Volume 221 — Federal Reporter

Petition to Superintend and Revise Order of, and Appeal from, the District Court of the United States for the Southern District of Georgia; Wm. B. Sheppard, Judge. Suit in equity by the B. Borchardt Company against the Yaryan Naval Stores Company. James C. Blair, trustee in bankruptcy of defendant company, petitions to revise, and appeals from, an order denying his petition for possession of property in the hands of James S. Brailey, Jr., and others, receivers.

Otis Humphrey, Judge. Suit in equity by Patrick A. Hart and Charles F. Hart, doing business as P. Hart & Sons, against the Galesburg & Kewanee Electric Railway Company. Decree for complainants, and defendant appeals. This is a suit to foreclose a mechanic’s lien under the following provision of the Illinois Statutes: “7183. For fuel, ties, material, supplies. Section 1.

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Ferdinand A. Geiger, Judge. In the matter of Isaac D. Richheimer, trading as Richheimer & Co., bankrupt, of which the Central Trust Company of Illinois was appointed receiver and trustee.

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Greensboro; James E. Boyd, Judge.</p> <p>Suit by the United States against the United States Fidelity &'Guaranty Company of Baltimore, Md. Judgment for defendant, and plaintiff brings error.</p>

<p>Public Lands <§=82—Selection of Unsubveyed Lieu Lands—Sufficiency of Designation.</p> <p>Act March 2, 1899, c. 377, 30 Stat. 993 (Comp. St. 1913, §§ 5223-5226) establishing Mt. Rainier National Park, by section 3 authorized the Northern Pacific Railroad1 Company, on conveying to the United States lands in the reservation theretofore granted to said company to select in lieu thereof an equal quantity of nonmineral public land not reserved, and to which no adverse rights had attached, lying in any state through which the railroad ran; and section 4 provided that, “in case the tract so selected shall at the time of selection be unsurveyed, the list filed by the company at the local land office shall describe such tract in such manner as to designate the same with a reasonable degree of certainty." Held that, in view of prior rules of the Land Department governing similar cases, and in the absence of any specific regulation under said act, a designation in a list of unsurveyed land filed by the company of a tract according to the description by which it would be known when surveyed was legally sufficient, where the tract was within three miles of a surveyed township and could be then located with approximate certainty.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 236, 253-256; Dec. Dig. <$=»82.]</p> <p>«g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <S=>127 — Trustee — Appointment by Referee or Court — “Court.”</p> <p>Within Bankr. Act July 1, 1898, c. 541, § 2 (17), 30 Stat. 545 (Comp. St. 1913, § 9586), authorizing courts of bankruptcy to appoint trustees pursuant to< the recommendation of creditors, or when they neglect to recommend the appointment of trustees, and section 44 (section 962S), providing that the creditors, at their first meeting after the adjudication, shall appoint a trustee, and that, if they do not appoint a trustee, the court shall do so, the referee is included in the term “court.”</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. § 183; Dee. Dig. <@=>127.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Court.]</p> <p>2. Bankruptcy <@=>125—Trustee—Election by Creditors—Postponement of Election.</p> <p>At tlio first meeting of the creditors of a bankrupt objections were filed to a majority in amount of the claims. Thirteen creditors, representing claims constituting a majority in amount if the disputed claims were, excluded, but a minority if such claims were included, voted for one person as trustee, and eight creditors, including those whose claims were disputed, for another person. Held, that the referee had authority to postpone the meeting until the objections to such claims could be heard and, decided, and where he did adjourn the meeting, and from time to time heard evidence as to such claims, the election proceeding at such meeting should be treated as tentative.</p> <p>^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 170, 180, 181, 183, 184; Dec. Dig. <§=>125.]</p> <p>3. Bankruptcy <§=>127—Trustee—Appointment by Referee ok Coukt.</p> <p>Under Bankr. Act, §§ 2 (17), 44, where the referee postponed the election of a trustee in bankruptcy because objections were filed to a majority in amount of the claims, and after a delay of six weeks, during which considerable evidence as to such claims had been heard, it appeared that considerable further evidence would be presented, that it was essential for the best interests of all creditors that a trustee be appointed to take charge of and administer the estate and collect various claims, that a delay would jeopardize the best interest of the creditors, that the parties had been unable to agree upon the appointment of a trustee though requested, and that the referee deemed such appointment absolutely necessary for the interests of all creditors, he had ample power to appoint a disinterested person as trustee, and did not abuse his discretion in doing so.</p> <p>[Ed. Note.—Fori other cases, see Bankruptcy, Cent. Dig. § 183; Dec. Dig. <§=>127.]</p> <p>^K>Ifor other casos sco game topic & KEY-NUMBMK In all Key-Numbered Digests & Indexes</p>

Tuttle, Judge. Suit in admiralty for collision by William Bonnah and Laura Bonnah, owners of the schooner John Schuette, against the steamer Alfred Mitchell; the Lakeside Steamship Company, claimant. Decree for claimant, and libelants appeal.

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

Brown, Judge. Action by William Whitman and others against the Namquit Worsted Company. Judgment for plaintiff (206 Eed. 549), and defendant brings error. The action was on a contract for the sale of— “50,000 lbs. 3-grade white worsted yarn for delivery during Oct., Nov., and Dec., ’09, on following basis of prices: 2/32 on dresser spools, 97c. 1/24 on bobbins, 89c.”

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by Wallace Rogers against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

03 entered upon the verdict of a jury in favor of the plaintiffs.. The parties will be alluded to as they appeared in the District Court, viz., as plaintiffs and defendants.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. This cause comes here on petition to revise an order of the District Court, Southern District of New York. The order directed the trustee in bankruptcy of Max Hofmann, one of the members of the firm of L. Hammel & Co., bankrupts, to hold a life insurance policy of the bankrupt under the provision of section 70a of the Bankruptcy Art.

<p>1. Internal Revenue <S==>9—Corporate Excise Tax—Deductions prom Income—“Expense op the Business.”</p> <p>Where a corporation sold mortgage bonds due in 30 years at a discount from their par value, the amount of the discount was not an “expense of the business,” and could not be deducted from the income in computing the tax on the corporation's income for the years in which the bonds were issued, under Act Aug. 5, 1909, c. 6, § 38, 36 Slat. 112 (Comp. St. 1913, § 6301), providing that the net income shall be ascertained by deducting from the gross income all the ordinary and necessary expenses actually paid within the year out of the income in the maintenance and operation of the corporation’s business and properties, since, if the cost of changing a part of the corporation’s assets from credit into cash was an expense of the business, it would not be paid until the maturity of the bonds.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <®=9.]</p> <p>2. Internal Revenue <S»9—Corporate Excise Tax—Taxahle Income—“Income.”</p> <p>Where a corporation appraised certain property at a valuation higher than that at which such property had previously been canned on its books, and appraised other property not previously appraised, the apparent increase in the value of its property by reason thereof was not a part of its “income,” subject to taxation under section 38 of the act, imposing on corporations a special excise tax, based on their net income.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <S=>9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Income.]</p> <p><§Es>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Trade-Marks and Trade-Names @=>70—Unfair Competition—Acts Constituting .</p> <p>Bottles of the same size, shape, color, and general appearance as those commonly used for plaintiff’s beverage, Coca-Cola, and that of defendant, Glee-Nol, were in general use as containers of many other beverages similarly dealt in. The beverages were unlike in taste or odor, and there were many other beverages on the market having practically the same color as both. Defendant had not undertaken to mislead dealers to whom it sold, nor to induce them to substituto Glee-Nol for Coca-Cola. Though the name Glee-Nol was blown into the same parts of the bottles at which the name Coca-Cola was blown Into the bottles containing it, generally, but not universally, and though the name appeared in the same style of script, or type in imitation of written letters, it did not appear that, prior to the time defendant commenced placing the name on that part of the bottle, corresponding places on plaintiff’s bottles had been in such general and exclusive use that the mere presence of any word at such place had come to be accepted generally or to any appreciable extent as an identification of the beverage, nor did it appear that the use of the same style of script resulted in any greater resemblance than that existing between two written or printed words which are wholly different except in so far as a letter or letters common to both are alike, and it appeared that no one could be deceived, unless he was so utterly unobservant. that ho might be deceived without any resemblance between the two articles. Held, that unfair competition on defendant’s part did not appear.</p> <p>LDd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 81; Dec. Dig. @=>70.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. O. A. 165; Lare v. Harper & Bros., 30 0. C. A. 376.]</p> <p>^s>For other cases see same hopic & KEY-NUMB flit in ail Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit, by the Fidelity Trust Company against the Hutchinson Chemical & Alkali Company and others. From a decree for plaintiff for insufficient relief, it appeals.</p>

<p>Indians <S=»38—Indian Country—Intoxicating Liquors—Prosecution—Evidence.</p> <p>Evidence that intoxicating liquors were found in the residence of the' defendant in that part of Oklahoma which was formerly Indian territory, without proof as to where, when, or how it was brought into the state, is not sufficient to sustain a conviction for bringing the liquor into the Indian Territory contrary to Act March 1, 1895, c. 145, 28 Stat. 693.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. <$=5>38J</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Trade-Marks and Trade-Names @=>3—Descriptive, Words—Secondary Meaning.</p> <p>Where the descriptive word “shaker,” used in connection with salt, had obtained a secondary meaning as salt made by complainant, it was immaterial whether it originally referred to salt used in a shaker, or to salt made by the religious sect known as Shakers.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4—7; Dec. Dig. @=>3.]</p> <p>2. Trade-Marks and Trade-Names @=>97 — Actions — Scope oe Relief Awarded.</p> <p>While in some cases a trade-name will be protected only in limited territory, where the salt business, of both complainant and defendant was nation-wide, a decree protecting complainant’s trade-name only in that part of the United States north of the thirty-eighth parallel and east of the 102d meridian, was improper.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 110, 111; Dec. Dig. @=>97.]</p> <p>3. Trade,-Marks and Trade-Names @=>85—Actions—Dismissal Without Prejudice.</p> <p>Where, though complainant untruthfully advertised that its salt was absolutely pure and free from gypsum, there was no untruthfulness or deception in its trade-name, it was proper to dismiss a bill for unfair competition and infringement without prejudice to the right to file a new bill after the untruthful advertising had been abandoned, instead of dismissing it absolutely.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. @=>85.]</p> <p><gr=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Criminal prosecution by the United States against Harvey C. Miller. Judgment of conviction, and defendant brings error.</p>

<p>1. Patents ©=>252—Designs—New Assembling of Old Elements.</p> <p>That each separate element in a patented design was old does not negative invention, which may reside in the manner in which they are assembled.</p> <p>[Ed. Note.—For other cases, see' Patents, Cent. Dig. §§ 394-396; Dec. Dig. ©=>252.]</p> <p>2. Patents ©=>28—Infringement—Designs.</p> <p>The test of infringement of a design patent is whether the two designs, viewed separately, would appear to be identical to the eye of an ordinary observer.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 33; Dea Dig. ©=>28.]</p> <p>3. Patents ©=328—Validity and Infringement—Design for Lamp Post.</p> <p>The Grelle design patent, No. 43,338, for a design for a five-light lamp post, held valid, but not infringed.</p> <p><©sFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Robert F. MacClemmy against the Gilbert Corset Company. On final hearing.</p>

In Equity. Suit by the United States Envelope Company and the Outlook Envelope Company against the Transo Paper Company and others. On rule for contempt against defendant corporation and Julius Regenstein, its president.

In Bankruptcy. In the matter of Charles A. Nicol and another, individually and as copartners, doing business as the American Candy Stores Company, bankrupts. On review of an order of the referee, refusing full payment of a claim.

In Bankruptcy. In the matter of James B. Frazer and others, bankrupts.. On review of an order of the referee, rejecting a claim against-the individual estate of Frazer.

At Law. Action by the Middlesex Banking Company against Robert O. Eaton, Collector of Internal Revenue for the District of Connecticut. Trial to court. This case having'been heard by the court without the intervention of a jury, by virtue of a stipulation of counsel made pursuant to the provisions of sections 649 and 700 of the United States Revised Statutes (U. S. Comp.

<p>In Admiralty. Suit by the Water Front Contracting & Lighterage Company against the steamship Corfe Castle; Norton, Lilly & Co., claimants.</p>

<p>In Admiralty. Suit by the Postal Telegraph Cable Company against P. Sanford Ross, Incorporated.</p>

<p>1. Criminal Daw <3= 494— Instbíjotions—Weight or Medical Testimony.</p> <p>Defendant in a criminal trial is not entitled to an instruction that opinions of medical experts admitted in evidence, even though admittedly, derived only from the opinions of others expressed in books, if uncontradicted by other experts, must be accepted and acted upon by the jury as absolute proof.</p> <p>[Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. § 1081; Dec. Dig. <3=19!.]</p> <p>2. Criminal Daw <3=814—Trial—Instructions.</p> <p>The charge in a criminal case must be directed to the issues arising under the testimony, and should be confined to such defenses as are supported by legal testimony sufficient to support a verdict.</p> <p>[Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1800, 1924, 1979-1985, 1987; Dec. Dig. <3=814.J</p> <p>8. Criminal Daw <3=1173—Trtal—Instbíjotions.</p> <p>That the jury, on a trial for manslaughter under a statute defining two degrees of the crime, were not instructed as to the second degree, to which none of the evidence was applicable, was not in any case prejudicial to defendant, where the sentence imposed was within that prescribed for the lower degree.</p> <p>[Ed. Note.—For other eases, see Criminal Daw, Cent. Dig. §§ 3164-3168; Dee. Dig. <3=1173.]</p> <p>4. Wobds and Phrases—“Exact Science”—“Inexact Science.”</p> <p>“Exact sciences” are those sciences which are immutable and unchangeable. Such sciences Include arithmetic, geometry, algebra, astronomy, and chemistry. An “inexact science” is one which creeds change continually, as, for example, medicine.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Fraudulent Conveyances <g=>156-Knowledge and Intent or Grantee.</p> <p>Stolen machinery, sold to L. as junk, was retaken by the owner, with the exception of nine tons, which L. had sold to S. The owner had L. arrested, and sued him and his partner, doing business as the N. Co., for the value of the goods disposed of. Within a few days thereafter the partners sold their junk business and property to L.’s father, S., and S.’s brother, who organized a corporation under the name of the N. Go., which took over the property and business. L. and his former partner’s-husband were the only men ever seen around its store. L. and his partner filed a voluntary petition in bankruptcy, scheduling no debts except the judgment obtained against them by the owner of the machinery. S. and his brother had dealt with L., and lived across the street from him; and S. wouid have taken all the junk, had the owner not prevented, when the nine tons had been delivered, and the incorporators knew, when they purchased the business, of L.’s trouble over the machinery and his arrest. Held, that the facts showed that the transaction was fraudulent, and for the purpose of covering up the disposition of the stolen goods and tho effects of the bankrupts, which would bo liable for any damages recovered against them, and that the sale was not as claimed in good faith.</p> <p>iEd. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 493, 490; Dec. Dig. <©=158.]</p> <p>2. Fraudulent Conveyances <©=>157 — Knowledge — Grantee — Incorporators.</p> <p>Even though S. and his brother did not share in the knowledge of the entire transaction which was possessed by L.’s father, the goods having been used in the formation of the corporation, the responsibility of all would not be removed by such lack of knowledge on the part of one or more of the incorporators.</p> <p>(Ed. Note.—For other cases, see Fraudulent Conveyances, Gent. Dig. §§ 497-499; Dec. Dig. <©=>157.]</p> <p>«g^aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Christopher L. Williams, as receiver of the First National Bank of Bayonne, against Bernard Brady and others. On motions to strike, for a hill of particulars, and for a stay of proceedings.

<p>In Bankruptcy. In the matter of Landelin J. Benz, bankrupt. On petition by the receiver for an order for the sale of property free from liens.</p>

In Bankruptcy. In the matter of the Wegman Piano Company, alleged bankrupt. Proceeding by G. T. Perrin to reclaim property from the receiver in bankruptcy, in which Louis B. Amann intervened.

In Equity. Suit by Walter Milkman, as trustee of John C. Arthe, bankrupt, against John C. Arthe and others, to recover certain corporate stock claimed to be the property of the bankrupt.

In Admiralty. Suit for collision by William Van Order, individually and as bailee of the cargo of the canal boat Patrick Bowen, with Jacob H. Halsted and Thomas H. Story as intervening petitioners, against the steam canal boat Nellie Toilette and the push boat Elmer D. Walling, William H. Follette and Stewart J. Dailey, claimants and respondents, and Benjamin E. Rand, intervener.

<p>■ M. J. Barnow was indicted 'for falsely personating an officer of the United States, and he demurs to the indictment.</p>

Peter Uindahl was indicted for introducing intoxicating liquors into the Indian country, and he demurs to the indictment.

