grounds—Nondischargeable Debt.</p> <p>Whore a voluntary bankruptcy proceeding* was instituted in order that the bankrupt might obtain a discharge from a nondischargeable debt, the court had jurisdiction to dismiss the proceeding, instead of denying a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <§=>50.1</p>

In the matter of bankruptcy proceedings of the Continental Paint Company. On petition to review a referee’s determination that claimant, William E. Wilson, was entitled to allowance of his claim, hut not to priority.

In Equity. Creditors’ bill by John C. Eames against the H. B. Clañin Company. On petition by the receivers for instructions regarding the claims of Joshua L. Bailey & Co. This is a motion made in a creditors’ bill to sequestrate the assets oí a coi-poration in financial embarrassment, for distribution among its creditors.

<p>Admiralty <§=»28 — Grounds of Proceeding in Rem — Negligence op Owner op Tug.</p> <p>A suit in rem cannot be maintained against a tug for injury to a deck band on a barge while in tow of tbe tug, through the alleged negligence of the owner of the tug, who was also owner of a pier at which they were making a landing, in allowing the pier to become out of repair.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 278-288; Dec. Dig. <&wkey;28.]</p>

In the matter of Mary E. Rider and Mose D. Rider, individually and as partners doing business as the Capital Plumbing Company, bankrupts. On review of order of referee.

In Equity. Suit by Fred De Gresac Maurel against Harry B. Smith and others. Decree in favor of plaintiff.

<p>In Admiralty and in Bankruptcy. In the matter of the New England Transportation Company, bankrupt. On distribution of proceeds of vessels owned by bankrupt, in admiralty proceedings tb enforce maritime liens.</p>

<p>Application by Carl Ruroede, impleaded, etc., for discharge on habeas corpus.</p>

Action by the United States of America against the Atchison, Topeka & Santa he Railway Company to enforce a penalty for violation of 1he Safety Appliance Act. On trial to the court upon an agreed statement of facts.

<p>In Bankruptcy. In the matter of Carrie Johnston and another, bankrupts. Proceeding to review an order of the referee.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of the Penn Development Company. On petition by Theodore Martin, a .creditor, for an injunction restraining the enforcement of a judgment recovered against the bankrupt in the state court.</p>

Bankruptcy proceedings against the Breakwater Company. On petition of the American Surety Company to revise an order of the referee fixing the fees of the referee and the trustee.

Separate suits under the Sherman Anti-Trust Act by the United States of America against the Prince Line, Limited, and others, and against the American-Asiatic Steamship Company and others, to dissolve certain alleged unlawful combinations and to enjoin certain practices of the respective companies. The records are separate, but both causes wore heard on the same day and may conveniently be discussed in a single opinion.

Suit by the City of Knoxville against the Southern Paving Construction Company and others. The suit was removed from the State Chancery Court to the United States District Court in equity, and plaintiff moved to remand to the state court, and defendants moved to transfer to the law side of the District Court.

<p>1. BANKRUPTCY <&wkey;374 — COMPOSITION-GOOD FATTIT OP OFFER.</p> <p>A bankrupt must exercise the utmost good faith with his creditors in offering a composition, and will not be permitted to trade with them by increasing his offer after he finds that the first offer was rejected as insufficient.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 575; Dec. Dig. &wkey;374.]</p> <p>2. Bankruptcy <&wkey;374 — Composition—Amendment of Offer.</p> <p>Where a bankrupt was deprived of a full opportunity to examine and appraise the property for the benefit of those who were to assist him financially, and made in good faith an offer of composition which was rejected as insufficient, he may thereafter be permitted to amend his offer, though there is no express statutory authority for permitting such amendment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 575; Dec. Dig. <@=>374.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Suit in admiralty by Franciska Modzelewski against M. H. Hors-ley, as owner of the British steamship Eastwood. Decree for libelant, and respondent appeals.</p>

<p>1. Appeal and Erbob @=883 — Review—Question of Fact — Estoppel.</p> <p>Where the existence of a certain fact is assumed in the trial court, and the trial proceeds on that assumption without objection, neither party may question the existence of such fact in the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3611; Dec. Dig. @=>883.]</p> <p>2. Ejectment @=>31 — Nature of Action — Pleading.</p> <p>Code Civ. Proc. S. O. 1912, § 123, subd. 2, which gives a plaintiff two actions for the recovery of real property or of possession of real property, provided the costs of the first action are first paid and the second action is brought within two years after the first is terminated by judgment or nonsuit, in view of section 218, which permits the joinder of several causes of action, legal or equitable, or both, in the same suit, is not limited in its application to actions in which the sole relief sought is the recovery of real estate or possession thereof, but applies as well to actions in which two causes are joined, and whether or not such an action is within the statute must he determined by the essential nature of the complaint, in view of the facts alleged and the prayer for relief.</p> <p>[Ed. Note. — For other eases, see Ejectment, Cent. Dig. §§ 120-122; Dec. Dig. @=>31.]</p> <p>3. Ejectment @=>63 — Construction of Pleadings.</p> <p>Complaints in two actions brought by plaintiff against the same defendant construed, and both held to be actions for the recovery of real prop erty and of possession thereof, within the meaning of Code Civ. Proc. S. C. 1912, § 123, subd. 2, which requires! as conditions precedent to a second action for such relief that the costs of the first action be first paid, and that the second be brought within two years after the first has been finally determined.</p> <p>[Ed. Note. — Por other cases, see Ejectment, Cent. Dig. §§ 154-157; Dec. Dig. @=>63.]</p> <p>4. Pleading @=>34 — Construction or Complaint — Prater.</p> <p>The prayer of a complaint may be disregarded for some purposes, but not where there is a contention made by the plaintiff as to the character of the action presented by his own pleading, in which case the prayer is to be considered.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. @=>34.]</p> <p>5. Action @=>37 — Legal or Equitable — Construction of Pleading — Waiver.</p> <p>Where, on removal of a cause, it was docketed on the law side in the federal court, and tried tol a jury as a law action, without objection by the plaintiff, he waived the right to have his complaint construed as a bill in equity.</p> <p>[Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 311-319; Dec. Dig. @=>37.]</p> <p>6. Ejectment @=>39 — Successive Actions — Identity oe Parties.</p> <p>Two actions by the same plaintiff to recover land from a holding-over tenant — the first against the tenant and another, to whom it was alleged he had wrongfully attorned, and against whom relief was also asked, and the second against the tenant alone — have sufficient identity of parties to bring them within the scope of a statute requiring a second action to recover real property to be brought within two years after the first has been terminated by judgment or nonsuit.</p> <p>[Ed. Note. — Por other cases, see Ejectment, Cent. Dig. § 131; Dec. Dig. @=>39.]</p> <p>Pritchard, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Charles E. Kercheval against Edmund B. Allen and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Petition to Review and Revise Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>In the matter of Eliza Petronio and Euigi Zarosi, trading as E. Petronia & Co., bankrupts; the Central Trust Company of Illinois, trustee. On petition of E. Petronio & Co., a corporation, to review and revise an order of.the District Court in the above-entitled bankruptcy proceedings, approving a referee’s order.therein certified for review.</p>

et-erer, Judge. Suit in admiralty by Gust Pondahn against the schooner C. S-Piolines. From an order sustaining exceptions to amended libel, libel-ant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by the United States against E. Dowden and others. Decree for defendants, and the United States appeals.</p>

Hunt, Judge. On distribution in admiralty of proceeds of the steamer Atlantic City. From a decree giving priority to the claim of Staten Island Shipbuilding Company, the West Jersey Trust Company appeals.

<p>Railroads <&wkey;327 — Crossing Accidents — Contributory Negligence — Failure to Look.</p> <p>An automobile driver, driving five miles an hour, whose view of the main track of a railroad east of a crossing was obstructed wholly or partly until he was within 43 feet of such main track, and whose brakes and appliances were in good working order, and who could have stopped his automobile by customary methods in less than 5 feet, was guilty of contributory negligence as a matter of law in failing! to look towards the east while driving such distance of 43 feet.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. <&wkey;>327.]</p>

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

<p>Master AND Servant <&wkey;>13 — -Railroads—Hours oe Service Act — Emergency.</p> <p>In an action against a railroad company to recover penalties for violation of Hours of Service Act March 4, 1907, c. 2939. § 2, 34 Siat. 1416 (Comp. St. 1913. § 8678), by requiring telegraph operators in a night and day office, who dispatched orders affecting the movement of trains, to remain on duty for more than 9 hours in 24-hour periods, an answer which alleges as a reason for such requirement that a train dispatcher in the office became “abusive, insubordinate, and defiant,” and it became necessary to dismiss him, because his retention would have endangered the public, and that lie was replaced atj soon as possible, states a case of “emergency” within the meaning of the statute, which constitutes a defense.</p> <p>I Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;>13.</p> <p>Hours of service of employSs, see note to United States v. Houston Belt & Terminal Ry. Co., 125 O. C. A. 485.J</p>

Action at law by August Bay against the Merrill & Ring Logging Company. Judgment for defendant (211 Fed. 717), and plaintiff brings error. The plaintiff in error was injured while in the employment of the Merrill & Ring Logging Company, the defendant in error, and while he was engaged in loading logs on a flat car in the woods, where the -logs had been cut preparatory to transporting them to the waters of Puget Sound.

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

Lewis, Judge. Suit in equity by E. M. Dorsey and others against the Fulton Investment Company and others. From an order confirming a sale of lands, defendants appeal.

<p>Patents i&wkey;328 — Anticipation—Draft Gearing.</p> <p>The Bush patent, No. 838,379, for a draft gearing, claim 1, which is a broad claim covering a yoke for draft gearing in combination with any means for attachment to a coupler designed to form a portion of the car coupler in railway service, held void for anticipation in the prior art.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; William L. Day, Judge.</p> <p>Suit in equity by the William Shakespeare, Jr., Company against the Enterprise Manufacturing Company. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit in equity by Patrick F. Dundon against L,. A. Pedersen. Decree for complainant, and defendant appeals.</p> <p>The appellee is the patentee of letters patent No. 653,503, issued July 10, 1900, for “door for digesters.” In the specifications the invention is described as new and useful improvements in hermetically sealing doors, and relates to doors for hermetically sealing retorts, digesters, or other vessels that sustain internal pressure” and to certain improvements in' devices for hinging, closing, and securely sealing such doors, “being an improvement on an invention described in letters patent No. 418,867, granted to me on the 7th day of January, 1890.”</p> <p>The specifications proceed: “My present improvements consist in two or more bars that span the doors, bearing usually at four points thereon, so selected as to equalize the pressure around the sealed joints, and utilize the full strength of the door itself in resisting the compressing strain; also consists in the manner of hinging the doors by means of the bearing bars and a compensating link pivoted coincident therewith, and in other structural devices that will be particularly pointed out. * * * The main objects of my invention are celerity of action in opening and closing such doors, security against leaks, and to utilize the bearing bars as hinges on which the door may swing, and thus dispense with independent pivoting devices, avoiding the cost and complication of the latter.”</p> <p>Claim 3, which was claimed to be infringed, is as follows:</p> <p> </p> <p>“3. In a hermetically closing door, pressing bars to force the door upon its seat, bearing at four or more points thereon, forming also hinges for the door, and in combination therewith the radius links IS pivoted in the same axial line as the pressing bars and holding the door in adjustment thereon, substantially as specified.”</p> <p>The invention is shown in the subjoined drawing.</p> <p>The court below found that the appellant had infringed claim 3, and decreed that the appellee recover from the appellant the profits, gains, and advantage which the latter had made or received, or which had accrued to him by the manufacture, use, or sale of doors, in violation of said claim.</p>

<p>1. Patents <&wkey;328 — Infringement—Paper-Feeding Mechanism.</p> <p>The Briggs patent, No. 009,934, relating to mechanism for feeding sheets of paper, one at a time, into a printing press, claim 10, which covers in combination with the feed-table a comb-wheel to advance the top sheet of a pile to the feeding-rolls, and a presser-foot to prevent the underlying sheets from being dragged forward during the action of the feeding-rolls, such devices being raised and lowered alternately, is not limited to a construction by which such movements are simultaneous, but is entitled to a broader construction as to the time of the respective movements. As so construed, held infringed.</p> <p>2. Patents ¡&wkey;328 — Infringíaient—Paper-Feeding Mechanism.</p> <p>The White patent, No. (559,907, for a sheet-feeding mechanism for printing presses, for throwing the feeding and separating devices out of action, which is controlled by the action of the sheets, held infringed.</p> <p>3. Patents <&wkey;202 — Suit for Infringement against Assignor — Estoppel.</p> <p>The assignor of a patent is estopped to say that it is void for anticipation, or want of novelty or utility; and while he may, in a suit against him for its infringement, show the state of the art to limit its scope, he may not introduce evidence ostensibly for that purpose, but which in fact tends to show that the patent is invalid.</p> <p>|Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 281-289; Dec. Dig. <&wkey;>202,]</p>

<p>In Equity. Suit by the United Printing Machinery Company against the Cross Paper Feeder Company. , On final hearing. Decree for defendant.</p>

In Equity. Suit by the Irving-Pitt Manufacturing Company against the Twinlock Company, in which the McMillan Book Company intervened as defendant. On final hearing. Decree for complainant against intervener only.

