Volume 223 — Federal Reporter

Action at law by H. C. McCann, by Jesse E. McCann, his guardian ad litem, against the Benson Lumber Company. Judgment for plaintiff, and defendant brings error.

Appeals from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge. Suit for collision by John L. McDonald and others against the steam-tug Teaser, Harry W. Law, claimant; and the barge Harrisburg, George Fredericksen, claimant. Decree for libelants, and claimants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge,</p> <p>E. Eewellen was convicted of introducing intoxicating liquor into the Indian country from without the state of Oklahoma, and he brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; J. E. Pope, Judge.</p> <p>Action by Percy A. Hippie and another, partners doing business as Hippie & McSpadden, against Bates county, in the state of Missouri. Judgment for defendant, and plaintiffs bring error.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action at law by Eillie M. Stewart, administratrix of the estate of Harry M. Toft, against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the First Division of the Northern District of California; M. T. Dooling, Judge. In the matter of the Pacific Motor Car' Company, bankrupt. On petition by'Chas. B. Blessing, trustee in bankruptcy, to revise a judgment allowing priority to claims of G. A. Blanchard and another.

Petition to Revise Order of District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge. In the matter of Thomas Moore. On petition by Charles W. Small-wood, trustee in bankruptcy, to revise an order in favor of George Moore and others respecting an interest in land.

<p>1. Appeal and Error <©=>185 — Presenting Questions in Lower Court-Jurisdictional Question.</p> <p>Where tlie question oí the jurisdiction of the District Court is plainly apparent on the record, it cannot be ignored on appeal, even though it was not presented in the trial court, except by assignment of error after the final decree on the merits.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. <©=>185.]</p> <p>2. Courts <©=>317 — Jurisdiction of United States Courts — Diversity of Citizenship — Rearrangement of Parties.</p> <p>In a suit by throe heirs, who were citizens of Tennessee, against the executor, who was a citizen of Missouri, in which the administrator of a deceased heir, who was also a citizen of Missouri, was joined as defendant to secure a construction of the will, the plaintiffs claiming either that it did not dispose of the residuary estate, or that the executor was given such estate in trust for the heirs, and the executor claiming that the residuary estate was given to him absolutely, the administrator must be classed as a plaintiff in aligning the parties for the purpose of determining jurisdiction, and therefore one of the parties plaintiff was a citizen of the same state as the defendant, and the District Court was without jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. <©=>517.]</p> <p>3. Courts <®=310 — Jurisdiction of United States Courts — Diversity of Citizensutp — Unnecessary Parties.</p> <p>Though the interest of the administrator was like that of the other plaintiffs, so that lie was a proper party, his interest was severable from theirs, and he was not a necessary party, and therefore need not have been joined under equity rule 39 (226 U. S. 659, 33 Sup. Ct. xxix), providing that where a proper, but not necessary, party could not be brought in without ousting the jurisdiction of the trial court, that court may in its discretion proceed in his absence, the decree to be without prejudice to his rights, which rule was merely declaratory of the prior practice.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. <©=>310.]</p> <p>4. Courts <§=>318 — Jurisdiction of United States Courts — Dismissal as to Parties.</p> <p>The trial court can retain jurisdiction of a suit by allowing amendments to the pleadings and dismissals as to proper, but not necessary, parties whose presence would oust the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 863; Dec. Dig. <@=>318.] o '</p> <p>5. Courts <@=>318 — Jurisdiction of United States Courts — Diversity- of Citizenship — Amendment-Appellate Courts.</p> <p>The appellate court cannot permit the amendment of the pleadings and dismissal as to parties, so as to retain jurisdiction, since their function is supervisory and corrective, and Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087) § 274c, as added by Act March 3, 1915, allowing such courts to permit amendments in case of an existing diversity of citizenship defectively alleged, does not authorize them to permit a dismissal of an unnecessary party to retain jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 863; Dee. Dig. ■@=>318.</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