<p>1. Limitation of Actions @=>21—Limitation Applicable—Written or Unwritten Contract—“Shall Pay.” '</p> <p>Under a mortgage on cattle providing that the mortgagor should pay to the mortgagee the indebtedness therein described, and all sums loaned, advanced, or expended by the mortgagee lor the maintenance or transportation of the mortgaged property, or for any purpose connected therewith, there was a specific obligation on the part of the mortgagor to repay money advanced for feed and other ex))enses connected with the cattle, and an action to enforce such obligation was one on a written contract within a statute providing a five-year limitation for written contracts and a three-year limitation for contracts not in writing, as the words “shall pay” were to all intents and purposes the same as “agree to pay.”</p> <p>[Ed. Note.—Eor other cases, see Limitation of Actions, Cent. Dig. §§ 112-117; Dec. Dig. @=>24.]</p> <p>2. Limitation of Actions <©=>130—Computation of Period of LimitationPendency of Legal Proceedings.</p> <p>Under a Kansas statute providing that if an action be commenced within due time, and plaintiff fail otherwise than upon the merits, or if a judgment for plaintiff be reversed, and the time limited therefor shall have expired, plaintiff may commence an action within one year after the reversal or failure, where in an action brought within the period of limitation a judgment for plaintiff was reversed within one year before the bringing of a new action involving the same matter, the new action was not barred by limitations.</p> <p>[Ed. Note.—Eor other eases, see Limitations of Actions, Cent. Dig. §§ 589, 545, 553-566; Dec. Dig. <@=>130.]</p> <p>3. Appeal and Error <©=>882—Review—Estoppel.</p> <p>Where the exclusion of the record of a prior action, the pendency of which wits relied upon as suspending the running of limitations, was due to defendant’s improper objection to its admissibility, he was estopped to deny that the record was as tendered, and it would bo assumed that the record sustained the allegations of the reply showing the suspension of limitations.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <©=>882.]</p> <p>4. Limitation of Actions <©=>185—Pleading in Avoidance of Statute—Reply.</p> <p>Under the practice in Kansas, a prior action suspending the running of limitations may be pleaded by way of reply, and need not be pleaded in the complaint.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 694; Dee. Dig. <©=>185.]</p> <p>5. Courts <@=>347—United States Courts —State Laws as Rules of Decision-Rules of Practice.</p> <p>The state law, permitting a prior action suspending the running of limitations to be pleaded by way of reply, is binding on the United States District Court.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <©=>347.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Chattel Mortgages <@=>164—Eights oe Parties—Maintenance oe Property.</p> <p>A chattel mortgage on cattle, whereby the mortgagor agreed to repay all sums loaned, advanced, or expended by the mortgagee for the maintenance of the property, imposed no obligation on the mortgagee to make advances for feed for the cattle, though it was given a right to make such advances and to have a lien therefor.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 294-296; Dec. Dig. <@=>164.]</p> <p>7. Chattel Mortgages <@=>164—Eights of Parties—Maintenance oe Property.</p> <p>That a chattel mortgagee of cattle had a mortgage on all the mortgagor’s real and personal property imposed no implied obligation on it to 'furnish the necessary feed for the cattle on the theory that the mortgagor had no ability to furnish the feed, as he still had an equity in the property which might furnish a basis for purchases by him, he still had his personal credit resulting from his presumably good character, he was in possession of the real estate, with all the facilities for raising feed thereon, there had in previous years been no occasion to buy feed, and as a part of the giving of the mortgages some cash was paid to the mortgagor.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 294-296; Dec. Dig. <@=>164.]</p> <p>8. Chattel Mortgages <@=>164—Eights oe Parties—Maintenance oe Property.</p> <p>A mortgagor, under a mortgage on cattle which authorized the mortgagee to make advances for the maintenance of the property and to have a lien therefor, told the mortgagee’s agent he would need feed, to which the agent responded, “All right.” About January 6th, the mortgagor saw the agent with respect to furnishing feed, and saw a dealer regarding the purchase of such feed. The agent promised to see the dealer regarding the matter the next day, and within a few days did place with the dealer a rush order for the feed, and several times later asked the dealer to hurry the order along. The company from whom the dealer ordered the feed having failed to fill the order, he on January 21st placed another with a different firm for immediate shipment, and not later than February Sd the shipment was delivered to a carrier, properly consigned to the mortgagor. The bill of lading was forwarded to the mortgagor, and received not later than February 8th. There was a delay in transporting the feed, but the mortgagee did not learn thereof until February 22d, when a tracer was instituted. The shipment reached the mortgagor on March 4th, but in the meantime an unusual storm had prevented the cattle from reaching the grass through the frozen snow, as a result of which many of them died. In the conversation between the mortgagor and mortgagee’s agent, nothing was said about how the feed was to be delivered or consigned, or where the mortgagee was to buy the feed. Held, that the agreement of the mortgagee was simply to buy and send, and not to deliver, the feed, and such agreement was satisfied by placing the order and delivering it to a common carrier for shipment within a reasonable time and with reasonable promptness'in view of the surrounding circumstances.</p> <p>[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 294-296; Dec. Dig. <@=>164.]</p> <p><gc»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeals from the Circuit Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit by the Boatmen’s Bank of St. Fouis, Mo., against D. G. Fritzlen and others. From the judgment, all parties appeal.

<p>1. Courts <@=>322—Jurisdiction of Federal Courts—Pleading—Necessity of Proof of Allegations.</p> <p>In an action of assumpsit in a federal court, a plea of non assumpsit does not put in issue the jurisdictional allegations of the declaration as to the citizenship of the parties, and plaintiff is not required to prove the same.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 876-881, 8S7; Dec. Dig. <@=>322.]</p> <p>2. Pleading <@=>388—Variance—Immateriality of Allegation.</p> <p>In an action of assumpsit on a contract for the sale of corn for future delivery, the declaration alleged the making of the contract, that plaintiff in reliance thereon purchased the corn and was at all times ready to fulfill the contract, and tendered delivery, which, defendant refused to accept, etc. The proof showed that plaintiff purchased the corn before the date when the sales ticket formally evidencing the sale was signed by the parties. Held, that there was no variance which precluded plaintiff’s re covery, as the allegation that plaintiff purchased the corn in reliance on the contract was immaterial.</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1305-1308; Dec. Dig. <@=>388.]</p> <p>3. Sales <@=>388—Breach of Contract—Instructions.</p> <p>Instructions considered and approved in an action for breach of a contract by which defendant purchased corn for future delivery.</p> <p>[Ed.. Note.—For other cases, see Sales, Cent. Dig. § 1108; Dec. Dig. <@=>388.]</p> <p>4. Contracts <@=>313—Breach—Accrual of Bight of Action.</p> <p>A positive refusal to perform a contract, although entire performance is not due, gives the other party a right of action for the breach at once.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1279; Dec. Dig. <@=>313.]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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

<p>Appeal from the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Suit by the Honstain Bros. Company, a corporation, against the Linden Investment Company, a corporation. From decree for plaintiff, defendant appeals.</p>

Appeal and Cross-Appeal from the District Court of the United States, for the Southern District of Florida; Rhydon M. Call, Judge. Suit by W. E. Shenk against the Tatum Bros. Real Estate & Investment Company. Judgment for the complainant for part of the relief prayed for, and defendant appeals, and plaintiff files cross-appeal.

These causes come here upon writs of error to review judgments of the District Court, Southern District of New York, in favor of defendants in error who were plaintiffs below. The first action is for personal injuries- sustained by Pauline Darnell who will be hereinafter referred to as the plaintiff; the second, for loss of services and necessary disbursements resulting from such injuries.

<p>1. Pleading <©=>157—Affidavit of Defense—Sufficiency.</p> <p>In an action on a party wall agreement, which provided that plaintiff should construct a wall of certain material and a certain thickness, and that defendant might thereafter use the wall upon payment of one-half of the cost thereof, or of so much as was used, an affidavit of defense which merely averred generally that the wall was thicker than was necessary for buildings of the height of those erected, and would have been sufficient for buildings twice that height, is not sufficient, but it should point out specifically wherein the wall constructed differed from that called for by the contract.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 315; Dec. Dig. <©=>157.]</p> <p>2. Party Walls <©=>8—Agreements—Construction.</p> <p>Under a party wall agreement, which provided that one of the parties should construct a wall of a certain thickness and material, and that the other should have the right to join thereto a building for the whole extent of the wall, or any part thereof, upon payment of one-half of the value of the wall, or so much thereof as should be used, the second party is required to pay one-half the value of the entire thickness of the wall for that part which was used by the building subsequently constructed, though the wall was thicker than was necessary for buildings of the height of those constructed.</p> <p>[Ed. Note.—For other cases, see Party Walls, Cent. Dig. §§ 24-41; Dec. Dig. <©=>8J</p> <p>3. Party Walls <©=>8—Agreements—Construction—“Value”—“Cost.”</p> <p>Where a party wall agreement required one party to pay one-half the value of rhe wall, and a subsequent agreement provided for the crediting of a cei tain amount upon the one-half of the cost of the party wall mentioned In iche former agreement, the words “value” and “cost” were used interchangeably, and the liability of the second party is measured by the cost of the wall.</p> <p>[Ed. Note.—For other cases, see Party Walls, Cent. Dig. §§ 2-F-41; Dec. Dig. <©=>8.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Cost; Value.]</p> <p><©=>i’or other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Tundís, Judge. Suit by the Dixon Pure Ice Company against the Sandusky Portland Cement Company. Decree for complainant, and defendant appeals.

<p>In Error to the District Court of the United States for the Western District of Missouri; Frank A. Youmans, Judge.</p> <p>Harry D. Todd was convicted of crime, and he brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Win. H. Pope, Judge.</p> <p>Action by the Jackson Zinc & Read Company against J. F. Ripley and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1 (Jbimtnal Raw <@=113—Offenses Against Postal Raws—Venue or OFFENSE—“AüSTBACT OB REMOVE”—“STEAL.”</p> <p>Under Criminal Code (Act March 4, 1909, c. 321) § 195, 35 Stat. 1125 (Comp. St. 1913, § 10365), providing that whoever, being a person employed in the postal service, shall steal, abstract, or remove from a letter intrusted to him, and intended to be carried by mail, any article or tiling contained therein, shall be punished as therein provided, the offense denounced is simple larceny, with all the common-law incidents of larceny, one of which is that the crime is ambulatory in its nature, and may be treated as committed or repeated in any jurisdiction into which the thief carries the article stolen; and where a postal clerk, running from a point in Rouisiana to a point in Arkansas, abstracted money from a letter, he committed the offense within the eastern district of Arkansas, regardless of where the money was abstracted, if he afterwards brought it into such district with the intent and for the purpose of there appropriating it to his own use, as the words "abstract or remove” add nothing to the word “steal,” which means to take the personal property of another feloniously, or to take and carry it off clandestinely, and without right or law, since there could he no stealing of the contents, of a letter without first abstracting or removing such contents from the letter.</p> <p>■<^»For other eases see same topic & K1SY-NUMI3ER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 190, 232; Dec. Dig. <@=>113.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Steal.]</p> <p>2. Criminal Law <@=>778—Instructions—Failure to Produce Evidence.</p> <p>On the trial of a railway postal clerk for abstracting money from a letter, where it appeared that such money at the end of his run was found in an envelope addressed to his wife, and there was conflicting testimony as to whether the envelope was addressed in his handwriting, an instruction that no expert evidence had been introduced in behalf of accused to show that the address was not in his handwriting, and that his failure to introduce such evidence was a circumstance which might be considered in determining what the true facts were, and justified a presumption that experts would not have testified that it was not in his handwriting, so modified the instruction placing the burden on the government of proving accused guilty beyond a reasonable doubt as to justify the jury in finding accused guilty because of a failure on his part to prove himself innocent, and constituted reversible error.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1S54-1857, 1960, 1967; Dec. Dig. <@=>778.]</p> <p>Sanborn, Circuit Judge, dissenting in part.</p> <p><g£s>For other cases se? «ame topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Campbell, Judge. Action by Newton B. Childs against the Missouri, Kansas & Texas Railway Company. From a decree dismissing the bill, plaintiff appeals.

This cause comes here upon appeal from a decree of the District Court for the Western District of New York, directing the payment by the trustee in bankruptcy of the bankrupt of the proceeds of the sale of the vessel United Shores to certain claimants of said proceeds to the' extent necessary to satisfy their claims, and of the remainder of said proceeds to the trustee in bankruptcy to apply upon the claims of general creditors.

<p>In Error to the District Court of the United States for the Northern District of Elorida; Wm. B. Sheppard, Judge.</p> <p>Action by J. M. Herrington and wife against the Postal Telegraph Cable Company. Judgment for plaintiffs, and defendant brings error.</p>

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

<p>1. Corporations @=>123—Pledge of Stock by Brokers—Rights of Owners.</p> <p>Where the owners of stock, pledged by brokers as collateral security for a loan, could not trace their specific securities into the surplus of the price for which such stock was sold after the payment of the secured debt, the most equitable rule was to divide such surplus between them pro rata.</p> <p>{■Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. @=>123.]</p> <p>'2. Bankruptcy @=>357—Claims—Reference—Costs and Expenses.</p> <p>Where a creditor of a bankrupt was given a preference which enabled him to realize over $90,000 on his claim, and it appeared probable that he was bound by a decree awarding a pro rata distribution of a fund of $10,000 among claimants thereto, a reference for the determination of his claim to a right in such fund superior to other claims would not be ordered, unless he stipulated that the costs and expenses of the reference, if adverse, would be borne by him.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 541-544; Dec. Dig. @=>357.]</p> <p>@^>For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Public Lands <@=>13—Sales of Timber from Unpebfected Homestead— Evidence.</p> <p>In an action by the government to recover the value of timber cut by a homestead entryman and sold before his right had' been perfected by the requisite residence and cultivation, evidence held to justify a finding that he entered the land and did much work upon it in good faith, intending to make a home for himself and his family, and that he cut and-sold the timber in ignorance that he was violating the law.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 16-18; Dec. Dig. <@=»13.]</p> <p>2. Public Lands <@=11—Homestead—Rights Acquired—Sales of Timber.</p> <p>A homestead entryman, whose right had not been perfected by the requisite residence and cultivation, had no legal right to cut and sell timber from the uncultivated part of his homestead.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 9, 11-13; Dec.'Dig. <@=>11.]</p> <p>3. Public Lands <©=13—Cutting and Removing Timber—Damages.</p> <p>A willful trespasser is liable to the government, not only for the value of timber cut and sold from an unperfected homestead, but for the value of the product created by his labor.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. .Dig. §§ 16-18; Dec. Dig. <@=»13.]</p> <p>4. Public Lands <@=>13—Cutting and Removing Timber—Damages.</p> <p>Where a homestead entryman acted in good faith, in the belief that he had a right to cut and sell timber from his unperfected, homestead, h'e was an innocent and not a willful trespasser, and was liable to the government only for the value of the timber in its original place; and henee, where there was evidence that this was the case, the court erred in charging that he was a willful trespasser, in giving the measure of damages applicable to a willful trespasser, and in refusing to charge that if a purchaser from the entryman had no knowledge that the timber was cut from an unperfeeted homestead, and if the entryman cut it innocently and in good faith to assess as damages only the reasonable value of the timber at the time it was cut.</p> <p>¡@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Public Lands, Cent. Dig. §§ 16-18; Dec. Dig. <§=>13.]</p> <p>5. Public Lands <§=>13—Cutting and Removing Timbee—Damages.</p> <p>The same rule of damages is applicable to a purchaser of timber cut from an unperfected homestead as is applicable to the original trespasser.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 16-18; Dec. Dig. <§=>13J</p> <p>«gx^For other eases see same topic & KEY-NUMBER in ali Key-Numbered Digests & Indexes</p>

Pollock, Judge. Suit in equity by the Kansas Gas & Electric Company against the City of Cherryvale and others, to restrain the city from canceling a contract with complainant, and also to restrain it from entering into a contract with the other defendants. From a decree restraining, only the cancellation of the contract, complainant appeals.

<p>Mortgages @=>319—Foreclosure by Action—Sufficiency of Evidence— Payment.</p> <p>In a suit to foreclose a mortgage, evidence held, to show that a conveyance of property by a grantor of the mortgage to the mortgagee was intended as security for other debts, and not as payment of the mortgage debt.</p> <p>[Ed: Note.—For other cases, see Mortgages, Cent Dig. §§ 855-863, 875, 913, 1356, 1366; Dec. Dig. @=>319.]</p> <p>or other cases see same topic & KEY-NXJMBBR in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal Law <3=»413—Evidence—Materiality.</p> <p>The exclusion of a question, asked of the arresting officer on cross-examination as to what defendants said when arrested, held not error, where they testified fully in denial of the charge.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§. 928-935; Dee. Dig. <©=»413.]</p> <p>'2. Criminal Law <@=»359—Evidence—Materiality.</p> <p>On trial of defendants for operating an illicit still, testimony offered to show that other persons lived in the vicinity of the still, and that there were paths between their houses and the still, held properly excluded, as immaterial, in the absence of any evidence that any of such persons operated the still.</p> <p>- other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. <S=5o59.]</p> <p>3. Witnesses <§=>277—Impeachment—Accused as Witness in Criminal Prosecution—Former Conviction.</p> <p>Where defendants, charged with operating an illicit still, testified in their own behalf, It was not error to require them on cross-examination to admit that they had previously been convicted and sentenced for a similar offense.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. <3=>277J</p> <p>4. Criminal Law <§=>829—Trial—Instructions.</p> <p>Keiusal of a requested instruction in a criminal prosecution held not error, where it was fully covered by the charge given.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <§=>829.]</p> <p>oilier eases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action by the New Roads Oil Mill & Manufacturing Company, Limited, against the Texas & Pacific Railway Company and another, to recover overcharges of freight. Judgment for plaintiff, and defendants bring error.</p> <p>This suit was brought by the defendant in error to recover of the plaintiffs in error certain alleged overcharges of freight on cotton seed shipped from various stations on the lines of the St. Louis, Iron Mountain & Southern Railway Company and its branch, known as the New Orleans & Northwestern Railroad, to Ferriday, the junction point with the Texas & Pacific, and thence over the latter to New Roads, all stations in Louisiana.</p> <p>The following stipulation of counsel discloses the question arising and to be decided on this writ of error:</p> <p>. “(2) Plaintiff contends that, in order to calculate the proper freight rates chargeable on the shipments involved in this ease, tariff L. C. No. 95 of the Texas- & Pacific Railway Company should be applied in conjunction with .tariff No. 699-A of the New Orleans & Northwestern Railway Company, on all of said shipments made prior to October 11, 1910, and that on shipments involved in this case made on and after October 11, 1910, the proper freight rates chargeable should be arrived at by applying said tariff L. C. No. 95 of the Texas & Pacific Railway Company, in conjunction with tariff No. 1264-A of the St. Louis Iron Mountain & Southern Railway Company.</p> <p>“Defendants deny that either of the said tariffs No. 699-A or 1264-A are applicable to the shipments involved in this case, but admit, if these tariffs are applicable, as plaintiff contends, that plaintiff has been overcharged in freight rates on said shipments to the amount of $5,002.57, with interest and costs, as claimed in its petition.</p> <p>“Defendants contend that the tariffs applicable to the shipments involved in this case are as follows:</p> <p>“(1) On all shipments made prior to November 19,1910 (except shipments of date*November 11, 1910, from Mansford, account Tallulah), tariff L. C. No. 95 of the Texas & Pacific Railway Company, in conjunction with tariff No. 4-A of the New Orleans & Northwestern.</p> <p>“(2) On shipments of date November 11, 1910, from Mansford, account Tallulah, tariff L. C. No. 95, Texas & Pacific Railway Company, in conjunction with tariff No. 5504 of the St. Louis, Iron Mountain & Southern Railway Company.</p> <p>“(3) On all shipments made on and after November 19, 1910, tariff L. C. No. 95 of the Texas & Pacific Railway Company, in conjunction with tariff No. 2496 of the St. Louis, Iron Mountain & Southern Railway Company.</p> <p>“Plaintiff denies that these tariffs No. 4r-A and 5504 and No. 2496 are applicable to the shipments involved in this case, but admit, if they are applicable, as defendants contend, that plaintiff has been overcharged only $761.32.</p> <p>“Plaintiff admits that a tender of $761.82, with interest and costs added to date, has been made to it in this case by defendants, and refused.”</p> <p>it is well to note that tariff 1264-A is substantially a reissue of tariff No. 699-A. and superseded the latter as to shipments made after October 11, 1910. Tariff 1264-A, however, did not apply to the Texas & Pacific Railway at the time the shipments in controversy moved. The three tariffs, 4-A, 5504, and 2496, were regular local tariffs prescribing local rates on various commodities, and wore governed by Western Classification.</p> <p>During the time that the shipments moved, the following tariffs were published by the carriers, -approved or authorized by the Railroad Commission of Louisiana, without exceptions, save such as'are noted on the tariffs, to wit:</p> <p>(a) Tariff L. C. No. 95 of the Texas & Pacific Railway Company.</p> <p>(b) Tariff No. 699-A of the New Orleans & Northwestern Railway Company, and other railroad companies, in effect up to October 10, 1910.</p> <p>(<*) Tariff No. 1264-A of the St. Louis, Iron Mountain & Southern Railway Company, effective on and after October .10, 1910.</p> <p>(d) Tariff No. 4-A of the New Orleans & Northwestern Railroad, effective up to November 19, 1910.</p> <p>(0) Tariff No. 5504 of the St. Louis, Iron Mountain & Southern Railway Corn-pan v, in effect on November 11, 1910.</p> <p>(1) Tariff No. 2496 of tlie St. Louis, Iron Mountain & Southern Railway Company effective on and after November 19, 1910.</p> <p>A jury was waived and the cause submitted to the court. Adopting the contention of counsel for tlie defendant in error, the court rendered judgment accordingly, to which the plaintiffs in error excepted, and to review tlie judgment they have prosecuted this writ of error.</p>

<p>In Error to the District Court of the United, States for the District of Minnesota; Page Morris, Judge.</p> <p>William Short 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 Iowa; Smith McPherson, Judge.</p> <p>Charles W. Johnson was convicted of an offense, and he brings error.</p>

'Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Petition by Phillip A. Cooley and others for a writ of habeas corpus directed to Thomas W. Morgan, Warden of the United States Penitentiary at Leavenworth, Kan. From a judgment denying the petition, the petitioners appeal.