<p>In Equity. Suit by the Individual Drinking Cup Company against the United States Drinking Cup Company. On final hearing. Decree for complainant. '</p>

In Equity. Suit by the Individual Drinking Cup Company against the Osmun-Cook Company for infringement of letters patent No. 1,043,854, for device for holding and .distributing individual drinking cups, granted to Lawrence W. Luellen November 12, 1912. On motion for preliminary injunction.

<p>Patents <@=>328 — Anticipation—Anatomical Footwear.</p> <p>The' Cole patent, No. 812,920, for anatomical footwear, held void for anticipation by a prior printed publication.</p>

<p>In Equity. Suit by the McMillan Book Company against the Irving-Pitt Manufacturing Company. On final hearing. Decree for defendant.</p>

<p>Patents <@=>288 — Suit fob Infringement — Jurisdiction of Nonresident Defendant — “Regular and Established Place of Business.”</p> <p>A nonresident corporation, having its principal place of business in another state, does not have a “regular and established place of business” in the Southern district of New York, within the meaning of Judicial Code (Act March 3, 1911, c. 231) § 48, 36 Stat. 1100 (Comp. St. 1913, § 1030), so as to subject it to a suit for infringement therein, because it has a sales agent, who maintains an office in New York City at his own expense, and who merely takes orders for goods on commission, which are accepted and filled by the corporation at its principal office, where it also makes all collections.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 460-466; Dec. Dig. <@=>288.]</p>

<p>Navigable Waters <@=»24 — Obstruction by Wreck — Liability of Owner— Duty to Mark.</p> <p>Under Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (Comp. St. 1913, § 9920), which, provides that “whenever a vessel * * is wrecked and sunk in a navigable channel, * - * * it shall be the duty of the owner * * * to immediately mark it with a buoy or beacon during the day and a lighted lantern at night and to maintain such marks until the sunken craft is removed or abandoned,” the owner of a sunken vessel which has not been abandoned is not relieved from liability for injury to another vessel by reason of misplacement of the marking buoy, by the fact that at such owner’s request the buoy was placed by officials of the lighthouse department of the United States.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 66; Dec. Dig. <§=^24.]</p>

<p>1. Habeas Corpus <@=>85 — Deportation op Aliens — Weight and Sufficiency of Evidence.</p> <p>On habeas corpus by a Chinese person, held for deportation under a judgment or order for the deportation of a person who subsequently escaped from custody, evidence held to show by a preponderance thereof •that the petitioner and the defendant named in such judgment was the same person.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. <@=85.]</p> <p>2. Aliens <@=>32 — Deportation—Judgment of Deportation — Time of Enforcement — “Civil Proceeding.”</p> <p>Where a Chinese person, ordered deported by a judgment of a United States commissioner and an order based thereon, escaped from custody and was not recaptured for nearly ten years, he could then be deported under such judgment and order, notwithstanding a state law under which executions in civil cases expire unless renewed in one year, since, while deportation proceedings are “civil” in their nature, the judgment and order were the equivalent of a warrant in a criminal case, and their validity was not limited by the state law.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. <@=>32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Civil Action.]</p> <p>3. Aliens <@==>32 — Deportation—Waiver, Estoppel, or Election of Remedies.</p> <p>A Chinese person, ordered deported by a judgment of a United States commissioner, escaped from custody. He was thereafter arrested under another name as being unlawfully within the United States, and after a hearing before a commissioner, who excluded the prior judgment for lack of evidence connecting it w;ith the defendant, discharged defendant, and found that he was lawfully within the United States. • Thereupon the defendant was rearrested under the first judgment. Reid, that there was no waiver or election of remedies by the United States, or estoppel against it, that prevented it from deporting defendant under the first judgment, as a waiver or an election of remedies depends upon an actual or imputed intent by a party, who has taken a certain course of action to abandon all other inconsistent positions, and there was nothing inconsistent in the different positions of the United States, which at all times contended that defendant was unlawfully in the country and subject to deportation, and the inconsistent judgment rendered in a different proceeding did not estop the United States from enforcing the outstanding and valid judgment, especially as the principles of estoppel or waiver should be cautiously applied against rights asserted by the public.</p> <p>[Ed. Note. — For other cases, see Aliens, Gent. Dig. §§ 84, 92, 93-95; Dee. Dig. <@=>32.J</p> <p>4. Aliens <§=>32 — Deportation Proceedings — “Judgment.”</p> <p>The decisions of the United States commissioners in proceedings to deport aliens are “judgments.”</p> <p>[Ed. Note.- — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. <@=32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Judgment.]</p>

<p>In Equity. Suit by W. E. Cullen, Jr., against Henry J. Reed and others. Decree for plaintiff.</p>

<p>1. Copyrights <&wkey;67 — Infringement—Cartoon.</p> <p>The copyright of the cartoons of imaginary characters named “Mutt' and Jeff,” the dramatic rights to which were licensed to complainant, is infringed by a dramatic performance in which there are two char^dferar-— named “Nutt and Gift,” who were costumed to represent the cartoon- chaL acters, who gave many direct quotations from the cartoons, and who were intended to be understood, and were understood, to be the same characters.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 64; Dec. Dig. <®=»67.]</p> <p>2. Copyrights <&wkey;53 — Infringement—Parody.</p> <p>A copyrighted work is subject to fair criticism, either serious or humorous, and for that purpose may be pictured or quoted, without infringing the copyright.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 51; Dec. Dig. &wkey;53.]</p> <p>3. Copyrights <&wkey;53 — Infringement—Parody.</p> <p>One test to determine whether a parody is a mere criticism or a repro-, duction is whether the parody given is such as will materially reduce the demand for the original by partially satisfying that demand.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 51; Dec. Dig. &wkey;53J</p>

<p>In Equity. Suit by Edmund K. Stallo against Petro W. Wagner, as receiver of the Mt. Vernon National Bank.</p>

In Bankruptcy. In the matter of bankruptcy proceedings of Charies A. Hawley, individually and as a member of the firm of Hawley & Alford. Proceedings to review a referee’s order refusing to accept a general letter of attorney, and refusing to certify that an order approving the trustee’s bond is a correct copy of one on file in his office, unless internal revenue stamps are attached thereto.

<p>In Equity. .Bill by J. C. Hawkins against John E. Bleakley, State Auditor, and another, for injunction.</p>

<p>In Admiralty. Suit by the Piedmont-Mt. Airy Guano Company against the steamship Randwyck and the Hoi land-American Line, owner thereof. Decree for libelant.</p>

<p>1. Ambus &wkey;>32 — Deportation—Review by Courts.</p> <p>The court on habeas corpus has no authority to set aside or invalidate an order of deportation, where the alien has been given a fair hearing by the departmental officials pursuant to its rules, and there has been no manifest abuse of discretion by such officials in arriving at the conclusion that the alien should be deported.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. <&wkey;32.]</p> <p>2. Aims <&wkey;32 — Deportation—Siifmcikkcy or Evidence.</p> <p>In a proceeding to deport a Chinese person, who claimed to have resided continuously in the United States for a number of years, and who was in possession of a certificate of residence, evidence held so wholly insufficient to show that'he entered the United States in violation of law as to render the conclusion of immigration officials that he should be deported a manifest abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dee. Dig. <&wkey;32.]</p> <p>3. Aliens <&wkey;32 — Deportation—Country to Which Alien Should be Deported.</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (Comp. St. 1913, § 4209) § 20, providing that any alien entering the United States in violation of law shall be taken into custody and deported to the country whence he came at any time within three years after his entry, a Chinese person entering the United States from Mexico after being temporarily domiciled therein is properly deported to China, the country from which he originally came.</p> <p>[Ed. Note. — For other eases, see Allens, Cent. Dig. §§ 84, 92, 93-95; Dee. Dig. <&wkey;32.]</p>

<p>At Law. Action by Nevena V.ujic and others against the Youngstown Sheet & Tube Company. Judgment for plaintiffs.</p>

<p>In Equity. Suit by Guy M. Walker against the United States Eight & Heating Company. On application for appointment of receivers.</p>

<p>In Bankruptcy. In the matter of bankruptcy proceedings of R. F. Blankenship.' On petition to review a referee’s order allowing a claim in favor of the bankrupt’s sister on a note due one day after date.</p>

<p>In Equity. Suit by Thomas A. Edison against the Continental Chemical Company. Decree for complainant.</p>

Hollister, Judge. Action at law by Henry H. Fechheimer, Laura Strauss, executrix of the last will of Louis Kiefer, deceased, and Samuel H. Fechheimer, partners as Fechheimer, Kiefer & Co., against the Philadelphia Casualty Company. Judgment for plaintiffs, and defendant brings error.

Cushman, Judge. Action by Nellie M. Rininger and another against the Puget Sound Electric. Railway and another. Judgment for defendants, and plaintiffs bring error.

<p>1. Appeal and Error <@=1002 — Review—Questions op Fact.</p> <p>In an action for salary by the assistant treasurer of a corporation, where the testimony of plaintiff, and the treasurer as to whether the treasurer discharged plaintiff at a certain time, or whether the matter was left open, the jury’s finding for plaintiff was conclusive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <@=1002.]</p> <p>2. Corporations <@=519 — Ofeicers—Actions for Compensation — Evidence.</p> <p>In an action for salary by the assistant treasurer of a corporation, evidence held insufficient to show that the executive committee authorized or ratified plaintiff’s discharge by the treasurer, or that it discharged him by electing his successor.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2085, 2088-2089, 2091, 2093; Dec. Dig. &wkey;519.]</p> <p>3. Corporations <&wkey;521 — Officers—Actions for Compensation — Instructions.</p> <p>In an action for salary by the assistant treasurer of a corporation, if a statement in the minutes of a meeting of the executive committee, at which plaintiff’s failure to resign was discussed, that a member of the committee said that the matter be left with the treasurer with instructions to go ahead, was ambiguous as to whether this authorized plaintiff’s discharge by the treasurer, defendant’s rights were fully preserved by an instruction that it was claimed by defendant that the instructions to go ahead were instructions to discharge or cut down salaries at will, and by plaintiff that so far as he was concerned the instructions simply related to getting his resignation, and that the jury would put the construction on it and give it such force as they thought it deserved.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2094-2098; Dec. Dig. «&wkey;521.]</p> <p>4. Corporations <@=522 — Officers—Actions for Compensation — Amount of Recovery-.</p> <p>In an action for salary by the assistant treasurer of a corporation appointed November 15, 1911. where it appeared that plaintiff continued to attend at the company’s offices regularly until after August 1, 1912, but that shortly thereafter he left, a verdict for his salary to September 15th was too large to the extent of the salary from August 15th.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2035, 2Q&9-2113; Dec. Dig. <&wkey;522.]</p> <p>5. Evidence <&wkey;389 — Corporate Records — Parol Evidence.</p> <p>The written minutes of a corporation could be explained, but not changed, varied, or modified, by oral testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1717, 1718; Dec. Dig. <&wkey;389.]</p>

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

<p>Petition to Revise and Appeal from Orders of the District Court of the United States for the Western District of New York.</p> <p>This cause comes here in two aspects: First, on petition to revise an order of the District Court, Western District of New York, approving a proposed compromise; and, second, on appeal from an order granting bankrupt’s discharge.</p>

This cause comes here on appeal from a decree of the District Court, Northern District of New York, holding that a certain policy of insurance issued by defendant to complainant was in full force and effect and enjoining defendant from canceling the policy. The opinion of the District Court will be found in 198 Fed. 967.

Eewis and John A. Riner, Judges. Action by William R. Dayton, trustee in bankruptcy, against A. H. Stanard, Treasurer of the County of Pueblo, State of Colorado, and others. From, a decree, defendants appeal, and plaintiff files cross-appeal.

<p>In Error to the District Court of the United States for the District •of New Jersey; Thos. G. Haight, Judge.</p> <p>Eouis. Tapack and another were convicted of an offense, and they bring error.</p>

This cause comes here upon appeal from an interlocutory order granting a preliminary injunction restraining defendant from making, selling, etc., motion pictures based upon the book or novel entitled “The House of Bondage.” The opinion of the District Court will be found in 213 Fed. 374.