<p>Carriers <S=»336 — Injury to Passenger — Contributory Negligence.</p> <p>A passenger, while standing on the steps of a vestibuled car in a moving train, to which position he was invited by the action of a baggageman in opening the vestibule doors under instructions from the conductor to let the passenger off at the next station, should the train be obliged to stop there, was Knocked from the steps by the swinging shut of the vestibule door which the baggageman had negligently left unsecured. A rule of the company posted in the car prohibited passengers from going upon the platform when the car was moving, and a state statute exempted the company from liability for injury to a passenger “by reason of” a violation of such rule. Held that, while the passenger may have assumed the ordinary risk in violating the rule; he was not bound to anticipate the negligence of the employs which was the proximate cause of his injury, and was not barred of the right to recover for his injury by contributory negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1357-1362; Dec. Dig. <@=336J</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action at law by Miles Collins, administrator of the estate of Stephen R. De Bord, deceased, against the People’s Power Company and others, later dismissed as to all hut the named defendant. From the judgment, plaintiff brings error.</p>

Grubb, Judge. Bankruptcy proceedings against the Payne & Joubert Machine & Foundry Company. Lazarus, Michel & Lazarus appeal and petition to superintend and revise as against W. P. G. Harding and others, trustees in bankruptcy.

In Equity. Suit by the Dalton Adding Machine Company and the Addograph Manufacturing Company against the Moon-Iiopkms Billing Machine Company, J ohn C. Moon, president, and Hubert Hopkins, vice president, oi said company. On final hearing.