<p>Petition to Revise Order of the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>In the matter of Daniel E. Strub, bankrupt, of whose, estate Hugh S. Gamble is trustee. On petition by the bankrupt to revise an order sustaining the trustee’s claim to certain property.</p>

Uibel by John Kraljer, by Peter Kraljer, his guardian ad litem, against the Snare & Triest Company and others. Decree for the libelant, and respondent City of New York appeals.

<p>Petition to Revise an Order of the District Court of the United States for the Southern District pf Ohio; Sater, Judge.</p> <p>Action at law by the United States, for the use of Margaret Alice Throckmorton, against Samuel T. Ruggles and others. Judgment for defendants, sustaining demurrer, and plaintiff brings petition to revise.</p>

Meek, Judge. In the matter of the Ft. Worth Heavy Hardware Company, bankrupt. From the order of adjudication, the bankrupt and intervening creditors appeal.

<p>Corporations «=>232—Stockholders’ Liability—Payment foe Stock in ■ Property.</p> <p>Within Stock Corporation Law N. Y. (Consol. Laws, c. 59) § 56, making every holder of stock not fully paid personally liable to creditors, to an amount equal to the amount unpaid, for debts of the corporation contracted while such stock was held by him, stock may be fully paid in property as well as in- cash; and where directors, in issuing stock in payment for patents, exercised their judgment as to the value of the patents and the amount of stock which should be issued, honestly and fairly and without fraud, their judgment was conclusive.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 879, 880, 883, 884, 987; Dec. Dig. «=>232.]</p> <p><@=mFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p>

<p>In Error to the District Court of the United States for the. Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Suit by Samuel C. B. Brown against the Cumberland'Telegraph & Telephone Company. Judgment on a directed verdict for defendant, and plaintiff brings error.</p>

At Law. Action by William Storey against Carroll L. Storey. A verdict for the defendant was set aside, and new trial granted, and after judgment for the plaintiff on his demurrer to the amended answer had been reversed by the Circuit Court of Appeals, defendant moved to set aside the order granting the new trial, and for judgment on the verdict.

<p>1, Shipping <3=»177—-Demurrage—Liability foe Delay in Discharging.</p> <p>Delay in the discharge of a cargo of lumber beyond the lay days provided by the charter held, on the evidence, due to the cougested condition of the dock on which she was required to unload, which rendered the consignee, bound to furnish the discharging berth, liable for demurrage.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 578-582, 584; Dec. Dig. <S=»177.]</p> <p>2. Shipping <3=>180—Delay in Discharging—Liability.</p> <p>Although a vessel is bound by her charter to employ the stevedores for unloading, where the consignee elects to do so, he cannot hold the vessel responsible for delay on their part in unloading.</p> <p>[Ed. Note.—For other cases, see Shipping, Gent. Dig. §§ 587, 588; Dec. Dig. <3=>180.J</p> <p>8. Shipping <3=>177—Demurrage—Liability for Delay in Discharging.</p> <p>Where [lie consignee of the cargo of a chartered vessel voluntarily assumes the duty of unloading, he cannot deny liability for demurrage in accordance with the terms of the charter party.</p> <p>[Ed. Note.—For other cases, see Shipping, Gent. Dig. §§ 576-582, 584; Dec. Dig. <S=»177.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by L. Kirby, trading as the Kirby Piano Company against the Louismann-Capen Company. On motion to quash the return of service of process.</p>

<p>1. Removal op Causes <@=>25—Test op Right to Remove.</p> <p>The case as made by plaintiff’s petition, as it stood at the time of the petition for removal, was the test of the right to remove, and an amended petition, subsequently filed, could not be considered on a motion to remand.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 58, 59; Dee. Dig. <@=25. ]</p> <p>2. Cokpobations <@=197—Stookholdees’ Meetings—Right to Vote.</p> <p>The holders of shares of stock in a corporation, who appear to be such on the stockbooks at the date of a meeting of the stockholders, are prima facie entitled to vote the stock.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 747, 749-763, 764; Dec. Dig. <@=197.]</p> <p>S Removal op Causes <@=>48—Sepabable Oontboveksy.</p> <p>The petition in a suit by a stockholder in a property company alleged that a majority of the stock was owned by the L. Railroad Company or its officers and directors, or by the A. Railroad Company, which controlled the L. Company; that the stock owned by the A. Company appeared on the books of the property company in the name of a trust company, the A. Company and the trust company being foreign corporations; that the trust company, by voting such stock, had repeatedly elected the officers and directors of the L. Company as directors of the property company, and would do so at a meeting to be hold on March 17, 1914; that under the Constitution and laws of Kentucky and the charters of such railroad companies it was unlawful for them to control the business of the property company; and that the stock appearing on the corporate books in the name of the L. Company belonged to other parties, hut had not been transferred to them on such books. An injunction was asked restraining the L. Company from voting any stock at the meeting on March 17th, restraining the president of the property company from ruling at such meeting that the stock held by any of the other companies might be voted, restraining the secretary from registering the vote of such stock, restraining the holder of a proxy from such companies from acting as proxy or voting such stock, restraining the property company from recognizing the ownership of the stock held by the other companies, so far as the right to vote it at such meeting was concerned, and restraining the trust company and the A. Company from voting their stock. The date of such meeting had long since passed when a motion to remand was made, and tfiere was no claim that there had been any adjournment. Held, that á controversy was involved between plaintiff on the one side and the A. Company and the trust company on the other, involving the right of such companies to own, hold, or vote the stock of the A. Company held by the trust company as- trustee, which controversy was entirely separable from the controversies with the other parties, and removable to the federal court.</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§1 93, 94; Dee. Dig. <@=»48.]</p> <p><g=s>Fctr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1, Trade-Marks and Trade-Names @=>45—Effect of Kegistkation.</p> <p>Though Act Fob. 20, 1905, c. 592, § 16, 33 Stat. 728 (Comp. St. 1913, $ 9501), merely provides that the registration of a trade-mark shall be prima facie evidence of ownership, and does not make it prima facie evidence of validity, the decision of the Commissioner of Patents that a device for which registration is asked may be the subject of exclusive appropriation as a trade-mark is entitled to respect as being prima facie correct; the value of this presumption depending upon whether any opposing interest has been heard, and whether the whole situation has been fully considered upon a full representation of all the facts, as the act authorizes the registration of nothing but a trade-mark, and this incidentally involves the consideration by the Commissioner of whether the device is the subject of exclusive appropriation.</p> <p>fEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. || 53, 59; Dec. Dig. @=>45.]</p> <p>2. Trade-Marks and Trade-Names @=>6— Names and Marks Subject to Appropriation—Descriptive Words or Letters.</p> <p>Where the letters “O & C,” used in connection with capsules in the drag trade and with the users of drugs for a certain class of diseases, referred and were understood to refer to the drugs of which the capsules were composed, such letters could not be appropriated as a trade-mark, since, while letters or initials may in some cases be exclusively appropriated for trademark purposes, it is essential that the primary object in using them be to Indicate origin or ownership, and not the grade, composition, or quality of the article.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig’. I 10; Dec. Dig. @=>6.1</p> <p>8. Trade-Marks and Trade-Names @>=>45—Eeffct of Registration.</p> <p>Act Feb. 20, 1905, simply authorizes the registration of trade-marks, and does not prescribe what may be valid trade-marks, and the validity of a trade-mark must depend up on general principles and rules of law, and not upon its registration, which cannot validate a trade-mark not previously valid.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent, Dig. §§■ 53, 59; Dec. Dig. @=>45.]</p> <p>4. Trade-Marks and Trade-Names @=>59—Names and Masks Subject to Appropriation—Descriptive Words or Letters.</p> <p>Where the letters “C & C,” as used in connection with capsules intended for a certain class of diseases, was understood in the drug trade and among the users of drugs for such diseases as referring to the drugs of which the capsules were composed, a registered trade-mark, “Planten’s C & C or Black Capsules,” if valid at all, was valid only in its entirety, and could be infringed only by the use of the entire trade-mark, or some colorable imitation of it as a whole, and was not infringed by defendant’s use of the words “Gedney’s C & C (Black). Capsules,” especially where the descriptive terms had been used by defendant in common with plaintiff long prior to plaintiff’s registration of his trade-mark.</p> <p>LEd. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72; Dec. Dig. @=>59.1</p> <p>6. Trade-Marks and Tbabe-Names @=>43—Color of Background.</p> <p>Where an application for the registration of a trade-mark stated that the mark had usually been printed by a rectangular block, the blaek rectangular figure upon which the words were placed was no part of the trade-mark, however important on the question of unfair competition.</p> <p>[Ed, Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. |§ 48, 49; Deo. Dig. @=>43.]</p> <p>@s>i‘’or other cases see same topic & KJDY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Tbade-Maeks and Teade-Names @=45—Registration—Fraud.</p> <p>That the registration-of a trade-mark was secured, on an ex parte application, and upon the statement of the applicant of long use and of his belief that he was the only person entitled to, or who had the right to, use the matter embraced in his alleged trade-mark, did not constitute fraud, vitiating the registration, though the granting of registration upon a statement of that character might lead to very loose and one-sided proceedings.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 53, 59; Dec. Dig. @=45.]</p> <p>7. Fraud @=50—Presumptions and Burden of Proof.</p> <p>While fraud vitiates every act, it will not be presumed.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. @=50.]</p> <p><gEs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexed</p>

<p>1. Constitutional Daw @=>48—Determination of Validity—Presumptions.</p> <p>An act of Congress must be upheld and enforced, unless its invalidity is made to appear so clearly as to be beyond all question of doubt.</p> <p>[Ed. Note.—For other cases, see Constitutional Daw, Cent. Dig. § 46; Dec. Dig. @=>48.]</p> <p>2. Constitutional Daw @=>27—Power oe Congress—Necessity of Express ' or Implied Constitutional Authority.</p> <p>The federal Constitution is one of purely delegated powers, and when an act of Congress is challenged in due form and proper manner some provision in the .Constitution, authorizing the act in express terms or by necessary implication, must be pointed out.</p> <p>[Ed. Note.—For other cases, see Constitutional Daw, Cent. Dig. § 31; Dec. Dig. @=>27.]</p> <p>3. Constitutional Daw @=>38—Necessity of Express or Implied Constitutional Authority.</p> <p>That an act of Congress not authorized by the powers delegated to Congress by the federal Constitution has a laudable purpose, that the exigencies of the case are great, or that the powers of the states are impotent, will not sustain the act.</p> <p>[Ed. Note.—For other cases, see Constitutional Daw, Cent. Dig. § 36; Dec. Dig. @=>38.]</p> <p>4. Commerce @=>15—Game @=>4—'United States @=>5—Constitutional and Statutory Provisions.</p> <p>Act March 4, 1913, e. 145, 37 Stat. 847 (Comp. St. 1913, § 8837), providing that migratory birds shall be deemed within the custody and protection of the government of the United States, and shall not be destroyed or taken contrary to regulations which the Department of Agriculture is thereby authorized and directed to adopt, is not authorized by the commerce clause of the federal Constitution, as the title to wild animals and birds is in the state, in trust for all the people of the state, and the power of the state is not terminated by the act of the individual in reducing game to his lawful possession, but the state may afterwards so control its disposition as to absolutely prohibit its coming under the protection and control of the commerce clause; nor is such act authorized by article 4, § 3, subsec. 2, providing that Congress shall have power to make all needful regulations respecting the territory or other property belonging to the United States, and that nothing in the Constitution shall prejudice any claims of the United States, or of any particular state, as the federal gov-eminent has neither a property right nor a proprietary interest in migratory birds.</p> <p><!£»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—E’or other eases, see Commerce, Cent. Dig. §§ 17, 34, 35; Dec. Dig. @=»15; Game, Cent. Dig. § 3; Dec. Dig. <§=»4; United States, Cent. Dig. § 4; Dec. Dig. <§=5.]</p> <p>other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

In Admiralty. Suit for collision by Peter Cahill, owner of the tug O. U Hallenbeck, against the steamship Olympic, Océanic Steam Navigation Company, Limited, claimant, and cross-libel against the tug.

Arthur Lane and John Reese were separately convicted of offenses, and the government moves to modify the judgments and sentences.

In Equity. Suit by the Board of Trade of the City of Chicago against Henry C. Tucker and others. On motion to punish the defendant named for contempt of court.

<p>Í. Injunction <§=>223—Quotation of Board of Trade Prices—Violation— “Continuous Quotations.”</p> <p>An injunction restraining a broker from obtaining, using, and distributing the quotations of a Board of Trade without acquiring a right to such quotations was not limited in its application to “continuous quotations” defined in contracts with the board’s subscribers as quotations furnished oftener than at intervals of 10 minutes, but was violated where the broker’s employe at 10-minute intervals noted and telephoned to the broker the last quotation posted in the office of a subscriber of the Board, especially where it did not appear that each of such quotations was not one item of the continuous quotations.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. <§=>223.</p> <p>For other definitions, see Words and Phrases, Second Series, Continuous Quotations.]</p> <p>2. Exchanges <§=>13—Quotation of Prices—Publication.</p> <p>The posting of quotations furnished by a Board of Trade to its subscribers in the office of a subscribing broker, was not a publication which would terminate the Board’s property rights in the quotations, or authorize a nonsubseriber to use and distribute such quotations.</p> <p>[Ed. Note.—For other cases, see Exchanges, Cent. Dig. § 16; Dee. Dig. <§=>13.</p> <p>Quotations of prices and transactions on exchanges, see note to Sullivan v. Postal Telegraph Cable Co., 61 C. C. A. 2.]</p> <p>3. Injunction <§=230, 232—Punishment for Violations—Amount of Fine.</p> <p>A proceeding to punish, as for contempt, a violation of an injunction restraining a broker from using the quotations of a Board of Trade, was civil, and not criminal, and the court correctly held that a dual punishment should not be imposed, but one simply directed towards making good to complainant the loss it had sustained from the violation.</p> <p>[Ed. Note.—For other eases, see Injunction, Cent. Dig. §§ 502-516, 519-528; Dee. Dig. <§=230, 232.]</p> <p>4. Injunction <§=232—Punishment for Violations—Amount of Fine.</p> <p>In punishing the violation of an, injunction as a civil contempt, the court may reimburse the complainant for the necessary expense of enforcing the injunction; but extravagant .disbursements should not be allowed.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig, §§ 519-528; Dee. Dig. <§=232J</p> <p>5. Injunction <§=231—-Punishment fob Violations—Amount of Fine.</p> <p>In punishing the violation of an injunction as a civil contempt, the allowance of complainant’s expenses is a matter resting in the discretion of the District Judge, and unless such discretion has been abused his action will not be disturbed.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 517; Dee. Dig. <§=231.J</p> <p>6. Injunction <§=233—Punishment—Violations—Costs.</p> <p>On a motion to punish the violation of an injunction as a contempt, the successful moving party was entitled to taxable costs, not, however, to be added to the fine and collected by a body execution, but merely to be a money judgment collected in the usual way.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 518; Dec. Dig. <§=233.]</p> <p>®=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This cause comes here on appeal from a final decree entered in the District Court of the United States for the Eastern District of New York, on March 9, 1914, awarding priority to wage claims over a supply claim which accrued subsequently.</p> <p>The Samuel Little is a harbor tug employed in and about the harbor of the city of New York. The tug was sold by the United States marshal on February 14, 1918, under a libel for repairs. The sum realized has not been sufficient to pay all filed claims, and It is necessary to adjust priorities between them.</p> <p>Claims were filed subsequent to the filing of the libel by several members of the crew of the tug for wages, and by William Horre & Co., whose claim is for coal supplied to the tug. It was contended by appellant that what has been known as the “forty-day rule” should determine the priority of payment, and that wage claims, though retaining priority for a period of 40 days, were subordinate to claims accruing during a subsequent period of 40 days.</p> <p>The District Judge declined to apply the 40-day harbor rule to wage claims, and held that all such claims, irrespective of the time of accrual, should be accorded a preference over the claim of William Horre & Co. for coal supplied to the tug within 40 days previous to the first attachment of the vessel-on January 80, 1913. The coal had been delivered at various times between January 1 and 25, 1918, and the claim of John J. MeCambridge for wages arose la June and July, 1912. The appeal is from so much of the decree as prefers the wage claims over the claim of the appellant for supplies.</p>

Suit in equity by John W. Schofield, as receiver of the Merchants’ National Bank of Seattle, against Charles H. Baker, Algernon S. Norton, and the Seattle Water Front Realty Company. Decree for complainant, and defendants appeal.