<p>Sales <&wkey;477 — Conditional Sales — Waives of Resebvation of Title — Mechanics’ Liens.</p> <p>An automatic sprinkler system was installed on the premises of L. & Co., with a reservation of title by the sprinkler company. Thereafter the sprinkler company filed mechanics’ liens against the premises. L. & Co. subsequently made an assignment for the benefit of creditors, which was followed by the filing of an involuntary petition in bankruptcy. The bankrupt scheduled the sprinkler company as a general creditor, and its attorney by motion had the schedules corrected to include the sprinkler company as a secured instead of a general creditor, because of the mechanics’ liens. Held, that the sprinkler company lost its right to retake the property, as the claim of title was inconsistent with the claim of a lien, and the election of either remedy, if the sprinkler company had a choice, would be final, and while it could not without the consent of the bankrupt substitute a claim of lien for the claim of title, the bankrupt or the assignee for the benefit of creditors could consent, and this was in effect done.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1411-1417; Dec. Dig. <&wkey;>477.</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 O. C. A. 448.]</p>

<p>Coukts <&wkey;405 — United States Courts — Apphjj.ate Jurisdiction — Cases Involving Jurisdiction op Loweb Court.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231) § 238, 36 Stat. 1157 (Comp. St. 1913, § 1213), i>rovidiiig that appeals and writs of error may he taken from the District Courts direct to the Supreme Court in anj-ease in which the jurisdiction of the court is in issue, an appeal lay to the Supreme Court, and not to the Court of Appeals, from a decree dismissing a bill on the ground that the jurisdictional amount was not involved.</p> <p>|Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. &wkey;405.</p> <p>Review by the Supreme Court of the decisions of the United States Circuit and District Courts since Circuit Court of Appeals Act March 3, 1891, c. 517, 26 Stat. 826, see note to City of Paducah v. East Tennessee Telephone Co., 106 C. C. A. 333d</p>

This cause comes here upon writ of error to review a judgment of the District Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error who was plaintiff below. The action was for personal injuries sustained by plaintiff while driving one of the defendant’s delivery wagons.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois; Christian C. Kohl-saat, Judge.</p> <p>Suit in equity by John T. H. Mitchell against Roderick G. Stevens. Decree for complainant, and defendant appeals.</p>

<p>Rio,mo vat, or Causer «&wkey;14 — Court to Which Cause may be Removed — “Proper District.”</p> <p>Under Judicial Code (Act March 3, 1911, c. 231) § 28, 3(5 Stat. 1094 (Comp. St. 1913, § 1010), authorizing the removal of suits pending'in state courts to. the District Court of the United States for the “proper district,” and section 29, providing that the party desiring to remove such a suit may file a petition for the removal 'of such suit into the District Court to be held in the district where such suit is pending, a suit may only he removed to the District Court for the district where the suit is pending, section 29 identifying such district as the “proper district” within the moaning of section 28; and hence an action in the Montana state courts against a resident of New York could not be removed to the District Court for the Southern District of New York.</p> <p>[lid. Note. — For other cases, see Removal of Causes, Cent. Dig. § 35; Dec. Dig. <&wkey;14.</p> <p>For other definitions, see Words and Phrases, Second Series, Proper District]</p>

<p>The Toledo Newspaper Company and another were charged with criminal contempt. Judgment against defendants.</p>

In Equity. Bill by the Crown Orchard Company; Incorporated, against William H. Dennis and others, for an injunction, etc. The bill, answer, and proofs make the following case: 'L’he complainant is a corporation created and organized February 19, 1912, under the laws of the state of Virginia, with a maximum capital stock of $15,000.

<p>In Bankruptcy. In the matter of Deutsche Bros., bankrupts. On certificate of the referee, bringing up the question of his power to grant an application by the trustee. Matter referred back to the referee for a conclusion on the merits.</p>

<p>1. Aliens <&wkey;53 — Deportation—Country to Which Aliens Should be Deported.</p> <p>Under Immigration Act Eeb. 20, 1907, c. 1134, § 35, 34 Stat. 908 (Comp. St. 1913, § .4284), providing that the deportation of aliens illegally within the United States shall he to the trans-Atlantic and trans-Pacific ports, from which such aliens embarked for the United States, or, if such embarkation was for foreign contiguous territory, to the foreign port at which such aliens embarked for such territory, whether an acquired domicile in Canada or Mexico will prevent deportation of an alien entering the United States therefrom to the European or Asiatic port of original embarkation, nothing short of an actual domicile will do so, and it is for the alien to show such domicile.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <&wkey;>53.]</p> <p>2. Aliens &wkey;>32 — Deportation—Sufficiency oe Evidence.</p> <p>In a habeas corpus proceeding by a Chinese person ordered deported, evidence heM to justify a finding that such person, who entered the United States from Canada, came originally from China.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;32.]</p> <p>3. Aliens <&wkey;32 — Deportation—Port to Which Aliens Should be Deported.</p> <p>Under Immigration Act, § 35, where there is no evidence of the particular port in China from which a Chinese person embarked for the United States, such person may be deported to the port nearest the place where he was born and has his family.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. &wkey;»32.]</p> <p>4. Aliens <&wkey;54 — Deportation—Port to Which Aliens Should be Deported.</p> <p>The detention of an alien under a warrant of deportation is illegal, unless the warrant provides for deportation to the port required by law.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <g=354.j</p> <p>5. Aliens <&wkey;54 — Deportation—Habeas Corpus — Bail.</p> <p>Where a writ of habeas corpus by an alien ordered deported is sustained, and the prisoner discharged, the court may provide for bail to insure his appearance if the ruling be reversed; but where the writ is dismissed, the prisoner’s right to bail depends entirely upon the rules regulating his custody where he already is, as a writ of habeas corpus does not put the relator into the custody of the court, or disturb the custody of the person then detaining the relator, and the court has no power to enlarge the relator while the inquiry proceeds or after the writ has been dismissed.</p> <p>[Ed. Note. — For .other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <&wkey;54.]</p>

<p>1. Aliens &wkey;>32 — Depobtation—Countby to Which Aliens Suould be, De-POKTED.</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, § 35, 34 Stat. 908 (Comp. St. 1913, § 4)284), nothing short of a domicile in Canada or Mexico will prevent the deportation of an alien entering the United States therefrom to the European or Asiatic port of original embarkation, and it is for the alien to show such domicile.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. &wkey;>32.)</p> <p>2. Aliens &wkey;>32 — Depobtation—Countby to Which Aliens Should be De-pobied.</p> <p>Chinese persons, ordered deported to China, must show from what country, other than China, they came to the United States, if they wish to be deported to some other country.</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Doc. Dig. &wkey;>32.]</p> <p>3. Aliens «&wkey;32 — Depobtation—Port to Which Aliens Should be Deported.</p> <p>The port to which a Chinese person should be deported is a practical matter for the immigration authorities to determine, and if the port to which such a person is ordered deported is not the one from which he sailed, he must show what that port was.</p> <p>[Ed. Noto. — Flor other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;>82.]</p>

In Bankruptcy. In the matter of Willis E. Marriner, bankrupt. On petition by Clement E. Robinson, trustee, for review of an order allowing the mortgage claim of Elwin A. Soule.

<p>1. Criminal Law &wkey;>721, 857 — Witnesses <&wkey;305 — Privilege from Self-In-CRIM1NAITON — WAIVER-COMMENTS ON FAILURE TO TESTIFY.</p> <p>Under Const. Amend. 5, providing that no person shall be compelled in any criminal case to be a witness against himself, and Act March 16, 1878, c. 37, 20 Stat. 30 (Comp. St. 1913, § 1465), providing that a person charged with an offense shall at his own request, but not otherwise, be a competent witness, and that his failure to make such a request shall not create a presumption against him, where a person charged with crime testifies in his own behalf, the waiver is complete, and he is no longer under the protection of the amendment, and his failure to testify concerning certain matters may properly be commented on and considered by the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1672, 2054, 2055; Dec. Dig. &wkey;721, 857; Witnesses, Cent. Dig. §§ 1053-1057; Dec. Dig. &wkey;>805.]</p> <p>2. Criminal Law &wkey;>780 — Instructions—Testimony of Accomplice.</p> <p>While it is the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, it is not reversible error to refuse an instruction to this effect/</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. <©=-780.3</p> <p>3. Criminal Law &wkey;>510 — Testimony of Accomplices — Corroboration.</p> <p>In the federal courts, corroboration of the testimony of an accomplice is not necessary to support a conviction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §fj 1124-1126; Dee. Dig. <&wkey;510.]</p> <p>4. Criminal Law <&wkey;5Q7 — Testimony of “Accomplices” — Corroboration.</p> <p>Women transported from one state to another for an immoral purpose are not “accomplices” to the offense of transporting them and furnishing tickets for their transportation.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <&wkey;507.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Accomplice.]</p> <p>5. Witnesses <&wkey;268- — Cross-Examination of Accused — Scope.</p> <p>Where, on a trial for transporting women from one state to another for an immoral purpose, though accused testified to nothing that occurred on the trip to such other state, he repeatedly referred in his testimony as to matters previously occurring to such trip to K., it was not improper to allow him to be asked on cross-examination what he meant by the It. trip, and whether he was accompanied on such trip by the women in question and another man charged with a similar offense.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. <&wkey;>268.]</p> <p>6. Witnesses <5&wkey;268 — Cross-Examination of Accused — Scope.</p> <p>Whore, on such trial, one of the women on cross-examination testified to intimate relations with accused, a question asked him on cross-examination as to whether he suggested to his counsel the questions asked her, to which he replied that he suggested that to his counsel a long time before ho came into the courtroom, and might have made the suggestion during her cross-examination, and the statement of counsel for the government that the defense, prompted by the defendant, put such questions, were not improper.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. <§=»268.]</p> <p>7. Criminal Law &wkey;>723 — Argument op Counsel.</p> <p>On a trial for transporting women from one state to another for immoral purposes, the prosecuting attorney in his argument stated that the eyes of the people of the United States were on the jury, and that 60,-000,000 or 90,000,000 people were awaiting the verdict, respecting which statement the court, when objection was made, stated that this was merely a form of speech and that counsel should confine himself to the evidence. Counsel further remarked that, if there was any man who had sunk to the-uttermost depths of depravity, it was the man in form alone who seduced a girl and then exposed her shame to the world, and that if he had one redeeming trait of character, having blasted the life of a virgin, he would go to the penitentiary before going before a jury and admitting that he seduced her, and recounting the times when he had illicit intercourse with her, and that a decent man would die first, to which objection was made on the ground that accused had made no such admissions. Counsel further remarked that the government demanded that the laws enacted for the protection of young and decent women be rigidly enforced, and that an acquittal would be a blot upon the name of the state. The court told the jury to be guided solely by the evidence, and not by the statements or declarations of counsel, and accused requested no further instruction on this point. Held, that there was nothing so offensive or inflammatory in the remarks as to require a reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. &wkey;>723.]</p> <p>8. Prostitution &wkey;>l — Transportation op Women for Immoral-Purposes— Elements oe Offenses.</p> <p>The immorality denounced by the White Slave Tráffic Act (Act June 25, 1910, c. 395, 36 Stat. 825 [Comp. St. 1913, § 8813]), prescribing the punishment for knowingly transporting any woman or girl in-interstate commerce for the purpose of prostitution or debauchery, or for any other immoral purpose, is not limited to commercialized vice, and the act applies to transportation for the purpose of making the girl the concubine or mistress of the person transporting her.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;l.</p> <p>Violations of White Slave Act, see. note to Savage v. United States, 130 C. C. A. 2.]</p> <p>9. Criminal Law &wkey;>814 — Instructions—Conformity to Evidence.</p> <p>On a trial for transporting a woman from one state to another for an immoral purpose, an instruction that, in considering her testimony and the weight -to be given thereto, the jury might consider her motive in testifying, whether she had been or appeared to be acting under the influence of any person, and whether any promise of immunity had been offered to her, and any hope she might have for leniency in any criminal action brought against her, was properly refused, where there was no evidence tending to show any promise of immunity, or that she was acting under the influence of any one.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;814.]</p> <p>10. Prostitution <&wkey;4 — Transportation for Immoral Purpose — Sufficiency of Evidence.</p> <p>Evidence held to support a conviction of C. for transporting two women from one state to another for an immoral purpose, though D., charged with a similar offense, purchased the tickets for the transportation.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. <&wkey;4.]</p> <p>11. Prostitution <&wkey;5 — Transportation op Women por Immorai, Purposes —Instructions.</p> <p>Where, on a trial for transporting and procuring tickets for the transportation of women from one state to another for an immoral purpose, to wit, that they should be and become the concubines and mistresses of accused and another person charged with the same offense, the court read the indictment and statute to the jury, explained the meaning of the terms of the statute, defined “concubine,” “mistress,” and the term “debauchery,” as used in the statute, and charged that if the women were taken to another state as testified by them, and while there accused and his companion cohabited with them as the testimony tended to show, the jury might find that they were taken there with the immoral purpose and intent charged, the jury could not have understood, as claimed, that accused and his companion were guilty if they merely seduced the girls.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 5; Dec. Dig. <&wkey;o.]</p> <p>Eoss, Circuit Judge, dissenting.</p>

Van Fleet, Judge. Action by J. E. Reardon, administrator of Frank Whitsett, deceased, against the Balaldala Consolidated Copper Company. Judgment for plaintiff, and defendant brings error. Frank WMtsett, tlie deceased, and his brother, Fred Whitsett, were employed to operate a Burleigh drill in the defendant’s mine. The deceased was an experienced miner, and was known as a machine man. His brother was a machine man’s helper, or chuck tender.

, Judge. Action by the United States against the United States Fidelity & Guaranty Company of Baltimore, Md., and another. Judgment on a directéd verdict for the United States, and the defendant named brings error.

Orr, Judge. Action by Charles A. Otis and others, partners doing business under the name and style of Otis & Hough, now for use of Otis & Co., against the Pittsburgh-Westmoreland Coal Company. Judgment for the defendant, and plaintiffs bring error.

H. Sawtelle, Judge. Action at law by the Smith-Booth-Usher Company against the Detroit Copper Mining Company of Arizona. Judgment for defendant, and plaintiff brings error. On December 5, 1912, the plaintiff, the Smith-Booth-Usher Company, entered into a contract with the defendant, the Detroit Copper Mining Company of Arizona, by the terms of which the plaintiff undertook to furnish to the defendant three 200 H. P. International Amet crude oil gas producers.

Bourquin, Judge. Suit by the United States against Jennie Peterson (formerly Jennie Benedict) and others. Prom a decree dismissing the bill of complaint, the United States appeals.

