Volume 222 — Federal Reporter

Tuttle, Judge. Proceeding by the John Deere Plow Company to reclaim from Leon D. Mowry, trustee in bankruptcy of Miller Bros., certain property. From a judgment dismissing the intervening petition of the Plow Company, it appeals.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by Mark P. Wells against the National Surety Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from tbe District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Suit by the United States against Edwin K. Norris and 'another. From a decree for insufficient relief, the United States appeals:-</p>

<p>1. Judgment <&wkey;340 — Vacating or Setting Aside — Authority to Vacate. The power to vacate or set aside judgments is a common-law power, inherent in courts of general jurisdiction and possessed by all courts of record as incident to their existence.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 666; Dec. Dig. &wkey;>340.]</p> <p>2. Judgment <&wkey;340 — Vacating or Setting Aside — Authority to Vacate.</p> <p>The power to vacate or set aside judgments must be exercised by the court which rendered the judgment, and no other court can take cognizance of the application.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. § 666; Dec. Dig. <&wkey;oiO.]</p> <p>3. Appeal and Error <&wkey;>982 — Judgment <&wkey;>S4-l — Vacating—Discretion— Review.</p> <p>A motion to set aside a judgment is addressed to the sound legal discretion of the court, and its determination will not be disturbed on appeal, unless it is plain that its discretion has been abused.</p> <p>FEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3877-3879; Dec. Dig. <S&wkey;982; Judgment, Cent. Dig. § 673; Dec. Dig. 4&wkey;344.]</p> <p>4. Motions <&wkey;59 — Orders—Vacating or Setting Aside.</p> <p>The common-law rule is that a court has entire control over its own orders, and may vacate them at any time during the term at which they are made.</p> <p>1 Ed. Note. — For other cases, see Motions, Cent. Dig. §§ 73-81; Dec. Dig. <&wkey;59J</p> <p>5. Bankruptcy <&wkey;36 — Orders—Vacating or Setting Aside.</p> <p>There are no terms of court in bankruptcy, within the rule that orders may be vacated at any time during the term at which they are made.</p> <p>[ Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 36; Dec. Dig. <&wkey;30.]</p> <p>6. Motions <&wkey;59 — Orders—Vacating—Operation and Effect.</p> <p>The general rule is that, where a court directs an order previously made by it to he stricken out, it is the same as if such order had never existed.</p> <p>¡Ed. Note. — For other cases, see Motions, Cent. Dig. §§ 73-81; Dec. Dig. &wkey;v.).;i</p> <p>7. Bankruptcy &wkey;>372 — Reopening Estate — Effect as to Trusteeship.</p> <p>Under Bankr. Act, July 1, 1898, c. 543, § 2, subd. 8, 30 Stat. 545 (Comp. St. 1913, § 9586), giving courts of bankruptcy power to close estates when they have been fully administered, by approving the final account and discharging the trustees, and to reopen them whenever it appears they were closed before being fully administered, and subdivision 17, authorizing such courts, pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, to appoint trustees, and section 44 (section 9628), providing that the creditors at their first meeting after the adjudication, or after a vacancy has occurred in the office of trustee, or after the esiate has been reopened, etc., shall appoint one or three trustees, and that, if they do not appoint a trustee or trustees, the court shall do so, the vacating of an order closing an estate and discharging the trustee did not ipso facto restore the trustee to his trusteeship, and there was a vacancy in the office; the statute changing the rule that, where the court directs an order previously made to be stricken out, it is the same as if such order had never existed.</p> <p>|Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 574; Dec. Dig. &wkey;872.]</p> <p>8. Bankruptcy <&wkey; 372 — Reopening Estate — Election of Trustee.</p> <p>Under Bankr. Act § 2, subds. 8, 17, and section 44, upon the reopening of an estate after the discharge of the trustee, the court should not appoint a trustee; it being necessary to proceed as in the first instance for the election of a trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 574; Dec. Dig. <&wkey;372.]</p> <p>9. Bankruptcy. <&wkey;372 — Reopening Estate — Appointment op Trustee — “De Facto Officer.”</p> <p>Where, after an estate in bankruptcy was closed and the trustee discharged, the court reopened the estate and reinstated the old trustee, the appointment of the old trustee, though erroneous, was not void, and he was a “de facto officer,” acting under color of title to the office, as where there is a de jure office and one is irregularly appointed to it, or is appointed by an authority not competent under the law to make the appointment, he is a de facto officer.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 574; Dec. Dig. &wkey;?372.</p> <p>For other definitions, see Words and Phrases, First and Second Series, De Facto Officer.]</p> <p>10. Bankruptcy <@=»372 — Reopening Estate — Appointment oe Trustee.</p> <p>Where, upon the reopening of an estate in bankruptcy, the court erroneously reinstated the old trustee, and certain creditors subsequently petitioned the court to vacate so much of the order as reinstated such trustee, and for such a modification of the order as would provide for a meeting of the creditors to elect a trustee, it was not error for the court, in providing for such a meeting, to provide that the old trustee should continue to act until the election and qualification of his successor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 574; Dec. •Dig. &wkey;372.]</p>

Pardee, Circuit Judge, dissenting. In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action by Mrs. Elise H. Woodruff, administratrix, against the Yazoo & Mississippi Valley Railroad Company. Judgment for defendant, and plaintiff brings error. This case is here upon a second writ of error.

Walker, Circuit Judge, dissenting. In Error to the District Court of the United States, for the Southern District of Florida; Rhydon M. Call, Judge. Action by the United States against the Florida East Coast Railway Company. From a judgment sustaining demurrers to the declaration and dismissing- the declaration, the United States brings error.

Appeals from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge. Suit in admiralty by the Hoyle Bank Steamship Company, Limited, owner of the steamship Hoyle Bank, against the steam tug J. N. Gilbert and the barge Spindle Top; the Higgins Oil & Fuel Company, claimant. From a decree, both parties appeal.

Dooling, Judge. Libel in personam by J. Stern and B. Fleischer, partners as J. Stern & Co., against Carlotta C. Fernandez and Thomas B. Fernandez, executrix and executor of the will of, B. Fernandez, deceased, for loss of cargo. Decree for respondents, and libelants appeal.

Sawtelle, Judge. Action at law by the United States against the Southern Pacific Company to recover penalties for alleged violations of the act of Congress entitled “An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon,” approved March 4, 1907.

<p>1. Bankruptcy <&wkey;140 — Importations under Letters op Credit — Rights op Bankers Issuing Letter op Credit.</p> <p>A firm which became bankrupt was engaged in importing merchandise under a system whereby London bankers issued a letter of credit to the seller of the merchandise for the price thereof; the bill of lading, with the shipper’s invoice and the consular invoice, being sent to the banker’s agents, who delivered them to the bankrupts in exchange for a trust receipt, the remaining bills of lading being forwarded to the bankers, accompanied by a draft, which they accepted. By the application for the credit, the bankrupts bound themselves to furnish the bankers funds to meet the draft at maturity, and admitted and guaranteed the bankers’ ownership of the merchandise or the proceeds thereof, and their right to the possession thereof, and to retake possession, if the merchandise should be intrusted to the bankrupts for sale or otherwise. By the trust receipt they agreed to hold the merchandise as the property of the bankers, with liberty to sell it for their account and to deliver the avails to the bankers’ agent until their obligations to the bankers had been discharged, and to store and insure the merchandise, delivering the storage and insurance papers to the bankers’ agents. Held, that it was the. intention that title to the goods should remain in the bankers until they were reimbursed for paying the price to the seller, and they had at all times the right to retake tlie goods or their proceeds, and the transaction did not constitute a chattel mortgage, void as to creditors, because not filed as required by the state law.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <&wkey;140.]</p> <p>2. BANKRUPTCY <&wkey;140-IMPORTATIONS UNDER LETTERS OP CREDIT — -RIGHTS OF Bankers Issuing Letter op Credit.</p> <p>That the bankers occasionally delivered the shipping documents to the bankrupts before they received the trust receipt, or failed to insist upon immediate payment of tlie proceeds when the goods were sold, or to insist upon receiving the storage and insurance papers, was not an abandonment of their title or a waiver of tlieir rights.</p> <p>[lid. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dee. Dig. <&wkey;>140,]</p> <p>3. Bankruptcy <&wkey;140- — Importations under Letters op Credit — -Rights of Bankers Issuing Letter of Credit.</p> <p>That with respect to one shipment the shipping documents were delivered through mistake or otherwise to the bankrupts, instead of the bankers’ agents, and tlie bankers never received a trust receipt therefor, did not defeat their rights, as the application for credit alone was sufficient to protect their rights.</p> <p>[Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. &wkey;340.J</p> <p>4. Bankruptcy <&wkey;155 — Importations under Letters of Credit — Rights op Bankers Issuing Letter of Credit.</p> <p>Where upon tlie bankruptcy of the importers the bankers were unable to trace into the hands of the trustee the proceeds of sales of certain of the merchandise, they were not entitled to have a similar amount paid them from the estate, under the rule that, where a person has under his control a fund whereof a portion belongs to him and a portion is held by him in trust, withdrawals by him from the fund will be charged against the portion belonging to him, as, while this rule applies to a single bank account or a separate fund, it could not be applied to the whole estate of the bankrupts, especially as the estate might be largely constituted of the proceeds of sales of goods covered by trust receipts belonging to other parties.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec*. Dig. <&wkey;155.]</p>

<p>1. Corporations <§=>426 — Officers—Unauthorized Contracts — Ratification.</p> <p>Where a fraternal insurance corporation was governed by nine directors and three trustees, an instrument authorizing B. to sell any of its securities, signed by the trustees before their term of office had commenced, and a bill of sale to B., executed by two of the trustees after their term commenced, were wholly ineffectual, and incapable of ratification by the board of directors.</p> <p>[Ed. Noto. — For other cases, see Corporations, Cent. Dig. fj§ 1596, 1702-1704, 1707, 1708, 1710-1716; Dec. Dig. <§=>426.]</p> <p>2. Banks and Banking <§=>116 — Knowledge of Officers — Imputing to Bank,</p> <p>Where the president of a hank accepted, as collateral security for a loan to B. personally, securities which he knew belonged to a fraternal insurance corporation, and wliicli he knew B. had no authority to use for his own personal purposes, his knowledge was imputable to the bank, though he had a standing arrangement with the brokers, through whom the securities were subsequently sold by the bank, for a division of commissions on all business brought them by him; this being a collateral and incidental contract, not bringing the case within the rule that an agent’s knowledge will not be imputed to his principal, when the transaction is such as to compel the agent’s concealment.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. <§=>116.]</p> <p>3. Receivers <§=>167 — Right to Sue — Conversion—Title and Right to Possession.</p> <p>An instrument, executed by the trustees of a fraternal insurance corporation, authorizing B. to sell any of the securities of the corporation and account therefor to the trustees, and a bill of sale subsequently executed by the trustees to B., even though valid, conferred on B. authority to act only as agent of the corporation, and his title and possession being the title and possession of the corporation, its receiver could maintain an action of trover for the conversion of securities by a bank to whom B. pledged them.</p> <p>[Ed. Note. — Eor other cases, see Receivers, Cent. Dig. § 320; . Dec. Dig. <§=>167.]</p>

Proceeding by Steiner, Lobman & Frank and others against T. S. Faulk & Co. to have the defendant adjudicated a bankrupt. Judgment in favor of defendant, and petitioners bring error, also filing a petition to superintend and revise.

M. Morton, Judge. Proceedings between T. J. Bolles and others and Thomas A. Kelley and others for approval of a composition in bankruptcy. From a decree of approval, T. J. Bolles and others, opposing creditors, appeal.

Appeals from the District Court of the United States for the El ■ Paso Division of the Western District of Texas; Thomas S. Maxey, Judge. Sixteen proceedings on appeal from orders for the deportation of Yee Et (Ep), Wong Kee, Yee Eeong, Yee Et, Ju Ding, Yee Git, Yee Yuk Jew, Wong Tong, Lew Wun, Fung Get (alias Fung Gat), Mar Hop, Mar Eoon, Louie Fun Jew (alias Louie Fong Jew), Chin Ork (alias Chin Ock), Yee Dune, and Low One.

<p>Appeal and Ebboe <£=>1096 — Law ov the Cask — Subsequent Appeals.</p> <p>The losing parties to an adjudication on appeal were not entitled on a subsequent appeal to have reopened the controversy finally settled on the first appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1177, 4353-4857; Dee. Dig. <®=>1096.]</p>

<p>In Error to the District Court of the United States for the Western District of Eouisiana; Aleck Boarman, Judge.</p> <p>The Waters-Pierce Oil Company was convicted of an offense and it brings error.</p>

<p>Post Office <@=>48 — Offenses—Scheme to Defraud — Indictment.</p> <p>An indictment for the violation of Cr. Code (Act March 4, 1909, c. 321, § 215, 35 Stat. 1092 [Comp. St. 1913, § 10388]), making punishable one who, having devised a scheme to defraud, shall, for the purposes of executing such scheme, place a letter in any post office to be delivered by the post office establishment, need not allege that the scheme was to be effected by the use of the United States mails.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <@=>48.</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 O. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p>

<p>In Equity. Suits by the Loeb & Schoenfeld Company against the Atlas Embroidery Works, the Nassau Novelty Manufacturing Company and Ignatz Schuster.</p>

At Raw. Action by the Pennsylvania Railroad Company against Charles H. Pedrick, Jr., and others. On application by G. V. Schenck, as trustee in bankruptcy of the Security Steel & Iron Company, for a rule or order staying the further prosecution of the action by plaintiff, and for instructions as to his duty in the premises.

Suit by Marcus Rosenthal, as trustee in bankruptcy of Benjamin, Altman and another, individually and as copartners trading as the Oriental Lace Company, against the Bronx National Bank and others.

In Bankruptcy. In the matter of the Progressive Wall Paper Corporation, bankrupt. On application by the Adirondack Trust Com,-pany for leave to foreclose a mortgage.

<p>1. Bankruptcy <&wkey;339 — Determination of Controversies — Finding of Facts.</p> <p>Under the proviso of Bankr. Act July 1, 1S9S, c. 541, § 70a, 30 Stat. 565 (Comp. St. 1913, § 9654), that when any bankrupt shall have any insurance policy, which has a cash surrender value, payable to himself, his estate, or his personal representatives, he may pay or secure to the trustee such surrender value, and continue to hold the policy free from the claims of creditors, and the laws of Pennsylvania, under which a policy taken out for the benefit of insured’s wife, or bona fide assigned to her, becomes her property as against creditors, whether the cash surrender value of endowment policies payable to insured’s wife, if living, or, if not, to insured’s executors, administrators, or assigns, subject to the right of insured to change the beneficiary, or of a policy payable to insured if living at the time of payment, and otherwise to his wife or his. estate, which policies had been duly surrendered after insured’s adjudication in bankruptcy, belonged to the trustee in bankruptcy or the wife, depended upon the facts as to whether the husband had, in addition to giving the wife the fruits of the main contract of insurance, also given her the fruits of the ancillary contract to return a part of the premiums paid on surrender of the policy, and the facts as to whose money paid the premiums, and the referee, in determining a controversy with respect to such surrender value, should have found such facts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525, 526; Dec. Dig. <&wkey;339.]</p> <p>2. Bankruptcy <&wkey;143 — Property Passing to Trustee — Insurance Policies.</p> <p>Where there has been merely a designation of a beneficiary to receive moneys payable on the death of insured, and this designation is open to recall or change by insured, to whom also belongs the right to cancel or ■ surrender the policy, the surrender value of the policy passes to his trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. &wkey;143.]</p> <p>8. Bankktotcy &wkey;143 — ProX’bkty Passing to Trustee — Insurance Policies.</p> <p>Where insured’s wife, children, or a dependent relative has been made the owner of a policy, by its having been taken out for or bona fide assigned to them, within the Pennsylvania statute, under which a policy taken out for the benefit of insured’s wife or bona fide assigned to her becomes her property as against creditors, the cash surrender value of the policy does not pass to insured’s trustee in bankruptcy.</p> <p>[Ed. Note. — -For other eases, see Bankruptcy, Cent. Dig. §§ 19J, 201, 202, 213-217, 223, 224; Dec. Dig. &wkey;143.]</p>

<p>Aliens <&wkey;53 — Deportation—Detention—Delay in Returning to Foreign Country.</p> <p>In the absence of any regular passenger ocean service to German ports, the detention of an alien, liable to deportation, and held under a warrant for his removal to Germany, until an opportunity to return him to Germany presents itself, is not illegal, and he cannot be discharged on habeas corpus.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <&wkey;>53.]</p>

<p>In Equity. Suit by Edmund Burke against the Southern Pacific Railroad Company of California.</p>

<p>The American Laboratories was convicted of violating the Food and Drugs Act and amendment thereto.</p>

<p>In Equity. Suit by E. J. Baxter against George H. Calhoun and wife.</p>

<p>1. Aliens <@=>54 — Deportation—Sufficiency of Evidence.</p> <p>In determining the sufficiency of the evidence to warrant the deportation of an alien, the evidence taken prior to, and used as the basis of the issuance of, the warrant of arrest, can be considered.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dee. Dig. <@=»54.]</p> <p>2. Aliens <@=>51 — Deportation — Aliens Subject to Deportation — “Inmate.”</p> <p>A “mack,” or pimp, residing continuously in a house of prostitution, is an “inmate” thereof, within Act March 26, 1910, c. 128, 36 Stat. 263, providing for the deportation of any alien who shall be found an inmate of, or connected with the management of, a house of prostitution, as an “inmate” is one who is a mate or associate in the occupancy of a place, an associated lodger, or inhabitant; and such a person is not in the same position as a jailer, who, though living in a jail, would not be an inmate thereof, especially as Act Feb. 20, 1907, c. 1134, 34 Stat. 898, which was amended by the Act of 1910, applied only to any alien woman or girl, while the words “woman or girl” are omitted from the act of 1910.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 111; Dec. Dig. <@=>51.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Inmate.]</p> <p>3. Aliens <@==>51 — Deportation—Aliens Subject to Deportation.</p> <p>A man who assumed to dictate the terms of a sale of an interest in the business carried on in a house of prostitution, endeavored to secure a prostitute to work for him there, and had a telephone there in his name and rented by him, through which much of the business of the house was transacted, was connected with the management of the house, within Act March 26, 1910.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent Dig.. § 111; Dec. Dig. <@=>51.]</p>

<p>Information for forfeiture by the United States against Eighteen Packages of Dental Instruments. On exceptions to the sufficiency of the libel.</p>

<p>In Bankruptcy. In the matter of the American Product Company, bankrupt. On petition for review of two orders of the referee.</p>

<p>In Equity. Suit by Peter Geddes and others against the Anaconda Copper Mining Company and others to set aside a sale; of property of a corporation.</p>

<p>BANKRUPTCY <&wkey;3S0 — OFFER OP COMPOSITION-PROCEEDINGS.</p> <p>Tlie purpose of Bankr. Act, July 1, 1898, c. 541, §§ 12, 58, 80 Stat. 549, 561, as amended by Act June 25, 1910, c. 412, §§ 5, &%, 36 Stat. 839, 811 (Comp. St. 1913, §§ 9596, 9642); providing that n bankrupt may offer, either before or after adjudication, terms of composition, after, but not before, he has been examined, and tliat in compositions before adjudication. the bankrupt shall file the required schedules, and the court shall call a meeting of creditors for the allowance of claims ,and examination of the bankrupt, and declaring that creditors shall have at least ¡10 days’ notice of hearings on applications for confirmation of compositions, meetings of creditors, etc., is to shorten the time necessary In cases of honest composition, and do away with the necessity of waiting for adjudication, first meeting, and subsequent notice of tbe meeting to prove claims, and of offer of composition, and an offer may be presented at tbe first meeting of creditors and tbe examination of the bankrupt, provided that notice that tbe offer will be made and considered .is given to tbe creditors who may wish to prove their claims or participate in tbe election of a trustee, and their rights are not affected, unless they wish tov oppose the composition and make sure that- their claims are presented and allowed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 577; Dec. Dig. t&wkey;S80.]</p>

<p>In Equity. Suit by tHe American Surety Company of New York against William E. Conway and others.</p>

In Equity-. Suit by the Goodman Manufacturing Company against the Pittsburg-Buffalo Company, in which receivers of defendant were appointed. On petition of the Union Trust Company of Pittsburgh for an order restraining a receiver from taking an appeal from a decree in equity of the court of common pleas t>f Allegheny county.