<p>1. Commerce <@=27—Liability fob Injuries—Statutory Provisions—“Common Carrier by Railroad.”</p> <p>Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, §§ 8657-8605), the title of which reeites that it is an a.ct relating to the liability of common carriers by railroad to their employes, and which makes common carriers by railroad, while engaged in interstate commerce, liable for the injury or death of any employe from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency due to negligence in its “cars, * * * boats, wharves, or other equipment,” applied to injuries sustained by an employe» on a tugboat of a railroad company used, in the business of continuing or completing interstate traffic, to move floats, on which cars loaded with freight were run, between points about New York Harbor, as, in view of the history of congressional enactments upon the subject, the expression “by railroad” is descriptive of the kind of common carriers to which the statute relates, distinguishes them from common carriers of other classes, and describes the kind of employers and employes charged with and protected by the provisions of that act.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <@=27.J</p> <p>2. Commerce <@=27—Liability for Injuries—Statutory Provisions.</p> <p>Kmployers’ Liability Act April 22, 1908, applies only to injuries occurring when the particular service in which the employe is injured is a part of interstate commerce; the test being whether the employe at the time of his injury was employed by a carrier then engaged in interstate commerce.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dee. Dig. <3=27.1</p> <p>S. Master and Servant <@=284—Actions for Injuries—Questions for Jury.</p> <p>In an action for injuries sustained by an employe on a tugboat of a railroad company, while it was tying up at its home dock, where defendant’s evidence tended to show that, after moving a loaded float from a pier in the East River to a dock in Jersey City, the tug in default of further orders moved light to its home dock, there to await- further orders, while that for plaintiff showed that the tug, after moving freight from New Jersey to New York, returned to its New Jersey home dock for the purpose of taking another tow therefrom to a point in New York, and was backing into the slip when the accident occurred, because the float was not ready, the question whether the employé was employed and the railroad company engaged in interstate commerce at the time of the accident was properly submitted to the jury.</p> <p>^fcs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. <@=284.]</p> <p>4. Commerce <@=27—Master and Servant <@=291—Liability for Injuries— Statutory Provisions.</p> <p>A railroad company’s tugboat, used in moving freight between different points about New York Harbor, was engaged in interstate commerce while tying up at its New Jersey home dock, if the act of tying up constituted the last act in a transaction of interstate commerce, or the first act preliminary and necessary to such a transaction, and hence the court did not err in charging that, if the boat was engaged in towing or transporting articles of commerce from one state to another, an employé thereon was engaged in interstate commerce; that his engagement did not end until the particular job was completed, and that it was not completed if he had further orders to execute until he returned to the. home dock or his headquarters, if necessary to return there to execute an additional order; that if it was sent to transport an interstate shipment, and if it had no further orders, the employé was still engaged in interstate commerce, until he came back to the home dock and tied up, or received further orders; that if the boat had completed its journey, and carried out its last order, and was tying up to the dock, the jury should determine whether the employé was engaged in interstate commerce by determining what his employment was immediately prior to the time he was tying up; that if his act of tying up was part of the execution of a further^ order, or an incident in the execution of a further order, his employment “was to be determined by the nature of such order; that there was evidence that the tug was to take a float from Jersey City to a point in New York, but was directed to hold certain floats in position while another tug moved out the float that was to be taken to New York; that it was for the jury to determine '.-whether the’act of holding such floats in line was a part of the act of taking such tug to New York; and that, if it was, such act was interstate commerce.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <@=27; Master and Servant, Cent. Dig. §§ 1133,1134, 1136-1146; Dec. Dig. <@=291.]</p> <p>5. Master and Servant <@=288—Actions fob Injuries—Instructions—Applicability to Issues.</p> <p>Where, in an action under the Employers’ Liability Act for injuries to an employé on a railroad company’s tugboat, the only negligence alleged was the negligence of a fellow servant in starting the tug while plaintiff was securing a line for the purpose of making the tug fast to a dock, the court properly refused to direct a verdict for defendant on the ground that plaintiff assumed the risk, as under the statute he did not assume the risk of injury resulting from the negligence of a fellow servant, and while he assumed the risks incident to the ordinary perils of navigation, injuries therefrom result from a pure accident, for which the law affords no relief, and the question was therefore whether the injury was caused by the particular negligence charged or by a pure accident, which was a question for the jury.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. <@=288.]</p> <p>@s»For other’ oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Master and Servant ©=286, 289—Actions for Injuries—Questions fob Jury.</p> <p>Where;, in an employe’s action for injuries, fair-minded men might reasonably have drawn, from the conflict in the testimony, different conclusions concerning defendant’s negligence and plaintiff’s contributory negligence, these questions were properly submitted to the jury.</p> <p>] lid. Noto.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1012, 1044, 1016-1050, 1089, 1090, 1092-3132; Dec. Dig. ©=286, 289.]</p> <p>^c»For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Petition to Revise in Matters of Law Certain Orders of the District Court of the United States for the Central District of Idaho, in Bankruptcy. In the matter of Frank M. Pindel, bankrupt, of whose estate Norman J. Holgate was appointed trustee.

At Law. Application by John Dennett, Jr., and others for a writ of mandamus directed to Hon. William H. Sawtelle, District Judge of the United States District Court for the District of Arizona and to such court.

T. Dooling, Judge. Two cases are comprised by the record, one being an application by Timothy Healy for a writ of habeas corpus in behalf of Rhagat Singh and 11 others, and the other an application in behalf of Sundar or Sandu Singh and 9 others, against Samuel W. Backus, as Commissioner of Immigration at the Port of San Francisco. The cases are known in the court below as Nos. 15,479 and 15,480.

Keller, Judge. Action at law by Charles S. Whelen, George F. Dasher, and William B. Whelen, trustees, against Philip Dambert and the Pocahontas Coal & Coke Company. Judgment for defendants, and plaintiffs bring error.

B. Witmer, Judge. hi the matter of the M. Stipp Construction Company, bankrupt, of which Charles P. O’Malley is trustee. From an order directing the trustee to issue a call on the subscribers to the stock of the bankrupt company, Mathias Stipp appeals.

<p>i. Copyrights <@=>66—Infringement—Law Governing.</p> <p>Under Copyright Act March 4, 1909, c. 320, § 1, 35 Stat. 1075 (Comp. St. 1913, § 9517), providing that any person complying with the provisions of that act shall, in the case of a musical composition, have the exclusive right to perform the copyrighted work publicly for profit, and for the purpose of public performance to make any arrangement or setting of it, or of the melody of it, in any system of notation or form of record, but that the provisions of that act, so far as they secure a copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after that act becomes effective, section 3 (Oomp. St. 1913, § 9519), providing that the copyright provided by that act shall protect all the copyrightable component parts of the work copyrighted and shall give all the rights which the proprietor would have if each part were individually copyrighted, and section 63 (Comp. St. 1913, § 9584), providing that nothing therein shall affect causes of action for infringement theretofore committed, then pending or thereafter instituted, whether the distribution of the words of a song by a manufacturer of perforated music rolls infringed a copyright obtained in 1908 on the musical composition, consisting of the words and staff notation, was governed by the prior law, and not by the act of 1909.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>¡Ed. Note.—for other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. <©¿>66.]</p> <p>2, OoPYJtXGfiTS <©=>66-INMUNGEMENT—“MUSIOAI. COMPOSITION”—“BOOK.”</p> <p>Under Rev. St. § 4952, as amended by Act March 3, 1905, c. 1432, 33 Stat, 1000, providing that the author of any book, musical composition, etc., by complying with the provisions of that chapter, should have the sole liberty of printing, publishing, finishing, and vending it, under which the Copyright Office ruled that a “musical composition” covered words and music, and that the words of a song alone could be copyrighted only as a “book,” a copyright covering a musical composition, consisting of the words of a song and the staff notation, was not infringed by the publication and distribution of the words alone.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 63; Dee. Dig, <©¿>60.</p> <p>For other definitions, see Words and Phrases, Second Series, Musical Composition, also, First and Second Series, Book.]</p> <p>3. Costs <©=>61—Division—Pabtial Recovery—Suits fob Infringement.</p> <p>Where a suit for the infringement o£ copyrights involved two distinct musical compositions, and complainant prevailed only as to one of such compositions, the trial court did not abuse its discretion in making a division of the costs.</p> <p>¡Eil. Note.—Bor other cases, see Costs, Cent. Dig. § 272; Dee. Dig. <©~0!.|</p> <p>4$s»Far other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by E. E. Nadeau against Clarence Griggs and another, executors of Solomon E. King, deceased. Judgment for plaintiff, and defendants bring error. Solomon E. King, a resident of Ottawa, La Salle county, 111., died there in June, 1909, leaving a large and valuable estate. By his will he nominated the plaintiffs in error, defendants in the court below, who were also residents of Ottawa, as executors. They duly qualified as such in La Salle county, state of Illinois.

In the matter of the Riverside Manufacturing Company, bankrupt. From a decree allowing a claim of the First National Bank of Alexandria, Minn., as a secured claim, John P. Galbraith, as trustee in bankruptcy, appeals.

<p>1. Evidence @=514—Opinion Evidence,—Subjects op Expert .Testimony.</p> <p>A question asked an expert witness as to the distance within which an electric coupé could have been stopped after a five-passenger touring ear came in contact with one of the front wheels, turning the wheels towards the curb, assuming that the electric car was operating under the first or second speed, was properly excluded as calling for a matter which was not a proper subject for expert testimony, as the expert could have formed no more accurate judgment of the effect of the impact of the touring car against the electric coupé than the jury could form for itself, and the only aid he could have given would have been for him to have stated within what distance a vehicle of the type in question and running at the rate given could have been stopped.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2319-2323; Dec. Dig. ©=514.]</p> <p>2. Municipal Corporations ©=706—Injuries prom Negligent Use op</p> <p>Streets—Questions por Jury.</p> <p>' Where, in an action for the death of a person struck by an electric automobile while on a sidewalk, the evidence showed that defendant was driving his car with due care when another automobile came in contact with one of the front wheels of his car, turing the wheels towards the curb, and so displacing the steering mechanism and power control as to temporarily render the car beyond defendant’s power to control it, and that he did all he could to stop the car before striking deceased, a verdict for defendant was properly directed.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dee. Dig. ©=706.]</p> <p>T. O. Munger, District Judge, dissenting.</p> <p><gs5>For other cases see same topic & KEY-NXJMBER in all Key-Numbered Digests & Indexes</p>

Campbell, Judge. Suit to quiet title by C. O. Robinson and another against the Long Gas Company and another. Decree for the' defendants on demurrer to the bill, and plaintiffs appeal. The appellants instituted this action to quiet title to certain real property in Washington county, Okl.

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge.</p> <p>Suit in equity by R. C. Watts and others against the Vosburg Company. Decree for complainants, and defendant appeals.</p>

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

<p>1. Shipping @^>84—Injuries to Servant—Independent Contractors.</p> <p>Where the owners of a vessel engaged a contracting stevedore to load its cargo of cotton at so much per bale, and the stevedore employed a foreman, who picked his own crew, there was no privity of contract between the foreman and the owners of the vessel, which rendered the latter liable as masters for injuries to the foreman.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 342, 349-351; Dec. Dig. <g=»84.</p> <p>Who are independent contractors, see note to Atlantic Transport Go. v. Coneys, 28 0. 0. A. 392.]</p> <p>2. Shipping <@^>84—Liability of Vessels—Injuries to Stevedore—Defective Appliance.</p> <p>Where a foreman, employed by a contracting stevedore to load a vessel, was injured by the breaking of a rope sling furnished by the vessel for the work, the owner was liable if the rope, when furnished, was not reasonably suitable for the purpose, but was not liable if the defective condition of the rope arose during the progress of the work.</p> <p>[Ed. Note.—For other cases, see Shipping, Gent Dig. §§ 342, 349-351; Dee. Dig. <3=»84.]</p> <p>8. Shipping <©=»86—Liability of Vessels—Injuries to Stevedore—Evidence.</p> <p>On a libel by a foreman, employed by a contracting stevedore, who was injured by the breaking of a rope furnished by the vessel, evidence that at the time the rope broke, after it had been used for several days in loading the vessel, it appeared old and defective, was not evidence that it was defective when it ivas furnished, since the character of use was such, that it might have become worn after it was furnished.</p> <p>[Ed. Note.'—For other cases, see Shipping, Cent. Dig. §§ 343, 353-360; Dec. Dig. <®=>86.]</p> <p>«gnxpFor other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes</p>

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

<p>la Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Action at law by Peter H. Corr, William J. O’Brien, Jr., and R. Howard Bland, trustees in bankruptcy of the Baltimore Waste Company of Baltimore City, against the Merchants’ National Bank of Baltimore. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Pleading i@=>64—Duplicity—Separate Causes op Action.</p> <p>A complaint for personal injuries to an employé, which charges in one count that the master was negligent In failing to provide a, safe place to work, and in failing to provide a careful and competent man to locate missing shots after blasts, does not state two causes of action in the same count.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. <S=04.1</p> <p>2. Pleading ©=-->.'¡69—Motions—Misjoinder or Causes oe Action—Election.</p> <p>Where there was an improper joinder of causes of action in one count, which plaintiff could have stated in separate counts, and could have had both submitted to the jury, plaintiff can not at the trial be compelled to elect as to which he will rely on, and thereby lose the benefit of the other.</p> <p>LISd. Note/—For other eases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. <S=^o69.J</p> <p>3. Trial <®=»260—Instructions—Request—Repetition oe Given Instruction.</p> <p>Where the instructions given correctly and adequately cover the feature of the case concerning which instructions were requested, it was not error to refuse the requests.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <3=>260.]</p> <p>©ssFi/r other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Collision <S=o<tri—Tugs with Tows Crossing—Violation of Bulks.</p> <p>A collision in East River between the tows of two tugs on crossing courses hold due to faults on the part of both tugs; the one having the other on her starboard side for violating the starboard hand rule, and the other for violation of the local rule requiring vessels navigating the East River between the Battery and Blackwells Island to keep as nearly as possible iu the center.</p> <p>[Ed. Note.—'For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. <@=»95.</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Ellis, 100 C. O. A. 581.]</p> <p>^^>Fcr other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Daniel B. Futen against Carl R. Camp and others for injunction to restrain infringement of a patent. On objections to plaintiff's interrogatories.</p>

<p>In Equity. Suit by the Blast Furnace Appliances Company against the Worth Bros. Company. On objections to interrogatories propounded by the plaintiff.</p>

<p>1. Abatement and Revival @=12—Pendency on Another Action—Action in State Court.</p> <p>The pendency of a suit in a state court does not abate an action in a federal court, though the causes of action are identical.</p> <p>LEd. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 87-91, 91, 95, 98; Dec. Dig. @=12.]</p> <p>2. Removal of Causes @=95—Splitting Causes—Waiver.</p> <p>Under Civ. Code Prac. Ky. § 83, providing that several causes of action may be united, if each affect all parties to the action, may be brought in the same county and prosecuted by the same kind of an action, and if all are brought upon contracts express or implied, where plaintiff brought two actions, in one of which he sought to recover the amount earned under a contract prior to October 16th, and in the other the amount which he would have made subsequent to that date had defendant not refused to permit him to perform, defendant had the right at its option to compel a consolidation of such suits; but, having removed one of them to a federal court without seeking to compel a consolidation, he waived his right to insist that there should have been a consolidation, or that plaintiff should have been required to elect which suit he would prosecute, or to object to the splitting into two parts of a single cause of action, assuming that there was only one cause of action, especially where a plea in abatement because of the pendency of the other suit referred only casually to the splitting of the cause of action.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 204, 205; Dec. Dig. @=95.]</p> <p>3. Abatement and Revival @=12—-Actions in State Court and Federal Court.</p> <p>An action commenced in a state court and removed to a federal court was thereby brought within the rule that the pendency of an action in a state court does not abate an action in a federal court.</p> <p>[Ed. Note.—For other eases, see Abatement and Revival, Cent. Dig. §§ 87- 91, 94, 95, 98; Dec. Dig. @=12.]</p> <p><g^5>For other eases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Pennsylvania Steel Company and another against New York City Railway Company and another, with three other cases. On motions. On Applications of Accident Creditors’ Fund and Tort Creditors’ Committee. These are eleven separate motions, enumerated in a single notice, which were on the motion calendar of this court January 22, 1915, and adjourned to January 29th, on which latter day the senior Circuit Court judge was hearing the motion calendar.

In Bankruptcy. Application by the executrix of David H. Stanwix, a judgment creditor of Frank Furlong, for an order directing Edward Murphy, 2d, trustee of the Consumers’ Albany Brewing Company, bankrupt, to pay certain money to her.

<p>1. New Trial <S=»157—Motion—Prejudicial Error—Presumption.</p> <p>On a motion by plaintiff for a new trial because of error in the instructions in the case, in which two issues were submitted to the jury, it must be assumed that the jury found for the defendant on the issue to which the criticized instruction related, especially where the charge practically stated that there could be no finding on the other issue, if that issue was found for defendant.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 314, 317, 318; Dec. Dig. <®=>157.]</p> <p>2. Master and Servant <@=^270—Injuries to Servant—Federal Employers’ Liability Act.</p> <p>There can be no recovery under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]), allowing recovery for the injury or death of an employe';, where the employer at the time was engaged in interstate commerce and the employs was employed in such commerce, for the death of a ear inspector, who was in-sped ing a train which ran on a division of an interstate railroad wholly within the state, when he was struck and killed by another train of the same division, and where there was no evidence that any passenger or baggage on either train was destined for a point in another state though the time-tables of the company expressed a readiness to transport interstate passengers over that division and transfer them to interstate trains, since there can be no recovery under that act, unless there is proof both that the carrier was engaged in interstate commerce and that the employs was employed in such commerce at the timo of the accident.</p> <p>¡Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §S 950-952,954,959,970,976; Dec. Dig. «=>276.1</p> <p><g^>For oilier casos seo same topic & KEY-NUMBISR in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the United Lace & Braid Manufacturing Company against the Barthels Manufacturing Company for infringement of trade-mark and for unfair competition. The evidence shows that the company complainant has been continuously engaged since its incorporation in 1905 in the sale of shoe laces of superior quality.

In Bankruptcy. In the matter of the Sycamore Grain & Milling Company, bankrupt. On exceptions to the report of a special master on an application to reclaim property.

<p>In Bankruptcy. In the matter of F. H. Miller, bankrupt. ’ On exceptions of Jesse E. La Dow, trustee, to the findings of a special master respecting alleged preferences to the Tracy & Avery Company, the William Edwards Company, and the A. F. Remy Company.</p>

Dr. C. A. Baxter and another were indicted for using the mails in furtherance of a scheme to defraud, and they demur to the indictment.