<p>1. Monopolies <@=24 — Anti-Trust Act — Suit to Restrain Violation — Relief.</p> <p>The purpose of a suit in equity by the United States to prevent and restrain violations of Sherman Anti-Trust Act July 2, 1890, c. 617, 26 Stat. 209 (Comp. St. 1918, § 8823 et seq.), brought under section 4 of the act, is to restrain present and prevent future violations through the power of injunction; but where the evil eifects of past undue restraint or monopoly of trade continue to be effective and harmful, a.nd if to prevent continuance of such wrongs a dissolution of the unlawful combination is necessary to make the relief effective, the court has power to decree such dissolution ; but, unless so necessary, such power will not be exercised.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. <@=24.]</p> <p>2. Monopolies <@=24~Anti-Trust Act — Violation.</p> <p>The United States Steel Corporation was organized by the consolidation of a number of large steel-making concerns in 1901. During the ensuing ten years previous to suit it at all times had active and increasing competition. It manufactured about half of the steel produced in the United States, and its proportionate part during that time decreased in nearly all lines. The testimony, largely of competitors and customers, showed that it has been fair to competitors, has steadily increased its production, and that, while competition has been close, it has abstained from radical cutting of prices, and has usually publicly announced its prices in advance and maintained the same; that with the exception of a short intermediate period none of its prices have been the result of agreement with other manufacturers, but all have been independently adopted, have been reasonable and conservative, and have helped to keep the market steady. Several competitors testified that they did not believe it possible for it to force them out of business or obtain a monopoly of the steel-making industry. Held, that such evidence was insufficient to establish any purpose, either in the organization of the corporation or in the conduct of its business, to create a monopoly or to unduly restrain trade to the detriment of the public, in violation of Sherman Anti-Trust Act July 2, 1890.</p> <p>LEd. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. <@=24.]</p> <p>3, Monopolies <3=12 — Sherman Anti-Trust Act — Violation.</p> <p>An important purpose of the organization of the Steel Corporation was the building up of an export trade. Such trade in iron and steel at that time was sporadic, consisting of dumping products in foreign countries when the domestic market was overcrowded, and on the whole was not profitable. The Steel Corporation, by reason of its large capital and organization, for the first time created and maintains a regular and per- . manent market, by organizing a subsidiary corporation to sell the large line of diversified products, manufactured by its associate subsidiary companies, such as must be kept in stock, sending the same for distribution to the .300 warehouses which it established and maintains in 60 different countries, sending to each the things most in demand. In this manner it increased the value of its foreign trade from $31,000,000 in 1904 to $91,000,000 in 1913, controls from 80 to 90 per cent, of such trade in iron and steel, and has been able to command better prices, although domestic prices have been generally reduced. Held, that such action was not in restraint of foreign commerce, in violation of Anti-Trust Act July 2, 1890, but was in aid of it by legitimate methods; such trade having in fact been thereby largely created, and not' taken from others.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <©=12.]</p> <p>4 Monopolies <©=24 — Anti-Trust Acr — Combinations in Restraint of Trade.</p> <p>The history of the organization of the United States Steel Corporation in 1901 reviewed, and held not to evidence any intention or purpose on the part of the organizers to monopolize or restrain trade, especially in view of the fact that no such thing was attempted, but to show that the consolidation was the natural outgrowth of the changing conditions in the trade in its transition from iron to steel, and the tendency to integrate the plants back to ore supply and forward to the finished products, and to secure greater economy of management and large capital necessary to meet the demands of structural contracts and the development of export trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. <@=24]</p> <p>5. Monopolies <@=17, 26 — Sherman Anti-Trust Act — -Suit for Violation— Agreement in Restraint of Competition.</p> <p>At a time of panic and threatened serious financial disturbance representatives of a number of the largest steel manufacturers, who were competitors, met and after discussion came to an informal agreement or understanding to maintain prices for their own protection and the protection of customers who had stocks on hand. At later meetings committees were appointed, who considered and assented to specific prices to be maintained by each company until it should find reason to change them, in which case it was understood that it should notify the others, that another meeting might be held. These tacit agreements were more or less observed by the parties until normal conditions were restored, although there were many other manufacturers who did not take part in nor regard them. Reid that, while no formal words of contract were used, the understanding amounted to an agreement in restraint of competition, in violation of Anti-Trust Act July 2, 1890, § 1 (Comp. St. 1913, § 8820), but that such agreement would not justify the court in dissolving participating corporations on a bill filed by the government after it had ceased to be-observed.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. §§ 13, 17; Dec. Dig. <S=17, 26.]</p> <p> Per Woolley, Oi/rcmt Judge, concurring. </p> <p>6. Monopolies <®=12 — Anti-Trust Act — Violation—“Restraint of Trade.” Whether a manufacturing combination is one in “restraint of trade,” or has monopolized or attempted to monopolize commerce, in violation of Sherman Anti-Trust Act July 2, 1890, §§ 1, 2 (Comp. St. 1913, §§ 8820,. 8821), depends upon the inherent nature or effect of the combination, the evident purpose of its acts, or the intent to be inferred from the extent of control secured over the industry, the method by which such control has been brought about, and the manner in which it has been exerted, resulting in prejudice to the public interests by unduly restricting competition or unduly obstructing the course of trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <@=12.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Restraint of Trade.]</p> <p>7. Corporations <©=306 — Legality of Organization — Liability of Director.</p> <p>The fact alone that a corporation after its organization paid for property purchased with stock and then elected the seller a member of its board of directors does not render Mm responsible for any alleged illegality in its organization.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. <§=>306.)</p> <p>'8. Monopolies <§=>20 — Anti-Trust Act — Violation.</p> <p>A corporation, although a combination of other largo manufacturing corporations and having a very large capital, cannot be said to be Inherently a monopoly, where during ten years its increase In percentage of business is much loss than that of its principal competitors.</p> <p>[Ed. Note. — For other cases, see Monopolies, Doc. Dig. <§=>20. ]</p> <p>9. Monopolies <§=^20- — Anti-Trust Act — Violation.</p> <p>That ihe United States Steel Corporation was formed by combining as constituent members corporations which were themselves large combinations, recently formed, and which had demonstrated their power to unlawfully monopolize trade in their several lines of business, warrants a finding that the organizers of the Steel Corporation intended to unite and perpetuate such monopolies and combined for that purpose. The corporation itself, however, neither attempted nor possessed the power alone to do the unlawful things intended by its formation, but it unlawfully combined with competitors, by means of pools and informal understandings, to restrain trade by controlling prices.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. @=>20.]</p> <p>10. Monopolies <§=>24 — Anti-Trust Act — Suit for Violation — 'Belief.</p> <p>A corporation which is not in and of itself a monopoly nor a combination In restraint of trade, within the meaning of Anti-Trust Act July 2, 1890, §§ 1, 2 (Comp. St. 1913, §§ 8820, 8821), should not be dissolved because It may in the past have combined with others to restrain trade by controlling prices, where such unlawful acts have been discontinued.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. <§=324.)</p>

In Admiralty. Suit for collision by Colin D. Ritcey, master and part owner of the British schooner David C. Ritcey, against the steamship L. V. Stoddard, Boston & Virginia Transportation Company, claimant, with cross-libel against the Ritcey.