<p>At Law. Two actions, by Anthony Smolik, and by Stanley Tobias, an infant, by Wladyslaw Tiburski, his guardian ad litem, against the Philadelphia & Reading Coal & Iron Company. On motion in each action to set aside the service oí process.</p> <p>In each of these cases tile defendant moves to set aside the service of process upon an agent, designated by it to accept service, as provided in section 16 of the General Corporation Law of the state of (New York, and in section 432 of the New York Code of Civil Procedure. In one case the action was brought in the state court, and the defendant, appearing specially for the purpose of setting aside the service, removed it to this court. The other was originally brought in this court, and the motion is made upon a special appearance only for this purpose. The ground of each motion is that the defendant is a Pennsylvania mining corporation, doing business, but having no part of its mines, in this state, and that the action arises from personal injuries suffered by the plaintiff in Pennsylvania while an employe of the defendant in its mines there situated.</p> <p>ejection 16 of the General Corporation Law of Now York requires every corporation doing business in that state to take out a license, without which it cannot sue or defend in any action of contract, and is subject to other penalties. One condition of procuring such a license is the appointment of an agent within the state upon whom all process may be served. Such an agent the defendant did appoint, and service was made upon him as stated at the outset.</p>

<p>Application of R. Frank for a writ of habeas corpus for and on behalf of Tina Isojoki, also known as Tina Ihrmark, for the discharge of the latter, in custody of officers, for deportation.</p>

<p>Yee Fing was convicted of an offense, and he moves for a new trial.</p>

<p>Applications for writs of habeas corpus by Rebecca Greaves and by Phyllis Seymour Greaves. On demurrer to the petition in each proceeding.</p>

<p>1. Bankruptcy <&wkey;399 — Exemptions—Objections—Premature Objections.</p> <p>Under Bankr. Act July 1, 1898, c. 511, § 6, 30' Stat. 548 (Comp. St. 1913, § 9590), providing that such act shall not affect the allowance to bankrupts of exemptions prescribed by the state laws; section 47 .(11) [section 9631], requiring the trustee to set apart the bankrupt’s exemptions and report the items and value thereof to the court as soon as practicable after his appointment; General Order 17 (89 Eed. viii, 32 C. C. A. xix), requiring the trustee, within 20 days after notice of appointment, to report the articles set off to the bankrupt, with the estimated value of each article, and providing that any creditor may take exceptions to the determination of the trustee; and General Order 5 (89 Fed. v, 32 C. C. A. viii), and Schedule B (5) [89 Fed. xxv, .32 C. C. A. xlix], requiring the bankrupt, in his schedules, to state out of what property he claims his exemptions and wishes them allotted, whether a bankrupt had forfeited his right to exemptions by withholding property from his schedules, or by conveying property with intent to defraud his creditors, could not be raised by an objection during the examination of the bankrupt, as the duties imposed upon the trustee may not be neglected or postponed until an issue of fraud, regarding the disposition of the property, is tried.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. &wkey;>399.]</p> <p>2. Bankruptcy <&wkey;399 — Exemptions—Forfeiture.</p> <p>A bankrupt does not forfeit his right to claim his exemptions, secured to him by the state law, by conveying property in fraud of his creditors, or failing to schedule portions of his property, especially as in North Carolina it is the settled law that a fraudulent disposition of property by a debtor does not work a forfeiture of his exemptions.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. &wkey;>399.]</p> <p>3. Bankruptcy <&wkey;32 — Omissions prom Schedules — Correction.</p> <p>If a bankrupt fáils to schedule property which should be surrendered to his trustee, and this fact is shown upon his examination, he may be permitted to correct his schedules.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 31-33; Dea Dig. »&wkey;32.]</p>

In Equity. Suit by the Channell Chemical Company against the E. W. Hayden Company, and Edwin W. Hayden, Orlie P. Wilkinson, and Herbert J. Chittenden, as officers and directors of said corporation. On final hearing.

<p>W. O. Smith was convicted of using the mails to defraud, and he moves for a new trial and in arrest of judgment.</p>

In Bankruptcy. In the matter of William J. Thompson, bankrupt. On review of the referee’s order directing the filing of the claim of the First National Bank of Woodbury.

In Admiralty. Suit by the Interocean Transport Company against the steamer Aztec. On motions for order to fix amount of security and to dismiss libel.

<p>In Bankruptcy. In the matter of Donato M. Cefola, alleged bankrupt. On motion to vacate a stay of proceedings under executions on judgments obtained by Tombach & McPhee and Vincenzo Ursone.</p> <p>Motion to vacate a stay issued on the motion of petitioning creditors by the bankruptcy court against two judgment creditors and their receiver, appointed by a state court in proceedings supplementary to two executions. The dates are as follows: The petition was filed March 11, 1915; receiver in supplementary proceedings was appointed on December 21, 1914, at application of Vincenzo Ursone upon a judgment obtained in the state court October 30, 1914; execution on Ursone judgment was issued November 19, 1914; order granted December 9, 1914, directing bankrupt to appear in proceedings supplementary to execution. The order was never served, but receiver was appointed upon showing that the bankrupt could not be found within state with diligence. This receivership was extended on January 11, 1915, to Tombach & McPhee judgment, on which execution issued July 2, 1914, and supplementary proceedings were commenced July 6, 1914.</p>

<p>1. BANKRUPTCY <&wkey;4Q9-DENIAL OE DISCHARGE-FAILURE 10 KEEP BOOKS.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 530 (Comp. St. 1913, § 9598), providing for the discharge of a bankrupt unless he has, with intent to conceal his financial condition, destroyed, concealed, or failed to keep books of account or records from which such condition might be ascertained, the failure to keep such hooks of account with intent to conceal his financial condition prevents a discharge, though the bankrupt’s intent was not fraudulent, and though his acts were not done in contemplation of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. &wkey;409.J</p> <p>2. Bankruptcy <&wkey;409 — Denial of Discharge — Failure, to Keep Books— Evidence.</p> <p>Where it is shown that no books of account, or no proper books, were kept by a bankrupt, the court may infer, from such failure to keep hooks, an intent to conceal his financial condition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. &wkey;409.]</p> <p>3. Bankruptcy &wkey;>409 — Denial of Discharge — Failure to Keep Books— Evidence.</p> <p>Where, though a bankrupt had his stock of goods insured for $4,000, and probably at times had a larger stock than that, and was doing a considerable business, he kept no stock book, sales book, slips of sales, nor record of moneys that came in, and no hook at all, except a qjieck book, and though he was indebted for borrowed money, no record thereof which would show any one that he owed debts of that kind was kept, and neither he nor any one else could have told his financial condition from the books, papers, or memoranda which he said he kept, the facts showed a failure to keep books with an intent to conceal his financial condition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. <&wkey;409.]</p>

<p>1, INJUNCTION <&wkey;13-GROUNDS FOB DENIAL-LACK OF INJURY TO PLAINTIFF.</p> <p>In a suit to restrain the enforcement of an order of the Interstate Commerce Commission, where, though the order was in operation for 3 months prior to the filing of the bill, and for 18 months prior to the trial, no preliminary injunction having been issued, plaintiff had sustained no substantial damage therefrom, and no such damage was likely to ensue therefrom during the remainder of the period of 2 years for which the order by its terms was to be effective, an injunction would be denied, as an injunction will not be granted against acts which, though irregular and unauthorized, involve no substantial injury to the party complaining.</p> <p>[Ed. Note. — For oilier cases, see Injunction, Cent. Dig. § 13; Dec. Dig. &wkey;13.j</p> <p>2. Injunction <&wkey;129 — Appeal—Dismissal Without Pbejudioe.</p> <p>Such bill should be dismissed without prejudice to plaintiff’s right in the future to seek relief against such order, or a renewal of it, as under changed conditions substantial loss might he occasioned in the future.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 279-287; Doc. Dig. &wkey;>129.3</p>

<p>1. Internal Revenue <&wkey;>9 — Corporate Excise Tax — Corporations Uta ule —“Doing Business” — “Net Income.”</p> <p>Where railroad companies leased their railroads, rolling stock, and other property, and surrendered possession thereof to the lessee, and the lessee thereupon assumed and maintained entire control and operation of the roads, the lessors agreeing to maintain their corporate existence in order to hold title to the properties and to exercise their power of eminent domain in acquiring additional property when the lessee might so request and furnish the money therefor, and the lessee agreeing to pay the taxes and interest upon the bonded indebtedness of the companies, and to pay dividends to the lessors’ stockholders at an agreed rate, the acquisition of property by the lessors by purchase and condemnation pursuant to the request and direction of the lessee, which property was paid for with money furnished by the lessee and was immediately delivered into the possession of the lessee and used by it in operating the roads under the terms of the leases, was not such a doing of business as made the lessors liable for the special excise tax imposed by Act Ang. 5, 1909, e. 6, § 38, 56 Stat. 112 (Comp. St. 1913, §§ 6300-6307), providing that every corporation organized for profit and engaged in business shall be subject to a special excise tax with respect to the carrying on or doing business by it, equivalent to 1 per cent, upon its entire net income over and above $5,000 from all sources, as corporate acts performed by a corporation in the exercise of its primary franchises, as the maintenance of its corporate existence, or which relate strictly to the internal affairs of the corporation and do not include the exercise of its secondary franchises, do not constitute “doing business” within the statute, and though the acts of purchasing and condemning property were both corporate and business acts, the corporations merely acquired the instrumentalities to do the thing and to carry on the business for which they were incorporated, and, moreover, “net income” imports a gross income, and the difference between the two implies the expenditure of income for some corporate purpose, as that of carrying on or doing the business for which the corporation is organized, and such corporations received no income from railroads operated by them, and expended none in the operation of railroads, or for any other purpose.</p> <p>|Kd. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business; Net Income.]</p> <p>2. Internal Revenue <&wkey;>9 — Corporate Excise Tax — “Engaged in Business” — “Carrying on Business” — “Doing Business.”</p> <p>Within Act Aug. 5, 1909, § 38, the expressions “engaged in business,” “carrying on business,” or “doing business” do not have different meanings, but separately or connectedly convey the idea of progression, continuity, or sustained activity, and “engaged in business” means occupied or employed in business, “carrying on business” does not mean the performance of a single disconnected business act, but means conducting, prosecuting, and continuing business by performing progressively all the acts normally Incident thereto, while .“doing business” conveys the idea of business being done, not from time to time, but all the time.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Carry on Business; Engage.]</p>

Meek, Judge. Action by Barbara Parker against Leonard Cecil Parker and others. Decree for complainant, and defendants appeal.

<p>1. Aliens <®=»32 — Deportation Proceedings — Keview by Courts — Appeals.</p> <p>A proceeding on an appeal to the District Court from a commissioner’s order for the deportation of a Chinese person was properly taken to the Circuit Court of Appeals by appeal.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@==>32.]</p> <p>2. Aliens <®=»32 — Deportation Proceedings — Sufficiency of Evidence.</p> <p>In a proceeding to deport a Chinese person, admitted into the United States as the minor son of a Chinese merchant, evidence held sufficient to sustain the burden resting upon such person of showing that his father was a merchant.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dee. Dig. <S=»32.]</p> <p>3. Aliens <3=>32 — .Deportation Proceedings — Keview by Courts — Evidence.</p> <p>On appeal from a commissioner’s order for the deportation of a Chinese person, statements in the commissioner’s memorandum opinion could not be considered as evidence against the person sought to he deported.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 84, 92-95; Dee. Dig. <Sss>32.]</p> <p>4. Aliens <Sr.»2‘! — Chinese Persons Excluded — Minor Son of Merchant.</p> <p>The minor son of a Chinese merchant living in the United States was lawfully within the United States, he not being afflicted with any of the moral or physical infirmities justifying deportation, under Act March 26, 1910, c. 128, § 1, 36 Stat. 263 (Comp. St. 1913, § 4244), especially as the departmental rules governing the admission of Chinese persons for several years have extended the privileges of the exempted classes to their minor children.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 76-90; Dec. Dig. <8=»23.]</p> <p>5. Aliens <S=»32 — Deportation Proceedings — Review by Courts — Appeals.</p> <p>On appeal from a decree affirming an order of a commissioner for the deportation of a Chinese person, findings of the commissioner and the District Court that such person was unlawfully within the United States did not preclude a review of the facts in the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=»32.]</p> <p>6. Aliens <@=^24 — Chinese Persons Excluded — Minor Son op Merchant.</p> <p>That a Chinese person, properly admitted to the United States as the minor son of a Chinese merchant living in the United States, thereafter worked in a laundry, did not defeat his right to remain in the country.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 76-78; Dec. Dig. @=»24.</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit by the Mutual Benefit Life Insurance Company against Myra M. Swett and others. From a decree against her, defendant named appeals.</p>

Tuttle, Judge. Action by the American Brake Shoe & Foundry Company against the Pere Marquette Railroad Company, in which Frank W. Blair and others were appointed receivers of the railroad company. From an order denying an application to require the receivers to pay a judgment against the railroad company, the Loveland & Hinyan Company appeals.

<p>1. CUSTOMS AND USAGES <S=7-REASONABLENESS-WOOL TliAWK.</p> <p>Tlie custom of the wool trade, whereby if honest differences that cannot be amicably adjusted arise over the grading, which is done by one furnished by the buyer, either party may call the transaction off, is reasonable.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 7; Deo. Dig. <3=7.1</p> <p>2. Sales <@=129 — Sale or Wool — Gbading—Custom—--Rejection.</p> <p>Under the custom in the wool trade, whereby if honest differences that cannot be amicably adjusted arise over the grading, which is done by one furnished by the buyer, either party may cail the transaction off, plaintiff having a contract to sell defendants 150,000 pounds of wool, and having offered, in part fulfillment thereof, a lot of 30,000 pounds, could reject or accept the grading thereof as a whole only, and could not require defendants to accept the part thereof with the grading of which he was satisüed, and to take wool from other lots to fulfill the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 295; Dec. Dig. @=>129.]</p>

<p>Mines and Minerals <§=s>38 — Action to Establish Extbalateral Rights— Construction of Judgment — Evidence.</p> <p>A judgment for plaintiff in an action to recover the value of ore alleged to have been taken by defendant from two veins apexing in plaintiff’s mining claim, but extending on their dip beyond its vertical side lines beneath the surface of defendant’s adjoining claim; rendered under a stipulation that only the issue of title and right to possession of “the veins and ores in controversy” should be tried, leaving the question of damages to be later disposed of, construed, and held to relate only to the title and right to possession of the ore in the two veins which were put in issue by the pleadings, lying beneath the surface of defendant’s claim and within the limits defined by the verdict and judgment, leaving it open to defendant on the subsequent trial of the issue of damages to show that a portion of the ore taken from its claim within such limits was from other veins; and also held, that evidence offered by defendant for that purpose was material and sufficient to require its submission to the jury.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. <@=^38.]</p>

<p>1. Commerce <§=>27 — Regulation—Safety Appliance Act — Validity.</p> <p>Congress may. as a means of securing tlie safety of persons and property transported in interstate commerce, prohibit, as is done by Safety Appliance Act March 3, 1893, c. 196, 27 Stat. 531 (Comp. St. 1913, §§ 8605-8(512), the movement of a defective car, unless necessary to move it to a repair point, though the movement is not an act of interstate commerce, nor a use of the car in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <S=>27.]</p> <p>2. Commerce <§=>27 — Regulation—Safety Appliance Act — Moving Defective Car.</p> <p>Where a switchman, employed by a carrier engaged in interstate commerce, was injured because of a defective rung or grabiron constituting the ladder to the top of a box car, which at the time was standing on the main line at a point while switching was going' on which was required to complete a movement previously started of that with other cars, from another track in the yard, to the carrier’s repair shop at that point, but there was nothing to prove that the defect could not have been repaired or removed without making the movement of the car which had been partially executed when the injury occurred, the carrier was liable under the Safety Appliance Act.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <>=27.]</p>

Petition to Superintend and Revise from the District Court of the United States for the Southern District of Georgia; William T. Newman, Judge. Petition by the King Hardware Company, an intervening creditor, and cross-petition by the Beach Manufacturing Company, an alleged bankrupt, to superintend and revise the decree of the District Court as to receiver’s compensation, counsel fees, and expenses of bankruptcy ¡proceedings.