<p>Bankruptcy <®=»36S—Trustee’s Compensation—Compensation for Legau Services.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 72, 32 Stat. 800 (Comp. St. 1913, § 9056), providing that neither the referee, receiver, marshal, nor trustee shall in any form or guise receive, nor shall the court allow him, any other or further compensation for Ms services than that expressly authorized and prescribed in that act, and section 62 (section 9616), providing that the actual and necessary expenses incurred by officers in the administration of estafes shall be reported in detail under oath, and examined and approved or disapproved by the court, and, if approved, paid or allowed out of the estate, a trustee, who was an attorney, was not entitled, in addition to his fees, to compensation for legal services performed by him, especially as, when the trustee presents a claim in behalf of an attorney, there is something tantamount to a recommendation by the trustee that the services were necessarily rendered and that the fees and claim were proper, and the weakness of such recommendation respecting Ms own professional claims is apparent.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. ©=»368.]</p> <p><§rz?For other ca/ses seo same topic & KICY-NUMBSK in all Key-Numbered Digests & Indexes</p>

<p>_ In Bankruptcy. In the matter of William Wilder, bankrupt. On re-_ view of an order of the referee holding a taxicab not to be exempt.</p>

<p>1. Internal Revenue >@=>8—Legacies Subject to War Revenue Tax-Shares in Real Estate Trusts.</p> <p>A testator left to Ms children shares in a number of so-called real estate trusts, organized and owning property in Massachusetts. Such associations are not provided for by the laws' of the state, but are formed for the purpose of owning, managing, improving, and selling real estate, the title to which is in trustees, and the interest of each member is represented by transferable shares. Provision is made for the exemption of the trustees and shareholders from personal liability, and the trustees are made active managers of the business, subject to control, in varying degrees, by the shareholders. In some cases the time of termination of the trust is fixed, in others not. In some cases it is provided that on such termination the property shall be divided among the shareholders; in others that it shall be sold and the proceeds divided; in some sale is discretionary with the trustees; and in still others there is no provision on the subject. In some cases the trustees are given discretionary power to sell property, and in others authorization by the shareholders is required. Some of the trusts in which testator held shares had considerable, sums of money on hand at the time of his death to be invested in real estate, for which contracts had been made. Held, that under the law of Massachusetts, as settled by decision, tlio testator’s interest as a shareholder in said trusts, in so far as their property consisted of real estate, was not personal property, but was an equitable interest in real estate, and was not subject to legacy tax, under War Revenue Act June 13, 1898, e. 44-8, § 29, 30 Stat. 461, and that all money held by such trusts to be invcsLed iu real estate, either by the fundamental agreement or by contracts made, was to be considered real estate by equitable conversion.</p> <p>@=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 11, 12; Dec. Dig. ©=8.]</p> <p>2. Property ©^=4—Real or Personal Property—Shares in Real Estate Trust—Effect of Declaration of Parties.</p> <p>A provision in the fundamental agreement of some of such trusts that the shares shall be personal property or that the shareholders shall have no legal or equitable interest in the trust property is ineffective to change the nature of their interest, as declared by the courts of the state.</p> <p>[Ed. Note.—For other cases, see Property, Cent. Dig. §§ 4-6; Dec. Dig. <3=^1J</p> <p>3. Conversion ©=Mo—Equitable Conversion—Time of Conversion.</p> <p>When a conversion of real estate into personal property or personal property into real estate, directed by a will, deed, or other instrument, will he deemed in equity to have been effected, depends on the intention, as manifested in the instrument. If it directs the conversion to be made at a specified time, or on the happening of a particular event which may or may not happen, it will be deemed to have taken place only at such time or on the happening of such event; otherwise the general rule is that it will be deemed to have taken place on the death of the testator or on the execution of the deed or other instrument.</p> <p>[Ed. Note.—For other cases, see Conversion, Cent. Dig. §§ 28-37, 52; Dec. Dig. ©^15.1</p> <p><@¿£>I'cr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests «fe Indexes</p>

<p>Application by the United States to cancel a certificate of citizenship issued to Demetrios Nekol Viaropulos.</p>

<p>1. Removal of Causes <§=>86—Nonresidence of Defendant—Allegation in Petition of Removal.</p> <p>A petition by defendant for removal to a federal court of a cause in a Pennsylvania state court, which avers that it is a resident of New Jersey, is sufficient under Judicial Code (Act March 3, 1911, c. 231, 36 Slat. 1087), authorizing removal by defendant, “being a nonresident” of the state, where the record of the state court clearly shows the fact both of the New Jersey residence of defendant and nonresidence in Pennsylvania.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dee. Dig. <§=>86.1</p> <p>2. Removal of Causes <§=>86—Grounds—Procedure.</p> <p>To authorize removal of a cause from a state to a federal court, the facts on which the right is based must exist, and they must be alleged of record through appropriate pleadings, accompanied by the formalities prescribed by law.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. <§=>86.]</p> <p>3. Removal of Causes <§=>95—Grounds—Procedure.</p> <p>Where jurisdictional facts authorizing removal of a cause from a state to a federal court exist and are properly pleaded, and all the requirements oE the law are met, the cause is in contemplation of law removed, and further proceedings in the state court are void, for the cause is ipso facto removed.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent Dig. §§ 201, 205; Dec. Dig. <§=>95.]</p> <p>4. Courts <§=>50S—Removal of Cause—Exercise of Jurisdiction by State Court—Injunction by Federal Court.</p> <p>Where plaintiff proceeds with a case in the state court, notwithstanding removal thereof by defendant properly pleading jurisdictional facts for removal and complying with the statutory requirements, defendant may by suit iu federal courts enjoin plaintiff from the prosecution of the case in the state court, and thereby procure a determination of the question of the right of removal.</p> <p>[Kd. Note,—For other eases, see Courts, Cent. Dig. §§ 1418-1423, 1425-1430; Dec. Dig. <§=>508.]</p> <p>5. Removal of Causes <§=>97—Procedure—Exercise of Jurisdiction by State Court.</p> <p>Where a state court proceeds with a case notwithstanding proper procedure for removal to the federal court, and the federal court likewise proceeds with the case, and both courts render final judgments, both cases may reach on appeal the federal Supreme Court, which will then determine the question of jurisdiction.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 206, 208-211; Dec. Dig. <§=>97.j</p> <p>^s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p> <p>6. Removal of Causes ©=>S9—Citizenship op Parties—Issues op Pact.</p> <p>Questions of the diversity of citizenship as ground for removal of a cause from a state to a federal court must be determined by the District Court.</p> <p>[Ed. Note.—Por other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. ©=>89.]</p> <p>7. Removal op Causes ©=>89—Right op Removal—Issues.</p> <p>Where the question of the right to remove an action from a state to a federal court is one of law on the facts in the record, it must be determined on the record as at the time of the filing of the petition for removal, and no grounds of jurisdiction not set forth in the petition can be introduced by amendment allowed in the District Court, though, where sufficient grounds for removal appear from the record, amendments may be allowed as to matters merely formal.</p> <p>[Ed. Nóte.—Por other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. ©=>89.]</p> <p>8. Removal op Causes ©=>89, 95—Right op Removal—Issues.</p> <p>Whether a cause is removable from a state to a federal court depends on the whole state of the record, and the conclusion must first be drawn by the state court, which need not surrender jurisdiction, unless the cause is removable.</p> <p>[Ed. Note.—Por other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201, 204, 205; Dec. Dig. ©=>89, 95.]</p> <p>9. Removal op Causes ©=>89—Right of Removal—Issues.</p> <p>The right to remove a cause to a federal court when the state court refuses to surrender jurisdiction must be determined as a matter of strict right, depending on the record as it was when the petition for removal was presented.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. ©=>89.]</p> <p>10. Removal of Causes ©=>107—Remand to State Court—Existence op Jurisdictional Facts.</p> <p>Where a state court removes a cause to a federal court, and a motion to remand is made in the federal court, the federal court must remand the case, where the jurisdiction of the federal court does not in fact exist, or where the jurisdictional facts are not shown by the record as at the time of the filing of the petition ; but where jurisdiction of the federal court exists, and the grounds of jurisdiction appear of record as of the filing of the petition, the proceedings may be amended by amplifying the statement of facts governing the grounds supporting jurisdiction in matters not of formal procedure only.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 178, 225-232, 234; Dec. Dig. ©=>107.]</p> <p>11. Removal of Causes ©=>103—Remand to State Court.</p> <p>A state court need not remove a cause to a federal court, unless defendant;' Applying for removal, presents a proper bond; but, after removal, the cause will not be remanded merely because the bond does not conform to the federal statute, in the absence of any specific objection to the bond in the state court.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 221; Dec. Dig. ©=>103.]</p> <p>12. Removal op Causes ©=>103—Remand to State Court—Grounds—Record.</p> <p>That.a state court, removing a cause to a federal court, transferred to the federal court the original papers filed in the state court, and not copies thereof, as required by Judicial Code, § 29, is not ground for remanding the cause to the state court.</p> <p>gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. $ 221; Dec. Dig. <§=al03.]</p> <p>13. Removal of Causes <S=?103—Remand to State Court—Grounds—Record.</p> <p>That the entire record on the removal of a cause to the federal court has not been returned, in that the bond accompanying the petition for removal is not in the record as returned, is not ground for remanding the cause to the state court; but the party complaining may obtain relief by mandamus or certiorari.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 221; Dec. Dig. 5§=^103.]</p> <p>other cases sea same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Aliens @=32—Deportation—Statute.</p> <p>Petitioners, wbo were admittedly Chinese aliens, disembarked in Canadian ports, paying the required head tax. Alter living about a year and a halt in Canada, they clandestinely crossed the boundary line and entered the United States. Their deportation to Canada was prevented by the requirement of the Canadian authorities of the payment of an additional head tax by an alien re-entering that country. The Immigration Act (Act Feb. 20, 1907, c. 1134, 34 Stat. 898) provides for the return of' aliens unlawfully entering the United States, and unlawfully found therein, to the trans-Atlantic or trans-Pacific ports from which the aliens embarked to the United States, and, if such embarkation was for a foreign contiguous territory, to the foreign port from which such aliens embarked for such territory. Held, that under the statute petitioners might be returned to China; it appearing that they embarked for Canada with the intent of entering the United States.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. @=32.]</p> <p>2. Aliens @=32—Deportation—Defenses.</p> <p>That petitioners were prevented by government officials from returning to Canada, after crossing the boundary line in the Niagara river in a rowboat, is no ground for defense against deportation to China.</p> <p>[Ed. Note.—For other eases, see Aliens, Cent. Dig. §§ 84, 92, 93-95; Dec. Dig. @=32.]</p> <p><§n»ITor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <@=145—Stockholder’s Liability—Enforcement.</p> <p>Under Rev. Laws Minn. 1905, § 2878, providing that, save as otherwise specially limited or provided, no corporation shall issue any stock for a less amount to be actually paid in than the par value of those first issued, as construed by the Supreme Court of Minnesota, though a person purchasing stock from a corporation for less than par is liable to creditors because of his participation in the commission of a fraud on the creditors, there is no 'implied promise on his part, as between him and the corporation, to pay any greater or different sum, and, there being no liability to the corporation, the corporation’s trustee in bankruptcy cannot sue to enforce the stockholder’s liability.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 205, 230-232, 234; Dec. Dig. <®=145J</p> <p><@E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by W. R. Wilson against Frank Waldo and another. On motion to enjoin the defendants from prosecuting an action instituted by them in the state court.

<p>1. Appeal and Error <@=>1195—Remand—Subsequent Proceedings—Law op tue Case.</p> <p>Where a judgment for the plaintiff in a personal injury action was reversed by the Circuit Court of Appeals, because the evidence failed to show negligence on the part of the defendant, and the case was remanded, with directions to enter judgment for the defendant, and the judgment of the Circuit Court of Appeals was reversed on appeal to the Supreme Court on a practice point only, and the case sent to the District Court for a new trial, the decision of the Circuit Court of Appeals on the question of negligence is the law of the case, unless the facts presented at the second trial differ from those at the first.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. <@=>1195.]</p> <p>2. Appeal and Error <@=>1195—Remand—Subsequent Proceedings—Additional Pacts.</p> <p>On the second trial of an action for the death of a railroad track walker, after a judgment for plaintiff had been reversed by the Circuit Court of Appeals because ho negligence of the railroad was shown, additional facts, which only tend to strengthen the same inferences which might have been drawn from the facts presented at the first trial, do not warrant the trial court in declining to follow the opinion of the Circuit Court of Appeals.</p> <p>[Ed. Note.—Por other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. <@=>1195.]</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suits for collision by the North & East River Terminal Company, owner of the steam lighter Varina, and by William Gaffney, owner of her cargo, against the steam tug Bridgeton.

<p>Injunction <§=137—Preliminary Injunction—Defective Pleadings.</p> <p>Where, on the facts shown, complainant Is entitled to a preliminary injunction, a motion therefor will not be denied on the ground that the bill is multifarious) no demurrer having been interposed.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 307-309; Dec. Dig. <§=137J</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Sanford, Judge.. Suit in equity by John W. Pugh and others against John W. Frier-son, individually and as administrator, executor, and guardian, and others. Decree for defendants, and complainants appeal. This was a suit in equity, and instituted August 10; 1908, for specific purposes, and for general relief. The names of the parties to the suit when it was commenced appear in the margin,1 but a change has since been made by reason of a death as stated later. 1.

Appeals from the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge. Suit in equity by Godfrey M. Hyams against the Calumet & Hecla Mining Company and the Isle Royale Copper Company, and against the Calumet & Hecla Mining Company and the Tamarack Mining Company. Decrees for defendants, and complainant appeals.

Pollock añd Arba S. Van Valkenburgh, Judges. Suit by the United States & Mexican Trust Company and others against the Kansas City, Mexico & Orient Railway Company and others, wherein the Western Union Telegraph Company intervened. From an order striking out parts of its petition of intervention, intervener appeals.

Russell, Judge. Action at law by Mrs. Rosa P. Osborn against W. H. Stark and others. Judgment in part for plaintiff, and certain defendants bring error. Mrs. Rosa P. Osborn brought this suit under statutory allegations in trespass to try title for the recovery from W. H. Stark and others of 1,107 acres of land in Orange county, Tex., comprising the John M. Henrie headright.

Tn Error to the District Court of the United States for the Eastern District of New York. These causes come here on writs of error to the United States District Court for the Eastern District of New York, to review judgments entered on April 4, 1914, against the New York, Susquehanna & Western Railroad Company and in favor of the plaintiff in each action. The plaintiffs below, hereinafter called plaintiffs, are residents of the state of New Jersey.

<p>Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.</p> <p>Suit to enjoin trespass by the United States against the Ash Sheep Company. Judgment for the defendant, and the United States appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit by John S. Van Winkle and others against the Stearns Coal & Lumber Company. Judgment for plaintiffs, and defendant brings error.</p>

Cushman, Judge. In the matter of the Andrus-Cushing Lighting Fixture Company, bankrupt. From an order affirming a decision of the referee in favor of C. A. Brower, as trustee in bankruptcy on the claim of title by the General Electric Company to certain property, the Electric Company appeals.

<p>Petition to Revise in Matter of Law an Order of the District Court of the United States for the1 Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>In the matter of the Andrus-Cushing Lighting Fixture Company. Proceedings by the General Electric Company against C. A. Brower, trustee in bankruptcy.</p>

<p>1. Appeal and Error @=>1039—Harmless Error—Rulings on Pleadings.</p> <p>A judgment will not be reversed because of the erroneous refusal to require plaintiff to separately state and number his causes of action, where the ruling has not operated prejudicially to the defendant, or deprived him of any substantial right.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. @=>1039.]</p> <p>2. Courts @=>359—United States Courts—Jurisdiction—Amount in Controversy.</p> <p>The requisite jurisdictional amount, in an action in the federal courts on causes of action no one of which separately would give the court jurisdiction, is controlled by the federal law, and not by state legislation.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. @=>359.]</p> <p>3. Courts @=>328—United States Courts—Jurisdiction—Amount in Controversy.</p> <p>The requisite jurisdictional amount in actions in the federal courts is determined by the aggregate sum for which judgment is sought, and not by the amount named in each cause of action.</p> <p>[Ed. Note.—For oilier cases, see Courts, Cent. Dig, §§ 890-896; Dec. Dig. @=>328.</p> <p>Jurisdiction of federal courts as determined by the amount in controversy, see notes to¡ Auer v. Lombard, 19 C. G. A. 75; Teimet-Stribling Shoe Co. v. Roper, 36 C. C. A. 459; O. J. Lewis Mercantile Co. v. Klepner, 100 C. C. A. 288.]</p> <p>4. Principal and Agent @=>190—Action on Agent’s Contracts—Evidence of Agency.</p> <p>In an action on a contract for the sale of coke between defendant and the P. Co., letters and conversations prior and subsequent to the execution of the contract were properly admitted to show that defendant knew and had long known that plaintiff was the real contracting party and that the P. Co. was its agent.</p> <p>e§=>Kor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 718-720; Dec. Dig. <@=>190.]</p> <p>5. Damages <@=>40—Interference with Established Business.</p> <p>Where a regular and established business is wrongfully injured, interrupted, or destroyed, its owner, if he makes it appear that his business was of that character, and that it had been successfully conducted so long that his profits from it are reasonably ascertainable, may recover as damages the amount in which the .business is rendered- less valuable by the interruption.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. <@=>40 ]</p> <p>' 6. Damages <@=>176—Interference with Established Business—Evidence.</p> <p>As the value of such a business depends mainly on the ordinary profits derived from it, such value cannot be determined without showing what the usual profits are.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 461, 468, 471, 493; Dec. Dig. <@=>176.]</p> <p>7. Appeal and Error <@=>1056—Harmless Error—Exclusion of Evidence.</p> <p>In a seller’s action for damages from the buyer’s refusal to accept coke, in which defendant sought to recover damages for the loss of customers due to an excess of sulphur in the coke furnished, though the court’s ruling in excluding evidence to establish such claim was too comprehensive, it was not prejudicial error, where the evidence offered did not prove that there was an excessive amount of sulphur, and was insufficient to warrant a recovery under the rule applicable to the recovery of damages from the interruption or destruction of a regular'and established business.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <@=>1056.]</p> <p>8. Sales <@=>384—Breach by Buyer—Necessity of Tender.</p> <p>Where a buyer of coke, to be produced by the seller, refused to accept the coke, the actual production of the whole of the coke called for by the contract was excused, and the seller could recover the difference between the cost of production and the selling price of the coke which it could and would have produced, had the buyer not refused to receive it, but which it did not in fact produce.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>384.]</p> <p>9. Courts <@=>352—United States Courts—Practice—Conformity to State Laws.</p> <p>Gen. Code'Ohio, § 11452, providing that after the jurors retire to deliberate they may request the officer in charge to conduct them to the court, which shall give information sought upon matters of law, and also in the presence of or after notice to the parties or their coufisel may state its recollection of the testimony upon’ a disputed point, and the state rule of practice thereunder that it is error for the judge, during recess, in the absence of a party and his counsel and without notice to them, to give instructions to the jury, but that if the parties and their counsel are loudly called at the door it is not error to give additional instructions in their absence during a regular session of the court, are not rendered applicable to the federal courts by Lev. St. U. S. § 914 (Comp. St. 1913, § 1537), providing that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform as near as may be to the practice, etc., in like canses in the courts of record of the state in which such courts are held.</p> <p><©^Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 926-932; Dec. Dig. <©=o352.</p> <p>Conformity of practice in common-law actions to that of state courts, see note to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>10. Trial <s=312—Instructions—Absence of Parties.</p> <p>While a trial court should avoid instructing a jury, in the absence of counsel for the respective parties, when it can conveniently do so, and especially where the supplemental charge covers propositions of law not dealt with by the original charge, the absence of counsel while the court is in session at any time between the impaneling of the jury and the return of the verdict cannot limit the power and duty of the judge to instruct the jury in open court on the law of the case as occasion may require.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. <©=>312.]</p> <p>11. Trial <@=>317—Instructions—Exceptions.</p> <p>The absence of counsel when instructions are given to the jury after they have retired cannot excuse the failure to except thereto.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 751, 752; Dee-Dig. <©=317.]</p> <p>^saltar other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from so much of a final decree of the United States District Court for the Southern District of New York entered on February 2, 1914, in the first of the above-entitled actions and from so much of a final decree in the second of the above-entitled actions entered on June 18, 1914, as holds the steam tug Thomas Flannery responsible for the collision, which was the subject of both actions.</p> <p>The collision took place on November 15, 1911, at about 8:15 a. m. in the North River, New York City, in front of the Barclay Street Ferry slip of the Delaware, Lackawanna & Western Railroad Company. The collision was between the ferryboat Scranton and the barge James Murray, while the said barge was in tow of the appellant’s steam tug Thomas Flannery.</p> <p>The Hudson Navigation Company, a corporation organized and existing under the laws of New Jersey, is the owner of the barge James Murray. The Delaware, Lackawanna & Western Railroad Company, a corporation organized and existing under the laws of the state of Pennsylvania, is the sole owner of the ferryboat Scranton. The Hudson Navigation Company filed the libel against the ferryboat Scranton. The Delaware, Lackawanna & Western Railroad Company then filed its petition under rule 59 in admiralty (29 Sup. Ct. xlvi), alleging that, if any liability existed by reason of the facts set forth in the libel, the tug Thomas Flannery was liable therefor, and it asked that the Flannery be cited to appear and answer.</p> <p>The steam tug Flannery was bound up the North River for Pier No. 44, New York side, having in tow the said barge James Murray on ber starboard side and the barge Keeler on her port side. The tng Flannery is 80 feet in length, and the two barges projected some 25 feet ahead of the tug’s stem; the Murray about 5 feet further than the Keeler. The barges were about 110 and 115 foot in length. The Delaware, Lackawanna & Western ferry slips are between Piers 15 and 16, New York shore.</p> <p>When the steam tug and her tow reached a point abreast of Pier 14 and a distance variously estimated at from 200 to 400 feet off the pier heads, the Scranton, bound from Hoboken to its Barclay'Street slip, New York, then about off Pier 17 blew a signal of one whistle and stopped. The Flannery, taking this signal as intended for herself, at once answered it with one whistle and continued her course and speed. The Scranton claims that her one whistle was an affirmative answer to a one whistle for the tug Berne, which was inshore of the Scranton and turning up river, to pass under the Scranton’s bow. The Scranton also claims that, prior to her 'one whistle, she signaled the Flan-, nery with two whistles, which the Flannery answered with two. This the Flannery denies. When the Flannery reached a point opposite the lower corner off Pier 15, the Scranton, still about off Pier 17, blew two whistles to the Flannery and started ahead for her slip. The Flannery answered with two whistles, and stopped and backed; but, the Scranton continuing ahead, the stem of the barge Murray struck the starboard side of the Scranton, about 50 feet from her stern, damaging both the Murray and the Scranton.</p>