<p>Harvey C. Miller was convicted of violating Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1913, §§ 8563-8596), and, his conviction being affirmed by the Circuit Court of Appeals and the Costs being taxed against him, he moves to retax the costs.</p>

In Admiralty. In the matter of libel of the Louisville & Cincinnati Packet Company, as owner of the steamboat Indiana, for limitation of liability. On motion to dismiss for want of jurisdiction.

<p>1. Taxation <@=>446% — Assessment—Authority to Make Assessment — Delegation.</p> <p>Where the state hoard of equalization classified railroads for purposes of taxation, and arbitrarily included iu one class all railroad grades or rights of way upon which ties had not been laid or had been removed, whether the right of way had been abandoned or whether the railroad was under construction, and directed county assessors to assess such rights of way at 25 cents per lineal foot, the county officers of a county, if they deemed such instructions unjust or unequal as applied to a railroad grade and right of way lying wholly in that county, had the privilege, if not the duty, of disregarding such instructions, as the authority to value the property in the county for purposes of taxation is vested in the county officers, and they cannot shift or delegate it to any other board or officer.</p> <p>[Ed. Note. — For other cases, see-Taxation, Cent. Dig. § 788; Dec. Dig. <@=>446%.]</p> <p>2. Taxation <@=>390 — Assessment—Railroads—Element of Value.</p> <p>In assessing a railroad for taxation, the cost of construction or repro-' . duetion, the income, the earning capacity, and the value of stock and bonds should all he taken into consideration, but none of such elements are controlling.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 652-655, 658, 659; Dec. Dig. <@=>390.]</p> <p>3. Taxation <@=>543 — Recovery of Tax Paid — Burden of Proof.</p> <p>In an action to recover the amount of a tax paid under protest on the ground that the assessment was excessive, the burden was on plaintiff to show that the tax was oppressive and illegal, and where its evidence was uncertain and inconclusive, and did not satisfy the court as to the actual value of the property, or that the assessment as made was so excessive as to give rise to an implication of fraud or mala fides, plaintiff could not recover.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1006-1016; Dec. Dig. <@=>543.]</p>

<p>Action for a penalty by the United States against the Philadelphia & Reading Railway Company.</p>

<p>1. Carriers <@=>37 — Transportation oe Animals — Statutes.</p> <p>The purpose of Act June 29, 1906, c. 3594, 34 Stat. 607 (Comp. St. 1913, §§ 8651-8654), prohibiting carriers in interstate commerce from confining animals in cars longer than a specified period without unloading for rest, water, and feed, and providing that animals so unloaded shall be properly fed and watered, is to make sure that animals confined in cars shall not go without feed and' water and rest for more than the specified time, and the duty of complying with the act is placed on the carrier; but the duty imposed on a carrier is imposed on it in its relation as carrier to the shipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. <§=>37J</p> <p>2. Carriers <@=>37 — Transportation oe Animals — Statutes.</p> <p>A contract for the shipment of live stock called for delivery at a town, but practice required delivery at the consignee’s private unloading chute. The carrier placed cars in unloading position at the chute, and notified the consignee thereof, nearly two hours before the expiration of the time limit prescribed by Act June 29, 1906; but the stock was not unloaded until nearly three hours overtime. The carrier had no reason for believing that the animals would not be unloaded until after the time limit. Held, that the carrier’s responsibility as such for the shipment terminated within the time limit, and it did not knowingly and willfully fail in performing the statutory duty.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. <@=>37.]</p>