<p>Salvage —Customs Duties — Cargo Salved from Wreck — Priority oe Claims.</p> <p>In dealing with the proceeds of property salved from a vessel wrecked or abandoned at sea, brought into a port of the United States by the salvors and sold under order of the court, both under the authorities and under. Rev. St. § 3058, as amended by Act Feb. 23, 1887, c. 221, 24 Stat. 415 (Comp. St. 1913, § 5760), which provides that in such ease the property may be regarded as the property of the salvors, and the valuation thereof and payment of duties thereon can be made accordingly, “and with due reference to the condition of the said merchandise as thus saved and the necessities of the case,” the court has power to give the claims for salvage priority over that of the government for customs duties.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §' 105; Dec. Dig. <®=40.]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; William H. Hunt, Judge.</p> <p>Armour & Co. was convicted of an offense, and brings error.</p>

Kohl-saat, Judge. Suit in equity by the Central Trust Company of New York against the Chicago & Oak Park Elevated Railroad Company. From an or-. der confirming the report of the master, rejecting the claim for damages of John F. Devine, administrator of the estate of Harry A. Egan, deceased, against Samuel Insull, receiver of defendant, claimant ap.-peals.

Carpenter, Judge. Suit in admiralty by the Chicago Transportation Company and T. Bernstein against the steam tug Fitzgerald and the City of Chicago. Decree for libelants against the City of Chicago, and the City appeals.

This cause comes here upon writ of error to review a judgment of the District Court, District of Vermont, in favor of defendant in error, who was defendant below.

Eoster, Judge. Suit in admiralty by Marie Etier against Kjaer & Isdahl and the National Surety Company. Decree for libelant, and respondents Kjaer & Isdahl appeal. This is an appeal from a decree in favor of Marie Etier, appellee, and against Kjaer & Isdahl, appellants, owners of the Norwegian steamship Hero, and the National Surety Company, surety, for the sum of $2,000.

Maxey, District Judge, dissenting. In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Action by Thomas C. Johnson against the St. Bernard Cypress Company, Limited. Judgment for plaintiff, and defendant brings error.

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

Foster, Judge. Actions by Edith Faurie and Eugenia Quinlan against the Board of Directors of the City Schools of New Orleans. Judgments adverse to plaintiffs, and they bring error.

Toulmin, Judge. Proceeding in bankruptcy by J. C. Stewart & Co. against William McLeod, trustee in bankruptcy of the W. G. McGowin Lumber Company. .From a decree denying priority to claims against the bankrupt estate, the claimant appeals.

<p>Iii Error to the District Court of the United States for the Northern District of Florida; Wm. B. Sheppard, Judge.</p> <p>Action by the Florida Pine Rand Company, for the use of Edward Weston, against the Bristol Naval Stores Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Petition to Revise Order of the DistHct Court of the United States for the Southern District of New York.</p> <p>This matter comes here upon a petition to revise an order of the District Court for the Southern District of New York confirming the report of the referee in bankruptcy which denied the petition of the trustee praying that Freída Silberstein turn over to him the sum of $600 paid to her by one of the bankrupts after the filing of the petition in bankruptcy.</p>

<p>Public Lands <@=w130 — Cancellation of Patents — Liability fob Improvements.</p> <p>On the cancellation as invalid of patents to public lands, the claimánt under such patents cannot recover from the United States the cost of improvements made on the land, or taxes paid thereon under the laws of the state, in the absence of any contract by the United States, express or implied, to repay such sums.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 346; Dec. Dig. <@=>130.]</p>

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, holding that the Motor Company was not entitled to recover or receive credit for expenses incurred by it in shipping a certain fire engine from New York to Germany.

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Action between Ernest E. Woodcock and the City of New Orleans. From a decree for the C'ity,'Woodcock appeals.</p>

<p>1. Patents <8=>328 — Validity and Infringement — Railway Tie, Plate.</p> <p>The Wolhaupter patent, No. 538,809, for a railway tie plate, claim 8, covers broadly a tie plate having tie engaging flanges on the under side and rail supporting flanges on the upper side, each being an independent and distinct feature of the invention which may be infringed although the other, as described in the more specific and limited claims, is not. As so construed, the claim is not too broad, but covers a true combination which was not anticipated, discloses invention, and is valid. Also, held infringed.</p> <p>2. Patents <j=»165 — Construction of Claims.</p> <p>In contemplation of law, each claim of a patent must be considered as setting forth a complete and independent invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. <§^165.J</p> <p>3. Patents <®=>177 — Combinations—-Combination or Aggregation of Parts.</p> <p>To sustain a combination claim in a patent, it is not necessary that the natural action of each element must by the action of the other elements upon it be converted into some sort of action other than its natural action, but it is sufficient if the elements are associated in a unitary structure and there co-operate to produce either a new mode of operation' or a new result or the old result in a modified and improved way.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 253, 254; Dec. Dig. <©^>177.</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 O C. A. 123.]</p> <p>4. Patents <§=s>45, 49 — Suit eoe Infringement — Evidence of Novelty-and Utility.</p> <p>In a suit for infringement, the fact of infringement, if shown, may be accepted as evidence of utility as against defendant and also of novelty if the invention is an important one in a commercial sense.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 51-53, 59-62; Dee. Dig. <©=345, 49.]</p> <p>5. Patents <@=>17 — Invention—Prior Art.</p> <p>In considering the question of invention, the disclosure of the patentee should as far as possible be excluded from view, and to negative invention a prior art device must disclose the idea of the patent so clearly that It would be apparent to a mechanic of ordinary intelligence who did not previously have such idea.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 16, 17; Dec. Dig. <S=17l]</p> <p>6. Patents <@=>312 — Validity—Presumption prom Grant.</p> <p>The presumption of validity of a patent should be given more than formal recognition, and, before determining that the examiners of the Patent Office were in error and declaring its invalidity, the courts should consider the patentee’s equities in his business developed under its presumptive validity and the place which the patented article has achieved in the field of practical art since the patent was granted.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 544-549; Dec.. Dig. <@=>312.]</p> <p>7. Patents <@=>328 — Validity and Infringement — Railway Tie Plate.</p> <p>The Wolhaupter patents, No. 691,332, claims 1, 2, and 3, and No. 721,644, claims 7 and 9', each for a specific and limited improvement on the railway tie plate of patent No. 533,809 to the same patentee; held not anticipated, valid, and infringed.</p> <p>8. Words and Phrases — “Rail Chair.”</p> <p>A “rail chair” is a device used where the ends of rails come together; it holds the separate rails firmly together and in alignment and so gives them the effect of being one continuous rail.</p> <p>9. Patents <©=>1- — What Constitutes.</p> <p>A “patent” is a contract between the government on behalf of the people and the patentee.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 1; Dec. Dig. <@=>1.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Patent.]</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 a decree of the District Conn. Southern District of New York, dismissing the bill in a suit for infringement of patent. The patent is reissue No. 13,398, granted to complainant April 2, 1912, for an invention made by James O’Connor on a “perforated note sheet guide.” The original patent, No. 789,053, dated May 2, 1905, was before this court in Autopiano Co. v. Am-phion Piano Co., 186 Fed. 159, 108 C. C. A. 291. We sustained a decision of Judge Pland, which held the original patent valid, but not infringed by the device then before the court.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge.</p> <p>Suit in equity by the Medusa Concrete Waterproofing Company against the McCormick Waterproof Portland Cement Company and Sidney T. Sjoberg. Decree for complainant, and defendants appeal.</p> <p>Appellants ask to be freed from the decree that adjudged them to be in-fringers of patent No. 851,247, April 23, 1907, to Newberry, appellee’s assignor, for waterproof Portland cement and process of making same.</p> <p>The specification and claims read as follo'ws:</p> <p>A. “The invention is in part a process of rendering cement waterproof, which consists in mixing therewith a small percentage of an insoluble lime salt of a fatty acid, preferably stearate of lime, substantially free from glycerine or other soluble substance.</p> <p>“It also consists in the product of that process, namely, a cement rendered waterproof by the mixture therewith of a small percentage of an insoluble lime salt of one of the fatty acids, preferably stearate of lime.</p> <p>“The stearate of lime to be employed may be made in any suitable manner. It may be made by a dry process, to wit, by heating one part of stearic acid with two parts (more or less) of dried slaked lime; or it may be made by a wet process, to wit, by adding the stearic acid to hot milk of lime. Specifically. fifty pounds, more or less, of quicklime may be slaked in a hundred pounds, more or less, of water, and to this mixture, while it is still hot, may be added about thirty pounds of stearic acid. The resultant stearate of lime is to be dried so that it is in the form of a dry powder. The resultant of either method of operation, above described, is an insoluble stearate of lime, mixed with a greater or less excess of hydrate of lime, according to the quantity of lime employed.</p> <p>“The stearate of lime may be added to the cement clinker and ground therewith. I prefer, however, to add it to the finished dry cement. In fact it is preferable to keep the cement and the stearate of lime separated until a waterproof cement is required for use. I have found that 1 or 2 per cent, of stearate of lime, added to the dry cement, is all that is 'required to render the mortar or concrete made therefrom absolutely and permanently impervious to water; ami this is true even when cement is mixed with so large a proportion of sand as live parts of sand to one of cement.</p> <p>I!. “I am aware that various materials have been proposed, and to some extent used, as additions to cement and plaster to prevent the absorption of water. These various materials have been produced by saponifying, in various ways, various kinds of fats, oils, and waxes. But all of said materials heretofore proposed or used for this purpose' have retained the glycerine which is set free by the saponification, and have, in fact, been soft soaps. They are, therefore, in part, soluble in water; that is to say, the glycerine therein is soluble. For this reason cement or plaster, with which these materials are mixed, is not impervious to water, and becomes less so as the glycerine is dissolved by the water. The waterproofing material hereinbefore described is, however, free from glycerine or any other material soluble in water. being a lime salt of a fatty acid, which acids are, as is known to all chemists, formed front fats by breaking up the chemical combination of the glycerine with said fatty acids, and segregating them from the glycerine. The lime salt of a fatty acid is absolutely insoluble in water; and the addition of this substance to cement or plaster in the manner and substantially the proportions heretofore described renders the resultant compound, when set. substantially and permanently waterproof.</p> <p>•‘X claim:</p> <p>“1. The process of rendering cement waterproof, which consists in mixing therewith, a small percentage of the insoluble lime salt of a fatty acid, substantially free from glycerine or other soluble substance.</p> <p>"2. The process of rendering cement waterproof, which consiste in mixing therewith a small percentage of insoluble stearate of lime, substantially free from glycerine or other soluble substance.</p> <p>“3. A composition of matter resulting from the described process, which consists of cement mixed with a small percentage of the insoluble lime salt of a fatty acid, substantially free from glycerine or other soluble substance.</p> <p>“4. A composition of matter, which consists of cement mixed with a small percentage of insoluble stearate of lime, substantially free from glycerine or other soluble substance.”</p>

<p>Patejits <&wkey;328 — Validity and Initsingement — Hatchway Doors — Prior Use.</p> <p>Evidence of prior use of the device of the Rashkin patent, No. 871,735, for hatchway doors, considered, and held insufficient to defeat the patent, within the rule requiring such evidence to be clear and convincing. The patent also held infringed.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Steam Tubbine.</p> <p>The Terry patent, No. 711,385, for a steam turbine, of the type known as a single impulse helical flow turbine, was not anticipated and discloses patentable invention. Claims 1 and 5 also held infringed by the devices of the Bentley patents, No. 944,839 and No. 1,042,871, and claim 3 not infringed.</p>

<p>In Equity. Suit by the Safety Car Heating & Lighting Company against the United States Light & Heating Company. On final hearing.</p>

<p>In Equity. Suit by the Safety Car Heating & Lighting Company against the United States Light & Heating Company. On final hearing.</p>

<p>In Equity. Suit by the Safety Car Rleating & Righting Company against the United States Eight & Rleating Company. On final hearing.</p>

<p>In Equity. Suit by the American'Brake, Shoe & Foundry Company against the Hoadly Brake Shoe Company. On final hearing.</p>

<p>In Equity. Suit by the Sundh Electric Company against the Inter-borough Rapid Transit Company. On final hearing.</p>

<p>Injunction <®=»169 — Motions to Vacate — Denial Peo Poema.</p> <p>In a suit to restrain former employes of plaintiff from disclosing trade secrets, in which. defendants, upon announcement of their purpose to do so, were enjoined from consulting experts as to whether the processes shown by plaintiff’s depositions, the formulae of which were kept in camera, were secret processes or processes which any one in the business had a free right to use, where on the trial defendants were claiming in good faith that it was necessary to confer with experts, their motion at the trial to vacate the injunction would be denied pro forma, the trial being continued until they could have a review of the ruling by an appellate court, as to grant the motion would compel plaintiff to abandon the suit, without being able to secure a review of the ruling.</p> <p>[Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 372, 384; Dec. Dig. <@=ol69.]</p>

At Law. Actions in the nature, of scire facias by D. E. Loewe and others against the Union Savings Bank, against the Norwalk Savings Society, against the South Norwalk Savings Bank, and against the Savings Bank of Danbury. On motions to open defaults in each action.

<p>1. COPYRIGHTS &wkey;>66 — Infringement—Performance Without Profit.</p> <p>A performance of a copyrighted dramatico-musical composition need not be for profit, to infringe the copyright.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. <&wkey;66J</p> <p>2. Copyrights <&wkey;66 — Infringement—Performance.</p> <p>A performance in words and music only may infringe a dramatico-musical copyright, and it is immaterial whether the performance is only of a scene or a part thereof.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. <&wkey;66.]</p> <p>3. Copyrights <&wkey;66 — Infringement—Acts Constituting.</p> <p>Authors of a comic opera, who take out a copyright on a song with orchestral accompaniment, dedicate to the public the right to sing the words to the music, accompanied by an orchestra.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. <&wkey;66.]</p>

Application by the Automobile Co-Operative Association of America to punish William M. Sweet for contempt in declining to be sworn as a witness, so that his deposition could be taken.

<p>Removal of Causes <@=»52 — Sepakable Controversies — Suits foe Partition.</p> <p>In a suit for the sale of a franchise from a city for distribution of the proceeds among the owners thereof, no separable controversy which could be removed to a federal court existed between plaintiff and certain nonresident defendants, it being the settled law of Maryland that there can be no partition which will not in its result vest in each person a sole estate in a specific part of the property, and that no sale for the purposes of partition can be decreed unless a decree for partition could be properly passed, if the property wore susceptible of partition in hind without loss or injury.</p> <p>[Ed. Note. — Jfor other cases, see Removal of Causes, Cent. Dig. §§ 102, 103, 105; Dec. Dig. &wkey;>52.]</p>

<p>1. Costs <&wkey;277 — Remedy for Collection — Stay oe Subsequent Action.</p> <p>While the stay of an action until the payment of the costs in a prior action is in part to compel payment of the costs, it is also used to prevent vexatious litigation, and should be favored.</p> <p>[Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 1048-1060; Dec. Dig. &wkey;277.]</p> <p>2. Costs <&wkey;277 — Remedy fob Collection — Stay op Subsequent Action.</p> <p>Where plaintiff, after the dismissal of an action in the state court, commenced an action in the federal court on the same cause of action, and no reason was given for relieving her of the usual results of an unwarranted litigation, nothing appearing to aid the court in exercising its discretion, except the fact that the first action was dismissed, a stay should be granted until payment of the costs of the former action, unless plaintiff takes an oath in forma pauperis, swearing that such stay will prevent her from prosecuting the action, and also stipulates, in the event of success, to allow defendant credit for the costs upon any execution taken out.</p> <p>[Ed. Note. — Eor other cases, see Costs, Cent. Dig. §§ 1048-1060; Dec. Dig. &wkey;277J</p>

<p>1. Monopolies <&wkey;14 — Combinations in Restraint of Trade — Manufacturers op Patented Articles.</p> <p>The union in one corporation oí a number of others, each of which had been engaged in the manufacture oí patented noncompoting machines, but which were used successively in a manufacturing business, is not a combination in restraint of trade, in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (Comp. St. 1913, § 8820).</p> <p>[Ed. Note. — Por other cases, see Monopolies, Cent. Dig. § 11; Dec. Dig. <&wkey;>14.]</p> <p>2. Monopolies <&wkey;14 — “Combination in Restraint op Trade” — Consolidation op Shoe Machinery Companies.</p> <p>The United Shoe Machinery Company was formed by the consolidation of a number of companies, each engaged in making patented machines for use in the manufacture of shoes, for the most part noneompeting. During the ensuing 11 years it also acquired the patents, property, and business of a considerable number of other manufacturers of different classes of machinery, all of which was used in the manufacture of shoes, and comprising a group of machines covering practically all of the operations required in such manufacture, by which means the company obtained a very large percentage of the trade iu such machinery, although it appeared that neither its property nor its business was acquired by unfair means, but, on the contrary, that in most cases its purchases from others were made at their solicitation, and that in many more cases it refused to buy the business of others which was offered. Held, that such facts did not characterize the company as a “combination in restraint of trade,” or evidence an attempt to create a monopoly, within the meaning of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat 209 (Comp. St. 1913, §§ 8820, 8821).</p> <p>[Ed. Note. — Por other cases, see Monopolies, Cent. Dig. § 11; Dec. Dig. &wkey;>14.</p> <p>Por other definitions, see Words and Phlases, Pirst and Second Series, Combination in Kestraint of Trade.]</p> <p>3. Monopolies <&wkey;14 — Anti-Trust Act — Manner op Conducting Business.</p> <p>Neither is illegality of the company’s business. shown by the fact that, instead of .selling its machines, it leases the same for long terms, with a license for the terms of any patents covering parts thereof, for a royalty based on the number of pairs of shoes on which they are used, with a provision requiring the lessee to use the machines to their full capacity so far as its business warrants, nor because of further provisions, in some of the leases of certain machines, requiring the lessee to also lease other related machines from the company under penalty of cancellation of the lease, where such clause was optional with the lessee, who was charged a smaller royalty when it was included.</p> <p>[Ed. Note. — Por other cases, see Monopolies, Cent. Dig. § 11; Dec. Dig. <&wkey;14J</p>

In Bankruptcy. In the matter of the International Mineral Company, bankrupt. On petition for review of an order of the referee denying the application of Frank W. Cavanaugh and another for the payment to them of money in the trustee’s possession.