<p>J, Trial <@=>178—Direction of Verdict—Conflicting Evidence.</p> <p>On a motion for a directed verdict, the testimony against the moving party must be construed in the light most favorable to the other party, and if such proof, so construed, fairly raises a controversy of fact, and, if believed by the jury, is sufficient to support a verdict against the moving party, the determination of such controversy of fact is for the jury, no matter how greatly the court may judge the testimony to preponderate in favor of the moving party.</p> <p>[Ed. Note.—Eor other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. <@=>178.]</p> <p>2. Sales <@=>168—Inspection by Third Party—Concltjsiveness.</p> <p>In Michigan, where lumber is sold to be inspected and graded by an inspector agreed upon by the parties, his inspection is impeachable only for fraud or mistake so gross as to be in effect equivalent to fraud, and’ an honest error of judgment in the chosen inspector will not overthrow his conclusion, though as an effect thereof there is a measurable difference of results from those obtained’by other equally reliable inspectors.</p> <p>[Ed. Note.—Eor other cases, see Sales, Cent. Dig. §§ 403-408; Dec. Dig. <@=>168.1</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Sales ©=>168—Inspection by Third Party—Conclusiveness.</p> <p>Where delivery of lumber after an inspection and grading by an inspector agreed upon by the parties to a sale thereof was to be made in Michigan, the law of Michigan as to the eonclusiveness of such inspection and grading must be applied.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 403-408; Dec. Dig. ©=>168.]</p> <p>4. Salks ©=>181—Actions for Price—Evidence—Impeaching Inspection.</p> <p>Though, under the rule in Michigan, an inspection and grading of lumber bv an inspector agreed upon by the parties to a sale thereof cannot be impeached for a mere error of judgment, however substantial, evidence of material differences in results between such inspection and the inspection and grading of other impartial inspectors is competent to show a gross mistake in the agreed inspection.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. ©=>181.]</p> <p>5. Sales ©=181—Actions for Price—Questions for Jury.</p> <p>In an action for the price of lumber, 78 per cent, of which was merchantable according to the inspection and grading thereof, by inspectors agreed upon by the parties, where there was evidence that such inspection was made very rapidly, and in weather so extremely cold that the tally men worked with benumbed fingers, and that inspections by other inspectors showed as low as 43 per cent, of merchantable lumber, and though the inspection showing the smallest amount of merchantable lumber was made by a different standard of grading than that of the original inspection, it was not shown how far the difference in the two standards accounted for the difference in results, the question whether there was a, gross mistake in the agreed inspection should have been submitted to the jury.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 473-491; Dec. Dig. ©=>181.] ■</p> <p>6. Sales ©=>182, 355—Actions for Purchase Price—Evidence Admissible under General Issue.</p> <p>In an action for the purchase price of lumber inspected and graded by inspectors agreed upon by the parties, evidence to show a gross mistake in such inspection was admissible under the general issue, as plaintiff was bound to show that such inspection was free from fraud or gross mistake, and while it may be that this would be presumed, tbe fact was one essential to plaintiff’s case in chief, and anything which fairly attacked it was competent to be shown in defense under a general denial.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 492-495, 1025-1043; Dec. Dig. ©=>182, 355.]</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Orr, Judge. Action by the Dominion Trust Company, formerly known as the Guardian Trust Company of Pittsburgh, against the National Surety Company. Judgment for defendant, and plaintiff brings error.

This cause comes here upon appeal from a decree of the District-Court, Southern District of New York, holding respondent liable for personal injuries sustained by libelant as a result of a discharge of steam from the side of the steamship Slavonia while lying at her pier in the port of New York.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding appellant’s tug Jersey Central solely at fault for a collision between said tug and libelant’s barge Howard Bros., which was one of a fleet of about 16 barges, 4 abreast, tied up at the end of the Packer Pier, Communipaw, which is a well-known place for tying up and distributing.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding the tug Edna and the tug A. C. Rose both at fault for a collision which occurred November 12, 3013, off the mouth of the slip between Piers 57 and 58, North River, New York; the latter pier being used by the Atlantic Transport Line.

1, 4, 22, 32 and 34 of letters patent No. 706,736 granted to Reginald A. Fessenden August 12, 1902, for improvements in apparatus for wireless telegraphy. The. patent was considered by the Circuit Oourt of Appeals of the First Circuit and the claims were so limited that the defendant was held not to infringe. United Wireless Telegraph Go. v. National Electric Signaling Go., 198 Fed. 386, 117 0. C. A. 262.

On appeal by the Lovell-McConnell Manufacturing Company, complainant, from the final decree of the District Court for the Southern District of New York, dismissing the bill which charged the infringement of three patents granted to Miller Reese Hutchinson for an alarm horn.

This cause comes here on appeal from an order for preliminary injunction entered in the District Court, Southern District of New York, in a suit for infringement of patent No. 1,047,849, issued December 17, 1912, to B. F. Stentz, for an improved sample card.

<p>In Equity. Suit by the Brunswick Refrigerating Company against Wolf, Sayer & Heller for infringement of letters patent No. 899,583, for a gas pump, issued to Richard Whitaker September 29, 1908.</p>

<p>Patents <S=»328-^Infringement—Oil Press Mats.</p> <p>The Werk patents, No. 758,574, claim 1, and 758,575, for oil press mats, described in the claims as made of animál hair, held, in view of the prior art, not infringed by mats made of human hair.</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Graphic Arts Company against the PhotoChromotype Engraving Company. On final hearing.</p>

<p>In Equity. Suit by the Underwood Typewriter Company against Edward J. Manning. On final hearing.</p>

<p>Patents <§=>328—Validity and Infringement—Motor-Controller.</p> <p>The Linn patent, No. 791,991, for a motor-controller of the separately actuated contact type, with mechanical means for securing a certain time interval between the operation of the separate contacts, claims 1, 2, 3, and 4, were not anticipated and disclose patentable invention; also held infringed.</p> <p>^c^oFor other eases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Read Machinery Company against John Jaburg and Hugo Jaburg, copartners as Jaburg Bros. On motion for supplemental injunction.</p>

<p>1. Patents <©=>328—Invention—Improvement in Pianos.</p> <p>The Yotey patent, No. 780,078, for an improvement in pianos, which consists essentially of a pneumatic player attachment for grand pianos, held void for lack of invention, in view of the prior art.</p> <p>2. Patents <©=>27—“Patentable Invention”—Transfer of Device to Analogous Art.</p> <p>The transfer of a device well known in one art to an analogous art, where it performs the same function, does not constitute “patentable invention.”</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. <©=>27.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p><©3»For otñfcr cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Ooukts ©=»317—Equity—Answeb—Form and Sufficiency.</p> <p>Under equity rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi), providing that the answer shall in short and simple terms set out the defense to each claim asserted by the bill, omitting statements of evidence and avoiding any general denial, but specifically admitting, denying, or explaining the facts upon which plaintiff relies, and that the answer must state in short and simple form any counterclaim arising out of the transaction which, is the subject-matter of the suit, and may set out any set-off or counterclaim, such answer should contain a general or specific denial of each material allegation controverted by the defendant, and a statement in ordinary and concise language of any new matter constituting a defense, counterclaim, or set-off.</p> <p>■ie’or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <@=>347.]</p> <p>2. Patents <@=>310—Infringement Suits—Pleading—Sufficiency of Answer.</p> <p>Under equity rule 30, where, in a patent case, defendant pleads a number of patents as showing the state of the prior art, upon which the claims of invalidity and limited scope of complainant’s patent are based, he will he required on motion to set forth in what respects each of the patents pleaded by him discloses any of the elements or combinations of elements described in plaintiff’s patent, and in what respect they negative the novelty and invention of the device therein shown and described.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. <@=>310.]</p> <p>3. Patents <@=>310—Infringement Suits—Pleading—Sufficiency of Answer.</p> <p>It was not a ground for denying an application to require the defendant in a patent case to make its answer specific, by stating in what respects patents pleaded as showing the state of the prior art disclosed any of the elements or combinations of elements described in plaintiff’s patent, or negatived the novelty and invention of the device therein shown and described, that defendant did not know whether plaintiff intended to claim that all of the parts in the construction involved were old, but that the combination itself was new, or that the claims of the patent specified some new element, or new form of an old element, as defendant, by the timely interposing of a motion, might have secured a sufficient definition of the claims in the bill to enable him to know just what case he has to meet.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. <@=>310.]</p> <p>•<gz^>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by George Lawrence Smith and the Aero Fire Alarm Company against the Bickford & Francis Belting Company. On final hearing.</p>

<p>In Equity. Suits by the Victor Talking Machine Cofnpany against the Sonora Phonograph Corporation. On motions by defendant to strike out and suppress depositions.</p>

<p>In Equity. Suit by Rudge-Whitworth, Limited, and the Standard Roller Bearing Company, and Robert S. Woodward, Jr., S. Lawrence Bodine, and Charles B. Hill, its receivers, against the Houk Manufacturing Company. On motions for preliminary injunctions.</p> <p>On motions to restrain infringement of three United States patents to John V. Pugh for improvements in wire spoke wheels, and the use of the trade-name “Rudge” or “Rudge-Whitworth” in connection with the manufacture and sale of such wheels.</p>

<p>Patents <@=>328—Invention—Abbasive Appabatus.</p> <p>The Wysong patent, No. 832,114, for an abrasive apparatus, held, void for lack of patentable novelty and invention.</p> <p><@ss>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <S=jS2S—Invention—Abrasive Apparatus.</p> <p>The Wysong patent, No. 918,247, for an abrasive apparatus, held void for lack of patentable novelty and invention.</p> <p>.g—,i?m- other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>The Philadelphia & Reading Railway Company was indicted in three cases for a violation of the Interstate Commerce Act, and it moves to quash the indictments.</p>

<p>1. Post Office ©»10—Better Carrier—Appointment.</p> <p>A letter carrier, by virtue of his appointment from the competitive classified list of the federal civil sendee commission, acquires rights which he cannot be deprived of without due process of law, in accordance with Act Aug. 24, 1912, c. 389, § 6, 37 Stat. 555 (Comp. St. 1913, § 3287), prohibiting the removal of letter carriers without a hearing on the charges.</p> <p>!.Ed. Note.—For other cases, see Post Office, Cent. Dig. § 17; Dee. Dig. ©==>10.]</p> <p><Jrs3B’or other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Post Office <@=»10—Letter Carriers—Reinstatement.</p> <p>Where a letter carrier, not removed on charges, resigned, a proceeding by him for reinstatement falls within civil service rule 9, providing for reinstatement in the departments in which they formerly served of men separated, without delinquency or misconduct" on their part, from competitive positions.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 17; Dec. Dig. <@=»10.]</p> <p>3. Mandamus @=>77—Power of Court.</p> <p>While the District Court is without authority to require the performance of acts calling for the exercise of judgment on the part of a postmaster, it may, under Postal Laws and Regulations, § 686, providing that applications for the reinstatement shall be made through the postmaster to the First Assistant Postmaster General, division of city delivery, direct a local postmaster to forward to the First Assistant Postmaster General an application by a letter carrier for reinstatement.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 161-169; Dec. Dig. <S=77.]</p> <p>4. Mandamus <§=16—Orders—Defenses.</p> <p>That a letter carrier had communicated with the First Assistant Postmaster General, who refused to consider his application for reinstatement, is no ground for denying mandamus to compel the local postmaster to forward the carrier’s application to the First Assistant Postmaster General, in accordance with Postal Laws and Regulations, § 686.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 48, 59, 60; Dec. Dig. <§==>16.]</p> <p>5. Mandamus <@=s>162—Motion to Quash—Relief.</p> <p>On the relation of a letter carrier, who was seeking reinstatement, an alternative writ of mandamus was issued against the postmaster. The postmaster moved to quash, and relator sought, in such proceeding, to have certain ex parte statements and marks against him on file in the postmaster’s office erased. Reid that, while the motion to quash is in the nature of a demurrer, yet in view of new Supreme Court rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) abolishing demurrers in equity cases, the matter would be postponed until hearing on the merits.</p> <p>[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 338-340; Dec. Dig. <@=z»162.]</p> <p><®^J£or 0the,r cases, see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of R. S- Miller, bankrupt. On review of an order of the referee requiring the bankrupt to schedule certain property.

<p>In Admiralty. Suit by Andreas Bjolstad, as administrator of the estate of Halfdan Hansen, deceased, against the Pacific Coast Steamship Company and the Pacific Coast Company, On exceptions to .jurisdiction of court.</p>

In Equity.' Suit by R. B. Wiseman and others against W. V. Tanner, as Attorney General of the State of Washington, and John F. Murphy; as Prosecuting Attorney of King County, in which the City of Seattle intervened, with three other cases. On motion for temporary injunction.

<p>In Equity. Suit by A. L. D. Buxton against the Pennsylvania Lumber Company.</p>

In Bankruptcy. In the matter of Cora A. Crum, bankrupt. On petition by the trustee to review an order of the referee allowing the bankrupt an allowance in lieu of a homestead.

In Equity. Bill for injunction by W. C. Wright, trustee, against W. H. Harris and others, with which was consolidated an application in a bankruptcy proceeding against the Luxury Fruit Company, by a receiver appointed by a state court, to have certain property turned over to him.

<p>1. Habeas Corpus ©=>1—Right to Writ as op Course.</p> <p>The writ of habeas corpus does not issue as of course, but is of right when reasonable cause is shown..</p> <p>[Ed. Note.—Eor other cases, see Habeas Corpus, Cent. Dig. §§ 1, 3; Dec. Dig. ©=>1.'J</p> <p>2. Constitutional Law <@=>255—Commitment to Insane Asylum—Due Process op Law.</p> <p>Where, under Act Pa. June 26, 1895 (P. L. 388), providing that upon commitment of a justice of the peace or other committing magistrate of any person on a criminal charge less than a felony, who upon examination by any two physicians shall be certified by them to be insane, it shall be the duty of the county commissioners, with the approval of the court of quarter sessions or a judge thereof, to remove such indigent insane person to the proper hospital for the insane, there to be maintained at the expense of the county until the proper legal settlement of such indigent insane person can be ascertained, a person arrested for assault and battery was committed to an iqsane asylum on the certificate of two physicians, without notice, a hearing, or an opportunity to defend, and without notice of any kind to any friend or relative, she was denied due process of law, in violation of Const. U. S. Amend. 14.</p> <p>[Ed. Note.—Eor other cases, see Constitutional Law, Cent. Dig. §§ 736-738, 740-745; Dec. Dig. ©=>255.]</p> <p>3. Habeas Corpus ©=>45—United States Courts—Detention in Violation op Federal Constitution.</p> <p>* Where a person committed to an insane asylum under Act Pa. June 26, 1895 (P. L. 388), with the approval of the court of quarter sessions, without notice or an opportunity to be heard, in violation of Const. U. S. Amend. 14, sued out a writ of habeas corpus in the court of common pleas, which .court expressly declined to pass upon the legality of the commitment or the regularity of the proceedings, on the ground that the court, of quarter sessions hah the exclusivo right to pass upon the legality of such proceedings, the United States District Court would grant relief by habeas corpus, though ordinarily, where one under imprisonment by virtue of the process of a state court, claims to be restrained in violation of the Constitution or laws of the United States, the federal courts will not interfere, but will leave such person to obtain redress through the state courts, and failing there by writ of error to the Supreme Court of the United States, as such person had no remedy, either by appeal from the commitment or by appeal from the decision of the court of common pleas, and, though she may have had a remedy by an application to an appellate state court for a writ of habeas corpus, this did not require the federal courts to refuse relief.</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Gent. Dig. §§ 33-45; Dec. Dig. <3= 45.]</p> <p>4. Habeas Cokpus @=>113—Appeal—Decisions Review able.</p> <p>In Pennsylvania no appeal lies from an order in habeas corpus remanding the prisoner to custody.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. @=>113.]</p> <p><jr^3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the City of Centralia against the United States National Bank of Centralia, Wash., and another. On application for a temporary injunction.</p>