S. Dietrich, Judge. Action by J. M. Eeiter and another against Thomas S. Poindexter, brought by plaintiffs, as assignees of the A. C. Ruby Company, on a certain written instrument alleged to be a promissory note, executed by defendant and one Henry Stroh, in favor of the A. C. Ruby Company. Judgment for defendant, and plaintiffs bring error.

Dietrich, Judge. Action by Charles E. Corker, trustee of Thomas,Trathen, bankrupt, against the Stockgrowers’ State, Bank of Mountain Home and another. Judgment for plaintiff, and defendants appeal. In the town of Mountain Home, Idaho, there were two furniture stores and two banks. One furniture store was conducted by the Thompson Furniture Company, and the other by one Trathen. Trathen owed the First National Bank on two notes, one for $1,700, and one for $500.

Cush-man, Judge. Action by Elling Remmen against the Tacoma Railway & Power Company. Judgment for plaintiff, and defendant brings error. ' The Tacoma Bailway & Power Company, the defendant in the court below, owned and operated a street railway on Yakima avenue in the city of Tacoma. Between Fifty-Sixth and Sixty-Fifth streets the road was a single track. At the juncture of the avenue with each of those streets there was a switch.

This cause comes here upon writ of error to review a judgment of the District Court, Western District of New York, in favor of defendant in error, who was piaintiff below. The action was brought to recover upon an accident insurance policy issued to plaintiff's husband, providing for the payment to her of >$4,000 if he should receive bodily injuries through external, violent, and accidental means, and death should result from said injuries alone within 120 days.

Sanborn, Judge. Suit in equity by Willard A. Van Brunt against the Da Crosse Plow Company. From a final decree (208 Fed. 281), defendant appeals.

<p>1. Pleading <©=420 — Errors—Waiver—Ruling as to Amendment.</p> <p>Plaintiff waived its exception to the ruling that an amendment of the complaint was necessary by subsequently making the amendment.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1408-1412; Dec. Dig. <&wkey;420.]</p> <p>2. Master and Servant &wkey;>17 — Hours oe Service — Actions for Penalties —Pleading.</p> <p>Under the Hours of Service Act (Act March 4, 1907, c. 2989, 34 Stat. 1416 [Comp, St. 1913, § 8678]) § 2, prohibiting carriers from requiring or permitting trainmen to remain on duty for more than 16 consecutive hours, and section 3 (section 8679) providing that the provisions of that act shall not apply in any case of casualty, unavoidable accident, or act of God, nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of the employs at the time he left a terminal, and which could not have been foreseen, in an action for penalties for violations, the government is not bound in its complaint to negative all possible legal excuses within the proviso of section 3, since, where a statute put an exception or limitation into the definition of a duty, a plaintiff counting on a breach of that duty must by his pleadings and proof negative the exception or limitation; but where a statute gives a general definition of a duty, and subsequently provides that a violator shall not be liable under pertain circumstances, plaintiff need only plead and prove the violation of the duty as defined, leaving it to defendant to plead and prove the circumstances saving defendant from liability.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. <&wkey;>17.]</p> <p>3. Master and Servant <@=17 — Hours of Service — Actions for Penalties — Nature of Remedy — “Civil Action.”</p> <p>Actions for violations of the Hours of Service Act are “civil actions.”</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. <@=17.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Civil Action.] •</p> <p>4. Master and Servant <©=513 — Hours of Service — Statutory Provisions.</p> <p>The Hours of Service Act should be liberally construed to accomplish the intended cure.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. &wkey;>13.]</p> <p>5. Master and Servant <&wkey;17 — Hours of Service — Actions for Penalties— Sufficiency of Evidence.</p> <p>In actions for penalties under the Hours of- Service Act, if affirmative defenses are pleaded, the proof should bring the case clearly within the letter as well as within the spirit of the proviso of section 3.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; * Dee. Dig. <@=17.]</p> <p>6. Master and Servant <&wkey;13 — Hours of Service — Statutory Provisions—</p> <p>“Act of God” — “Unavoidable Accident” — “Casualty.”,</p> <p>Within the Hours of Service Act, an “act of God” consists of violence of nature in which no human agency participates by act or omission, an “unavoidable accident” is one occurring while the railroad company and its employés are in the exercise of due care, while a “casualty,” differing from the others and not so broad as to deprive them of meaning and use, is an occurrence or happening due entirely to an. outside human agency; and if, when a train leaves a terminal, the railroad company, through its inspectors, knows or by the exercise of due care might foresee a cause that would be likely to produce an accident and consequent delay, the delay is not excusable; and hence it was error for the court, in an action for penalties, to charge on the theory that a casualty meant any occurrence or happening, whether unavoidable or avoidable by the exercise of due care, and that all delays, except those knowingly and willfully caused by the railroad, were therefore excusable, and to charge that the question of inspection had no bearing on the case.</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, Act of God; Casualty; Unavoidable Accident.]</p> <p>7. Master and Servant <®=>17 — Hours or Service — Actions for Penalties— Evidence.</p> <p>In an action for penalties under the Hours of Service Act, defended on the ground of unavoidable accidents, consisting of the bursting of air hose and the pulling out of drawbars, the government was entitled to prove, as tending to show a negligent habit of the officers and agents of the railroad company, that, during several months preceding the accidents in question, Instances of like trouble were of dally occurrence, though the purpose and effect of such evidence should have been limited by an instruction if requested.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. @=»17.</p> <p>Hours of service of employes, see note to United States v. Houston Belt & Terminal By. Co., 125 C. C. A. 485J</p>

Otis Humphrey, Judge. ' Action by the United States against Frederick A. Delano, William K. Bixby, and Edward B. Pryor, receivers of the Wabash Railroad Company, to recover penalties. Judgment for the United States, and defendants bring error.

Howland, as receiver for the general creditors of the property of the Improved Property Holding Company of New York which is not covered by the mortgages of the said company, to compel the receivers of the property of the said company which is covered by its mortgage of June 1, 1906, to turn over to him certain assets which are in his possession.

<p>Aliens &wkey;>32 — Deportation of Chinese — Regularity of Proceedings.</p> <p>Evidence considered, in a habeas corpus proceeding by a Chinese person ordered deported, and held insufficient to sustain the charge that he was not given a fair hearing before the immigration inspector.</p> <p>[Ed. Note. — Por other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. &wkey;>32.</p> <p>What Chinese persons are excluded from the United States, see note to Wong Xou v. United States, 104 C. C. A. 538.]</p>

Morton, Jr., Judge. Proceeding by the Flanders Motor Company against George W. Reed, trustee. From an order (In 're Harrington, 212 Fed. 542), affirming an order of the referee in bankruptcy, dismissing a petition to -reclaim property from the possession of the trustee, the Motor Company appeals.

<p>1. Sales @=3177 — Conditional Sales — Renewal of Notes — Evidence.</p> <p>Where it was obvious that it was the intention of the parties that a note given by a conditional vendee to the vendor should be in renewal of one of the purchase-money notes, this fact was sufficiently proved, though aside from a letter there was no explicit evidence that it was so given, and the parties apparently assumed, without considering it necessary to explicitly agree, that it should be a renewal.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1411-1417; Dec. Dig. <@=>477.]</p> <p>2. Sales <@=>459 — Conditional Sales — Parol Modification of Contract.</p> <p>A provision in a contract for the conditional sale of personal property against modifications of the contract, except in writing, did not prevent the parties from agreeing that the title should remain in the seller until a note given in renewal of one of the purchase-money notes was paid, as the parties could agree to disregard such provision.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1337-1347; Dec. Dig. <@=>459.]</p> <p>3. Sales <@=>477 — Conditional Sales — Waiver of Security — Sale of Purchase-Money Notes.</p> <p>Where, though a conditional seller of personal property sold the purchase-money notes, they were not sold without recourse, and the seller remained liable as indorser and had taken them up, the sale of the notes was not an election to consider them as final payment and a waiver of the reservation of title.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §'§ 1411-1417; Dec. Dig. <@=>477.]</p> <p>4. Sales <@=>477 — Conditional Sales — Waiver of Security — Surrender of Notes.</p> <p>Under Personal Property Daw N. Y. (Consol. Laws, c. 41) § 65, providing that whenever articles are sold upon the condition that the title shall remain in the vendor until payment of the purchase price, and they are retaken by the vendor, they shall be retained for 30 days, during which period the vendee may comply with the terms of the contract, and thereupon receive the property, and that after the expiration of such period the vendor may cause them to be sold at public auction, and unless so sold within 30 days after the expiration of such period the vendee may recover the payments on such articles, the refusal of a seller to surrender the purcliase-inoney notes on demand was not a waiver' of his rig)it to retake the property, even assuming that the notes could not be enforced in addition to retaking the property.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1411-1417; Dec. Dig. <@=>477.]</p> <p>6. Bankruptcy <@=>267 — Conditional Sales — Sale op Property by Trustee —Surrender of Notes.</p> <p>If a surrender of the notes was necessary, it was sufficient for the seller, in a bankruptcy proceeding against a lessee or purchaser of the property from the conditional vendee, to offer to surrender the notes on the hearing upon a master’s report and beforé final decree.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. <@=>267.</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 C. C. A. 448.]</p> <p>6. Sales <©=>473 — Conditional Sales — Rights of Third Parties.</p> <p>Where a contract for the sale of property had annexed thereto as an exhibit a form of bill of sale providing that title should remain in the seller, bills of sale subsequently executed, reserving title to the seller, were valid as against one who leased or purchased the property from the conditional vendee with knowledge of the agreement, though the bills of sale were not executed until after the delivery of the property; the statute at the time protecting only purchasers without notice from the seller’s title reserved in a bill of conditional sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1377-1390; Dec. Dig. <@=>473.]</p> <p>7. Bankruptcy <@=>267 — Sale by Trustee — Claims by Third Persons.</p> <p>Where property sold with a reservation of title to the seller was sold or leased by the conditional vendee to a party which subsequently became bankrupt, though the strictly proper course was for the vendor to retake the property and sell it under Personal Property Law N. Y. § 65, returning the surplus, where the property had been sold in the bankruptcy proceeding, the question whether the vendor had a lien was wholly academic.</p> <p>[Ed. Note, — For other cases, see Bankruptcy, Cent. Dig. §§ 371,'380; Dee. Dig. <@=>267.]</p>

This cause comes here on appeal to review a decree of the District Court, Western District of New York, sitting in admiralty, for $500 in favor of libelant. He was a grain shoveler in the employ of the Lake Carriers Association, which was engaged in discharging the vessel’s cargo, and sustained personal injuries by tripping over the vessel’s after mooring cable, while passing along the deck on the port (dock) side.

<p>1. Trade-Marks and Trade-Names <®=»3 — Infringement—Compound Word.</p> <p>Where a trade-mark consists of a hyphenated word, one part of which is descriptive, and not subject to exclusive appropriation, while the other is purely arbitrary, the appropriation by another of the descriptive part only is not an infringement</p> <p>[Ed. Note. — For other cases, see «Trade-Marks and Trade-Names. Cent Dig. §§ 4-7; Dec. Dig. <S^>3.]</p> <p>2. Trade-Marks and Trade-Names <§=»57 — Infringement.</p> <p>One is not required to so distinguish his goods that careless buyers will know by whom they are made and sold.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 65; Dec. Dig. <S=»57.]</p> <p>3. Trade-Marks and Trade-Names <©=>59 — Infringement—Sad-Vet.</p> <p>The trade-mark “Sal-Vet” Held not. infringed by the word “SalTone.”</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ «8-72; Dec. Dig. <§=>59.J</p> <p>4. Trade-Marks and Trade-Names <©=>93 — Unfair Competition.</p> <p>That defendant, whieh made and sold a veterinary remedy similar to one sold by complainant, paraphrased complainant’s advertising literature, including its cuts and pictures, and also, in response to decoy letters ordering complainant’s remedy sent its own, held insufficient to establish unfair competition in a legal sense; defendant having distinguished its product by its dress and name of maker, so that any purchaser using any care would not be deceived.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104r-106; Dec. Dig. <§=>93.</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 105; Dare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>5. Words and Phrases — “Sal.”</p> <p>The word “sal” means salt, and is used commonly as a prefix to scientific terms, in whieh connection it signifies that some form of salt is the substantial element of the preparation.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Action by Katherine Osenton against Margaret H. Williamson. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Bluefield, in bankruptcy; Benjamin F. Keller, Judge.</p> <p>In the matter of B. F. Baker, bankrupt. From an order sustaining objections by the Bishop-Babcock-Becker Company and others to the bankrupt’s application for a discharge, and denying a discharge, the bankrupt appeals.</p>

<p> (Syllabus by the Court.) </p> <p>1. Corporations &wkey;>49 — Name—Use of Similar Name — Injunction.</p> <p>An established voluntary association for religious, fraternal, benevolent, or social purposes is entitled to an injunction against the use by another person, association, or by any corporation, of its name or emblem, and of any name or emblem so similar to it as to be likely to create confusion, or to deceive, or induce persons to join or treat with the latter as the former, because such a use of such a name or emblem in effect perpetrates a fraud upon the former, and upon the persons confused or deceived.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 137; Dec.' Dig. <&wkey;49.]</p> <p>2. Equity <&wkey;65 — Right to Relief — Clean Hands.</p> <p>The principle, “He who comes into equity must do so with dean hands,” repels or defeats a complainant only when his iniquity consists of wrongful conduct in the very act or transaction which raises the equity he seeks to enforce.</p> <p>[Ed. Note. — For -other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. &wkey;>65.]</p>

Newman, Judge. Suit by the United States to require conflicting claimants to laud sought to be condemned to set up their claims by interpleader. From a judgment in favor of N. W. Gennett as to certain lots, Haí H. Bacon appeals.