<p>James S. Elton was indicted for conspiring with others to create a monopoly of transportation facilities. On demurrer to special- plea in bar.</p>

. At Law. Action by the Industrial Trust Company against James J. Walsh, 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, pursuant to the provisions of sections 649 and 700 of the Revised Statutes of the United States (Comp. St. 1913, §§ 1587, 1668), the following special finding of facts is made by the court and filed as part of the record: Special Finding of Facts.

The Erie Railroad Company and another were jointly indicted for granting an unlawful concession in rates to a shipper, and the Railroad Company alone was convicted. On motions in arrest of judgment and for new trial.

In Equity. Suit by Nathaniel E. Carpenter against Beal-McDon-nell & Co. and another. This is a bill in equity against the defendants, composing the copartnership of Beal-JlcDonnell & Co., to compel them and their officers to make a transfer to the plaintiff of certain certifícales of membership in said firm.

At Law. Action by Edwin F. Palmer against the Delaware, Lacka-wanna & Western Railroad ’ Company.

<p>At Law. Action by Kate L. Williams against the Wilson Fruit Company.</p>

<p>In Equity. Bill by A. J. Dull against A. J. Le Fevre and others.</p>

Baltazar Aviles and others were indicted for a conspiracy. On motion to quash indictment and to require the United States attorney to give defendants a list of witnesses examined before .the grand jury.

<p>In Equity. Fourteen suits by Hiram Walker & Sous against Jacob FI. Grubman, doing business as the West Shore Wine & Liquor Company, and others. On settlement of the decree.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by Ogden Mills against the Denver & Rio Grande Railroad Company. Decree for complainant, and defendant appeals.</p>

<p>Mandamus <§=117 — -Compelling Proper Assessment op Property for Taxation — Constitutional Provisions.</p> <p>Mandamus lies to compel the assessor and equalization officers of a county of Arkansas to act in conformity with Const. Ark. art. 16, § 5, requiring all property subject to taxation to be taxed according to its value, to be ascertained as the General Assembly shall direct and make the same equal and uniform throughout the.state, and so determine the true value of the property in the county subject to taxation, and thereby raise sufficient taxes to pay the courthouse contractor, though mandamus may not interfere with the officers in exercising their judg•ment in determining true value, and though by assessing the property in. the county at full value there will be an inequality and a want of uniformity because of the wrongful act of other assessing officers in fixing value at 50 per cent, of the true value.</p> <p>[H'd. Note. — For other eases, see Mandamus, Cent. Dig. § 249; Dec. Dig. <@=»117.]</p>

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Action by Henry G. Dinet against the City of Rapid City, S. D. There was a judgment for defendant, and plaintiff brings error.</p>

The following is the opinion of Hunt, Circuit Judge, in the lower court: Claim 3 of the patent in suit reads as follows: “In a switch, the combination of a plurality of contacts, a plurality of contact arms provided with contacts co-operating therewith, and means for successively actuating said contact arms, said means consisting of a movable member provided with bearing surfaces of varying lengths upon which the contact arms are adapted to bear, and electro-magnetic means…

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit by the Trussed Concrete Steel Company against A. E. Goldberg and others. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit in equity by the Grinnell Washing Machine Company against the Newton Washing Machine Company. Decree for complainant, and defendant appeals.</p>

Tlii* cause comes here upon appeal from a decree of the District Court, Western District of Ñew York, dismissing the bill of complaint in a suit for infringement of patent. The patent is No. 862,897 issued August 13, 1907, on application filed February 1, 1907, to William D. Forsythe, assignor to complainant, for “expanded metal.” The opinion of the District Court will be found in 214 Fed. 393. See, also, 197 Fed. 946.

<p>In Equity. Suit by tlie National Malleable Castings Company and Jacob J. Byers against the T. H. Symington Company. On final hearing.</p>

<p>Patents <§=3212 — Licenses—Power to Impose Restrictions.</p> <p>A grant, for a fixed royalty paid in advance, of the right to use a patented article during the full term of the patent, when it is to become the property of the licensee if he has observed the terms of the license, is equivalent to a “sale,” and the owner of the patent, having received full payment of the price, fixed by himself, cannot by a provision of the license restrict the right of the licensee to transfer the same for whatever consideration he may see fit. This is so, even though the patentee still has the right under its form of license to require the transferee to purchase from itself certain things adapted for use with the patented article.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 312-314; Dee. Dig. <§=»212.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Sale.]</p>

<p>In Equity. Suit by the Portland Wood Pipe Company against the Slick Bros. Construction Company and others, in which one Comer-ford filed a cross-bill. On motion to dismiss the counterclaim of the Construction Company to such cross-bill.</p>

<p>Removal of Causes <®=374 — Parties Entitled to Remove — Right of Plaintiff.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231) § 28, 36 Stat. 1094 (Comp. St. 1913, § 1010), providing that any suit of a civil nature arising under the Constitution or laws of the United States, etc., of which the District Courts are given original jurisdiction, which may be pending in any slate court, may be removed by “the defendant or defendants therein” to the District Court of the United States for the proper district, that any other suit of a civil nature of which the District Courts are given jurisdiction may be removed by “the defendant or defendants therein, being nonresidents,” that when, in any suit mentioned in that section, there shall be a controversy wholly between citizens of different states and which can be fully determined as between them, one or more of the “defenda nis” actually interested in such controversy may remove the suit, and that, when there is a controversy between citizens of the state in which lite suit is brought and a citizen of another state, “any defendant being such citizen of another state” may remove the suit when it shall be made to appear that from prejudice or local influence he will not be able to obtain justice in the state courts, and section 29 (Comp. St. 1913, § 1011), requiring the petition for removal to be filed before defendant is required by the laws of the state or rule of the state court to answer or plead to plaintiff’s declaration or complaint, and providing that the parties removing the cause shall within 30 days after the filing of the transcript in the federal court plead, answer, or demur to the declaration or complaint, in an action in the courts of the state of which the defendant is a resident by a nonresident plaintiff to recover less than $3,000, tile filing of a counterclaim for more than $3,000 does not entitle plaintiff to remove the cause, as, though he is placed in a defensive position as to the counterclaim, he is still the plaintiff, and not a defendant.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 130, 131; Dee. Dig. «=£=>74.]</p>

William Rockefeller and others were indicted for a violation of the Anti-Trust Raw, and defendants Baker and others apply for a severance.

in Bankruptcy. In the matter of Edward H. Forestier, bankrupt. On petition for removal of the trustee, and on review of an order of the referee appointing a new trustee.

<p>In Equity. Suit by Sidney E. Boyle against the St. Louis & San Francisco Railroad Company and others. On final hearing.</p>

<p>1. Taxation <&wkey;6Ó8 — Remedies foe Wrongful Enforcement — Injunction.</p> <p>Kirby’s Dig. Ark. § 7180, providing for the recovery of taxes erroneously assessed, not referring to overvaluation of the property taxed, but only to jurisdictional defects, and being a less adequate remedy than an injunction, does not provide such an adequate remedy at law as will preclude enjoining the collection of a tax based upon a systematic overvaluation of railroad property.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1230-1241; Dec. Dig. <&wkey;608.]</p> <p>2. Taxation <&wkey;608 — Collection—Remedies foe Wrongful Enforcement— Injunction.</p> <p>A court of equity may enjoin the collection of a tax based upon a systematic overvaluation of railroad property, both by general law and especially in view of Const. Ark. art. 16, § 13, and Kirby’s Dig. Ark. § 3960, providing that an injunction may be granted to restrain illegal tax assessments.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1239-1241; Dec. Dig. <&wkey;60S.]</p> <p>3. Courts <&wkey;371 — Federal Courts — Enforcement of Rights under State Laws.</p> <p>Where a "state statute creates or provides a new right cognizable in equity, the national courts will enforce it.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 907, 972-976; Dec. Dig. <&wkey;>371.]</p> <p>4. Taxation <&wkey;-176 — Assessments—Boards of Equalization.</p> <p>Wheije a state statute limited the session of county boards of equalization to the period between the second. Monday in September, and the meeting of the county court on the fourth Monday in October of each year, a board of equalization became functus officio after such date, and could not thereafter reduce assessments of property in the county.</p> <p>I Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 845-849; Dec. Dig. <i&wkey;476.]</p> <p>5. Taxation <&wkey;608 — Levy and Assessment — Discrimination.</p> <p>Where the Arkansas tax commission had assessed the property of railroad corporations on a basis of 50 per cent, of their actual value in conformity with the customary assessments upon all other property, a reduction by a county board of equalization in the assessments on all the property in the county, except that of the railroads, of 50 per cent., and the issuance of a warrant to the collector authorizing him to collect on that basis, while the taxes charged to the railroads remained as before, was a discrimination, authorizing an injunction against collecting the tax.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1230-1241; Dec. Dig. <&wkey;608.j</p> <p>(5. Taxation <&wkey;468 — Assessment—Reduction.</p> <p>Under Kirby’s Dig. Ark. §§ 6899, 6906, requiring all taxable property to be listed and valued as of June 1st of each year, a county hoard of equalization cannot reduce assessments on the ground of depreciation in value of property subsequent to that date.</p> <p>[Ed. Note. — For other eases, see Taxation, Cent. Dig. § 837; Dec. Dig. <&wkey;:i68.]</p> <p>7. Taxation <&wkey;611 — Collection—Injunction—Railroad Property.</p> <p>That Laws Ark. 1911, p. 233, approved May 4, 1911, requires the property of railroads in the state, excepting buildings and side tracks, to be assessed as a unit, was no obstacle to an injunction against the collection of a tax by a county tax collector, based upon an assessment of the property of a railroad at 50 per cent, of its actual value, while all other property in the county was assessed at 25 per cent, of its actual value.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1242,1245-1257; Doe. Dig. <&wkey;611.]</p>

<p>In Bankruptcy. In the matter of the petition of Russell Wheel & Foundry Company and others to have the Detroit Body Company adjudicated a bankrupt. On motion to strike an answer from the files- and for an order of adjudication.</p>

<p>In Admiralty. Proceeding by the R. G. Packard Company, owner of Steam Dredge No. 6, for limitation of liability, wherein the Standard Gaslight Company is claimant.</p>

Suit by T. B. Harms & Francis, Day & Hunter against Joseph W. Stern and Edward B. Marks, copartners doing business under the firm name and style of Joseph W. Stern & Co. This is an ordinary action for infringement of copyright, brought by plaintiff, a New York corporation, against defendants, music publishers in New York City, because of publication by defendants of the mu.sic of a musical composition composed by one Sigmund Romberg, entitled “Oh, Those Days.” Defendants had…

<p>Trade-Marks and Trade-Names <&wkey;70 — Unfair Competition.</p> <p>Complainant invented an automobile tool for which he applied for a patent. Pending action on his application he commenced manufacturing, and through extensive demonstrations and advertising quickly created a market. Defendant then commenced making and selling the same tool, practically identical in form and appearance, and also using complainant’s cuts and other advertising matter. Held, that, while defendant was within his legal rights in making the tool, his further acts in attempting to take the business complainant had built up constituted unfair competition, which would be enjoined.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Gent, Dig. § 81: Dee. Dig. &wkey;70.]</p>

<p>1. Seamen <&wkey;29 — Injury in Service — Liability of Vessel — Unsafe Equipment.</p> <p>The failure to equip witli handrails a stationary iron ladder in the-engine room of a steamship, which was 8 feet long and nearly perpendicular, hold not to constitute a want of reasonable care in the equipment of the vessel, which rendered the owners liable 1'or injury to a seaman, who, in descending the ladder, slipped and fell astride one of the rungs; it being at least doubtful whether, owing to the perpendicular position of the ladder, handrails would have added to its safety.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188-194; Dec. Dig. <&wkey;>29.]</p> <p>2. Seamen <&wkey;29-rlNJUEY in Service — Liability oe Vessel — Unsafe Equipment.</p> <p>Evidence that similar ladders on that and other ships were equipped with handrails, while relevant, does not establish the standard of what constitutes reasonable care; that being a question of substantive law, irrespective of actual practice.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188-194; Dec. Dig. <@=»29.]</p>

<p>In Equity. Suit by the Ralston Steel Car Company against the National Dump Car Company. On motion to dismiss bill.</p>

Action by the United States, as trustee and guardian of the Omaha Tribe of Indians, and of Rose Wolf Setter, a member of said tribe, against Hiram Chase. Judgment for the United States, and defendant brings error.