<p>1. Bankruptcy <@=>384—Composition—Confirmation—Acceptance by Creditors.</p> <p>While the approval of a bankrupt’s composition offered by the majority of the creditors is prima facie evidence that it was for the best interests of all, the court can, even if there be no objection, inquire whether it conforms. to the requirements of Bankr. Act July 1, 1898, c. 541, § 12d, 30 Slat. 549 (Comp. St. 1913, § 9596), and, if it does not, must refuse to confirm.</p> <p><gs5>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590 592; Dee. Dig. <§=>881.1</p> <p>2. 'Bankruptcy <§=376—Composition—Equality.</p> <p>Since the aim of the bankrupt law is equality between creditors, a composition must be for the best interest of all of the creditors, and not of certain ones of a certain class.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 598-600, 602; Dec. Dig. @=376.]</p> <p>3. Bankruptcy <§=876 -Composition -Construction of Statute.</p> <p>The provisions of the Bankruptcy Act relating to composition must be strictly construed, as in derogation of the common law, since they compel dissenting creditors to accept the percentage agreed upon by majority in number and amount.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 598-600, 602; Dec. Dig. <§=>876.]</p> <p>4. Bankruptcy <§=387~Comi>osition—Confirmation—Effect.</p> <p>A confirmation of a composition offered by a bankrupt operates as t discharge of the bankrupt; but it destroys the remedy only, not the in debtedness.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 603-605, 607 610; Dec. Dig. <§=>387.]</p> <p>5. Bankruptcy <§=387—Composition—Failure of Consideration.</p> <p>Where a bankrupt’s composition provides for future payments, failuie to make the deferred payments revives the entire debt.</p> <p>I Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 603-605, 607-616; Dec. Dig. <§=>387.]</p> <p>6. Bankruptcy <§=376—Composition—Confirmation.</p> <p>An offer of composition by a bankrupt corporation, under the provisions of which two banks were to waive a cash payment and were to advance the money necessary to make the cash payment to other creditors, and in return were to receive as security a second mortgage upon the real estate of the corporation and an exclusive right to look to the personal property and the security of the indorsement of the principal stockholders, and the other creditors were to take as their sole security for the payment of the balance of their claims a third mortgage on the real estate executed to the trustee, who was to act as directed by the majority of the creditors, will not he confirmed, since it gives the banks an unfair preference, and also gives the creditors no negotiable evidence of their claims, and requires them to be governed as to the enforcement thereof by the majority vote, after the bankruptcy proceedings have been closed.</p> <p>[Ed. Note.—ifor other cases, see Bankruptcy, Gent. Dig. §§ 598-600, 602 ; Dec. Dig. <®=376.]</p> <p>7. Bankruptcy <§=877—Composition—Acceptance by Creditor—New Offer.</p> <p>The fact that a former offer of composition, confirmation of which was refused because of irregularity in the proceedings, was accepted by a creditor, does not preclude him from objecting to a subsequent offer in substantially the same terms.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 586-588; Dec. Dig. <§=>377.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Horace H. Thompson against One Anchor and Two Anchor Chains, with Brotherton and Poissant as intervening libelants.</p>

<p>Aliens <@=>71% New, vol. 7 Ivey-No. Series—Naturalization—Cancellation —Grounds.</p> <p>Where, through a mistake of some kind, and with no intention of violating the law, an alien stated in his declaration of intention that he was a native of Germany and that he intended to renounce his allegiance to the German Emperor, when in fact he was a subject of the Emperor of Austria and King of Hungary, and upon his application for naturalization the court permitted the declaration of intention to be amended in accordance with the true facts, his certificate of naturalization was not illegally procured, within Naturalization Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (Comp. St. 1913, § 4373), requiring district attorneys to institute proceedings to cancel certificates of citizenship on the ground oí fraud, or on the ground that they were illegally procured.</p> <p>cgs5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Boundaries <@=>26—Suit to Determine—Jurisdiction.</p> <p>A court of equity is without jurisdiction to determine disputed questions of boundary, unless as incidental to the granting of some equitable relief.</p> <p>[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 139, 140; Dec. Dig. <@=>26J</p> <p>2. Vendor and Purchaser <@=>215—Purchaser from Purchaser—Mistake as to Boundary.</p> <p>A grantor through mesne conveyances from a former owner of land ■described in the several conveyances by metes and bounds in accordance with the original survey and patent, in the absence of fraud or misrepresentation, has no equity to require from prior grantors a conveyance of land other than that so described because such former owners may have mistakenly supposed the lines to run differently.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 449-452; Dec. Dig. <@=>215.]</p> <p><g=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Iii Bankruptcy. In the matter of the Utica Pipe Foundry Company, bankrupt. On application by the trustee in bankruptcy for confirmation of the report of the special master, disallowing and dismissing the claims of Charles A. Xardell and Joseph A. Xardell, respectively, and application by said claimants, on exceptions filed to the report of the special master, for an order setting aside or .refusing to confirm, such report, and allowing such claims.

In Bankruptcy. In the matter of John H. I .ighthall, bankrupt. On an application to vacate an order reopening the estate, and for the payment to Mary J. Ughthall, administratrix of the bankrupt, of certain money.

<p>In Bankruptcy. In the matter of Dreuil •& Co., bankrupts. On appeal by the trustee from an order of the referee.</p>

<p>1. Trade-Marks and Trade-Names <§=»8—Words Subject to Appbopbiaieon.</p> <p>The registered trade-mark “Roof Leak,” used in connection with roof paint, was valid.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 12; Dec. Dig. <§=>8J</p> <p><gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>Ü. Trade-Marks and Trade-Names <@=>59—Infringement—Similarity of Names.</p> <p>Tlie registered trade-mark “Hoof Leak,” used in connection with sales of roof paint, was infringed by the use of the words “Never Leak” in connection with sales of a similar paint, as they suggested the same idea.</p> <p>[Ed. Note.—For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 68-72; Dec. Dig. <S=>59.[</p> <p>8. Trade-Marks and Trade-Names <@=>40—Contract for Use of TradeMark—Termrnation.</p> <p>Where complainant, selling paint under the trade-mark “Hoof Leak,” contracted for a sale of its product by defendant, a mail order house, under the name of “Never Leak,” defendant’s right to use the words “Never Leak” did not outlast the contract, which had no further operation from the time it ceased to order complainant’s product.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 45; Dec. Dig. <S=>46.]</p> <p>•<£=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the Kinsman Transit Company, owner of the steamer Matthew Andrews, against the steam tugs Mason and Cascade; Hand & Johnson Tug Line, claimant.</p>

<p>1, Negligence @=>27—Liability of Manufacturers of Articles Causing Inj URY.</p> <p>A manufacturer of automobiles, which purchased the wheels used on its automobiles, was not liable to an injured person, who purchased an automobile manufactured by it from a dealer, and who had no contractual relations with it, for its negligent failure to discover that one of the wheels was defective, since, while one who manufactures articles inherently dangerous is liable to third parties injured by such articles, unless he exercises reasonable care, one who manufactures articles dangerous only if defectively made is not liable to third parties for injuries, except in case of willful injury or fraud.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. @=>27.</p> <p>Liabilities of manufacturers and vendors of injurious substances or defective. machinery and appliances for injuries to persons other than immediate vendees, see note to Standard Oil Co. v. Murray, 57 C. C. A. 5.]</p> <p>2, Negligence @=27—Liability of Manufacturer—False Representa - xj o i\ s—Availability.</p> <p>liven though an automobile manufacturer’s prospectus represented that it manufactured the wheels of its automobiles, when in fact it purchased them from a manufacturer of wheels, such representation was not available to a purchaser from a dealer In automobiles, who had no contractual relation with the automobile manufacturer, in an action by him for injuries.</p> <p>[Ed. Note. —For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. @=>27.]</p> <p>8. Negligence @=124—Actions for' Injuries—Evidence.</p> <p>In an action against an automobile manufacturer, which purchased the wheels of its automobiles from the S. Co., for injuries sustained by a purchaser from a dealer, due to a defect in one of the wheels, it was error to exclude, evidence as to the practice of manufacturers of automobiles and of the trade concerning the examination of wheels, even on the theory, on which the case was tried, that the manufacturer was liable if it knew or ought to have discovered that the wheel was weak and insufficient.</p> <p>[Ed. .Note.—For other cases, see Negligence, Cent. Dig. §§ 235-238; Dec. Dig. @=124.]</p> <p>4, Negligence @=>124—Actions for Injuries—Evidence.</p> <p>In such action defendant should have been allowed to show what inquiries it made as to the S. Co. before contracting with it for wheels, what answers it received, what reputation that company had as manufacturers, that their wheels were as high priced, if not higher priced, than any in the market, and that no prior accident had ever been heard of.</p> <p>[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 235-238; Dec. Dig. @=124.]</p> <p>Coxe, Circuit Judge, dissenting.</p> <p>o1 iier cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Swccimo Performance <@=37 — Contracts Enforceable — Contract for Sale of Real Estate.</p> <p>Where a preliminary agreement for a sale of real estate, in the form of a letter and acceptance, contained a provision that “a formal agreement shall be entered into, ponding actual transfers,” such formal agreement, if it is to contain anything more than mere detail, is essential to a completed contract which may be specifically enforced in equity.</p> <p>[Ed. Note.—Por other eases, see Specific Performance, Cent. Dig. §§ 108-112; Dec. Dig. <@=37.]</p> <p>2. Specific Performance <@=37—Contract Enforceable—Sale of Real Estate,.</p> <p>An agreement was made by letter and acceptance for the sale by complainant to defendant railroad company of real estate for right of way and terminal purposes in a city. It provided that, pending actual transfers, a formal contract should be entered into. Such a contract was prepared by representatives of both parties and signed by defendant; but complainant, before signing, changed it by adding two provisions: The first, that there should be a cash payment on its execution, which was contrary to the terms of the preliminary agreement; and the second, that a bridge which it was necessary for defendant to build should be for the common use of defendant and the city, provided the city would contribute its share of cost and maintenance, which was entirely outside of such agreement. Defendant objected to the latter provision, because it was negotiating with the city in relation to the bridge, and wanted it stricken out, or that the matter should stand open until it came to an agreement with the city. Complainant demanded and received back the contract, it had signed, and nothing further was done for more than a year, when defendant, having reached an agreement with the city, notified complainant that it was ready to close the contract. Complainant then demanded §10,000 additional for the property as interest, which defendant refused to pay. Complainant made no tender of performance. A year later, after defendant, had made other arrangements for entering the city, complainant tendered deeds and demanded payment' of the price originally agreed upon, which was refused. Held, that the minds of the parties had never met on a contract which could be specifically enforced in equity, but, on the contrary, it had been definitely abandoned when complainant demanded and defendant refused payment of interest, which was not provided for in the preliminary agreement.</p> <p>¡Ed. Atete.—Por other cases, see Specific Performance, Cent. Dig. §§ 108-112; Dec. Dig. <@=37.1</p> <p><g^For other eases see same topic & KEY-NUlIBEIi in all Key-Numbered Digests & indexes</p>

Dietrich, Judge. Suit by the McGoldrick Dumber Company against Charles J. Kin-solving and others. Decree for defendants, and complainant appeals. This suit was instituted by appellant, complainant below, to have the appellees declared the holder of the legal title to the land in the bill of complaint described, in trust for the appellant.

J. Cochran, Judge. in the matter of J. Rheinsirom & Sons Company, bankrupt. From au order allowing priority to claims of George Fueders & Co. and other creditors, the Covington Savings Bank & Trust Company, trustee, and the Central Trust Company of Illinois appeal.

This cause comes here upon appeal from a decree of the Unitea States District Court for the Southern District of New York, which decree was entered on March 23, 1914, and which adjudged that the defendants did not have, either of them, any estate, right, title, or interest whatever in certain lands and premises described in the bill of complaint, and enjoining them from asserting any claim in the said lands adverse to the complainant.

<p>In Error to the District Court of the United States for the District of New Jersey; Wm. H. Hunt, Judge.</p> <p>Actions by Mildred D. Price and by Josephine Duryea against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff in each case, and defendant brings error.</p>

<p>1. Removal of Causes <@=>97—Service of Process—Attachment.</p> <p>Under Comp. Laws Mich. 1897, § 10572, providing that if it appear by the return of a writ of attachment that any property has been attached and that neither of the defendants can be found plaintiff shall, within 30 days unless defendants sooner appear in the suit, cause a notice to be published, which notice shall state the names of the parties, etc., and shall be published for six consecutive weeks, and that if plaintiff shall neglect to cause such notice to be so published the attachment shall he dismissed, where on the day the writ was returned defendant appeared specially by petition to remove the cause to the federal court, but the attachment notice entitled in the state court was thereafter published and the case was not certified to the federal court until after such publication was made and the proof of publication had been filed, a motion to sot aside the service of the writ of attachment was properly denied; a.s, though the ease was not pending in the state court after the filing of the petition for removal, the publication of the notice was not a court proceeding, but was wholly ministerial and extrajudicial, and if plaintiff could not give the statutory notice of attachment until the case was docketed in the federal court defendant might defeat the suit by delaying the petition to remove, while due publication was running, until after the 30 days for the first publication had expired.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 206, 208-211: Dec. Dig. <@=>97. J</p> <p>2. Appearance <@=>24—Removal of Causes <@=>112—Special Appearance— Jurisdiction Acquired.</p> <p>A special appearance by defendant for the purpose of removing a cause to the federal court did not operate to submit his person to the jurisdiction of the state court or deprive him of the right to object to the sufficiency of the service prior to such appearance.</p> <p>IEd. Note.—For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. <@=>24; Removal of Causes, Cent. Dig. § 238; Dec. Dig. <@=>112.1</p> <p>3. Compromise and Settlement <@=>23 — Evidence — Weight and Sufficiency.</p> <p>Where plaintiff- claimed that a settlement was had between him and defendant concerning various transactions between them, and that, taking into account a farm conveyed by him to defendant about that time, it was agreed that defendant owed him a specified amount, the fact that the deed to the farm was recorded before the date of the alleged settlement was not as matter of law controlling that no settlement was made, but only affected the credibility of plaintiff’s testimony.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig.. §§ 91-94; Dec. Dig. <@=>23.]</p> <p>4. Frauds, Statute of <@=>33— -Agreements to Answer fob Another’s Debt —Consideration.</p> <p>An agreement by plaintiff and defendant to share equally in the profits and losses of a business venture, in carrying out which a corporation was organized, was not void for want of a consideration or as an agreement to pay the debt of another within the statute of frauds, if the agreement was made at or before the organization of the corporation.</p> <p>[Ed. Note.—For other eases, see Frauds, Statute of, Cent. Dig. §§ 50 53, 56; Dec. Dig. <@=>33.J</p> <p><SS=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Contracts <@=>29—Evidence oe Agreement—Question fob Juey.</p> <p>In an action to recover an amount claimed to be due plaintiff under an alleged settlement of various transactions between Mm and defendant, evidence held sufficient to make a question for tbe jury as to whether defendant agreed at' the time a business venture, in carrying out which a corporation was organized, was undertaken, to share the profits and losses thereof with plaintiff.</p> <p>[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 141-143, 1824; Dec. Dig. <S=29.]</p> <p><@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This cause comes here upon writ of error to review a conviction of plaintiff in error in the District Court, District of Vermont, upon an indictment under section 215 of the Criminal Code of the United States—formerly section 5480, Rev. Stat. U. S. Defendant was the general manager of a manufacturing company, which made certain instruments called “oxypathors,” which were largely advertised and sold as having remarkable curative effects.

Middleton Smith, Judge. Suit in equity by William Wallace Anderson against Benjamin Mackenzie Anderson, in his own right and as executo'r of Mary Virginia Anderson, deceased, and others. Decree for defendants, and complainant appeals.

Foster, Judge. Suit in admiralty by the General Contract Company, Incorporated, against M. P. Doullut and Paul Doullut, partners as M. P. Doullut & Sou. Decree for libelant, and respondents appeal. The following statement of the case is taken from the briefs of counsel: The General Contract Company, Incorporated, appellee herein, brought this libel in personam against M. i’.

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit by C. E. Lowtlier against William Potter and another. From a decree for defendants (197 Fed. 196), plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>"Information by the United States against R. C. Boeckel & Co. and another. Judgment for defendants, and the United States brings error.</p>

Ill Error to the District Court of the United States for the Western Distiiet of Tennessee; John E. McCall, Judge. Suit by the Darnell-Taenzer Lumber Company and others against the Southern Pacific Company and others. Judgment on a directed verdict for defendants (190 Fed. 659), and plaintiffs bring error.

<p>1. Negligence <§=136—Contributoey Negligence—Questions foe Juey.</p> <p>Though tlie evidence is substantially undisputed, the questions of negligence and contributory negligence should not bo withdrawn from the jury, unless the evidence is so conclusive that all reasonable men, in the exercise of an honest and impartial judgment, can draw but one conclusion from the evidence and the reasonable inferences therefrom, considered in the light most favorable to plaintiff.</p> <p>TEd. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dee. Dig. <§=136.]</p> <p>2. Masteb and Servant <§=286, 289—Actions foe Injuries—Questions foe Juey.</p> <p>In an action for injuries to an employs of a brewing company who was cleaning steam condensers on the roof of a building by the side of which boards were placed on which to stand, and who, in passing around the end of one of the condensers, stepped through a hole one or two feet from the board on which he was at work, and over which a window sash or skylight had been placed, where the evidence was conflicting as to whether, the window sash lay flat upon the roof, or was raised some six inches or more from the roof, and whether a hop sack was spread entirely over the window sash, or only thrust into the opening where a pane was broken, and plaintiff testified that he did not remember ever being on the roof before, and that he had never noticed the hole, or the sash over it, the questions of negligence and contributory negligence were properly submitted to the jury.</p> <p>[Ed. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1012, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. <§=286, 289.J</p> <p>®=»Fcr other oases see same i.opio & KEY-NUMBER in all Key .Numbered Digests & Indexes</p> <p>3. Master and Servant <§=>115—Liability for Injuries—Unsafe Place to Work.</p> <p>Where employés of a brewing company were from time to time sent to the roof of a building to clean steam condensers thereon, and boards were placed between and on each side 'of the condensers for them to stand on while so engaged, the part of the roof within a few feet of the boards was a part of the place furnished by the company for its employés to work, as to which it was its duty to keep such place in a reasonably safe condition.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 205, 206; Dec. Dig. <©=>115.]</p> <p>4. Appeal and Error <§=>977—Review—Discretionary Matters.</p> <p>The action of the lower court in its disposition of a motion for a new trial for other matters addressed to its discretion will not be reviewed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dee. Dig. <§=>977.]</p> <p>5. Trial <@=>253 — Actions for Injuries — Instructions — Ignoring Evidence.</p> <p>In an action for injuries to an employé, who fell through a hole in the roof of a brewery company’s .engine house, over which a window sash or skylight had been placed, where there was evidence that such hole was not originally intended as a skylight, but was only used as such after it ceased to be used as an opening through which to project a smokestack, that the hole was within a few feet of boards on which employés were required to work from time to time, and that the window sash was covered by a sack, an instruction that defendant had a right to put a skylight in its roof if it saw fit, and if such skylight was in such a position that persons going upon the roof in the proper use of their senses and sight could readily see it, then defendant was not negligent in having it there, was properly refused, though possibly sound as an abstract proposition, as it apparently assumed that the opening was an ordinary skylight, and ignored the facts as to its location or arrangement, and the fact that it was covered with a sack.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <@=>253.]</p> <p>6. Trial <@=>250—Instructions—Applicability to Evidence and Issues.</p> <p>The court is not required to give a special instruction, though it states a correct proposition of law, unless it is applicable to the issues joined and the evidence introduced.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. <@=>250.]</p> <p>7. Trial <@=>260—Instructions Covered by Those Given.</p> <p>Where a subject was sufficiently covered by the court’s charge, the court was not required to again charge in the language of a requested instruction on the same subject.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-659; Dea Dig. <©=>260.]</p> <p><gns>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; William E. Day, Judge.</p> <p>Action by Bert C. Sheeley against the Pennsylvania Company. Judgment for plaintiff, and defendant brings error.</p> <p>The instruction on the subject of proportioning damages was as follows :</p> <p>‘•However, if you should find the defendant company negligent, and you find Sheeley also guilty of negligence contributing to his injury, and his negligence is hiss than that of the negligence of the defendant company, then, instead of his contributory negligence being a bar to his recovery, you would take the amount of damages which you found against the defendant company, if you so find, and compare it with the amount of negligence attributable to Sheeley, and set off against the amount you so find, if you so find against, the defendant, company, this lesser amount of Sheeley’s, if you so find it, and discount the damages attributable to the defendant if you find it negligent, in the ratio that this lesser negligence on behalf of Sheeley bore to the greater negligence on behalf of the defendant company, if you so find it negligent.”</p>

<p>In error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; William I,. Day, Judge.</p> <p>Action by Emma Hurlburt against the Erie Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Day, Judge. Action by Guy Hurlburt and another, administrators with the will annexed of Sage Hurlburt, deceased, against the Erie Railroad Company. Judgment on a directed verdict for defendant, and plaintiffs bring error.