<p>Appeal from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>In the matter of the bankruptcy of O. C. Hagy. From an order denying a discharge, the bankrupt appeals.</p>

These causes come here upon appeal from decrees of the District Court, Southern District of New York, holding the schooner Bertha F. Walker solely in fault for a collision between herself and three other boats in Newtown creek during a heavy summer squall. The collision occurred after the schooner had broken away from her moorings. It is disputed whether or not the flotilla, consisting of the three other boats, had also broken loose before collision.

1,011,892 granted to Martin E. Williams December 12, 1911, for an improvement in wind-guards for vehicles. The original application was filed February 11, 1908, but was divided and the present application was filed November 21, 1908. Patents to Tolman, Bertram & Lamoreaux, Sprague and Holbrook have been introduced in the record improperly, as they are all subsequent to November 21, 1908, the filing date of Williams’ application ■now under consideration.

<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 Libbey Glass Company against the McKee Glass Company and the H. C. Fry Glass Company. Decree for complainant, and defendants appeal.</p>

This cause comes here upon an appeal from an order of the District Court, Southern District of New York, granting a preliminary injunction. The suit is for alleged infringement of United States letters patent No. 817,438 and No. 826,349, for method of regulation of furnaces.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from an interlocutory decree entered in the District Court for the Southern District of New York finding valid and infringed claims 2, 3, and 4 of letters patent No. 973,902, granted to the complainant, William H. Woerheide, for a cleat for securing prepared roofing.</p>

<p>1. Patents &wkey;>312 — Suit fob Infringement — Evidence of Invention.</p> <p>Whore the question of invention is in issue in an infringement suit, and was also in issue in interference proceedings in the Patent Office before the patent was granted, the record in such proceedings is admissible for the purpose of showing what the Patent Office had under consideration, and augmenting the presumption of invention arising from the allowance of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 544-549; Dec. Dig. <5&wkey;312.]</p> <p>2. Patents <&wkey;328 — Validity and Infringement — Bottle Filling Machine.</p> <p>The Champ patent, No. 956,285, for a bottle filling machine for filling beer bottles, commercially known as a rotary, automatic air lift, counter pressure, bottle filling machine, in which the bottles are automatically lifted to a connection with the filling tubes, held against a sealing head while being filled, and again lowered by a compressed air mechanism, was not anticipated, covers a true combination, and discloses patentable invention; also held infringed.</p>

<p>In Equity. Suit by the Chadeloid Chemical Company against the Wilson Remover Company and John MacNaul Wilson. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by the Chadeloid Chemical Company against the F. W. Thurston Company, Frank W. Thurston, and John C. Thurston. On final hearing. Decree for complainant against defendant corporation.</p>

<p>In Equity. Suit by John H. Vernon against Sam S. & Lee Shubert, Incorporated, and others.</p>

<p>In Equity. Suit by James C. Fargo, president of the American Express Company, against Perry F. Powers (Bradley substituted), Auditor General of the State of Michigan, and others. Decree for defendants.</p>

In Equity. Suit by the Equitable Trust Company of New York, trustee, against the United Box Board & Paper Company and another, to foreclose a mortgage, with a prayer for a decree for deficiency against the present owner of the mortgaged premises, as well as against the mortgagor.

<p>Separate suits by the United States against Stefan Lengyel, Joshua Morris, and August Glantz.</p>

In Bankruptcy. In the matter of Henry F. Vyse and another, individually and as members of Henry F. Vyse & Co., and the copartnership of Henry F. Vyse & Co., bankrupts. On motion to confirm a report of the special commissioner on an application to require the bankrupt to turn over funds to the trustee.

<p>1. Removal of Causes &wkey;>3 — Statutory Provisions — Actions Under, Employers’ Liability Act — “Case.”</p> <p>Within Employers’ Liability Act April 22, 1908, c. 149, § 6, 35 Stat. 66, as amended by Act April 5, 1910, c. 143, § 1, 36 Stat. 291 (Comp. St. 1913, § 8662), providing that no case arising under that act and brought in any state court shall be removed to any court of the United States, “case” means cause of action; and this is true, though the petition in the same count states facts disclosing a good cause of action under a state statute or at common law.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;3.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Case.]</p> <p>2. .Removal of Causes <§=>50 — Joinder of Causes of Action — Time for Removal.</p> <p>Under Employers’ Liability Act, § 6, where a petition contained two counts stating causes of action under that act and under the state law for the death of an employs, and the necessary diversity of citizenship existed to make the cause of action under the state law removable, defendant could remove such cause of action, without waiting until plaintiff elected at the trial to rely on the cause of action under the state law, and such removal carried the entire case with it, as the provision against removal of causes under the Employers’ Liability Act is a privilege which plaintiff may waive, and defendant could not be deprived of its right to remove the cause of action under the state law by the joinder of the irremovable cause of action.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 100; Dee. Dig. <§=>50.] *</p> <p>3. Removal of Causes <§=>102 — Remanding—Doubtful Cases.</p> <p>Where the right to remove a case which has been removed to the federal court is doubtful, the federal court will retain jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 218-220, 223, 224; Dec. Dig. <§=>102.]</p>

An information was filed against Rigney & Co. for a violation of the Food and Drugs Act. On motion to quash or dismiss the information.

<p>1. Master and Servant &wkey;>13 — Hours of Service Act — Violation.</p> <p>Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1410 (Comp. St. 1913, § 8678), provides that telegraph operators in day and night offices on interstate railroads, who have to do with the movement of trains shall be permitted to remain on duty not exceeding 9 hours in any 24-hour period, “except in case of emergency,” when they may be kept on duty for 4 additional hours each day for not exceeding 3 days in any week. Section 3 provides that the act shall not apply “in case of casualty or unavoidable accident.” Defendant railroad company had on duty at a day and night ofiice on its line three operators, each of whom worked 8 hours per day. One was taken suddenly ill, and no other operator could be obtained in tiie place. As soon as possible, which was the next day, the chief dispatcher sent a relief man; but the train was wrecked and he was ordered to establish an ofiice at the wreck, causing further delay, in consequence of which the two remaining operators each worked 12 hours a day for 4 or 5 successive days. Held, that such extended time during the first 3 days was permissible under section 2, and the further delay was due to a casualty which, under section 3, rendered the act inapplicable, and that defendant was not chargeable with its violation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;13.</p> <p>Hours of service of employes, see note to United States v. Houston Belt & T. Ry. Co.,. 125 O. C. A. 485.]</p> <p>2. Master and Servant <&wkey;13 — Hours of Service Act — Violation.</p> <p>Defendant railroad company held not exempted from liability under Hours of Service Act, for keeping the conductor and brakemen in charge of a train on duty for 27 consecutivo hours and until they reached the end of their run, by the fact of a landslide which made it necessary to run the train around over other lines, where, notwithstanding the detour, they could have been relieved several hours earlier.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. &wkey;>13j</p> <p>3. Master and Servant &wkey;>13 — Hours of Service Act — Construction.</p> <p>In order to justify a carrier in keeping employes on duty beyond the time fixed by Hours of Service Act under the proviso of section 3, it must show that the same was not in any respect occasioned by the lack of that high degree of care and foresight properly required of a carrier.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 14 ■ Dec. Dig. &wkey;>13.]</p>

Action for statutory penalties by the United States against the Southern Pacific Company. Judgment for defendant on certain counts, and the United States brings error. .

Action at law by the United States against the Atchison, Topeka & Santa Fé Railway to recover penalties for alleged violations of the act of Congress entitled “An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon,” approved March 4, 1907 (34 Stat. 1415, c. 2939 TComp. St. 1913, §§ 8677-8680]). Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Northern District of Ohio; William E. Day, Judge.</p> <p>Action by the Kansas City Bolt & Nut Company against Robert J. Rodd. Judgment for defendant, and plaintiff brings error.</p> <p>In the deposition of the witness Stoddard, he testified that they had trouble with the machines. Such testimony was followed by a question as to why he continued the effort to make the machines tap nuts, to which an objection was sustained. The answer in the deposition was that Rodd held out encouragement that continued effort would meet with success. The witness Neville was asked whether or not there was any marked effort to operate or attempt to operate the machines after they were coupled in a battery, or when a single one arrived, as an individual machine or in groups of two, to which an exception was sustained. It was plaintiff’s contention that there was no serious, concerted, and determined effort made until all of the machines ordered arrived and were installed.</p>

<p>Appeal from the District Court of the United States for the District of Nevada; Edward S. Farrington, Judge.</p> <p>Suit in equity by Charles D. Bates against the Ténabo Mining & Smelting Company. From the decree, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; Alston G. Dayton, Judge.</p> <p>W. A. Welsch was convicted of an offense, and he brings error.</p>

Landis, Judge. In the matter of the United Motor Chicago Company, bankrupt; the Chicago Title & Trust Company, Trustee. From an order denying a lien, Harold A. Howard and John C. Howard, trustees under the will of Sarah J. Howard, deceased, appeal. , This appeal is from an order of the District Court in bankruptcy-proceedings denying the appellants’ petition to establish a lien on funds in the hands of the trustee in bankruptcy.

<p>1. Indemnity <@==>12 — Discharge op Indemnitor — Change op Contract.</p> <p>A railroad company agreed to pay a contractor for building a railroad $120,000 in stock and $300,000 in bonds, the contractor to furnisli a surety bond. A surety company agreed to give such bond, provided the railroad bonds were deposited with it, to be delivered to the contractor in payment for work done, ánd provided, also, that $50,000 be deposited with it as indemnity against loss. The railway company delivered to the contractor the stock and bonds and $70,000, with an understanding that any bonds remaining after completion of the road were to be returned. The bonds were deposited with the surety company, and $50,000 delivered to it as indemnity. A second contract between the contractor and the railway company, of which the surety had no notice, provided for payment to the contractor of the actual' cost, plus a profit of 15 per cent., the sum of $70,000 to be deducted, and such of the bonds as exceeded the balance of the construction cost returned. On the contractor’s default the surety company completed the work under a contract with the surety for the railroad bonds and such of the stock as had not been disposed of by the contractor. HeM, that the railroad company had no rights under the second agreement with the contractor against the surety company, and such contract did not change the first contract, but merely provided a means for determining the number of bonds returnable upon completion of the contract; and hence the indemnitor was not discharged, on the theory that the surety company contracted with the railroad company on different terms than the contract between the railroad company and the contractor.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 26, 27; Dec. Dig. <&wkey;>12.]</p> <p>2. Indemnity <&wkey;12 — Discharge oe Indemnitor — Change oe Contract.</p> <p>That a contractor’s surety, which completed a contract upon the contractor’s default, executed an additional contract with the other party to the contract, did not discharge one that had agreed to indemnify it, if the contract made no material change prejudicial to the indemnitor.</p> <p>■ [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 26, 27; Dec. Dig. &wkey;>12.]</p>

<p>Petition to Revise, in Matter of Raw, a Certain Order of the District Court of the United States for the Northern Division of the Western District of Washington ; Edward E. Cushman, Judge.</p> <p>In the matter of Daniel Fuhrman, bankrupt. On a petition by J. B. Power, as trustee in bankruptcy of Daniel Fuhrman, bankrupt, to revise, in matter of law, a certain order discharging a prior-order requiring Ray Fuhrman to show cause why she should not be punished for contempt.</p>

Sawtelle, Judge. Two actions, by the Merchants’ & Insurers’ Reporting Company, against the Bankers’ Fire Insurance Company and the Phoenix Eire Underwriters, respectively, in each of which actions F. A. Jones intervened.

<p>Master and Servant <&wkey;100 — Liability for Injuries — Exemption Contracts — Validity.</p> <p>Where an express messenger was an employé of a railroad company over whose line he was employed to run, a contract whereby he agreed that the railroad company should not be liable for injuries sustained by him was void under Employers’ Liability Act (April 22, 1908, e. 149, § 5, 35 Stat. 65 [Comp. St. 1913, § S661]) providing that any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by that act, shall to that extent be void.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 166-170; Dec. Dig. <&wkey;100.]</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>1. Criminal Law &wkey;>150 — Limitation oe Prosecutions — Commencement oe Period oe Limitation — Conspiracies.</p> <p>Limitations did not run against a prosecution for conspiring to defraud the United States by selling zinc to it at an exorbitant price, and securing the approval of the account and the issuance and delivery of a paymaster’s check therefor, until credit was given on the check by the bank of deposit of public funds against which the paymaster was authorized to check, or until it was paid by the national treasury, as a conspiracy attended with appropriate acts and conditions may consist of a continuing offense, and while the mere continuance of the result of a crime does not continue the crime, the acts of the conspirators in negotiating the check and securing its payment by the government were designed and calculated to effect the object and purposes of the scheme to defraud, and were not acts of private arrangement between the conspirators; the government not being defrauded while it was still within its power, by stopping payment, to prevent the misappropriation of the public funds.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 274, 275; Dec. Dig. &wkey;>150.]</p> <p>2. Criminal Law <&wkey;338 — Evidence—Conspiracy to Defraud.</p> <p>On a trial for conspiracy to defraud the United States by selling zinc to it at an exorbitant price, evidence as to sales of zinc by the conspirators to various purchasers for some time prior to the sale to the government was admissible to show the market value of the zinc, and that it was sold to the government at an exorbitant figure.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. &wkey;338.]</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit by S. E. Walters, trustee in bankruptcy of L. P. Zimmerman and another, individually and as partners, doing business as the Zimmerman Music Company, against George H. Marsh. From a decree for complainants, defendant appeals.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by Marion E. Schaffer against the Michigan Central Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States, for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Action.by Dominic Farris against the Cabin Creek Consolidated Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge.</p> <p>George S. Day was convicted of an offense, and he brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.</p> <p>Morris M. Meyer was convicted of an offense, and he brings error.</p>

Following is the opinion of the District Court by Hough, District Judge: From Handkerchief Lightship to Shovelful Lightship is a straight run of five knots.1 About three-eighths of a mile south by east of Shovelful Lightship lies the Stone Horse buoy, which marks the easterly limit at that point of a five-fathom channel, there slightly less than half a nautical mile in width, but rapidly widening for a vessel bound to the westward.