<p>1. Carriers <@=>37 — Transportation oe Animals — Statutes.</p> <p>The obligation imposed on carriers by Act June 29,1906, c. 3594, 34 Stat. C07 (Comp. St. 1913, §§ 8651-8054), prohibiting carriers in interstate commerce from confining animals in cars lor a longer period than specified without unloading for rest, water, and feed, and providing that animals so unloaded shall be fed and watered during the rest, and-declaring that any carrier knowingly and willfully failing to comply with the act shall be liable to a penalty, is imposed on carriers as such, and only as long as the animals are in the course of transportation, and a carrier must provide itself with idle means of the performance of the duty imposed on it, by having relay stations at such places along its lines, so that the animals during transportation may be unloaded, watered, and fed, and any failure of the carrier to comply with the act must be knowingly and willfully done to subject it to a penalty.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 95, 927; Dee. Dig. <@=37.]</p> <p>2. Carriers <@=>37 — Transportation oe Animals — Statutes.</p> <p>Failure of a. carrier to unload animals during transportation for rest, water, and feed, as required by Act June 29, 1906, must he without any excuse by the intervention of unavoidable or unanticipated causes, and the act meets special exigencies and conditions; and where the transportation ends within the time limit a carrier need not, to escape liability therefor, provide for the care of the animals.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. <@=>37.]</p> <p>'3. Carriers <^=37 — Transportation of Animals — Statutes—Regulations— “Willfully.”</p> <p>A carrier of animals delivered them on the consignee’s private track opposite a runway for unloading, and notified the consignee to unload, within the time limit fixed by Act June 29, 1906; but the animals were not unloaded until about six hours after the expiration of the time limit, because the consignee’s place of business was closed at the time the cars were placed for unloading, and because stormy weather rendered unloading impracticable. The carrier had notice of the conditions prevailing at the place of delivery. Held, that the carrier was not subject to the penalty imposed, though the act committed by it was knowingly done, for it was not guilty of willfully confining the animals in cars beyond the time limit, for the word “willfully” carries with it the thought of an intentional ignoring of the law or of indifference to its provisions.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dee. Dig. <@=37.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Willful.]</p>

<p>Carriers <§=37 — Transportation of Animals — Statutes.</p> <p>Act June 29, 1906, c. 3594, 34 Stat. 607 (Comp. St. 1913, §§ 8651-8654), prohibits carriers in interstate commerce from confining animals longer than a specified time without unloading for rest, water, and feed, and declares that any carrier knowingly and willfully failing to comply with the act shall be liable to a penalty. A carrier placed cars of live stock on the consignee’s siding for delivery, and notified the consignee thereof, within the time limit. The consignee refused to unload, because its place of business was closed, and because of the cold and stormy weather. The carrier had provided proper unloading pens, but they were not within available distance. The carrier confined the animals in the cars, and hauling the cars to its pens would not have released the animals sooner than was dono. The carrier knew of the conditions of the consignee’s siding and had refused to erect a shod there. 1'Ield, that the carrier was not liable for a penalty, because the act did not impose a duty to provide shelter pens at every place of delivery of car load shipments of animals, and because it did not confine the animals beyond the time limited in ears while in transit, and because there was no willful failure of the carrier to comply with the act.</p> <p>[Ed. Note. — Por other cases, see Carriers, Gent. Dig. §§ 95, 927; Dec. Dig. <©=37.]</p>

<p>Action for penalty by the United States against the Philadelphia & Reading Railway Company.</p>

<p>Action for a penalty by the United States against the Philadelphia & Reading Railway Company. On a trial before the court without the intervention of a jury. Findings and conclusions in favor of the government.</p>

<p>Bankruptcy <@=»408 — Discharge op Bankrupt — Grounds por Refusal.</p> <p>Bankr. Act July 1,1898, c. 541, § 29b (2), 39 Stat. 554 (Comp. St. 1913, § 9613), makes it an offense to make a false oath in relation to any proceeding in bankruptcy. Section 21a provides that a court of bankruptcy may require any person, including the bankrupt, to appear for examination concerning the acts, conduct, or property of the bankrupt. A bankrupt, examined at an adjourned first meeting of creditors, gave false and evasive testimony concerning an alleged bank deposit which he had listed in his assets in a statement made to a mercantile agency. Held, that such false testimony required the denial of a discharge, though it was not shown that any creditor relied upon the statement to the agency, this not making the false oath immaterial, since, where a bankrupt is interrogated respecting a matter going to the question of his discharge, such interrogation relates to a proceeding in bankruptcy, and the oath is made in regard to a relevant subject.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 732-736, 759, 762, 763; Dec. Dig. @=^408.]</p>

<p>Janies S. Orr and others were indicted for an offense. On demurrers to the indictment.</p>