<p>1. MoNopoliks <&wkey;31 — Criminal Prosecutions — Indictment—Construction.</p> <p>An indictment alleged that during the 20 years prior to the finding thereof many concerns had "been engaged in the manufacturo and sale of cash registers, a list of such concerns, so far as known to the grand jurors, being therein set out; that defendants, the officers and agents of the N. Company, conspired to restrain the interstate trade and commerce carried on by such concerns other than the 'N. Company by unfair means, which wrongfully and irresistibly excluded others from engaging in such trade and commerce; that, intending to restrain the interstate commerce so carried on by such concerns, and compel them either to go out of business or sell their business and instrumentalities for carrying it on to the N. Company, so that it could, as in most cases it did, discontinue the business and the use of such instrumentalities, and thereby eliminate competition, they conspired to accomplish their objects by the means therein specified. Held, that it was not the intention of the indictment to allege that each of the competitors of the N. Company named ivas in existence during the entire 20 years preceding the indictment, nor to disclose when any of them were in existence, but only to allege that during such period there was no time when one or more of such competitors were not in existence.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. &wkey;31.]</p> <p>2. Monopolies <&wkey;31 — Criminal Prosecutions — Indictment—Construction.</p> <p>An indictment alleged that many concerns had been engaged in the manufacture and sale of cash registers, a list of which, so far as known, was therein set out; that certain officers and agents of the N. Company had conspired in restraint of the interstate trade and commerce carried on by the several concerns thereinbefore named other than the N. Company ; and that, intending to restrict and restrain the interstate commerce so carried on by “said concerns,” and to confipel them to go out of business or sell their business and instrumentalities to the N. Company they had conspired to accomplish the object specified by the means therein set out, alleged to have been directed against “said concerns,” “such, concerns,” etc. Held, that the indictment did not charge a general conspiracy against all competitors, but only a conspiracy against those therein named.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig, § 20; Dec. Dig. <&wkey;31.]</p> <p>3. Indictment and Information <&wkey;125 — Duplicity—Indictments for Conspiracy.</p> <p>Though, such indictment charged only a conspiracy against the corn-petit ors therein named, and though it did not allege that all of such competitors were in existence during all of the time to which it referred, it was not duplicitous, as charging a separate conspiracy against each competitor, as its underlying thought was that there was a generic conspiracy against all competitors, which took specific direction against those named as “they came into existence, and continued against them as long as they remained in existence, and therefore it charged a single conspiracy.</p> <p>LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. S§ 331-400; Dec. Dig. &wkey;125J</p> <p>4. Monopolies <&wkey;31 — Criminal Prosecutions — Indictment—Certainty.</p> <p>Though, under such indictment, a conviction could be had only in so far as the conspiracy charged existed within the period of limitation and as to the competitors in existence within such period, the allegations as to its prior existence and its existence against competitors who had ceased to exist more than three years before the finding of the indictment being merely descriptive, it was not void for uncertainty for failure to allege which of the competitors were in existence within the three years.</p> <p>[Ed. Note. — Eor other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <&wkey;31.]</p> <p>5. Monopolies <&wkey;31 — Criminal Prosecutions — Indictment—Sufficiency.</p> <p>An indictment for conspiring to restrain the interstate commerce of defendants’ competitors in cash registers alleged, concerning the competitors therein named, that they had sold the greater portion of the cash registers manufactured by them to users and dealers whose several places of business were situated in states other than those wherein the cash registers were manufactured by such concerns, respectively, and had consigned for sale other cash registers to dealers and to their own agents in such other states, that they had been shipping such cash registers to such users, dealers, and agents in such other states, and that in doing so each of such competitors had been engaged in trade and commerce among the several states. Held, that this sufficiently showed that the trade and commerce in which defendants’ competitors were engaged was interstate.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. &wkey;>31J</p> <p>6. Monopolies <&wkey;12 — Statutory Provisions — Conspiracies Forbidden.</p> <p>Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (Comp. gt. 1913, § 8820), declaring illegal every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations covers only contracts, combinations, and conspiracies which are unreasonably in restraint of interstate trade or commerce, though possibly every conspiracy is unreasonably in restrairit thereof, on the theory that there can be no reasonable conspiracy, or conspiracy to do a reasonable thing.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. i&wkey;>12.] '</p> <p>7. Monopolies <&wkey;12 — Statutory Provisions — Conspiracies Forbidden.</p> <p>Act July 2, 1890, § 1, relative to combinations and conspiracies in restraint of interstate commerce, includes conspiracies between competitors, or between the officers and agents of one competitor, on its behalf, against another competitor, and also includes conspiracies between any persons against any other person.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <&wkey;12.]</p> <p>8. Monopolies <&wkey;12 — Statutory Provisions — Conspiracies Forbidden.</p> <p>To bring a conspiracy within Act July 2, 1890, § 1, it is not essential that its execution be of any benefit to the conspirators; it being sufficient that it will be in restraint of another’s interstate trade or commerce.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dee. Dig. &wkey;>12.]</p> <p>9. Monopolies <&wkey;16, 17 — Statutory Provisions — Conspiracies Forbidden.</p> <p>Under Act July 2, 1890; § 1, relative to conspiracies in restraint of interstate commerce, the extent of the interstate trade or commerce conspired against is immaterial, and a conspiracy between the officers and agents of one competitor on its behalf to restrain a single interstate sale or shipment by another competitor is covered by it.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. §§ 12, 13; Dec. Dig. <&wkey;16, 17.]</p> <p>JO. MONOPOLIES <&wkey;17 STATUTORY PROVISIONS — CONSTRUCTION—“MONOP-IEE.”</p> <p>Within Act July 2, 1800, c. 647, § 2, 26 Stat. 209 (Comp. St. 1913, § 8821), making it illegal to monopolize, attempt to monopolize, or combine or conspire to monopolize, any part oí the trade or commerce among the several states, there can ho no monopolizing in making a single interstate sale, or a great number o£ such sales, even though wrongful means are used in making them, and a wrong of some other nature is done competitors, since to “monopolize” in a legal and accurate sense is to exclude other persons, though not necessarily all persons, and there can be no monopolizing with respect to a sale which in the nature of things can be made by but one competitor, and in which there can bo no common occupation.</p> <p>[Ed. Note. — For other cases, see Monopolies, Gent. Dig. § 13; Dec. Dig. &wkey;17.'J</p> <p>11. Monopolies &wkey;13 — Statutory Provisions — Construction.</p> <p>A monopolizing of interstate trade and commerce by efficiency in producing and marketing a better and cheaper article than any one else is not within Act July 2, 1880, § 2.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dee. Dig. <&wkey;18[i</p> <p>12. Monopolies <&wkey; 12 — Statutory Provisions — Construction.</p> <p>A combination of competitors, accompanied by an exclusion of outsiders from interstate trade and commerce, or the exclusion by a competitor, or its officers and agents on its behalf, of other competitors, by the use of wrongful means, constitutes a monopolizing of such commerce within Act July 2, 1890, § 2.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 10; Dec. Dig. &wkey;»12.]</p> <p>13. Monopolies <&wkey;17 — Statutory Provisions — Construction.</p> <p>While but one competitor can make a sale, and though there can be no monopolizing within Act July 2, 1890, § 2, in making a single interstate sale, or a great numher of sales, though wrongful means are used in making them, one competitor monopolizes interstate trade and commerce by excluding all or substantially all other competitors from the free opportunity of approaching each and every prospective purchaser on equal terms, or by driving them from the field of freely offering their goods, so as to have that field to himself.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <&wkey;17j</p> <p>14. Monopolies <&wkey;17 — Statutory Provisions — Construction—“Any Part op Interstate Trade or Commerce.”</p> <p>Within Act July 2, 1890, § 2, prohibiting the monopolizing of any part of the trade or commerce among the several states, “any part of interstate trade or commerce” embraces the interstate trade or commerce of all prospective purchasers of a particular commodity in the United States, or in some particular portion thereof, but excludes the interstate trade or commerce of a particular prospective purchaser of a particular commodity.</p> <p>[lid. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. &wkey;>17.]</p> <p>15. Indictment and Information <&wkey;>125 — Duplicity—Monopolies—“Monopolized.”</p> <p>An indictment in the first count charged a conspiracy by the officers and agents of the N. Company in restraint of the interstate commerce of its competitors therein named in the cash register business during 20 years, and alleged that during such period the UT. Company had done from approximately 80 per cent, early in the period to approximately 90 per cent, at the latter end thereof, of the business of manufacturing cash registers, and that such officers and agents had conspired to accomplish their objects by the unlawful means therein specified. The second count charged that such officers and agents under the circumstances and by the means set forth in the first count had, by drawing to the N. Company, monopolized a part of the trade which otherwise would have been secured or retained by its competitors, and it made a part thereof the allegations of the first count descriptive of such trade and commerce, the concerns engaged therein, the means employed, and the -knowledge, intent, and acts of the defendants. Held, that, while “monopolized,” in the light of the context, meant “secured,” the indictment charged defendants with monopolizing interstate commerce in cash registers, and not merely with monopolizing a part of such interstate commerce, and hence charged but a single offense, and was not duplicitous, as the offense of “monopolizing” consists, not only in obtaining or securing a monopoly by wrongful acts, but in holding and maintaining it by such acts, and it appeared from the indictment that the N. Company had a practical monopoly, and that the wrongful means specified were employed to maintain and hold such monopoly.</p> <p>[Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. |§ 334-400; Dec. Dig. &wkey;125.]</p> <p>16. Indictment and Information &wkey;>59 — Sufficiency of Accusation.</p> <p>An offense intended to be charged in an indictment need not be charged expressly in general terms; it being sufficient if the facts alleged, if true, show the commission of the offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 180, 181; Dec. Dig. &wkey;59J</p> <p>17. Monopolies <&wkey;31 — Criminal Prosecutions — Indictment—Certainty.</p> <p>Where the first count of an indictment charging the officers and agents of the N. Company with conspiring to restrain the interstate commerce of the N. Company’s competitors alleged that during 20 years many concerns had been engaged in a particular business, a list of such concerns, so far as known, being therein set out, without, however, alleging that all of the concerns named were in business during the entire 20 years, or alleging when any of them were so engaged in business, ■ a count charging the defendants with monopolizing the trade which, but for their wrongful acts, would have been secured or retained by the concerns “mentioned” in the first count as having carried on business during the three-year period of limitation, and another count alleging that such defendants, having drawn to the N. Company by the means “mentioned” in the first count that part of the interstate trade in cash registers which otherwise would have been secured or retained by the concerns mentioned in the first count as having carried on business before the period of three years, continued to hold and carry on its interstate business augmented by such wrongful means, and thereby monopolized interstate trade in cash registers, were void for uncertainty; the first count having “mentioned” no concerns as carrying on business within three years or before three years.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <5&wkey;31.]</p> <p>18. Monopolies <&wkey;29, 31 — Criminal Prosecutions — Sufficiency of Indictment.</p> <p>A patentee and its officers and agents were not guilty of monopolizing interstate trade and commerce in cash registers, in holding such trade and commerce after securing it by wrongful means, if such trade and commerce was covered by its patents; and hence, where an indictment charging that the officers and agents of the patentee, having by wrongful means drawn to the patentee interstate trade and commerce which its competitors would otherwise have secured, continued to hold, conduct, and carry on its interstate business augmented by such wrongful means, and thereby monopolized interstate trade and commerce in cash registers, was de-lectivo, where, though it showed that some at least of the patentee’s patents had not expired, it did not allege that the trade and commerce so secured and held was not covered by those patents.</p> <p>[Kd. Note. — For other cases, see Monopolies, Cent. Dig. §§ 19, 20; Dec. Dig. <$&wkey;29, 31.]</p> <p>19. Monopolies &wkey;29, 31- — Statutory Peo visions — Construction.</p> <p>A party monopolizing interstate commerce by employing- wrongful means to drive its competitors from the field does not continue to monopolize such commerce, within Act July 2, 1890, § 2, by holding the business so secured after its competitors have ceased to compete; and hence an indictment charging a monopolizing within the period of limitations by holding the business previously obtained by such wrongful means was insufficient, where it did not allege the doing of anything to maintain and hold the monopoly during such period.</p> <p>[Kd. Note. — For other cases, see Monopolies, Cent. Dig. §§ 19, 20; Dec. Dig. &wkey;29, 31.]</p> <p>20. Indictment and Information &wkey;>99 — Allegations as to Venue — Reference to Other Counts.</p> <p>Where the first count in an indictment charged a conspiracy to restrain the interstate commerce of defendants’ competitors, another count, alleging that defendants, having by the means and under the circumstances and conditions described in the first count drawn to their company a part of the interstate commerce in cash registers which otherwise would have been secured or retained by its competitors, continued to carry on the interstate business of their company so augmented, and thereby monopolized interstate commerce in cash registers, did not make the allegations of the first count as to venue a part thereof.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 270, 270%; Dee. Dig. &wkey;99.]</p> <p>21. Criminal Daw <&wkey;>101 — Venue—Statutory Provisions.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 100, 36 Stat. 1121 (Comp. St 1913, § 1087), dividing the Southern district of Ohio into two divisions and providing that certain terjns of the District Court for the Western division shall be held at Cincinnati and certain terms for the Kastern division at Columbus, and that terms for the Southern district shall be held at Dayton on dates specified, that prosecutions for crimes and offenses committed in any part of the district shall be cognizable at the terms held at Dayton, and that all suits within either division may be instituted, tried, and determined at such terms, does not require that prosecutions shall be instituted at Dayton, nor that prosecutions instituted at Cincinnati or Columbus shall be transferred to Dayton for trial, and on a trial of the officers and agents of the N. Company, having its plant and principal office at Dayton, where a number of the defendants resided, it was not error to refuse to transfer the case £rom Cincinnati to Dayton for trial.</p> <p>[Kd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 199-205; Dec. Dig. <&wkey;101.]</p> <p>22. Criminal Law &wkey;>l-19 — Limitation of Prosecutions — Conspiracies.</p> <p>Under an indictment charging the officers and agents of the N. Company with conspiring to restrain the Interstate business of the N. Company's competitors, which proceeded on the theory that there was a generic conspiracy extending over 20 years against all competitors, which as the various competitors named in the indictment came into existence was directed against them specifically, a conviction could be had only for conspiring in restraint; of the trade or commerce of such of the competitors named in the indictment as were in existence during the three years prior to the finding of the indictment, and there could be no conviction for conspiring against the competitors who ceased to exist more than three years prior to the finding of the indictment, or for the generic conspiracy so far as it existed prior to the three years.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 273-275; Dec. Dig. <&wkey;149J</p> <p>23. MONOPOLIES <&wkey;31 — Criminal Prosecutions — Evidence.</p> <p>On a trial of the officers and agents of the N. Company for conspiring to restrain the interstate trade of the A. Company hy mailing to such company and purchasers and prospective purchasers from it threats of infringement suits and by other means, the fact that the N. Company was successful .in the lower court in a suit for infringement was at least prima facie evidence of probable cause, though the decree was reversed on appeal.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <&wkey;31.]</p> <p>24. Monopolies <&wkey;31 — Criminal Prosecutions — Evidence.</p> <p>On such trial the mere fact that there was a conspiracy or joint purpose on the part of the defendants to restrain the trade of competitors of the N. Company, who ceased to exist before the A. Company was organized, by the use of certain unlawful means, was no evidence that they had such joint purpose as to the A. Company, when during the five years of its existence preceding the indictment there was no manifestation of such purpose.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <&wkey;31.]</p> <p>25. Monopolies <&wkey;31 — Criminal Prosecutions — Evidence.</p> <p>Though under an indictment charging, the officers and agents of the N. Company with conspiring to restrain the interstate business of such company’s competitors, which proceeded on the theory that there was a generic conspiracy against all competitors extending over a period of 20 years, which as the various competitors named in the indictment came into existence was directed against them, there was evidence to make a question for the jury as to a conspiracy within the period of limitations only as against the A. Company, and only with respect to certain of the means of accomplishing the objects of the conspiracy set forth in the indictment, evidence that the defendants were parties to a generic conspiracy of the character mentioned, and that they conspired in restraint of competitors named who ceased to exist before the A. Company was organized, by the use of means other than those shown to have been employed against the A. Company within the period of limitations, was admissible as bearing on the question whether there was a conspiracy against the A. Company when it came into existence, which continued into the period of limitations.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. §' 20; Dee. Dig. <&wkey;31.]</p> <p>26. Monopolies &wkey;»31 — Criminal Prosecutions — Evidence.</p> <p>Where such indictment alleged that to accomplish the objects of the conspiracy defendants induced, hired, and bribed employSs of the N. Company’s competitors to disclose the secrets of such competitors’ business, and hired and bribed employés of carriers, etc., to disclose the secrets of their employers relative to the transportation of cash registers for such competitors, and instructed and required the N. Company’s sales agents to ascertain and report all facts pertaining to the business of such competitors, though these acts were not calculated in themselves to restrain the trade or commerce of any competitor, their sole function being to enable defendants to use other means calculated to restrain such trade, evidence to show that the conspiracy included such means was admissible, and to be considered by the jury as bearing on the further question whether the conspiracy also included effective means of restraining such trade and commerce.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>81J</p> <p>27. Criminal Daw <@=>150 — Limitation of Prosecutions — “Conspiracy. ”</p> <p>Where a conspiracy was in existence more than three years prior to Iho finding of the indictment, and continued into such period of limitation. it vas not absolutely essential to support a conviction therefor that anything should be done in furtherance of the conspiracy within the three years, since a conspiracy is not merely an agreement to do an unlawful thing, or a lawful thing by unlawful means, but is initiated by ttie agreement, and, accurately defined, is a partnership in criminal purposes brought about by an agreement, and so long as the partnership continues the conspiracy continues, whether anything is done in furtherance of it or not.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 274, 275; Dec. Dig. <§=>150.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]</p> <p>28. Monopolies <§=>29 — Criminal Conspiracies — Pasties.</p> <p>Those officers and agents of a company manufacturing and selling cash registers having nothing to do with competition, as, for instance, those in the manufacturing department, could not be said to be parties to a conspiracy on the part of its officers and agents to restrain and destroy iho interstate trade of its competitors.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. <§=»29.]</p> <p>29. Conspiracies <®=>40' — Criminal Offenses — Parties.</p> <p>It was not sufficient to make persons parties to a conspiracy that they knew of it, or acquiesced in it, if they did not by word or deed become a party to it.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 73, 75-78; Dec. Dig. <@=>40J</p> <p>30. Monopolies <S=»31 — Criminal Prosecutions — Evidence.</p> <p>On a trial for conspiring in restraint of interstate commerce, evidence held, to make a question for the jury as to whether there was a conspiracy extending over a great many years on the part of such officers and agents of a corporation as had to do with competition to restrain and destroy the interstate trade of such company’s competitors, whether such conspiracy was by the use of certain of the means specified in the indictment directed against the A. Company when it came into existence, and whether the conspiracy continued against it into the period of three years preceding the finding of the indictment.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>81.]</p> <p>31. Criminal Law <§==>1158 — Review—Questions of Fact.</p> <p>It is not the province of an appellate court to weigh the evidence.</p> <p>rEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 306.1-8006, 3070, 3071, 3074; Dec. Dig. <®=»1158.]</p> <p>32. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>Where there was substantial evidence that the officers and agents of the N. Company were in a conspiracy to restrain the interstate trade of a competitor by causing certain wrongful acts to be done, and the question was whether such conspiracy had continued into the period of three years preceding the indictment, evidence as to the doing of such acts within such period in the regular course of the business of the N. Company by sales agents and salesmen of that company who were under the direct supervision of certain of the parties to the conspiracy was not inadmissible on the ground that the defendants were not shown to have had any connection therewith; it being for the jury to determine whether these acts were accounted for by the continued existence of the conspiracy, and this was not the drawing of one inference from another.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31.]</p> <p>33. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>On a trial of the officers and agents of the N. Company for conspiring in restraint of the interstate trade of the A. Company, competing with the N. Company in the sale of cash registers, there was evidence that a machine sold by the A. Company was out of order, that the agent of that company made repeated attempts to fix it, and that after he quit the employ of that company a piece of the mechanism was found to he bent, and it was the government’s position that the agent bent it at the instance of the N. Company. Held, that evidence that when he left the employ of the A. Company several months afterwards he entered the employ of the N. Company, and that a few weeks before he did so one of the N. Company’s competition men was seen in his store, did -not sufficiently connect the N. Company with the defective condition of the machine to render this evidence admissible.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31J</p> <p>34. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>On the trial of the officers and agents of the N. Company for conspiring in restraint of the interstate trade of their competitors, evidence that a salesman of the N. Company attempted to induce a dealer who bought cash registers from a competitor and resold them to discontinue the business by threats of interference, and evidence of a similar transaction more than three years prior to the indictment, did not make a question for the jury as to a conspiracy with respect to the business of that competitor.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31J</p> <p>35. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>On a trial of the officers and agents of the N. Company under an indictment charging a conspiracy in restraint of the interstate trade of the N. Company’s competitors, directed against the various competitors as they came into existence, on which it was claimed that the conspiracy had existed within the period of limitations as against the A. Company, evidence as to acts directed against other competitors within the three years, but not sufficiently tending to establish a conspiracy against them to make a question for the jury, did not tend to establish a conspiracy against the A. Company, and should not have been admitted.</p> <p>[E'd. Note. — For other cases, see Monopolies, Cent. Dig. §■ 20; Dec. Dig. <§=>31.]</p> <p>36. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>On such trial,' though there was a question for the jury,only as to the conspiracy charged within the period of limitations as against the A. Company, evidence as to acts directed against other competitors tending • to show a generic conspiracy against all competitors, and bearing on its fixed and absolute character and on its nature otherwise, was admissible, though relating in some instances to matters occurring in the early part of the 20 years during which the conspiracy was claimed to have existed.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31J</p> <p>37. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>■ Under an indictment charging a generic conspiracy on the part of the officers and agents of the N. Company engaged in manufacturing and selling cosh registers, in restraint of the interstate trade of all competitors of the N. Company, sought to be carried out by the means therein specified, though the only question for the jury under the evidence was whether such conspiracy within the period of limitations was directed against the A. Company by the use of certain of the means specified, evidence as to the use of other means not specified in the indictment against other competitors, who ceased to exist before the competitor in question was organized, was admissible to establish that the generic conspiracy was to Use every possible wrongful means that might he effective in putting an end to competition.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=»31.]</p> <p>38. Monopolies <3=>3i — Criminad Prosecutions — Evidence.</p> <p>On such trial, evidence as to the purchase by the N. Company of the business of other competitors prior to the organization of the A. Company, and how such purchases came about, and the contracts of purchase, were admissible as tending to establish a conspiracy to compel competitors to sell out to the N. Company by the use of any effective wrongful means, and thereby to establish a specific conspiracy against the A. Company to restrain its trade and commerce by other means, if not to compel it to sell out to the N. Company, though at the time of the purchase of the business of such competitors suits for patent infringement were pending against most of them, the evidence tending to show that the suits were not brought in good faith, and that in some of the cases the use of other wrongful means, and not the bringing of the Suit, was the real cause of the competitors selling out, and it also appearing that the contracts of purchase prohibited them from engaging in the same business for 20 or 25 years, except in certain states where the business was not large.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31.1</p> <p>39. Monopolies <§==>31 — Criminal Prosecutions — Evidence.</p> <p>On such trial, contracts with dealers in cash registers, who were mainly dealers in second-hand registers, eliminating them from the cash register field, was admissible as evidencing a purpose to acquire complete control of the business in second-hand cash registers of the N. Company’s make, and to show a generic conspiracy, and its character, though they were not referred to in the indictment.</p> <p>[Ed. Note. — If or other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31.[</p> <p>40. Criminal Daw <§=>695 — Reservation op Grounds of Review — Objections and Exceptions.</p> <p>On the trial of the officers and agents of the N. Company for conspiracy, though an objection to alleged minutes of the proceedings of conventions of the district managers of such company, on the ground that they were hearsay, raised the objection that before the minutes were read their accuracy should be guaranteed by the persons who made them, or by others who were present at the conventions, the objection should have been more specific, as such guaranty might have been furnished, and no error was committed in admitting the minutes over the objection made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638 ; Dec. Dig. <§=>695.1</p> <p>41. Monopolies <§=>31 — Statutory Provisions — Conspiracies Prohibited.</p> <p>Under Act July 2, 1890, § 1, prohibiting conspiracies in restraint of trade or commerce among the several states, a patentee, its officers, and agents may not conspire in restraint of the interstate trade or commerce of a competitor in the article covered by its patent, though the competitor’s business is an infringement of its patent; and hence, on the trial of the officers and agents of a company for conspiring in restraint of the interstate trade of a competitor, evidence that such company held patents covering the machines made and sold by the competitor was not admissible.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec.Dig. <§=>31.]</p> <p>42. Patents <§==>191 — Rights of Patentee.</p> <p>A patentee has the common-law right to make, use, or sell the article patented,' and the statutory right to exclude or prevent others from making, using, or selling it, and to have others refrain therefrom.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 268; Dec. Dig. <§=>191.]</p> <p>43. Monopolies <§=>31 — Criminal Prosecutions — Evidence.</p> <p>On a trial of the officers and agents of the N. Company under an indictment charging them with conspiring in restraint of the interstate trade of the N. Company’s competitors, by the use of various wrongful means, under which there was a question for the jury as to whether such conspiracy within the period of limitations was directed against the A. Company by the use of certain of such means other than the bringing in' bad faith of patent infringement suits, and evidence was admitted* as bearing on the existence of a generic conspiracy against all competitors as to the bringing of such suits against competitors other than the A. Company to compel them to sell out or quit the business, which suits were terminated without a decision of the question of infringement by sales of the competitors’ business to the N. Company, evidence that the N. Company held valid patents covering the business of such competitors was admissible, since, if there was real cause for bringing the suits, they were not brought in bad faith.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dee. Dig. <§=>31.]</p> <p>44. Monopolies <§=>31 — Criminal Prosecutions — Evidence.-</p> <p>On such trial, evidence as to competitive tactics and aggressions on the part of the N. Company’s competitors was admissible, as tending to show that the conspiracy against -them was due to provocation, and that, there having been no provocation on the part of the A. Company, the conspiracy was never directed against it.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31.]</p> <p>46. Criminal Law <§=>363 — Res Gesms — Letters.</p> <p>On the trial of the officers and agents of the N. Company for conspiring in restraint of the interstate trade of the N. Company’s competitors, where a letter written by such company’s vice president and manager to district managers about the time a quo warranto proceeding was instituted against the company for violating the anti-trust laws of k state, in which he stated that it was the policy of the company in no case to permit agents to misrepresent cash registers manufactured by other companies, or to induce any purchaser of a cash register made by any other company to break his contract, was in evidence, defendants should have been permitted to introduce as a part of the res gestse the answers thereto by certain district managers, stating that such policy had been pursued in their districts.</p> <p>[Ed. Noté. — For other cases, see Criminal Law, Cent. Dig. § 804; Dee. Dig. <§=>363.]</p> <p>46. Criminal Law <§=>772 — Instructions—Limitations.</p> <p>On a trial under an indictment charging a conspiracy extending over a great many years against competitors of the N. Company, and directed against the various competitors of such company as they came into existence, though the. court charged that defendants could not be found guilty unless they had conspired within three years prior to the indictment, defendants were entitled to specific instructions that they could not be found guilty for conspiring against competitors who ceased to exist before the period of limitations.</p> <p>[Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 18.U5, 1817; Dee. Dig. @=>772.]</p> <p>47. ( litf.M rxai, Law @=>814, 1172 — Questions tor Jury — Failure of Proof.</p> <p>On a trial for conspiring in restraint of the interstate trade of competitors of a company by the use of various means specified in the indictment, it was reversible error to submit to the jury the question whether the conspiracy included means of which there was no evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987, 3128, 3154-3157, 8159-3103, 8169; Dec. Dig. @=>814, 1172.]</p> <p>48. Monopolies @=>17 — Conspiracies in Restraint of Trade — Unlawful Acts.</p> <p>it was not unlawful for the officers and agents of'a company manufacturing and selling cash registers to compare by comparative demonstrations or otherwise competitive cash registers with their cash registers, for the purpose of demonstrating the superiority of their register, and thereby induce prospective purchasers to buy it.</p> <p>[Ed. Note. — For other cases, see Monopolies, Gent. Dig. § 13; Dec. Dig. @=>17.]</p> <p>49. Monopolies @=>17 — Conspiracies in Restraint of Trade — Unlawful Acts.</p> <p>It was unlawful for the officers and agents of the N. Company, engaged in manufacturing and selling cash registers, to sell or offer and try to sell the N. Company’s cash registers to persons who had bought and owned competing cash registers, if this involved the purchaser breaking his contract with the competitor in any particular, or was done for the purpose of driving the competitor from the field; and on a trial for conspiring in restraint of the interstate trade of competitors, an instruction that it was not unlawful for such officers and agents to sell or offer and try to sell cash registers to persons who owned competing registers in exchange at such price as was satisfactory to the parties needed qualification, and was properly refused.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. @=>17.J</p> <p>50. Monopoiles @=>17 — Conspiracies in Restraint of Trade — Unlawful Acts.</p> <p>Whether it was unlawful for the officers and agents of the N. Company, engaged in manufacturing and selling cash registers, to require the agents of that company to report the names of persons who had purchased cash registers from competitors, or to secure samples of machines put on the market from competitors, depended on the manner in which the information or samples were obtained or secured; and on a trial for .conspiring in restraint of the interstate trade and commerce of competitors of the N. Company, an instruction that it was not unlawful to so require was too broad, and was properly refused.</p> <p>I lid. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. @=17.]</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>On motion for rehearing.</p>