<p>1. Appeal and Ebeob <&wkey;1064 — Prejudicial Ebeob — Insteuctions—Fobm AND SUFFICIENCY.</p> <p>The great length of instructions, or the amount of repetition contained in them, was not necessarily reversible error, though such faults should always be avoided.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. &wkey;1064.]</p> <p>2. Tbial &wkey;>295 — Insteuctions—Bubden of Proof.</p> <p>In a buyeFs action for breach of a contract for the sale of cattle, in which the seller counterclaimed for the refusal of the buyer to accept cattle tendered, the court charged that the burden was on defendant, before it could recover judgment against plaintiff, to show that the cat-tie tendered fully complied with the contract. It further charged that the burden was upon plaintiff to prove every material allegation of his complaint by a preponderance of the evidence, and that if, upon any of the material allegations of the complaint, the evidence was evenly balanced, or preponderated in favor of defendant, plaintiff could not recover, and the jury should find for defendant, and that, if defendant tendered to plaintiff cattle in accordance with the contract, the verdict must be for defendant. Held that, taken as a whole, the instructions were not erroneous; the instruction that the burden was upon defendant evidently referring to the affirmative matter set up in defendant’s answer, upon which it prayed judgment.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. &wkey;295.]</p> <p>3. Sales <&wkey;174 — Executory Contracts — Breach by Seller.</p> <p>Under a contract for the sale of cattle, by which the buyer was to furnish cars for shipping them, and was to guarantee payment in a manner satisfactory to a bank, before each shipment was brought from Mexico into Arizona for shipment, if cattle tendered by the seller did not conform to the requirements of the contract, the buyer had a legal right to refuse to accept them, and the seller’s insistence upon such acceptance, and refusal to tender or deliver other cattle in lieu of those rejected, constituted a breach of the contract, and it was immaterial whether the buyer furnished cars, and whether he was ready and able to make the required payment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 434; Dec. Dig. <&wkey;>174.]</p> <p>4. Appeal and Ebeob <&wkey;1048 — Harmless Ebeob — Exclusion of Evidence.</p> <p>In a buyer’s action for breach of a contract for the sale of cattle, the error, if any, in excluding a question, asked the buyer on cross-examination, as to whether he did not state to M. that he made a mistake in refusing a tender of cattle, was harmless, where M. testified that the buyer did say that he thought he made a mistake, while the buyer subsequently testified that he told M. that he thought it would have been better to cut out of the herd such of the cattle as complied with the contract, because this would have convinced the seller beyond a doubt that it did not have a train load as required by the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. &wkey;1048.]</p> <p>In Error to the District Court of the United States for the District of Arizona; William H. Sawtelle, Judge.</p>

Foster, Judge. Suit by Stone & McCarrick, Incorporated, against the Dugan Piano Company and others. From a decree dismissing the bill (210 Fed. 399), complainant appeals. The appellant filed its bill in the District Court against the appellees, Dugan Piano Company, the New Orleans Item, and others, to prevent the infringement of the copyright of a book containing forms of advertisements and other matter, interspersed with rather attractive -illustrations.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister,' Judge.</p> <p>Petition by the Potter Manufacturing Company to require the delivery of property to it by Edwin D. Arthur, trustee in bankruptcy of Fidler & Brock, bankrupts. From an order in favor 'of the trustee, the petitioner appeals.</p>

Hollister, Judge. In the matter of the L. P. Hazen Company, bankrupt, in which Prank H. Kemper is trustee. From an order disallowing claims of the Massachusetts Bonding & Insurance Company, it-appeals.

L. Day, Judge. Action by Eillian St. Bernard, administratrix of Bion St. Bernard, deceased, against S. P. Shane and another, receivers of the Gilchrist Transportation Company. A demurrer was sustained to the original petition'(201 Fed. 453), and amended petitions were stricken from the files, and plaintiff brings error.

<p>1. Judgment (&wkey;675 — Persons Concluded — Privies—Defending Suit in Name of Another.</p> <p>One who, openly and to the knowledge of the opposing party, defends a suit in tlie name of another to protect his own right or interest, is as much bound by the judgment as he would be if he had been a party to the record.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1190, 1191, 1194; Dec. Dig. <&wkey;>675.]</p> <p>2. Mandamus <&wkey;114 — Levy of Taxes — Jurisdiction of Federal Court— Action against Municipal Corporation.</p> <p>A federal court has jurisdiction of an action against a municipal corporation on an obligation payable from the proceeds of a special assessment, which the defendant has failed or refused to levy, although it was its duty to do so, and may award a writ of mandamus to compel the levy, even though the defendant is not itself liable for the debt for which plaintiff prays judgment against it.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 241, 244-246, 2-18; Dec. Dig. &wkey;114.]</p> <p>3. Judgment <&wkey;675 — Conclusiveness of Adjudication,</p> <p>Complainant, which had performed contracts for paving made with a city, brought an action at law in a federal court against the city to recover damages because of its failure and refusal to perform its statutory duty by levying a special assessment on property to pay for the improvement. The action was defended by the owners of the property subject to the assessment, who had given bond to save the city harmless, and who set up in defense that the paving contracts were illegal. Under the state statute the city was exempt from liability for the contract price of the work done; the proceeds of the special assessment being the sole fund from which it was payable. The court rendered a judgment awarding a mandamus against the city requiring it to levy the special assessment, which was done, and, the assessment not having been paid, complainant brought the present suit to enforce the statutory lien therefor. Held, that the judgment in the prior action in the form in which it was rendered was within the recognized jurisdiction of the federal court, and was-binding on defendants, and conclusive against them of the validity of contracts under which the assessment was made.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1190, 1191, 1194; Dec. Dig. <&wkey;>675.]</p> <p>4. Corporations <&wkey;630 — Voluntary Dissolution — Capacity to Sue after Dissolution.</p> <p>Under a state statute providing that a corporation, although dissolved by proceedings in court for that purpose, may nevertheless sue and be sued until its business affairs are fully wound up, such a corporation may maintain an action in a federal court in another state to collect a debt due it therein.</p> <p>I Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2482-2486; Dee. Dig. <&wkey;630.]</p> <p>5. Courts <&wkey;264 — Jurisdiction of Federal Courts — Ancillary Suits.</p> <p>Where, pursuant to a mandamus awarded by a federal court, a city has levied a special assessment to pay a debt due the plaintiff, a subsequent suit to enforce payment of the assessment by property owners is ancillary to tlie prior action, based on the judgment therein, and is within the jurisdiction of the court, without regard to the amount involved.</p> <p>[Ed. Note. — For other cases, see Courts* Cent. Dig. § 801; Dec. Dig. <&wkey;>264.]</p> <p>6. Judgment <&wkey;519 — Proceedings to Enforce — Issues.</p> <p>In an ancillary suit, the purpose of which is to enforce a prior judgment at law jurisdictionally valid and free from fraud, the court cannot review such judgment fon errors.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 963; Dec. Dig. <&wkey;519J</p> <p>7. Municipal Corporations ®=»456 — Improvement op Streets — Special Assessment.</p> <p>In making a special assessment for the cost of paving a street, a single' assessment against one lot owned by two persons in common does not violate the rule that each tract or lot must be assessed separately.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1094-1099; Dec. Dig. &wkey;456.]</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action by R. M. Dee against the Kansas City Southern Railway Company. Judgment on a directed verdict for defendant, and plaintiff brings error.</p>

Bourquin, Judge. Suit by the United States against Frank D. Cooper and another. From a decree (217 Fed. 846) in favor of the United States, the defendant named appeals. This suit was instituted by the United States against Frank D. Cooper to annul and set .aside the patent of the government to the lands described in the complaint. The lands were acquired by one Jay C. Freeman through homestead entry and commutation, and Cooper is the grantee of Freeman.

<p>1. Public Lands <9=120 — Cancellation of Patent — Sufficiency of Evidence.</p> <p>In a suit by the United States to cancel a patent to land for fraud, evidence held insufficient to show that defendant was a bona fide purchaser for a valuable consideration without notica</p> <p>[Ed. Note. — For other cases, see Public .Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p> <p>2. Public Lands <&wkey;120 — Cancellation of Patent — Burden of Pboof.</p> <p>In a suit by the United States to cancel a patent to land for fraud, the burden was upon a purchaser from the patentee to produce satisfactory proof that he purchased in good faith and for value.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.] --</p>

<p>1. Appeal and Erkob <@=-792 — Dismissal on Court’s Own Motion.</p> <p>Where there is a lack of jurisdiction over an appeal by one defendant because of the nonjoinder of another defendant, as to whom there was no severance, the court will not proceed, though there is no motion to dismiss.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3137-3141; Dec. Dig. &wkey;792.]</p> <p>2. Appeal and Error &wkey;>325 — Necessary Parties- — Parties Having Nominal Interest.</p> <p>If a party who does not join in an appeal has only a nominal, and not a substantial, interest affected by the decree, his nonjoinder is not fatal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1810-1813; Dec. Dig. &wkey;325.]</p> <p>3. Appeal and Error <&wkey;907 — Necessary Parties — Parties Having Nominal Interest.</p> <p>At a sale under a deed of trust, the property was bid in by T., who sold his bid to H. The mortgagor sued II. and T. to vacate the sale, and the court, treating II. as the assignee of the secured debt, made a decree permitting the mortgagor to redeem, and providing for a judicial foreclosure sale in default of such redemption. The property was eon-eededly ample to cover the amount of the foreclosure decree awarded to H. Held that, assuming that the omission, from the amount for which H. was given a lien, of the amount paid by him to T. above the sum due on the security, would impose ,such a liability on T. as would require his joinder asa party to an appeal by H., where the transcript did not show whether such amount was included, such a defect would not be presumed for the purpose of defeating jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907.]</p> <p>4. Appeal and Error <&wkey;325 — Necessary Parties — Party Against Whom Costs are Awarded.</p> <p>That a decree makes a party jointly liable for the costs does not require him to join in an appeal or to be severed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1810-1813 ; Dec. Dig. &wkey;325.]</p> <p>5. Mortgages <&wkey;378 — Foreclosure Under Power of Sale — Necessity of Strict Compliance.</p> <p>As a general rule, the foreclosure of a deed of trust by a non judicial public sale, there being no provision for personal notice and no redemption being permitted, is valid only if fully supported by every specified condition.</p> <p>[Ed. Note. — For other casos, see Mortgages, Cent. Dig. §§ 1137, 1138, 1140; Dec. Dig. &wkey;378.]</p> <p>6. Mortgages <&wkey;301 — Tender—Necessity of Demand Before Foreclosure.</p> <p>Where, after the maturity of an interest coupon attached to a deed of trust, which coupon was made payable to a trust company, or bearer, at the trust company’s office, the mortgagor’s agent tendered the trust company his check, but the check was not taken, only because the coupon could not be found and the agent rightfully insisted upon its production, there was a tender, which, if it did not discharge the lien as to the coupon, at least suspended the lien and placed upon the holder the burden of demanding payment whenever prepared to surrender or account for the coupon, and where the only subsequent demands were a request to the agent to pay after his authority to do so had ceased, and the mailing of a letter to the mortgagor at a place where she did not live, which letter never reached her, a foreclosure for nonpayment of the interest was properly vacated. ;</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 876-881, 885, 887, 888; Dee. Dig. &wkey;>301.]</p>

Suit by the St. Douis, Iron Mountain & Southern Railway Company against George W. Bellamy and others. From an order granting an injunction on a supplemental bill (211 Fed. 172), certain defendants appeal.

Action by B. D. Mitchell and wife against the McShane Lumber Company and others. Judgment for defendants, and plaintiffs bring error.

Appeals from the District Court of the United States for the Southern Division of the Western District of Michigan; Knappen and Sessions, Judges. Suit in equity by the Underwood Typewriter Company against the Fox Typewriter Company. Decree for complainant, from which defendant appeals; and complainant appeals from final decree awarding only nominal damages.