<p>James S. Orr and another were indicted for an offense. On demurrer to the indictment.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in admiralty by John J. Dorrington against the City of Detroit. Decree for respondent, and libelant -appeals.</p> <p>The libelant and appellant, Dorahgton, owned the Maria Martin, a three-masted schooner, built in 186(i She was well built and well rigged; had been an important sailing vessel on the lakes, and was known in her prime as the “Pride of the Lakes ’ She was 175 feet long and 35 feet at the beam; drew 5 to 6 feet light md 14:% feet loaded. Dorrington had owned her a number of years prior to November 21, 1906, and in the year 1899 she had earned $5,500 net, hut for the succeeding five or six years she had earned practically nothing, the owner intending to convert her into a steamship, but was not able to do so through lack of means. Within a few months from November 21,190fj he had refused separate offers of $6,000 and $6,500, which were regarded by apparently competent witnesses as cheap figures.</p> <p>During the lire years in which she was practically out of commission, she lay at anchor jn one place or another in the Detroit river at Detroit, and on the day named was held by two anchors, one of 1,800 pounds, the other of 2,000 pounds, to which were attached iron chains 360 feet long. On that day Dorrington was on board, and at some time after noon a sonthvfest wind arose, which, by 4 o'clock, had developed into a gale which caused the ship to drag her anchors. Her anchorage was about one-half mile from, and about southwest of, the Belle Isle bridge, owned and constructed by tile city of Detroit under the .supervision of the Secretary of War, leading from the' city across the American channel to Belle Isle, one of the city’s parks. The American channel of the river is about northeast and southwest, the water flowing southwestwardly. The bridge lies northwest by north and southwest by south, and for present purposes may be described as having three piers, the distance between the middle pier and each of the other two being about 160 feet. The bridge had a draw 318 to 320 feet in length, resting at its center, and swung upon the middle pier, which had an extension southwestwardly of 160 feet, so that when the draw was swung one end of it stood over the end of the middle pier which, in the testimony, is called the “crib,” the “cradle” and sometimes the “bridge.” The machinery for turning the draw and the men in charge were housed at the center of the draw over the crib upon which the draw rested and turned on rollers when opening. So, when the bridge was opened, there were passageways for boats, one on each side of the crib, and each about 160 feet in width, the depth of tjie water being about 20 feet. On or in the bottom of the river from the city t%the island there was an eight-inch pipe carrying water from the city to the island. The bridge was in charge of a chief engineer and two assistants, but on the day mentioned one Martin, an assistant engineer, was in charge, and under him, two gatemen who did not have anything to do with the management of the draw. Martin had been -assistant engineer. for about a year, and had had no previous -experience in the handling of ’ drawbridges. According to him, the engine operating the draw was of 40 horse power. The > ¡üef engineer makes it about-20 horse power. Ordinarily 2 horse power nor Id turn the draw. The machinery was appropriate for the kind of work it was called on to do, answered the purpose very well, and was an oscillating engine, working either way according to the way in which the steam was introduced. The speed was regulated by the amount of steam introduced and by reversing the engine. From all the testimony it may be gathered that the machinery was adequate to swing and handle the draw in a high wind or gale. There was no apparatus on the bridge for determining the velocity of the wind, which the assistant engineer said was, on that day, about 50 miles an hour; and '.here was other evidence tending to show that it was from 55 to 60 miles an hour. The chief engineer was not on the bridge that afternoon, and did not know an unusual wind was blowing. A 50-mile gale was not unusual in November.</p> <p>The ship was drifting upstream and toward the bridge. Probably, if her course had not been changed by what took place, she would have struck the south pier, or not far to the right of that, at the bridge extending from the south pier to the island. "When the ship began to drift, Dorrington, who was an experienced navigator,' thinking it best to seek help, got into his skiff and pulled to Detroit for th?.t, purpose. He called on the telephone a company owning tugs, and learned that he could get but one tug, which was the only available tug in the harbor. The chip continued to drift, and the city authorities ordered the fire boat Elliott to take charge of her. It may be gathered from the testimony of the captain cf the Elliott that the primary purpose was to prevent damage to the bridge, and it appears that he did not regard the ship as being of any value because of her age. He said she had lain so long in the roadway that she had become a “joke,” and that from time to time when his boat passed her, as she lay at , •»“her, rotten wood would be churned out of her hull by the waves made his boat. He after-wards said he was so told. There is nothing in the ec kence to indicate that the ship was in so desperate a condition of decay as that, and the captain’s further statement that he was afraid of walking on the leek lest he might go through was not warranted by anything in the testimony. The only time he was on her deck was just before dark, and before ae left darkness had set in, as will appear.