Youmans, Judge. Attachment by T. A. Johnston and others against W. W. Bynum, in which Mrs. Lena Bynum interpleaded, claiming the property. Judgment awarding the interpleader a part only of the property, and she brings error.

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

Iii Error to the District Court of the United States for the Southern District of West Virginia, at Huntington; Benjamin F. Keller, Judge. Action at law by Frances E. Smith, an infant, by her next friend, Isaac V. Smith, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error.

Van Valkenburgh, Judge. Suits in equity by the Synod of Kansas of the Presbyterian Church in the United States of America and others against J. W. Duvall and others, and by James M. Barkley, moderator, etc., and others, against J. P. Shepherd and others. Decrees for complainants, and defendants appeal.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by the Standard Sanitary Manufacturing Company against the Iron City Sanitary Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <3=286 — Suit fob Infringement — Parties.</p> <p>A licensee cannot alone maintain a suit for infringement of a patent, but must join the owner as a complainant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 453-466; Dec. Dig. <£=286.]</p> <p>2. Patents <3=286 — Suit for Infringement — Title to Sustain Surr.</p> <p>An assignee of a patent, by an assignment complete on its face, may sue alone for an infringement, notwithstanding a contemporaneous agreement to reconvey at the end of a stated time, on demand by his assignor.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 453-456; Dec. Dig. <£=286.]</p> <p>3. Monopolies <s=21 — Suit for Infringement of Patent — Right to Maintain.</p> <p>That the holder of the legal title to a patent by assignment, as well as Ms assignor, is a defendant in a pending suit by the United States, in which it is charged that he holds such title In pursuance of a combination and conspiracy in restraint of trade, in violation of Sherman AntiTrust Act July 2, Í890, c. 647, 26 Stat. 209, does not deprive him of the right to maintain a' suit for infringement of the patent.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. <£=21.1</p> <p>4. Patents <£=297 — Suits for Infringement — Preliminary Injunction— Prior Adjudication.</p> <p>It is the rule that when the validity of a patent has been established by prior adjudication, and especially after long and expensive litigation, a court, on motion for a preliminary Injunction in a subsequent suit against another defendant, will consider only the question of infringement; but where new evidence is introduced, of such clear and persuasive character as to leave no fair doubt that the court in the prior case would have reached a different conclusion, had that evidence been before it, the injunction may properly be denied.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 481-188; Dec. Dig. @=>297.]</p> <p>5. Patents @=>62' — Suit for Infringement — Defense of Prior Use — Burden and Measure of Proof.</p> <p>On final hearing in an infringement suit on the issue of prior use, the defendant must establish such use by clear and satisfactory evidence and beyond a reasonable doubt.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 78; Dec. Dig. @=>62.]</p> <p>6. Patents @=>51 — Anticipation—Prior Use of Unpatented Device.</p> <p>When anticipation by prior use of an unpatented device is relied on to defeat a patent, such device must have been complete, and capable of producing the result sought and accomplished by the patented device.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 66-69, 72, 74; Dec. Dig. @=>51.]</p> <p>7. Patents @=>828 — Anticipation—Dredger for Pulverulent Material.</p> <p>The Arrott patent, No. 633,941, for a dredger for pulverulent material, held void for anticipation by prior use of an unpatented device.</p>

<p>Cabbie,us «5=>32 — Regulations—“Rebate”—“Shipper”—Forwarder..</p> <p>A forwarder of freight, who sends in his own name all the freight ho can over a carrier, which, in consideration of the business thus obtained, pays him a commission or salary calculated on the freight moneys received by the carrier from him, is a “shipper,” and the payment in.form of commission or salary or otherwise is a “rebate” or concession in violation of the Interstate Commerce Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 (Comp. St. 1918, § 8569), and Elkins Act Feb. 19, 1903, c. 708, 32 Stat. 847, § 1, as amended by Act June 29, 1906, c. 3591, 34 Stat. 587, § 2 (Comp. St. 1913, § 8597).</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. <3=^32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Rebate.]</p>

<p>1. Bankruptcy <@=413 — Opposition to Discharge — Specifications—False Oath.</p> <p>A specification, in opposition to the discharge of a bankrupt, that he knowingly made a false oath, for the purpose of deceiving the trustee and concealing his assets, sufficiently states the materiality of the oath.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. <@=5413.]</p> <p>2. Bankruptcy <@=413 — Opposition to Discharge — Specifications—Requisites.</p> <p>Specifications, in opposition to a discharge in bankruptcy, especially where attempting to charge some criminal act, should be pleaded with greater' particularity than ordinary civil actions, though the strict rules as to indictments do not apply.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. <@=413.]</p> <p>3. Bankruptcy <@=408 — Discharge — Grounds op Opposition — Concealment op Property.</p> <p>Where a bankrupt had executed a deed which was in fact a mortgage more than four months before the petition in bankruptcy was filed, his concealment during the four months preceding the filing of the petition of' the fact that the deed was a mortgage is a' concealment of property, which may be specified in opposition to his discharge, under Bankr. Act July 1, 1898, e. 541, § 14b (4), 30 Stat. 550 (Comp. St. 1913, § 9598).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 732-736, 759, 762, 763; ’Dec. Dig. <@=408.]</p> <p>4. Bankruptcy <@=413 — Opposition to Discharge — Requisites op Specifications — Information and Belief.</p> <p>A specification, in opposition to a discharge of bankruptcy, which states the facts only on information and belief, is insufficient.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. <@=413.]</p> <p>5. Bankruptcy <@=413 — Opposition to Discharge — Requisites of Specifications — Concealment of Property — Description.</p> <p>A specification, in opposition to a bankrupt’s discharge, which alleges that the bankrupt fraudulently concealed a large amount of groceries and merchandise, does not sufficiently describe the property concealed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 712-718, 725, 727; Dec. Dig. <@=413.]</p>

<p>1. Bankruptcy <§=>229 — Trustees—Retention op Assets — Contempt.</p> <p>Where the referee disapproved the report of a trustee in bankruptcy as to the assets in his hands, because of the failure to include therein an amount retained by his attorney as compensation for services, and ordered the trustee to make demand on his attorney for the payment of the sum so retained, and the trustee obeyed such order and made such demand, but the demand was refused by the attorney, the trustee was not guilty of contempt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. <§=>229.]</p> <p>2. Bankruptcy <§=>250 — Trustees—Employment op Attorneys — Compensation — Supervision by Court.</p> <p>The attorney for a trustee in bankruptcy in a successful action on an insurance policy was bound to pay the amount recovered into the bankruptcy court, and submit his claim for compensation to that court, and could not retain compensation from the amount recovered, as any contract with him by the trustee was subject to the control of the bankruptcy court, and he could thereunder acquire no rights in or to the assets of the estate, which was not likewise subject to the court’s control, and both the trustee and the attorney, as officers of the court engaged in the administration of a trust estate, were subject to control and supervision by the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 235, 350; Dec. Dig. <§=>250.]</p>

<p>1. Aliens <@=»82 — Deportation—Chinese.</p> <p>Under the Chinese Exclusion Acts and Immigration Act Feb. 20, 1907, c. 1134, § 21, 34 Stat. 905 (Comp. St. 1913, §’ 4270), warrant is properly issued ior deportation oí a Chinese person, a laborer; he not having, and making no claim that he ever had, a certificate, and there being no competent testimony that he was born in the United States.</p> <p>[Ed. Note. — -For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=»32.]</p> <p>2. Aliens «go»: ¡2 — Deportation—-Chinese—Country op Return.</p> <p>A Chinese person is properly deported to China, and not to Canada, notwithstanding evidence that he entered through Canada; there being no evidence that he had acquired a domicile there, and he declining to state where he entered.</p> <p>[Ed. Note. — l or other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <§=5>82.'J</p>

Iii Equity. Suit by the Continental Trust Company against the Tal-lassee Falls Manufacturing Company, John R. Sayres, James D. Parks, and others. The bill in this cause was brought by the Continental Trust Company, a Maryland corporation, as trustee, on March 18, 1911, under a deed of trust in mortgage form, executed to it by the Mt. Vernon-Woodberry Cotton Duck Company, a Delaware corporation, to secure an issue of $8,000,000 of bonds.

In Equity. Suit by one Boggs and others against Nancy J. Bright to establish a claim to an interest in land. On final hearing. Held: was intended by McGruder to conceal the same in fraud of his creditors. No additional or other evidence was taken in the ease after the filing of this answer, and it was submitted on the 24th of November, 1913, for final action.

<p>1. Monopolies &wkey;17 — Restraint of Trade-Price Restrictions on Re-salís— Sale in Patented Cartons.</p> <p>A manufacturer cannot, without violating Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209, in connection with an absolute sale of its product (though with the patented cartons containing it) to a .iobber, control the price at which the package shall be resold by the jobber, or by the retailers who buy from the jobber.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. &wkey;>17.1</p> <p>2. Monopolies <&wkey;2i — Petition—Striking Out Matter — Irrelevancy.</p> <p>The allegation in the petition, attacking as violative of Anti-Trust Act July 2, 1890, e. 647, 26 Stat. 209, price restrictions imposed by a manufacturer on the resale of its product, packed in patented cartons, that it resorts to the cartons as a subterfuge to evade such law, is not so clearly irrelevent as to justify its elimination on motion to strike, though the fact of the cartons being resorted to as a subterfuge be not necessary to lack of protection of the transaction by the patent.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. <&wkey;21.1</p> <p>3. Monopolies <&wkey;17 — Necessity of Valid Contract.</p> <p>Restraint and monopoly being actually effected by price restrictions on resales, imposed by a manufacturer in the absolute sale of its product, it is not necessary that they constitute a valid contract, to be violative of Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. &wkey;17.]</p> <p>4. Monopolies <&wkey;17 — Evidence—Pbiob Transactions.</p> <p>As elucidating the effect and intent of a plan of sale by a manufacturer of its product, relative to its violation of Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209, a prior plan of sale may properly be Considered.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <&wkey;17.]</p>

At Law. _ Action by Francis Garvey against the Compañía Metal-úrgica Mexicana and another. On motion of the defendant Compañía Metalúrgica Mexicana, to quash the service upon it.