<p>1. Patents ©=>328 — Validity—Priob Use — Coal Conveying Apparatus.</p> <p>The Simmons, Forgham & Bennett patent, No. 633,348, for a coal unloading and distributing apparatus for use in ballast burning, held void for prior commercial use of the apparatus in substantially its patented form for more than two years prior to the application.</p> <p>2. Patents ©=81 — Prior Use — Experimental Use.</p> <p>Whore a patented machine was publicly and commercially used for more than two years before the filing of the application, experiments made during that time for the purpose of strengthening and otherwise improving the machine as an operative device must be deemed merely incidental, and not as dominating the character of the use.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. ©=>81.</p> <p>Reduction of invention to practical use or operation as affecting pat-entability, see note to Excelsior Supply Co. v. Weed Chain Tire Grip Co., 113 C. C. A. 7.]</p>

<p>Patents <§=>328 — Infringement—Apparatus foe Producing Buent Clat Ballast.</p> <p>The Bennett & Porgham patent, No. 686,964, for apparatus for use in producing burnt .clay ballast, construed, and, in view of the limitations imposed on the claims in the Patent Office, held not infringed.</p>

This cause comes here on appeal from a decree entered in the District Court of the United States for the Southern District of New York on April 17, 1914-, sustaining design letters patent No. 42,077, granted January 9, 1912, to Frank M. Ashley for a design for an inkstand, finding that defendant had infringed said patent and awarding an injunction and an accounting, with costs.

Otis Humphrey, Judge. Suit in equity by Edward E. Hall against Harry J. Drake. Decree for complainant, and defendant appeals. The appellee, Hall, is complainant in a bill filed against the appellant Drake for an accounting and other relief arising out of the appellant’s use of letters patent No. 906,396 — issued to both parties to the suit as individual patentees — alleged to constitute “a copartnership asset and copartnership property” by agreement of> such parties.

<p>1. Patents <§=>192 — Suit iron Infringement — Title to Sustain.</p> <p>Defendants and another, who were joint owners oil a patent, entered into a contract by which defendants were given the exclusive right to manufacture the patented article, paying a royalty to the other party, who was the inventor and who was to have charge of the sales. It was provided that defendants should not authorize the manufacture by any person not named in the contract without the consent of the other party, who was given the right, in case defendants did nob manufacture sufficient to supply the demand, to himself take over the exclusive manufacture, which right he exercised and afterward assigned his interest in the patent to complainant corporation. The contract contained no provision as to use of the patented article. Held, that it did not divest defendants of their interest in the patent, and that the assignment to complainant gave it no standing to maintain a suit for infringement against defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 269; Dec. Dig. <§=>192J</p> <p>2. Assignments <§=>19 — Executory Personal Contracts.</p> <p>A contract which involves a relation of personal confidence is not assignable.</p> <p>[Ed. Note. — For other eases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. <§=>19.]</p> <p>3. Assignments <§=>19 — Contracts—Assignability.</p> <p>An executory personal contract is not made assignable by the use of the terms “assigns” and “heirs.”</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. <@=>19.]</p> <p>4. Patents <§=>192 — Joint Owners — Title and Rights.</p> <p>The owner of an undivided interest in a patent cannot maintain a suit to restrain another part owner from manufacturing thereunder or from authorizing others to do so.</p> <p>[Ed. Note. — For other cases,i see Patents, Cent. Dig. § 269; Dec. Dig. <§=>192.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree entered on June 11, 1914, in the District Court of the United States for the Southern •District .of New York, dismissing the bill of complaint in a suit brought in equity to restrain an infringement of United States letters patent No. 963,352 and to obtain an accounting for profits and to recover damages.</p> <p>The complainant, the Columbia Metal Box Company, is a corporation organized and existing under the laws of the state of New York and having its principal office in the city and State of New York, and is engaged in the manufacture and sale of sheet metal junction boxes.</p> <p>Samuel M. Halper trades under the name of the Star Metal Box Company, and has an established place of business in the Southern district of New York.</p> <p>United States letters patent No. 968,352 were granted on July 5, 1910, to Albert 10. Blackman, of Mt. Vernon, N. Y., for sheet meta] junction boxes. The entire right, title, and interest in this patent the said Blackman assigned, sold, and set over to the complainant, the Columbia Metal Box Company, on May 31, 1912. The usual defenses to a suit for infringement are set up in the answer, but the defense mainly relied upon the lack of patentable invention over the prior art.</p> <p>The case was twice heard in the court below. On the first hearing the court sustained the patent. A rehearing was asked on the ground of newly discovered evidence, and such rehearing was granted. The newly discovered evidence consisted in substance of a cast metal box known as the General Electric box which is alleged to have been made and sold by the General Electric Company long prior to the date of the complainant’s invention. After the rehearing, the court, in view of the added evidence, changed its opinion and held the patent invalid.</p>

This cause comes here on appeal from a final decree entered on September 22, 1914, in the District Court for the Southern District of New York,, adjudging that letters patent of the United States No. 45,-249, dated February 17, 1914, for a design for sets of character biocks, granted to De Witt C. Baker, was a good and valid patent, and was infringed by defendants, and awarding a perpetual injunction.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur D. San-born, Judge.</p> <p>Suit in equity by John W. Blackledge against the J. M. Shock Absorber Company and others. Decree for complainant, and defendants appeal.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Starter fob Motor Cars.</p> <p>The Coleman patents, No. 745,157, claims 3, 7, 12, 17, and 20, and N<e 842,827, claims 2, 3, 7, and 9, eacb patent being for automatic starting system for motor cars, held not anticipated and to disclose invention. Such claims of the first patent held infringed, and of the latter patent not infringed.</p>

<p>In Equity. Suit by the James A. Vogel Company against the A. Weiskittel & Son Company. On final hearing.</p>

<p>Patents @=»328— Validity and Infringement — Davit-Supporting Means fob Shabp Stern Boats.</p> <p>The Robbins patent, No. 902,452, for davit-supporting means for sharp stern boats, discloses patentable invention and is valid; also held infringed.</p>

<p>L Carriers <@=>37 — Carriage of Live Stock — Actions for Penalties — Evidence. '</p> <p>Under Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. 1913, §§ S651-8654), prohibiting carriers from confining animals in cars, boats, or vessels for longer than 28 consecutive hours, or 36 hours on request of the owner or person in custody of such animals, without unloading them for rest, water, and feeding for the period of at least 5 consecutive hours, where in an action for penalties it was stipulated that defendant received a shipment of horses from a connecting carrier after they had- been confined without unloading them for 44% hours, that 2% hours elapsed thereafter before .they were unloaded at defendant’s nearest unloading point, ■ that the actual running time between the point where the car was received and such unloading point was 1 hour and 5 minutes, that the movement of the ear to the unloading point was through an exceedingly busy and active railroad yard, and that the maximum temperature on that day was 40 degrees, the minimum temperature 23 degrees, and the mean temperature 32 degrees, but the probable or approximate time necessarily used up by reason of weather or switching did not appear, defendant did not sustain the burden of showing that it exercised diligence and acted with reasonable promptness in moving the car to the unloading point and commencing unloading, as the court could not find without evidence that 1 hour and 25 minutes was necessarily used in switching operations and movements, or in such movements interfered with and delayed by weather conditions.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927: Dec. Dig. <&wkey;37.]</p> <p>2. Carriers i&wkey;37 — Carriage or Dive Stock — Confinement—Liability.</p> <p>A railroad company, which received a shipment of horsed after they had already been confined without unloading for food, water, and rest for a period in excess of that permitted by the Twenty-Eight Hour Law, was bound to exercise diligence and to act with reasonable promptness in moving the car to its nearest unloading point and in commencing the unloading.</p> <p>LEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. <&wkey;37.]</p> <p>3. Carriers <&wkey;>37 — Cabbiage of Live Stock — Actions fob Penalties — Bub-ben of Pboof.</p> <p>In an action for a penalty for the violation of the Twenty-Eight Hour Law by a railroad company, which received from a connecting carrier a shipment of horses already confined without food, water, and rest for a longer period than that permitted by the statute, the burden was upon it to show that it exercised diligence and acted with reasonable promptness in moving the car to its nearest unloading point and in commencing unloading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. <&wkey;37J</p> <p>4. Carriers <&wkey;37 — Cabbiage of Live Stock — Confinement—Liability.</p> <p>Under the Twenty-Eight Hour Law, where a carrier unloaded a shipment of horses which had been confined without food, water, and rest for 44½ hours, and after 3 hours reloaded them and forwarded them to their destination, there was a new violation of the statute, though it required only 3 hours ‡0 reach their destination and they were then immediately unloaded, and though the owners of the horses consented to such reloading, as the statute requires an unloading and rest of at! least 5 hours, and the consent of the owners cannot nullify the statute.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dee. Dig. &wkey;>37.]</p> <p>5. Carriers <&wkey;37 — Cabbiage of Live Stock — Confinement—Liability.</p> <p>While it is not a defense to an action for a penalty under the Twenty-Eight Hour Law that a carrier has instructed its employes to comply strictly with such law, such instructions will bear on the amount of the penalty which the court should impose.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95-927; Dec. Dig. <&wkey;37.]</p> <p>6. Carriers <&wkey;37 — Cabbiage of Live Stock — Violations—Amount of Penalty.</p> <p>Where, after a carrier received from a connecting carrier a shipment of horses which had been confined without food, water, and rest for 44 ½ hours, there was a delay of 2½. hours before they were unloaded, and after only 3 hours they were reloaded and forwarded to their destination. and it did not appear that the carrier had instructed its employes to comply with the statute, though there was no intentional violation of the statute, there was such negligence as called for the imposition of more •than the minimum penalty fgr the second violation, and a penalty of $200 would be imposed.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. &wkey;>37.]</p>

<p>1. Counties <&wkey;>182 — Bonds—Purchase—Medium of Payment — Checks.</p> <p>The delivery to a county treasurer in payment of the purchase price of county bonds of a check payable to his order as treasurer, which he accepts and receipts for as money, and indorses and deposits as money in bank to his credit as such officer, constitutes a payment for the bonds.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 275-281, 283, 284; Dec. Dig. <&wkey;>182.]</p> <p>2. Counties <&wkey;155 — Payments to County Teeasueee — Validity and Effect — Construction of Statute.</p> <p>The provisions of Code Miss. 1906, §§ 352, 987, which require the issuance of a receipt warrant by a county| auditor to authorize the payment of, money into the county treasury, are for the purpose of providing a system of checks between the auditor and' treasurer, as a matter of bookkeeping, and the issuance of such a warrant is not a condition precedent to the vesting of title in the county to money actually paid to the treasurer, or to the discharge of the liability of the person making the payment.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 223-225; Dec. Dig. &wkey;>155.] ■</p> <p>3. Words and Phrases — “Money.”</p> <p>“Money,” in the modern meaning of the word, is not restricted to legal tender, coin or currency, but includes also such classes of paper as are in general use commercially as mediums of exchange.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Money.]</p>

<p>1. Bankruptcy <&wkey;>89 — Involuntary Proceedings — Answer to Petition — • Sufficiency.</p> <p>Where an involuntary - petition in bankruptcy conformed to the statute with respect to the number of petitioning creditors, and the amounts of their claims, and alleged as the ground upon which an adjudication was prayed that the alleged bankrupts had acknowledged in writing their inability to pay their debts and their willingness to be adjudged bankrupts, an answer alleging that the proceedings were collusive, that the petition had been file’d for the purpose of defrauding creditors, that the alleged bankrupts had been negotiating with their creditors for a settlement, and while they were admittedly insolvent had bought largely of new stock, and that the petitioning creditors would withdraw the proceedings when a settlement was effected, set forth no grounds for denying an adjudication, as it neither denied the salient facts set forth in the petition, nor showed cause against an adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 120-122; Dec. Dig. <&wkey;89.j</p> <p>2. Bankruptcy <&wkey;>89 — Involuntary Proceedings — Necessity of Answer to Prevent Adjudication.</p> <p>When a petition in bankruptcy sets forth the necessary jurisdictional facts, and is in conformity with the statute, an adjudication must follow, unless an answer is interposed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 120-122; Dec. Dig. &wkey;>S9.]</p> <p>S. Bankruptcy <&wkey;89 — Involuntary Proceedings — Persons Entitled to Oppose Petition.</p> <p>Creditors opposed to an adjudication in bankruptcy may file an answer to an involuntary petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 120-122; Dec. Dig. &wkey;>89.]</p> <p>4. Bankruptcy <&wkey;95 — Involuntary Proceedings — -Hearing—Conclusiveness of Answer.</p> <p>When a hearing is had upon an involuntary petition in bankruptcy and an answer thereto, the averments of the answer must be taken as true.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 132, 140, 145; Dec. Dig. &wkey;>95.]</p> <p>5. Bankruptcy &wkey;>65 — Involuntary Proceedings — Defenses.</p> <p>Creditors of alleged bankrupts could not oppose an adjudication on the ground that the bankrupts were solvent, that they were preparing to conceal their assets, or that false claims of indebtedness would be made, as they were not harmed by the bankrupts’ solvency, while the remedy for the other matters was the appointment of a receiver, who would unearth assets intended to be concealed, and the exaction of proof of all claims.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 54,121; Dec. Dig. <&wkey;>65.]</p>