</p> <p>The ¿Eliott left her moorings at 4:45i p. m., and the ship struck the crib at about 5:15. It is uncertain how long the Elliott was engaged'm attempting to prevent the ship from striking the bridge, for the time varies in the testimony from half an hour to five minutes. The ship was drifting sternway upstream and going toward the bridge. She was going slowly, the evidence fairly disclosing that it took about two hours for her to drift from her anchorage to the crib of the bridge. That would be about 22 feet a minute. Primarily the Elliott was hot a tug, nor was it her duty ordinarily to tow vessels. Her crew consisted of seven men, none of whom, excepting the pilot, being seamen. They were firemen. She was in charge of a captain and managed by the pilot, who took her wherever the captain directed. The Elliott overtook the drifting ship at a point about 500 feet southeast of the crib, coming up on the starboard, aft. The sea was high, the waves running as much as four feet, which was unusual. The captain and anothei jumped aboard the ship and carried, or there was thrown, from the fire boat, a heaving line attached to a hawser, which the captain or his assistant attached to some post, whether a tow post, or a quarter post, or a cleat, does net. clearly appear. At any rate, when the fire boat started to pull the stern the ship around, that is to say, northwardly, the hawser came away. Tin " upon the captain and his assistant hauled it back to the ship and tlure fastened it, probably to a quarter post used for light towing when the strain is fore and aft, which was not, however, suitable for such a side str.iin.’as was necessarily imposed upon it by the effort of the fire boat to haul ,-the stern of the ship around. There were two tow posts located Just forward of the cabin, anti at perhaps one-third of the length of the ship from the stern. These tow posts went through to the keelson, and were anchored there. The quarter posts were further toward the stern, and nearer the gunwale of the ship. They went through, too, to the skin of the vessel, but were only anchored by heavy bolts going through the heavy beam running transversely of the vessel and on which the dock rested. It Is probable that on the second .attempt to fasten the hawser the quarter post came away under the strain. Dorrington described it as having been “pulled out by the roots.” The captain ox the Elliott said the post he fastened to, whatever it, was, was rotten. It is here found that skillful seamen, accustomed to towing vessels, would not ordinarily hitch to such a quarter post in order to pull a vessel around. When the second attempt was made the ship was about 10 feet from the end of, and toward the south of, the crib. These two attempts to pull the stern around had boon, to some extent, successful. The ship bad been brought around so as to present her side to the wind, which caused her to lie somewhat broadside to the bridge, the draw not having been opened. She struck first at the stern, aft, and, according to one witness, the assistant engineer, 25 to 50 feet from the end of the crib, and her stern chewed along the crib while her jib-boom struck the railing of the bridge. It broke, ns did also other masts, spars, and yards, which came tumbling to the deck, whereupon the captain and his assistant jumped onto the crib and called to or motioned the (ire boat to go home, which it did. In the meantime, the only tug (the Loriper) available to assist in the rescue had been sent out by its owner, at Dorrtngton’s request, for the purpose, and reached the scene at about the time the second, attempt of the fire boat was being made. There is uncertainty as to the length of time the Lorimer was there. Her captain saw the two men on board the ship and the efforts of the fire boat to prevent the ship’s striking the crib, and, thinking they could take care of her, went away for the purpose of assisting another vessel, which had slipped its moorings and to whose assistance' also he had been sent.