Foster, Judge. Action by the Penn Bridge Company against the City, of New, Orleans and another. From a judgment for the plaintiff for a part only of the amount claimed, plaintiff brings error.

<p>Appeal from the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Habeas corpus by George Ranges and others against S. L. Whitfield, Immigrant Inspector, etc., and others. Petitioners were ordered discharged (209 Fed. 675), and defendants appeal.</p>

Van Valkenburgh, Judge. Petition by Gust Jouras for a writ of habeas corpus against Harry C. Alien, Immigration Inspector. From an order denying the petition, the petitioner appeals.

S. Bean, Judge. Suit by Frank L. Tobey and others against Edward C. Kilbourne and others to set aside a conveyance of land for fraud. Decree for the defendants, and plaintiffs appeal. The appellees were the principal stockholders of the Kilbourne & Clark Company, a corporation of Seattle, Wash., engaged in furnishing electrical supplies, machinery, and installing pumping plants for irrigation projects.

<p>Tn Error to the District Court of the United States for the First Division of the Northern District of California; M. T. Dooling, Judge.</p> <p>Jung Ouey, alias Sam Kee, and others, were convicted of conspiring to import opium contrary to law, and they bring error.</p>

R. E. Glass and another were convicted of crime, and R. E. Glass brings error.

<p>1. Mechanics’ Liens <&wkey;260- — Extinguishment- Right Conditioned by Limitation.</p> <p>The provision of Rev. Codes Idaho, § 5118, relating to mechanics’ lions, that “no lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien,” malees the remedy a part of the right created. The limitation prescribed conditions the right; and, unless suit is brought within the time limited, the lien itself ceases to exist.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 456, 458-468; Dec. Dig. &wkey;260.</p> <p>Continuance or revival of Mechanic’s Lien, see note to Westinghouse Air Brake Co. v. Kansas City Southern Ry. Co., 71 C. C.- A. 17.3</p> <p>2. Mechanics’ Ihens <&wkey;200 — Extinguishment - - Lienholdees Not Joined in Fobeclosuke Suit — Statutoby Limitation.</p> <p>The statute does not prescribe in terms who shall be made parties to such suit, but it necessarily means that it must be brought against all whose rights, estates, or interests are claimed to be adverse and subordinate; otherwise they are not affected by it, and as to them the lien ceases to bo effective after the expiration of the six-month limitation period.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 456, 458-468; Dec. Dig. &wkey;260j</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by the City of Wichita against the Wichita Water Company and others. Decree for defendants, and complainant appeals.</p> <p>This suit is by the city of Wichita, a municipal corporation of the state of Kansas, against the Wichita Water Company, a Delaware corporation, to restrain the latter from charging or collecting for water furnished by it to churches of the city, and from refusing to connect with its water mains the service pipes of its inhabitants who desire to be furnished' with water without the payment of charges therefor, in- alleged violation of the ordinance of the city under which the water company and its predecessors were granted the right to construct, maintain, and operate its system of waterworks within the corporate limits of said city. The hearing, which was upon bill and answer, resulted in a decree dismissing the bill at plaintiff’s cost, and the city appeals.</p>

<p>1. UNITED States <&wkey;67- — Contractors’ Bonds — Extent or Liability — “Person Supply in g Labor.”</p> <p>One employed by a contractor to superintend the construction of a public building, whose duties require him to act as a working foreman, is a “person supplying labor,” within the meaning of Act Aug. 13, 1894, c. 280, 28 Slat. 278, as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1913, § 6923), and is protected by the contractor’s bond given thereunder.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. &wkey;>07J</p> <p>•>. Partnership &wkey;9 — Creation op Relation — -Sharing Profits as Compensation for Services.</p> <p>An agreement by a contractor for a building to pay his superintendent of construction a salary, and in addition as a bonus a share of the profits of the contract, if any, did not create a partnership, where there was a clear understanding that it should not, and that the superintendent should not share in any loss.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 23, 24; Dec. Dig. <&wkey;>9.]</p> <p>3. Estoppel <&wkey;58 — Equitable Estoppel — Prejudice to Person Asserting Estoppel.</p> <p>That a superintendent of construction on a public building, who had a power of attorney from the contractor to draw checks in payment of indebtedness incurred in ihe work, did not draw checks for his own salary, but permitted it to accumulate, does not estop him from recovering the same from the surety on the contractor’s bond, on the latter’s insolvency, where the money he checked out was applied in payment of other claims, which would have been enforceable against the surety.</p> <p>[Ed. Note. — For other eases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. <&wkey;>58.]</p> <p>4. Payment <&wkey;39 — Appropriation by Creditor — Secured and Unsecured Debts.</p> <p>A creditor, who has two claims against his debtor, one secured and one unsecured, in the absence of special direction to the contrary, may apply funds in his hands in payment of the unsecured claim.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 104-114; Dec. Dig. <&wkey;39.]</p>

<p>In Error to the District Court of the United States for the Eastern District of North Carolina, at Elizabeth City; Henry G. Connor, Judge.</p> <p>Action at law by W. C. Chatman against the Norfolk Southern Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Foster, Judge. Suit in equity by tlie Graham Paper Company against the World Publishing Company, Limited, with ancillary bill by Samuel F. Heaslip, receiver, against Moses Hollander. Decree for receiver, and defendant appeals.

Wolverton, Judge. Suit by R. L. Sabin, as trustee in bankruptcy of the estate of the Consumers’ Lumber & Supply Company, a corporation, to restrain the prosecution of attachment proceedings brought against the bankrupt by the Larkin-Green Logging Company, a corporation. Decree for the complainant (218 Fed. 984), and defendant appeals.

B. Sheppard, Judge. Suit in ádmiralty by Odin P. Grande against the Gulf Transit Com-pauy. Decree for libelant, and respondent appeals. A libel was filed by Odin P. Grande against the appellant, incorporated as stevedores, to recover damages for personal injuries. The cause of action was stated by the libelant as follows; “1.

<p>In Error to the District Court of the United States for the District of Nevada; E. S. Farrington, Judge.</p> <p>Action by James Cunningham against the Keane Wonder Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>X Bankruptcy <&wkey;455 — Review—Appeal—“Controversy in a Bankruptcy Proceeding.”</p> <p>Wherever a third person claims the property held by the trustee in bankruptcy, whether he intervenes by original petition or is brought in on the application of the trustee, he institutes a “controversy in a bankruptcy proceeding” in which the judgment is appealable under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 916; Dec. Dig. <&wkey;455.</p> <p>For other definitions, see Words and Phrases, Second Series, Controversy Arising in Bankruptcy Proceeding.</p> <p>Appeal and review in bankruptcy cases; see note to In re Eggert, 43 C. O. A. 9.3</p> <p>2. Bankruptcy <&wkey;440 — Review—Petition to Revise — “Bankruptcy Proceeding.”</p> <p>A question raised by the claimant of property adverse to a trustee in bankruptcy, whether the bankruptcy court had jurisdiction to determine .that claim, is a question of a “bankruptcy proceeding,” reviewable by petition to revise, under Bankr. Act, § 24b.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. <&wkey;440.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Bankruptcy Proceeding.]</p> <p>3. Bankruptcy &wkey;>140 — Jurisdiction op Court — Adverse Claim — Community Property.</p> <p>Under the provisions of the Bankruptcy Act, vesting the trustee with the title of the bankrupt to all property which, prior to the filing of the petition against him, could have been sold under judicial proceedings against him, and Rem. & Bal. Code Wash. § 5918, giving to the husband the control of the community property, and providing that such property may be sold on execution for community debts, and the decisions of the state courts that debts contracted by the husband during the existence of the marriage are prima facie community debts, the bankruptcy court has jurisdiction to determine the disposition of funds in the hands of the trustee in bankruptcy arising from the sale of community property.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <&wkey;>140.</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>4. Bankruptcy <&wkey;140-!-ADVERSE Claims — Determination—Proceedings.</p> <p>Such jurisdiction was properly exercised, where the wife was given full opportunity to present her claim to the property, to frame issues, and to adduce evidence to the same extent as she might have done in any other suit.</p> <p>' [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <&wkey;>140.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>In the matter of the North End House Furnishing Company, alleged bankrupt. From an order dismissing their petition, the Cribben & Sexton Company and others, petitioning creditors, appeal.</p>

<p>1. Collision <&wkey;102 — Steamers Meeting in Fog — Faults op Both Vessels.</p> <p>A collision near the lower end of Lake Huron in a dense fog between the steamer Sonoma, passing up, and the steamer Empire City, passing down, held due to faults on the part of both vessels. Each vessel was one of a procession supposed to he on courses some distance apart. The So-noma heard the fog signals of the Empire City, and gave a passing signal which was not answered, and, although she heard two more fog signals, she failed to sound alarm signals and slow down, as required by rule 26 of the Rules for the Great Lakes (Act Feb. 8, 1895, e. 64, § 1, 28 Stat. 649 [Comp. St. 1913, § 7936]). The Empire City was also chargeable with contributory fault because, being off her course and seeking a place to anchor during the fog, she was inattentive and failed to hear either the passing signal or the alarm signals of the Sonoma.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. <&wkey;102.</p> <p>Collision, signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>2. Collision <&wkey;104 — Violation oe Rules — Bubden op Peoop.</p> <p>A vessel which at the time of collision is in actual violation of a statutory rule designed to prevent collisions has the burden to show that such violation could not have contributed to the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. <&wkey;104.]</p>

T. Dooling, Judge. _ _ Suit in admiralty by Parrott & Co., a corporation, against the bark Dolbadarn Castle, the Dolbadarn Castle Shipping Company, Limited, claimant. Decree for respondent (212 Fed. 565), and libelant appeals.

This cause comes here upon writ of error to review a judgment of conviction of the crime of conspiring to commit an offense against the United States, namely, that the defendants should conceal certain assets belonging to their estate in bankruptcy from the trustee of such estate.

<p>1. Sales <&wkey;8 — Contract—Intention op Parties -Consignment poe Sale.</p> <p>Whether a contract under which a stock of shoes was.shipped was a sale, or merely a consignment for sale, must he determined from the terms of the contract, the test being whether the specific goods were to be returned if not sold, or another tiling of value might be returned instead.</p> <p>[Ed. Note. — If or other cases, see Sales, Cent. Dig. §§ 18, 19; Dec. Dig. <&wkey;8.J</p> <p>2. Sales <&wkey;>10 — Fraud—Misrepresentation op Facts.</p> <p>Where the buyer of a stock of shoes gave the seller a financial statement from which an indebtedness of $0,500 was omitted, the seller could rescind the sale.</p> <p>[Ed. Note. — Dor other cases, see Sales, Cent. Dig. § 95; Dec. Dig. <&wkey;16J</p> <p>3. Sales <&wkey;89 — Contracts—J11 chits op Parties — Modification.</p> <p>The parties to a contract for the sale of goods on credit may, before the acceptance of the goods, change their contract so as to make it a consignment for sale, and the creditors of the consignee acquire no interest in the goods so shipped.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dec. Dig. <&wkey;89.]</p> <p>4. Bankruptcy &wkey;159 — Preferences—Consignment poe Sale.</p> <p>A contract for the consignment of goods for sale is not a preference to the consignor, which is avoided by the bankruptcy of the consignee less than four months thereafter, since there cau be no preference under the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544) where there is neither debtor nor creditor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 247, 248, 262, 268-281; Dec. Dig. &wkey;159.]</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by Granville A. Burns against the Cloquet Lumber Company. Judgment for plaintiff, and defendant brings error.</p>

E. Day, Judge. _ _ Suit in admiralty for collision by the Pittsburgh Steamship Company, owner of the steamer Ellwood, against the steamer Brower, the Great Lakes Steamship Company, claimant, with cross-libel against the Ellwood. Decree for libelant, and the claimant of the Brower appeals.

Foster, Judge. Suit in admiralty by Frank Towle against the steamship Cartago; the Tropical Fruit Steamship Company, Limited, of Glasgow, Scotland, claimant. Decree for libelant, and claimant appeals. Tlüs is a suit in admiralty against the steamship Cartago by Frank Towle, a seaman thereon, to recover the sum of $1,500 for personal injuries alleged to have been sustained by him through the negligence of the officers in charge of said vessel.

T. Dooling, Judge. Suit by Andrew Clauss and others against the Palmer Union Oil 'Company and others. From an order denying a motion to vacate a decree dismissing the suit, and for leave to file an amended bill, complainants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by Arthur C. Brady against Martin E. Kern. Judgment for defendant (218 Fed. 862), and plaintiff brings error.</p>

<p>Contracts &wkey;>300 — Construction—Building Contract — Owner’s Liability for Delay.</p> <p>Where a contract for the construction of certain portions of,a building provided in one article that, if the contractor should be delayed in the prosecution .or completion of the work by the act, neglect, or default of the owner, the architects, or any other contractor employed by the owner on the work, the time fixed for the completion of the work should be extended for a period equivalent to the time lost by such delay, and the next article provided that the owner agreed to provide all labor and materials essential to the conduct of the work, not included in the contract, in such manner as not to delay the progress of the work, and in the event of failure so to do, thereby causing loss to the contractor, the owner should reimburse the contractor, the clause in the latter article requiring the owner to provide labor and materials referred only to such labor and materials as the owner himself was required to furnish, and does not render the owner liable for delay to the contractor caused by delay in the work being done by other contractors.</p> <p>[Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 1372-1381; Dec. Dig. <§=»300.]</p>

Rudkin, Judge. Action by Grace Mustell, as administratrix and personal representative of the estate of Fred G. Mustell, deceased, against the Great Northern Railway Company. Judgment for plaintiff, and defendant brings error.

<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 M. E. Wells against D. H. Mayer. Judgment for plaintiff, and defendant brings error.</p>

<p>L Courts <&wkey;356 — Federal Courts — Appeal—Time foe Settling and Filing Statement op Facts.</p> <p>General equity rule 75 (198 Fed. xi, 115 C. C. A. xi) requires the appellant to file a praseipe indicating the portions of the record to be incorporated into the transcript on appeal, and provides that the evidence shall be stated in condensed form, that the duty of condensing and stating it shall rest on the appellant, who shall prepare his statement and lodge it in the clerk’s office before filing his praecipe, and notify the other parties of the time, at least 10 days after the notice, when he will ask the court or judge to approve it, and that the statement shall be presented to the court or judge, and, if true, approved, or, if not true, made so under the direction of the court or judge, and that, when approved, it shall be filed and become a part of the record. Held that, while it is the better practice to have such statement settled and filed before claiming, or at least before perfecting, the appeal, and, if the term expires before it is filed, to have an order entered carrying the matter into the next term, the trial court has power to approve and direct the filing of the statement of evidence, though the term has expired, - and though no order was entered carrying the matter over until the next term, especially as under the existing practice appeals are claimed and perfected regardless of the expiration of terms.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. § 937; Dec. Dig. <&wkey;>356.]</p> <p>2. Courts <&wkey;356 — Federal Courts — Appeal—Time por Settling and Filing Statement op Facts.</p> <p>Under general equity rule 75 (198 Fed. xi, 115 C. C. A. Xi), the perfecting of an appeal by the approval of a bond and the signing of a citation does not deprive the trial court of jurisdiction to settle the evidence, as the settlement of the evidence is rather ministerial, and pertains to the making of the return to the appeal, especially as the time may be wholly Insufficient to perfect the record before the appeal is perfected.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. <&wkey;:!56.J</p> <p>3. Courts <&wkey;356 — Federal Courts — Appeal—-Record-—Matters to be In-CliUDED.</p> <p>In equity appeals, if counsel overlook general equity rule 75, and follow the old practice of including the evidence in full, the clerk, in making up the return to the appeal, should not include the evidence in full.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. <&wkey;.‘!56.'|</p> <p>4. Courts <&wkey;356 — -Federal Courts — Appeal—Record—--Violating Rules-Remedy.</p> <p>Where, contrary to general equity rule 75 (198 Fed. xl, 115 C. C. A. xi) the record contains the evidence in full In accordance with the old practice, the appeal will not be dismissed, nor will the evidence be stricken from the record, at least during transition In the general practice; a sufficient remedy being provided by rule 76, providing, relative to the inclusion in the transcript of Immaterial papers, that for any infraction of that or “any kindred rule” the appellate court may withhold or impose costs as the circumstances of the case and the discouragement of like infractions in the Enture may require.</p> <p>¡ Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. C, — —- - '-it), j</p>

<p>MASTER AND SERVANT <&wkey;13-HOURS OR SERVICE — OMISSIONS IN REPORTS OF Excessive Hours of Service — Eiauility.</p> <p>A carrier, inadvertently and honestly omitting from its report, required by order of Interstate Commerce Commission, pursuant to Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, as amended by Act June 18, 1910, c. 309, § 14, 36 Stat. 555 (Comp. St. 1913, § 8592) instances in which employes were permitted to remain on duty for a longer period than that prescribed by Hours of Service Act March 4, 1907, c. 2939, 34 Stat. 1415 (U. S. Comp. St. 1913, §§ 8677-8680), is not subject to the penalties imposed by the Interstate Commerce Act, but any omissions must be scrutinized, so as to prevent any evasions of the requirements to make reports in such instances.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14 ; Dec. Dig. <&wkey;>13.</p> <p>Hours of service of employes, see note to United States v. Houston Belt & T. By. Co., 125 C. C. A. 485.]</p>

<p>In Rrror to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action at law by Frank Jarnigan against the Pennsylvania Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Punr.rc Lands &wkey;120 — Suit foe Cancellation of Patents — Enaud.</p> <p>Evidence held insufficient to sustain the allegations of a bill by the United States for the cancellation of patents to land on the ground that they were obtained by fraud and false testimony.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; William E. Day, Judge.</p> <p>Suit in equity by Warren E. Vrooman and Arba E. Vrooman against Grant S. Penhollow, Frank Penhollow, and Wallace E. Baker. ' From final decree, after accounting, complainants appeal.</p>

<p>Appeal from the District- Court of the. United States for the Eastern Division of the Northern-District of Ohio; John M. Killits, Judge. _</p> <p>_ Suit in equity by Warren E. Vrooman and Arba E. Vrooman against Will Burdick and Harrison Burdick. Decree of dismissal, and complainants appeal.</p>

, July 25, 1905, for the term of seven years. The court found the patent valid and infringed and referred it to a master to assess the amount of damages and profits. The master found that there was due the complainant on account of such infringement the sum of $35,640.61. The final decree was entered on September 9, 1914, in favor of the complainant for $36,541.15. The decision of the District Court is reported in 209 Fed. 233.