<p>3L Fraudulent Conveyances <&wkey;>99 — Setting Aside — Extent of Belief.</p> <p>Where all of the recited consideration for a deed from a debtor to his wife, except $200, was paid the debtor by his wife’s father, the fact that the $200 recited to have been so paid was the money of the debtor did not render the conveyance fraudulent as to creditors in its entirety, but o¿]y gave them an interest to the extent of the $200.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 323, 327, 328; Dec. Dig. &wkey;99.]</p> <p>2. Fraudulent Conveyances <&wkey;208 — Voluntary Conveyance — Validity as to Future Creditors.</p> <p>It was competent for a husband to give an interest in real estate to his wife as against future creditors.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. &wkey;208J</p> <p>3. FRAUDULENT CONVEYANCES <&wkey;208 —H USBAND AND WIFE — GIFTS—LIABILITY for Husband’s Debts.</p> <p>A gift of a husband’s interest in real property to his wife being valid as against future creditors, the consideration for a subsequent conveyance to a third party, in which the husband and wife .joined, belonged to the wife without regard to the time it was actually paid or whether it was actually paid to the husband or the wife, and the money paid: was not subject to the husband’s debts.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 631, 633; Dec. Dig. &wkey;208.]</p> <p>4. Fraudulent Conveyances <&wkey;183 — Failure to Record Deed — Improvements by Grantee.</p> <p>Where a wife’s money was used to build a house upon a lot, title to which was in her only by virtue of an unrecorded deed, fraudulent as to creditors because not recorded, and because of a fraudulent concealment of the change of ownership, the improvements placed on the lot by the wife, if she participated in the fraud, would follow the fate of the lot and be subject to any debts of the husband created upon the faith of his ownership of the property.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 578-582, 695; Dec. Dig. &wkey;183.]</p> <p>5. Fraudulent Conveyances &wkey;>301 — Concealing Change of Ownership— Fraudulent Intent — Evidence.</p> <p>Evidence held, to show that conveyances by a husband to his wife were withheld from record and concealed, to avoid impairing the husband’s credit, so as to be void as to creditors who gave the husband credit on the faith of his apparent continued ownership.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. '904-907; Dee. Dig. &wkey;301.]</p> <p>6. Fraudulent Conveyances <&wkey;301 — Intent of Grantee — Sufficiency of Evidence.</p> <p>Where a wife’s part in transactions whereby her husband conveyed land to her, withholding the deeds from record to prevent an impairment of his credit, consisted of the passive receipt of the conveyances, slight evidence of participation or knowledge of the husband’s fraudulent purpose would suffice to charge her with fraud sufficient to invalidate the conveyances.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. fj§ 904-907; Dec. Dig. &wkey;301.]</p> <p>7. Fraudulent Conveyances <&wkey;-154 — Concealment of Change of Ownership.</p> <p>Where the withholding from record of deeds from a husband to his wife for considerable periods of time, during which he contracted debts, was accompanied by other badges of fraud, such as his retention of possession, exercise of dominion and appropriation of benefits, and representations by word or act of his continued ownership, and these elements of fraudulent concealment continued after the deeds were recorded, the recording of the deeds did not end the fraudulent scheme, and the deeds were fraudulent as to creditors thereafter extending credit to the husband on the faith of his ownership, without actual knowledge of the deeds.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 485-492; Dec. Dig. <@=154.]</p> <p>8. Fraudulent Conveyances <&wkey;154 — Necessity of Actual Injury to Creditors.</p> <p>In a suit to set aside conveyances from a husband to his wife on the ground that because they were withheld from record, and the change of ownership was concealed, they were fraudulent as to creditors extending credit to the husband on the faith of his ownership, it was not incumbent on plaintiff to show that the complaining creditors were in fact injured ; it being sufficient that it was probable that they might have been injured.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 485-492; Dec. Dig. &wkey;154.]</p> <p>9. Fraudulent Conveyances <&wkey;>154 — Concealment of Change oe Ownership.</p> <p>The withholding from record of deeds from a husband to his wife and the concealment of the change of ownership did not render the deeds fraudulent as to a creditqr who became such prior to the execution of the deeds, and who neither remitted any effort or remedy nor released any lien or security because of any misapprehension as to the state of the title.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 485-492; Dee. Dig. &wkey;154.]</p>

<p>In Bankruptcy. In the matter of Thomas George Irving, bankrupt. On review of an order of the referee disallowing a homestead exemption.</p>

<p>1. Bankruptcy <S=»495 — Offenses Against Bankruptcy Laws — Evidence.</p> <p>On a trial for conspiracy to conceal the assets of a bankrupt, there was no statutory ground for excluding the schedules; the statute excluding admissions in pleadings having been repealed, and the excluding provision of the Bankruptcy Act being confined to testimony given by a bankrupt under examination.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. @=>495.]</p> <p>2. Criminal Law &wkey;>829 — Instructions—Requests.</p> <p>The omission to formally and specifically affirm points presented by accused was not error, where they were in substance and fact affirmed by the charge as given.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. &wkey;829.J</p> <p>3. CRIMINAL Law <&wkey;560 — Evidence—Degree of Proof Required.</p> <p>The evidence in a criminal case need not exclude the possibility of innocence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1266; Dec. Dig. &wkey;>560.]</p> <p>4. Criminal Law &wkey;>745 — Questions for Jury.</p> <p>Where an inference of guilt may be fairly drawn, the evidence meets the test of legal sufficiency, and its credibility and weight must be determined by a jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1718; Dec. Dig. <&wkey;745J</p> <p>6. Bankruptcy &wkey;>495 — Offenses Against Bankruptcy Laws — Evidence.</p> <p>On a trial for conspiracy to conceal a bankrupt’s assets, where there was evidence, not only of the concealment, but of the joint participation of the defendants in the acts by which the fraud had been accomplished, the evidence supported a conviction, as evidence of aid in the commission of the offense, by assisting in the concealmént of it and having in possession the fruits thereof, was evidence of a conspiracy to have the offense committed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. &wkey;>495.]</p>

<p>In Equity. Suit by Malcolm Strauss against the Penn Printing & Publishing Company. On final hearing.</p>

<p>1. Bankruptcy <&wkey;303 — Actions—Preferences—Evidence of Insolvency-Books.</p> <p>In a suit by a trustee in bankruptcy to recover alleged preferential payments, the books and papers of the bankrupt were admissible to show the bankrupt’s insolvency at the time of the payments.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. <&wkey;303.]</p> <p>2. Bankruptcy <&wkey;166 — Preference—Knowledge That Preference will Result.</p> <p>Where a bank, to whom an insolvent corporation was indebted, had pressed for payment and had protested for nonpayment a number of notes and a draft against the corporation, which were not renewed for several weeks, it had reasonable cause to believe that it was receiving a preference when payments were made upon the indebtedness to it, especially where the president of the bank was familiar with various of the details of the corporation, knew of the difficulties encountered in making its collections and of a threat on that account to wind up its affairs, and knew that in the fall, about the time the payments were made, it was merely selling the cider and vinegar remaining from previous years, without grinding apples as it customarily did at that season, and was aware of discord between the corporation’s president and certain of the directors, and of his resignation, at which time it suggested a friendly director to fill a vacancy on the board, which suggestion was adopted.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 250 -253, 255 258; Dec. Dig. &wkey;166.]</p> <p>8. Bankruptcy <&wkey;165 — Preferences—Transfers and Payments Constituting.</p> <p>Where an assignment of accounts by a bankrupt to an indorser on its notes and the subsequent collection of the accounts were for the benefit of the holder of the notes, the transfer was a preference, within the prohibition of Bankr. Act duly 1, 1898, c. 541, 30 Stat. 544; it not being necessary that the assignment should be directly to the holder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. &wkey;165.]</p> <p>4. Bankruptcy <&wkey;165 — Insolvency—Preferences to Creditors.</p> <p>Where an assignment of accounts by an insolvent corporation to an indorser on its notes was made for the benefit and advantage of the holder of the notes, such holder received a voidable preference under Stock Corporation Law N. Y. (Consol. Laws, c. 59) § 66, forbidding conveyances or payments by corporations when insolvent, or when insolvency is imminent, with the intent of giving a preference to a particular creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, -260, 266; Dec. Dig. &wkey;165J</p>

In Equity. Suit by Wilbur B. Grandison, as trustee of the O. G. Gregory Vinegar Company,. bankrupt, against Frederick Robertson and another. Decree for complainant as to the second cause of action.

<p>In Equity. Suit by the Duplex Metals Company against the Standard Underground Cable Company. On final hearing. Decree for defendant.</p>

<p>1. Copyrights <®=»46 — Infringement—Failure to Record Assignment.</p> <p>The recording of an assignment of a copyright, as provided for by Act ■March 4, 1909, e. 320, § 44, 85 Stat. 1084 (Comp. St. 1918, § 9565), is not necessary to the protection of the rights of the assignee against an in-fringer.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 44; Dec. Dig. &wkey;>46J</p> <p>2. Copyrights <&wkey;47 — Assignment of Special Rights — Construction.</p> <p>An assignment of a part of the rights protected by a copyright, as of the right of serial publication, operates merely as a license, and does not carry the right to sue for infringement given to the “copyright proprietor” by Act March 4, 1909, c. 320,’ § 25, 35 Stat. 1081, as amended by Act Aug. 24, 1912, c. 356, 37 Stat. 489 (Comp. St. 1913, § 9546).</p> <p>[Ed. Note. — For other eases, see Copyrights, Cent. Dig. § 45; Dec. Dig. <S¿>47.].</p> <p>3. Words and Phrases — “Serial Rights.”</p> <p>The words “serial rights” are understood to comprehend all publishing rights, including magazine and newspaper publishing rights, and excepting only book, dramatic and scenario rights.</p> <p>4. Copyrights <&wkey;>36 — Protection op Copyrighted Work — “Component Parts.”</p> <p>! The phrase “component parts,” as used in Act March 4, 1909, c. 320, § 3 (Comp. St. 1918, § 9519), providing that “the copyright provided by this act shall protect all the copyrightable component parts of the work copyrighted,” does not mean subdivision of rights, licenses, or privileges, but Refers to the separate chapters, subdivisions, acts, and the like of which most works are composed.</p> <p>[Éd. Note. — For other cases, see Copyrights, Cépt. Dig. § 37; Dec. Dig. &wkey;>36.]</p>

<p>In Equity. Bill by the Mutual Eife Insurance Company of New York and others against Martha S. Painter and others for an examination of the organs of a deceased person. On motion by plaintiffs to remand to the state court, after removal to the federal court by the defendants.</p>

<p>1. Salvage <&wkey;27 — Suit to Recover Compensation — Estoppel.</p> <p>An offer by a voluntary salvor, without contract, to accept a stated sum for the service, if not accepted, does not conclude him from asking a more liberal compensation, when compelled to sue.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 65, 66; Dec. Dig. c&wkey;27.]</p> <p>2. Salvage <&wkey;37 — Liability op Cargo to Contribute — Negligence op Vessel.</p> <p>While, in general, ship and cargo must proportionately bear salvage expenses, where there is a common peril, yet, where the salvage services are rendered necessary by the ship’s negligence or unseaworthiness, the cargo may be relieved from contribution, and the vessel bound for the entire expense.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 92, 94-102; Dec. Dig. &wkey;>37.]</p>

<p>1. Trade-Marks and Trade-Names @=59 — Infringement—Similarity in Names.</p> <p>The registered trade-marls, “Cottolene,” under which plaintiff was selling a substitute for lard, was infringed by the adoption and use of the name “Chefolene” for a similar product, sold in competition with plaintiff’s product, as there was a sufficient similarity in sound to have a substantial tendency to confuse purchasers, and the uneducated and inexperienced might well be misled by the similarity, without heedlessness.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 101, 102; Dec. Dig. <&wkey;59.]</p> <p>2. Trade-Marks and Trade-Names @=59 — Infringement—Similarity in Names.</p> <p>A trade-mark is infringed, if the' name selected for a product similar to that sol'd under such trade-mark substantially lessens the value of the property right in the trade-mark.</p> <p>[Ed. N(ote. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 101, 102; Dec. Dig. &wkey;59J</p> <p>3. Trade-Marks and Trade-Names @=59 — Infringement—'Similarity in Names.</p> <p>Any doubt as to whether the similarity between a registered trademark and a trade-name subsequently adopted for a similar product will mislead purchasers should be resolved against the party selecting such similar name with knowledge of the existence of the trade-mark, since, having a wide range of selection, it approximated the trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 101, 102; Dec. Dig. &wkey;59.]</p>

<p>1. Removal oe Causes &wkey;>17 — Waiver oe Right — Voluntary Appearance.</p> <p>A defendant’s voluntary appearance in tbe state court and admission of service, without the personal service of summons, though a waiver of its right to object to the court’s jurisdiction over its person, was not a waiver of its right to remove the cause to the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 10; Dec. Dig. &wkey;>17.]</p> <p>2. Removal oe Causes <&wkey;3 — Eeeect oe State Laws.</p> <p>A state statute providing that if any foreign insurance company, admitted to transact business in the state, removed a case to the United States court, its license should be revoked, did not prevent the removal of an action against an insurance company involving an insurance contract, as the statute was no part of the contract, and, moreover, was unen-foreeable, as opposed to public policy and the statutes of the United States.</p> <p>[Ed. Note. — For other cases, see Removal- of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;3.]</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p>

<p>Appeal from the District Court of the United States- for the District of Maryland, at Baltimore, in Bankruptcy; John C. Rose, Judge.</p>

<p>Petition to Superintend and Revise from the District Court of the United States for- the Southern District of Georgia; Emory Speer, Judge.</p>

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

Dyer, Judge. Suit by the Cherry Cheer Company against E'zekiel M. Roberts, in which Ezekiel M. Roberts and another filed a cross-complaint. From a deeree in. favor., of complainant, the defendant and cross-complainants appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p>