<p>1. Banks and. Banking <@=254—Actions Against Directors—Sufficiency of Evidence.</p> <p>In an action against a director in a national bank for damages susta-ined by a person induced to buy stock in such bank in reliance on published reports of its condition which included as assets a large amount of worthless loans, evidence held insufficient to make a question for the jury as to defendant’s knowledge at the time the reports were made and published of the worthlessness of any part of the loans in excess of the amount written off as worthless, a little more than a year thereafter.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 950-.957; Dec.' Dig. <@=254.]</p> <p>2. Banks and Banking <@=254—Actions .Against Directors—Admissibility of Evidence.</p> <p>. In such ‘action, evidence that other directors of the bank personally believed the loans to be well enough secured- so that they were mostly good, was properly excluded, as it was defendant’s belief, and not what the other directors believed, that was in issue, and his conclusions would be based -on .the extent to which his personal confidence in the borrower was impaired; the extent of his knowledge of the borrower’s assets froin other sources than the borrower, his expert knowledge of the business of the borrower, and his resulting skill in valuing the assets of such a business, and his individual tendency to look on the bright or dark side of the matter, and with respect to most of these elements it could be assumed that-he was in the same .situation as the other directors.</p> <p>' [Ed.; Note.—For other , cases, see Banks and Banking, Cent. Dig. §§ 950-957; Dee. Dig. <@=254J</p> <p><@=For other cases see same topic AkEY-NTJMBER. mail Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Suit in equity by Martha Jane Duggan, by W. If. Kinser, her next friend, against George P. Wetmore, the Prendergast Company, and H. H. Duggan, with cross-suit by the Prendergast Company and George P. Wetmore against Martha Jane Duggan and husband. Decree for defendants, and cross-complainants and complainant appeals.</p> <p>The 100 acres of land in controversy, occupied in 1910 by the Prendergast' Company, is claimed by Mrs. Duggan as the sole heir of her father, Robert Grigg, who died in 1861, who had occupied at least some part of the land since 1845, and who had succeeded to the rights of his father, an occupant since 1829. lío ieft Mm surviving only his daughter and his widow, Sarah Grigs. She later married Benjamin E. Cass and went to live upon his farm some 10 miles away, and the daughter, then about 8 years old, practically became and grew up as the younger sister of the Gass children by his former marriage, and in all respects a member of the Cass family. Mr. Cass exercised supervision over the land in question, and rented it out to successive tenants, until 1881. In 1876 this daughter had married H. H. Duggan, and she and her husband had gone to make their home upon this 100 acres. They stayed only two weeks. The buildings were poor, the land, so far as cleared, very light or exhausted, and the place was of little value, so that they decided not to try to make a living there, and moved back near Mr. Gass. He was providing each of his own children with a farm as each married, and in 1880 he deeded to Mr. and Mrs. Duggan a farm near his own, and they lived there for several years, and in the vicinity always thereafter. The consideration expressed in this deed is love and affection and $200, the place was worth about $700, and the places given to the other children had been worth about $500 each. Herein lies the basis for the claim now made, but denied, that the 100-acre tract was taken over by Mr. Cass as the $200 consideration named in this deed. No transfer thereof was ever made to him by his wife or by Mrs. Duggan, so far as appears. All existing county records were burned in 1895.</p> <p>In 1881 Mr. and Mrs. Cass deeded the 100 acres to one Harrison by a deed which was, practically, little more than a quitclaim: it warranted only against the acts of the grantors and those claiming under them. Harrison moved upon the property, and he and his successors in title held continuous and acl nal possession until 1891, when it was conveyed by warranty deed to the parties who afterwards organized the Prendergast Company, to which it was formally conveyed in 1909. In 1910 Mrs. Duggan commenced an ejectment suit in the state chancery court, making the Prendergast Company a defendant. The company removed the case to the court below and there filed a bill asking to have its own title quieted. The court below thought that Mrs. Duggan’s title was not established, that defendant’s title was made out by the presumption of grant resting on more than 20 years’ possession, and accordingly dismissed Mrs. Duggan’s hill and made a decree quieting defendant’s title. She brings this appeal from both decrees.</p>

Hollister, Judge. Suit in equity by Harvey H. Roberts against the National Leather Company. Decree for complainant, and defendant appeals. In September, 1908, Mr. Paul Hooven and some associates, at Hamilton, Ohio, came into possession o£ a supposedly very valuable secret process for tanning leather. For its development and practice, they organized an Ohio corporation, called the National Leather Company, with a capital stock of $100,000 common, and $50,000 preferred.

<p>Injunction <@=>118—Bill—Sufficiency—Premature Dismissal.</p> <p>In a. suit to restrain an action on a note given for the purchase price of stock in a national bank, a bill alleging that the bank, by its president, offered to sell plaintiff the stock, making false and-fraudulent representations as to the solvency of the business, its assets, surplus, etc., that plaintiff relied upon such representations and was thereby induced to purchase the stock and give his note therefor, upon which he afterwards made several payments, that when the purchase was made the bank was hopelessly insolvent, without surplus, and with liabilities much greater than its assets, that plaintiff could not have discovered the fraud until the bank closed its doors, and that thereupon he repudiated and rescinded the purchase and offered to return the stock, was prematurely dismissed without requiring an answer, as the question as to plaintiff’s right to rescind after the bank failed should be reserved until the facts were definitely ascertained, including the facts as to whether the bank was the real owner of the stock, how it came to become the owner of its original capital stock, if it was not, who the real owner was, and why it held the apparent title, and whether the note was discounted for plaintiff, or merely delivered to the bank, nothing being done with it, except to renew it and make payments on account.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent Dig. §§ 223-242; Dee. Dig. <@=>118.]</p> <p>(g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Cross-Appeals from the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge. Suit in equity by A. C. Lawrence, doing business as Samuel Cooper & Co., a corporation, against the Prussian National Insurance Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Action by Jean D. McKell, administratrix of Thomas G. McKell, deceased, against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error.</p>

B. Sheppard, Judge. In the matter of the Jefferson County Sumatra Tobacco Company, bankrupt. From an order confirming a report of a special master allowing the claims of II. A. Barrows and others, Daniel A. Finlayson appeals.

<p>Aliens <@=>68—Naturalization—Review of Proceedings.</p> <p>The Circuit Court of Appeals has no jurisdiction of a writ of error sued out by the United States to review a decree admitting an alien to citizenship.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent Dig. §§ 138-145; Dec. Dig. <@=>68.]</p> <p>ig^sFor other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

This is a writ of error to review a judgment entered in an action at law upon tlie verdict of a jury finding all of the claims of letters patent No. 800,172, granted to Ross and McDonald, valid and infringed, except the seventh claim, and assessing the damages at §400.

fn Error to the District Court of the United States for the Southern District of New York.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; William U. Day, Judge.</p> <p>Suit in equity by Frank A. Bone against the City of Akron. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from an order of the District Court, Southern District of New York, granting an injunction pendente lite restraining defendant from selling woven wire mattresses alleged to infringe United States reissue No. 13,125, granted June 28, 1910, to C. J. Witzel for a wire mattress.</p>

<p>1. Master and Servant <g=»31G—Master’s Liability for Injury to Third Versons—Work of Independent Contractors.</p> <p>Stevedores, contracting to load a ship under the instructions of the owner, but who are only instructed generally as to the work to be done, which they control and direct, furnishing their own employes, including wiuehmen, to operate the ship’s winches, are not employes, but independent contractors, for whose negligent* the shipowner is not responsible.</p> <p>fKd. Note.-—For other cases, see Master and Servant, Cent. Dig. §§ 1242, 12 t.‘i; Dec. Dig. <S=»31G.]</p> <p>2. Shipping <S=s>80 —Liability of Vessel — Negligence of Independent Con it. acting Stevedores.</p> <p>A winch furnished by a ship for the use of contracting stevedores in loading s tool rails fro in a lighter was defective, and sometimes stuck when in use, lmt could be operated with reasonable safety, with care. The defect was known 1o the ship, and also to the stevedores, who furnished the winchman. When a sling of rails was being hoisted, the winch stalled, and the winchman struck the drum with his hand, producing a jerk, which caused, the rails to slip from the sling, striking and sinking the lighter. The jerk could have been avoided if the winchman had used a Coot, lever, with the working of which he was familiar. The sling load also was not made up as safely as was sometimes customary when there was danger that the load would slip. Held, that the ship was not liable for the injury to the lighter, but that the stevedores, using the winch with knowledge of its defect, were responsible for its careful operation, and liable for the negligence of their employés.</p> <p><j£s»Por other ea.«es see topic & KEY-NUMBER in all Key.Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 335, 341, 352; Dec. Dig. <@=»80J</p> <p>(g^Far other cases see same topic & KEY-NUMEER in all Key-Numbered Digests & Indexes</p>

<p>1. Indians <@=>32—Allotted Lands—Jurisdiction Over.</p> <p>The treaty with the Sioux Indians of April 29, 1868 (15 Stat. 635), creating the Great Sioux reservation west of the Missouri river in' the territory of Dakota, provided that no subsequent cession of any portion of the reservation by the tribe “shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him.” By Act March 2, 1889, c. 405, 25 Stat. 888, this Great reservation was divided. Smaller reservations were created for the different tribes of the Sioux Nation, and the remainder, with certain limitations, was restored to the public domain and opened to settlement. One of the limitations established by section 13 was that any Indian receiving and entitled to rations and -annuities, but residing upon any portion of the Great reservation not included in any of the separate reservations thereby established, “may at his option within one year * * * have the allotment to which .he would otherwise be entitled on one of said separate reservations upon the land where such Indian may then reside, such allotment in all other respects to conform to the allotments hereinbefore provided.” Section 16 further provided that the acceptance of the act should be taken and held to be a release by those belonging to one band of all title to lands described in each of the other separate reservations, but that “this release shall not affect the title of any individual Indian to his separate allotment on land not included in any of said separate reservations provided for in this act, which title is hereby confirmed.” Held that, under such treaty and act, an allotment duly selected by an Indian on land occupied by him outside of either of the separate reservations, and for which a trust patent was issued, retaining the legal title in the United States for 25 years, did not become a part of the public domain, but remained Indian land and a part of the “Indian country,” exclusive jurisdiction over which is in the United States.</p> <p>^toFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note..-—For other cases, see Indians, Cent. Dig. §§ 4, 52, 53, 57, 58; Dec. Dig. <§=32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Indian Country.]</p> <p>2. Indians <@=10—Lands—“Indian Title.”</p> <p>An Indian’s right to occupancy of land, and that right recognized by the United States, constitutes “Indian title.”</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 25, 29, 46; Dec. Dig. <§=10.</p> <p>For other definitions, see Words and Phrases, Indian Title.]</p> <p>3. Indians <@=38—Crimes by Indians in Indian Country—Jurisdiction.</p> <p>By section 2 of the Euabling Act of the state of South Dakota, the people inhabiting the proposed state forever disclaimed all right and title to all lands within the boundaries thereof “owned or hold” by any Indian or Indian tribe, and agreed that “until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States.” Held, that lands within the state, formerly a part of an Indian reservation, and which have not been restored to the public domain open to settlement, but which are held by an Indian allottee under a trust patent, are Indian lands, over which the United States and its courts have exclusive jurisdiction, and that a state court is without jurisdiction to prosecute and sentence, under the state law, one tribal Indian for a crime committed against another on such lands.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. <@=38.]</p> <p>4. Habeas Corpus <@=-15—Jurisdiction op Federal Courts—State Prisoner.</p> <p>A federal court has power to discharge from imprisonment, on habeas corpus, an Indian convicted and sentenced by a state court which was without jurisdiction, and whose judgment is therefore void.</p> <p>[Ed. Note.—For other eases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dee. Dig. <@=45.]</p> <p><<3^>For other cases see same topic & KJSY-NUMBER ia all Key-Numbered Digests & Indexes</p>

<p>Ill Equity. Suit by Samuel R. Rosoff and others against the Gilbert Transportation Company. On exceptions to report of special master.</p>

<p>In Equity. Suit by the Corn Products Refining Company against George J. Weigle.</p>

<p>In Bankruptcy. In the matter of J. W. Humphreys, bankrupt. On review of order of referee.</p>

<p>Action for a penalty by the United States against the New York Central & Hudson River Railroad Company. On application to vacate a judgment against defendant.</p> <p>This is an application to vacate a judgment entered against the defendant for a penalty imposed for a violation of the Twenty-Eight Hour Law, on the ground that for the same violation a judgment for a penalty had been recovered against the Lake Shore & Michigan Southern Railway Company, a connecting carrier, and paid.</p>

<p>In Equity. Suit by Goodman Block, as trustee in bankmptcy of George S. Weygant against the Academy Ball Room, Incorporated, and others.</p>

At Law. Action by J. Lewis Grant, as trustee in bankruptcy of the Cayuga Construction Company, against the National Bank of Auburn. On motion by defendant to vacate a judgme'nt for plaintiff.

In Equity. Suit by Walter Wood and others against the Camden Iron Works, in which a receiver was appointed for the defendant corporation. On petition by the receiver for instructions.

<p>Commerce <®=>27—Interstate Commerce—Liability for Injuries to Employes.</p> <p>A member of a shifting crew in the freight yard of a railroad company, who at times assisted in handling cars used in interstate, intrastate, and purely local commerce, but who at the time he met his death was aiding in the work of shunting empty cars upon a siding of a manufacturing company, and who had been sent out as flagman to protect the switch by stopping any on-coming train on the track with which the switch was connected, was not shown to be engaged in interstate commerce; the ultimate destination, when freighted, of the empty cars, or the character of the on-coming train, not being shown.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. @=»27.]</p> <p>(gzxaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

John Burke and others were indicted for conspiracy to defraud the United States. On demurrer to the indictment by the defendant Jacob L. Salas.

<p>In Admiralty. Suit by E. C. Endresen and E. N. Endresen against the gas screw ships Zillah May and Myrtle Endresen, and Etta Davis, Thomas Randles, and Hannah Randles, his wife. On exceptions to libel.</p> <p>Claimants except to the libel upon several grounds, including want of jurisdiction of the court over .the cause. Libelants aver that they are each the owner of an undivided one-third interest in each of the respdndent vessels, and that E. N. Endresen is the managing owner thereof; that the claimant, Etta Davis, is the owner of record of the remaining one-third interest in each vessel; and that the other claimants claim to have some interest in the one-third interest of Etta Davis.</p> <p>The libel avers: “That on or about the 8th day of August, 1914, the Zillah May, one of the vessels heretofore referred to, went ashore on the coast of California and suffered considerable damage; that she was put to large expenses in her salvage, and your libelants, L. C. Endresen and E. N. Endresen, were compelled to advance, and did advance, in such repairs and previously thereto, large sums of money in the care, upkeep, salvage, and restoration of the said Zillah May, all in the sum of about ten thousand eight hundred dollars ($10,800.00), of which said sum the said Etta Davis, Thomas Randles,, and Hannah Randles, his wife, are and should be bound to pay about the sum of thirty-six hundred dollars ($3,600.00); that from time to time the libelants, L. C. Endresen and E. N. Endresen, have been compelled to pay and have paid and advanced for the benefit of the claimants, Etta Davis, Thomas Randles, and Hannah Randles, his wife, the sum of about seven hundred dollars ($700.00) in the care, upkeep, and restoration of the said Myrtle Endresen; that demand has been made upon the said Etta Davis, Thomas Randles', and Hannah Randles, his wife, for said sums, which said sums said Etta Davis, Thomas Randles, and Hannah Randles, his wife, have neglected and refused to pay. That your libelants are informed and believe that the claimants, Etta Davis, Thomas Randles, and Hannah Randles, his wife, are attempting to dispose of their interest in the said vessels without having satisfied and discharged their portion of the indebtedness advanced by the libelants.”</p> <p>The prayer of the libel is that, of the total amount advanced by libelants, $4,300 be declared a lien upon the ships, and that the interest of claimants and all other persons claiming an interest therein be condemned and sold to pay such awards and costs.</p>

<p>aliens <S=m71%, New, vol. 7 Key-No Series—Naturalization—Cancellation of Certificate—Grounds.</p> <p>Where a native-born citizen, after executing oaths of allegiance to the British sovereign to qualify himself to secure title to Canadian lands, determined to abandon his British allegiance and declared his intention of becoming a citizen of the United States, and though the Canadian certificate of naturalization was not issued until after the declaration of intention, it did not appear that this delay was not mere routine, and that the certificate did not take effect by relation as of the date of the oaths of allegiance, the certificate of citizenship granted upon the declaration of intention was not subject to cancellation under Naturalization Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (Comp. St. 1913, § 4374), requiring district attorneys to institute proceedings to cancel certificates of citizenship on the ground of fraud, or on the ground that they were illegally procured, as, even though the declaration was prematurely made before the applicant had become a British subject, it became valid when the reason for invalidity was removed, and, moreover, the declaration of intention was merged, and its regularity would not be inquired into after the certificate of citizenship was granted.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent Dig. § 146; Dec. Dig. <§==>71%.]</p> <p><S=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United: States for the Eastern'District of Oklahoma.</p>

<p>Appeal-from the District Court of the United States for the District of West Virginia, at Parkersburg.</p>

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

<p>In Error to the District Court of the United States for the District of Virginia, at Richmond.</p>

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

<p>Appeal from the District Court of the United States for the District of Virginia, at Richmond.</p>

<p>Appeal from the District Court of the United States for the Canal Zone; William H. Jackson, Judge. Suit in equity by Gideon Dixon and others against George W. Goethals and others. On appeal by complainants.</p>

<p>Cross-Appeals from the District Court oí the United States for the District of Virginia, at Norfolk.</p>

<p>Petition to Revise Order of the District Court of the United Sta tes for the Southern District of New York.</p> <p>This cause comes here upon petition to revise an order of the District Court, Southern District of New York, denying motion to quash a subpoena duces tecum served on the petitioner.</p>

<p>Appeal from the District Court of the United States for the District of West Virginia, at Philippi.</p>

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

<p>Petition to Revise Order of the District Court of the United States for the District of Kansas.</p>

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

<p>Appeal from the District Court of -the United States for the District of West Virginia, at Philippi.</p>

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

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

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

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

<p>In Error to the District Court of the United States for the District of Wyoming.</p>

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

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