<p>1. Patents <&wkey;328 — Validity and Infringement — Road Gradee.</p> <p>The Clemons patent, No. 924,966, for a road-grading machine, claims 2 and 17, are sufficiently specific, when read in connection with the specification and drawings, to enable one skilled in the art to construct an operative machine. Such claims also held not anticipated, valid, and infringed.</p> <p>2. Patents &wkey;>26 — “Invention”—New Combination oe Old Elements.</p> <p>A new combination of old elements may disclose patentable invention.</p> <p>[Eid. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <S=>26.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Invention.</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]</p> <p>3. Patents <&wkey;234 — Infringement—Identity oe Mode oe Operation.</p> <p>Making what is a single part in a patented machine in two pieces does not avoid infringement, where they do the same work as the single piece in substantially the same manner.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 370, 381; Dec. Dig. <@=»234.]</p> <p>4. Patents <&wkey;240 — Infringement—Improved Device.</p> <p>That a patented machine is an improvement on that of a prior patent does not negative infringement of the earlier patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 379; Dec. Dig. <&wkey;240.]</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>On appeal from an interlocutory decree holding valid and infringed the single claim of letters patent No. 666,711 granted to Robert Stauf for a method of desiccating milk, blood and the like and producing a dry powder therefrom. The patent was held valid and infringed by Judge Hazel ([D. C.] 215 Ted. 922). Subsequently Judge Ray upon an independent examination reached the same conclusion upon a motion for a preliminary injunction.</p>

Appeals from the District Court of the United States for the North- . ern District of New York. Suit in equity by the Merrell-Soule Company against the Natural Dry Milk Company. From, orders granting preliminary injunctions, defendant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by Frank C. Heim against the Robert G. Speer Corporation and others. Decree for defendants, and complainant appeals.</p>

<p>Patents <®==>328 — Distributor.</p> <p>The Barnard patent, No. 580,151, for a fluid distributor, held not infringed.</p>

639), holding valid and infringed both claims of letters patent No. 899,583, for a gas pump, issued September 29, 1908, to the complainant, as assignee of the inventor, Richard Whitaker.

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge.</p> <p>Suit in equity by Mahlon E. Layne and others against Ered I. Getty. From an order refusing a preliminary injunction, complainants appeal.</p>

<p>1. Patents <§=>289 — Suit foe Infringement — Laches.</p> <p>Unless under very special circumstances, a court should not sustain the defense of laches in an infringement suit which was commenced within the statutory period of limitation.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. §§ 467-469; Dee. Dig. <g^289.]_</p> <p>2. Patents <@=06 — Anticipation—Inoperative Device.</p> <p>Machines which, although patented, were not practically operative and were abandoned after slight use, are not anticipations which will invalidate a subsequent patent for an operativo and successful machine.</p> <p>|U'd. Note, — For other cases, see Patents, Cent. Dig. §§ 79, 81; Dec. Dig. <@=66.]</p> <p>Patents 0=81 — Anticipation—Burden of Proof.</p> <p>A defendant has the burden of proof to establish anticipation of a patent by prior use with all the presumptions against Mm.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. <3=81.]</p> <p>4. Patents <@=26 — Invention—New Combination of Odd Elements.</p> <p>That all of the elements of a patented combination were old does not negative invention, where they were not found in the same structure.</p> <p>[Ed. Noto. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <@=20J</p> <p>5. Patents <@=328 — Validity and Infringement — Peanut Picker and Stem- . MER.</p> <p>The Ferguson & Benthall patent, No. 808,442, for a peanut picker, and the Benthall patent, No. 890,401, for a peanut stemmer, were not anticipated and disclose patentable invention; also, held infringed.</p> <p>6. Patents <@=328 — Validity and Infringement — Peanut Picker and STEMMED.</p> <p>The Jones patent, No. 908,271, for a combined peanut picker and stem-mer, held void for anticipation by the prior use for several months of an unpatented machine; also, held not infringed if conceded validity.</p> <p>7. Patents <0=90 — Persons Entitled to Patent — Priority of Invention.</p> <p>To entitle one to a patent he must have been not only an original, but the first, inventor.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 113-120; Dec. Dig. <@=90.]</p>

In Equity. Suit by the Nicholas Power Company against the C. R. Baird Company arid Chester R. Baird for infringement of letters patent No. 826,112, for apparatus for exhibiting moving pictures, granted to Nicholas Power, July 17, 1906, and No. 959,601, to the same pat-entee, May 31, 1910,' for a fireproof magazine for film reels.

<p>Patents <&wkey;310 — Reissue—Laches—Pleading.</p> <p>When a reissue was for the sole purpose of expanding the claims of the original patent, and a bill for its infringement discloses a delay of more than two years in applying for the reissue, it should further set out facts which excuse the laches, which appears prima facie; otherwise, it is a question of law for the court, and may be determined on the pleadings.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 507-540; Dec. Dig. <&wkey;310.]</p>

<p>Patents <&wkey;328 — Validity and Infringement — Turbine.</p> <p>Tlie Elliott and Faber patent No. 874,174, for a turbine, relating to apparatus especially adapted to removing scale from boiler tubes, beld void for lack of Invention; and tbe Elliott and Faber patent, No. 983,032, also for a turbine, and tbe Elliott patent, No. 983,034, for a motor, held not infringed, if conceded validity.</p>

<p>3. Courts &wkey;>347 — Pleading—New Equity Rules.</p> <p>The purp.ose of new equity rules 25 and 30 (198 Fed. xxv, 115 C. C. A. xxv) is to secure brevity and simplicity of allegation in bills and answers, and to that end the profession should lend its aid, by conforming as near as may safely be done to such rules.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. § 921; Dec. Dig. <&wkey;>347.J</p> <p>2. Patents <&wkey;328 — Validity and Infringement — Water Heater.</p> <p>The Shook patent, No. 993,723, for ah instantaneous gas water heater, the essential feature of which is the use of a single gas valve in combination with thermostatic controlling means, held, void, on the ground that the patentee was not the original and first inventor of such feature, which is disclosed in the Walker patent, No. 886,100.</p>

In Equity. Suit by the Autosales Gum & Chocolate Company and the Empire Trust Company, as trustees, against the Ryede Specialty Works, for infringement of claims,5, 6, and 24 of letters patent No. 665,977, for a coin-controlled mechanism, granted to Walter H. Pumphrey January 15, 1901. On final hearing.

<p>Collision <§=>127 — Action—Measube of Damages.</p> <p>In an action to recover damages to a dredge owned by tbe United States and used for barbor improvement purposes, neither the cost of the harbor work to the government nor its value to the commerce of the port affords such a definite measure of the loss due to the interruption of operations as to be made the basis of a claim for damages or be included in any estimate made of the amount.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. § 281; Dec. Dig. <§=>127.]</p>

<p>Cot,nrsroN <@=>74 — Moving and Moored Vessels.</p> <p>A collision between a loaded car iloat being shifted by a tug into an adjoining slip and a tug tied up beyond another tug at the end of the pier held, on the evidence, due solely to the fault of the moving tug; it not being satisfactorily shown that she signaled the other tugs to move, and It appearing that unless so warned they were moored in a proper and customary place.</p> <p>I Ed. Note. — Por other cases, see Collision, Cent. Dig. § 104; Dec. Dig. <S=>74.]</p>

<p>In Equity. Suit by Thomas F. Sprigg against Rewis R. Fisher, trading as the Lewis R. Fisher Company. On motion to dismiss.</p>

<p>1. CORPORATIONS @=»1-WlIAT ABB BODIES CORPORATE — LAW GOVERNING.</p> <p>Whether or not an organization is a valid corporation do jure is to be determined by the statutes and decisions of the state where it is organized.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1, 3-6; Dee. Dig. <§=>1.]</p> <p>2. Corporations i®=>5 — Legality op Organization — Qualifications of Cor-porators.</p> <p>Legal infirmity in parties is as fatal to the validity of an attempted corporate organization as legal infirmity in the purpose of the organization.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 14, 15; Dec. Dig. <S^>5.]</p> <p>3. Corporations —Legality of Organization — Other Corporations as Corporators.</p> <p>A state statute, authorizing corporations within prescribed limits to become stockholders in other corporations, does not by implication carry a grant of power to corporations to themselves organize other corporations, in which they shall own all the stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 16-22; Dec. Dig. ©=>14.]</p> <p>4. Corporations <@=>5 — Legality of Organization — Qualifications of Cor-porators.</p> <p>The provision of Gen. Code Ohio, § 8625, that “any number of persons, not less than five, desiring to become Incorporated, may subscribe, acknowledge and file articles of incorporation,” contemplates natural persons, who have an actual and real interest in the corporation to be formed.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 14, 15; Dec. Dig. ©=>5.'|</p> <p>5. Corporations ©»5 — Legality of Organization — Ohio Statute — “Holder of Stock.”</p> <p>Gen. Code Ohio, § 8625, et seq., relating to the forming of corporations, provide that articles of incorporation may be filed by five persons; that 10 per cent, of the capital shall be subscribed before the election of directors; that 10 per cent, of the capital subscribed shall be payable at the time of subscription; that no person shall vote on a share of stock on which an installment is due and unpaid, and that the officers and directors must be holders of stock to an amount to be fixed by the bylaws; “holders of stock,” as construed by the Supreme Court of the state, meaning bona fide holders. Three corporations, each interested in motor cars or parts thereof and owning patents, undertook to form a new corporation under the Ohio law, in which they should be equally interested, to hold and handle their several patents. Five persons in the employ of the law firm having charge of the organization signed and filed articles of incorporation, and also subscribed for one share of stock each, and one, as trustee for one of the three organizing corporations, subscribed for enough more to make the required 10 per cent., and such corporation paid in cash the required 10 per cent, of such total subscriptions, but no more. The incorporators paid nothing, and had no pecuniary interest in the corporation. They held a stockholders’ meeting, elected themselves directors, and adopted by-laws, and as directors elected officers from their number, and authorized the issuance of stock to the three organizing corporations in payment for patents assigned. They then resigned, one by one, electing representatives of such corporations in their places. Helé, that such acts did not create a lawfully organized corporation, because (1) the law did not authorize the organization of a corporation by other corporations, which was in fact what was attempted; (2) there was not a bona fide subscription of 10 per cent, of the stock, nor a bona fide payment of 10 per cent, of the amount subscribed; and (3) the incorporators, not being actual and bona fide stockholders, were not authorized by the law to organize the corporation, nor to do the acts which they did.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 14, 15; Dee. Dig. <@=35.]</p> <p>6. Corporations @=>28 — De Facto Corporations — Application of Doctrine in Favor of Corporation.</p> <p>Where, in an attempted organization of a corporation, there has not. been a substantial compliance with the law, so as to create a de jure corporation, it will be permitted to claim and exercise corporate privileges an a de facto corporation only as between it and parties with whom it has had contract relations, and when considerations of equitable estoppel or public policy justify it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 26, 70; Dec. Dig. @=>28.]</p> <p>7. Courts @=354 — Dismissal on Court’s Own Motion — Incapacity of Complainant to Maintain Suit.</p> <p>Where a complainant, suing as a corporation in a federal court of equity, is without legal capacity to maintain the suit as a corporation either de jure or de facto, it is within the power, and is the duty, of the court to dismiss the case, although the question is not raised by the pleadings.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 934; Dec. Dig. @=>354.]</p>

<p>At Law. Action by the Park Square Automobile Station against the American Locomotive Company. On motion by plaintiff to remand to the superior court of the state of New Hampshire, and motion by defendant to make a late entry in this court. Defendant’s motion granted.</p>

<p>1. Shipping <@=3197 — General Average — Liability of Cargo to Contribute —Negligence of Ship.</p> <p>Under the maritime law as recognized and enforced in England, Germany, and the United States, general average is payable by cargo, notwithstanding negligence of the ship which occasioned the peril, if the charter party or bill of lading contains a clause exempting from negligence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 623; Dec. Dig. <§=>197.]</p> <p>2. Collision <§=>144 — Loss of or Injury to Cargo — Damages Recoverable under English Law.</p> <p>Under the English admiralty law, in case of collision for which both ships were in fault, owners of cargo in one can recover only one-half their damages from each of the colliding vessels.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 290; Dec. Dig. <§=3144.]</p> <p>3. Shipping <§=>195 — General Average — Recovery Back of Contribution.</p> <p>A general average adjustment is not analogous to an account stated, and the fact that a contribution in general average has been paid does not preclude the one paying it from recovering it back, when because of subsequent events equitable considerations require its repayment.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 618-621; Dec. Dig. <§=>195.]</p> <p>4. Shipping <§=>195 — General Average Contribution to Collision Damage-Recovery from Other Vessel — Right of Cargo Contributor to Recover Back.</p> <p>Under the English law general average contributions.are not regarded as a part of the'damage recoverable in a suit for collision; and where, in a suit for collision in an English court, both vessels were; found in .fault, and each recovered half its actual damage from the other, one which had been in part reimbursed for such damage by general average contributions from tbe cargo, although protected from direct liability for its own half of such contributions by an exemption clause against negligence in its bill of lading, from considerations of natural justice, will not be permitted to retain tbe portion recovered from the other ship, but is liable to tbe cargo owners therefor.</p> <p>TEd. Note. — -For other cases, see Shipping, Cent. Dig. §§ 618-621 ; Dec. Dig. <£>=>190.]</p>

<p>In Admiralty. Suit by Elmer E. Walling and Helen M. Oliver, owners of the barge R. S. Oliver, against the Porter Gildersleeve Company, with cross-libel.</p>

In Admiralty. Suits by the United States Asphalt Refining Company against the Trinidad Lake Petroleum Company, Limited. On ■motions by defendant to stay prosecution of the suits until further order of the court.

<p>Bankruptcy <&wkey;70 — Who may be Adjudged Bankrupts — “Unincorporated-Company” — Trusts.</p> <p>A trust association, created by an instrument of trust providing that the property acquired shall be held and managed by a trustee, but the capital of which is contributed by certificate holders who have power to-elect a trustee in case of vacancy, each share having one vote; also to-amend the declaration of trust, increase the number of shares, and by a three-fourths vote terminate the trust, is an “unincorporated company” within the meaning of Bankr. Act July 1, 1898, c. 541, § 4b, 39 Stat. 547' (Comp. St. 1913, § 9588), and under said section is subject to adjudication. as a bankrupt. ■</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;>70.</p> <p>For other definitions, see Words and Phrases, First and Second Series,, Association.]</p>

<p>Salvage <&wkey;30 — Floating Stkanded Steamship — Amount op Compensation.</p> <p>On Sunday morning the Austrian steamship Lucia went aground on a sand bar live miles from Kgmont Key, off the Florida coast. Being unable to release herself that day, on Monday morning the tug Coney was authorized by the captain to float her, and after working the most of that day and the' next, and jettisoning a part of her cargo, she was floated late Tuesday afternoon and proceeded to her port under her own steam. The ship was in peril because of the danger of storms, hut during the time of the operations the weather was calm, and neither the tug nor crew were in any special danger. The ship was worth $300,000 and the tug $30,000, having a crew of 10. field, that the service was one of salvage, hut not of a high order, and that the tug was entitled to a salvage award of $4,000, one-fourth to the crew.</p> <p>[Dd. Note. — For other eases, see Salvage, Cent. Dig. £§ 72-74; Dec. Dig. <&wkey;>30.]</p>

<p>Aliens <&wkey;71%, New, vol. 7 Key-No Series — Naturalization—Cancellation of Certificate.</p> <p>The provision of Rev. St. § 2165 that to authorize the admission of an alien to citizenship it must be made to appear to the satisfaction of the court that during his five years’ residence in the United States he had “behaved as a man of good moral character,” imports,that to be qualified for citizenship he must have been in fact, as well as in behavior, of good moral character; and where an alien admitted under said law was not so in fact, but was at the time engaged in an immoral and illegal business, his admission was fraudulently and illegally procured, within the meaning of Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 (Comp. St. 1913.. § 4374), whatever the evidence may have been, and his certificate is subject to cancellation thereunder.</p>

In Admiralty. Suit by the Terminal Shipping Company against Hans Hamberg, manager, and the Rederiaktieb Hermodia, now or. lately owners, of the Swedish steamship Bertha. On exceptions to libel.

<p>Error to the District Court of (he United States for the Second Division of the Northern District of California.</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 Northern District of Florida; Wm. B. Sheppard, Judge.</p>

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

<p>Appeal from the District Court of the United States for the District of North Carolina, at Asheville.</p>

Suit in equity by the D. E. Waterman Company against the Standard Drug Company for the infringement of trade-mark. Decree for complainant, granting a permanent injunction. Subsequently a rule- entered against defendant and Sol Teller as its agent to show cause why attachment should not issue against them for contempt for violation of the injunction was discharged, but on appeal the order was reversed. 202 Fed. 167.

<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 Western District of Pennsylvania ;</p>