</p> <p>The Elliott was a powerful boat owned by the city of Detroit, and was used for the purpose of putting out fires at the docks and próperty near by, or upon vessels, and. was well equipped with tow lines and other apparatus suitable for towing vessels. She was a much more powerful boat than the Lorimer, whose captain testified, however, that he could have pulled the ship out of danger. The captain of the fire boat says the Lorimer came within 50 feet of the ship, or maybe 100 feet from her bow, or 125 to 150 feet from his boat, while ho was on the ship, and ho did not signal for her assistance. He said ho thought the ship would sink, and for that reason made no further effort that night to haul her away. The captain of the Lorimer said Me got there between 1:30 and 5:00 o’clock, and was there probably 10 minutes. The ship’s stern was pounding against the crib, and her rigging was going to pieces through contact with the unopened draw.</p> <p>In the meantime no attempt was made by the assistaut'engineer to open the draw. lie had for a long time seen the ship drifting toward tile bridge. Three whistles were blown by the fire boat, but he did not open the draw. Tlie enptain of the Lorimer testified: “I was there 10 minutes any way. 1 don't know of any reason why the draw should not have been oponed if a boat should blow for it. 1 heard three whistles blown.. That is a recognized signal to open the bridge. There was nothing in the position of the Martin at that time which prevented the draw from being opened. They could have swung the bridge free from the vessel.”</p> <p>Dorrington had gone with his skiff to the dock at or near the Detroit end of the bridge, and testified: “When the lire boat was alongside trying to get a line on the Maria Martin at the foot of this center pier under the draw of the bridge, there was no reason why the draw of the bridge could not open. They could swing that bridge either way before a vessel got up there. At that time they could have swung the bridge the opposite way around, and left that south opening of the draw clear. That could have been done even when she drilled up against the bridge. They could have swung that bridge at any time until after the spars and rigging fell ovei\”</p> <p>The assistant engineer testified: “With the position of the Maria Martin lying up against the cradle of the bridge it was not possible to open it. We could have swung away from it if there had not been any wind. The fire-tug Elliott had hold of the stern of the Martin when she came up near the bridge. The fire-tug Elliott didn’t lay near the bridge. The firemen tried to get on it, but they could not, nor could I have safely swung the bridge. If we swung the bridge to the right, it would have hit the Maria Martin and struck her rigging, and if the bridge had been swung in the other direction it would have hit the fire-tug or her smoke stack. I could not swing it either way; it would have been apt to spin; I could not swing it in that wind. In a 50-mile wind it is not safe to swing the bridge in either direction, and that is due to the fact that I-hadn’t any brake on it.” '</p> <p>He said: “It is not safe to open the draw in a gale of that kind. We have no brackets or brakes on when the bridge js ready to be opened and the wind takes hold of it and starts it right around and we can’t stop it. If the draw were open in a 50-mile wind, it would be apt tt> spin the draw. Q. Now, Mr. Martin, do you mean to say that in a 50-mile gale that wind would twist the bridge around? A. Yes, sir. Q. Don’t you know' as a matter of fact, Mr. Martin, that that bridge has been turned in a 50-mile gale a good many times? A. No, sir; I don’t. Q. It is customary about November in the fall of the year to have gales, is it not? A. Yes, sir. Q. And a 50-mile gale is not an unusual gale at that time of the year is it? A. No, it is not. Q. And that bridge has been operated for a number of years has it not? A. Yes, sir. Q. Did you ever have any other experience on a bridge before 1905 when you were employed there? A. No. * *• * Q. What jias been your experience; have you ever'refused to turn her in a 25-mile gale? A. I would not say it was blowing 25 miles an hour if I refused to turn her; it might have been blowing 45. Q. Was that the smallest-wind at which you ever refused to turn her, 45 miles an hour? A. I would not say. Q. Have you ever refused to turn her? A. -Yes, sir. Q. In how heavy a wind have you refused to turn her? • A. I should judge it would be about 45 miles an hour. Q. That is the only wind you refused to turn her in? A. That is the only time a boat has asked for passage when the wind is blowing strong. Up to the time of this accident I had never refused to turn the bridge for any other boat except the Maria Martin. I had never seen that bridge in operation in a 45-mile wind before that. Q. Then why did you refuse to' turn the bridge in that wind? A. Because it was dangerous to swing it. Q. Why was it dangerous for you to swing her? A. There was no way of holding it. Q. Were you acting on what you had been told in regard to that? A. I may have.”</p> <p>He afterwards said he was told by the chief engineer not to swing the bridge in a gale; that is to say, “a strong wind when you-can’t regulate it, when you can’t hold the bridge.” He made up his mind perhaps earlier than 4 or half-past 4 o’clock, on his own responsibility, that it was too high a wind for him to open the draw. He says: “I had decided in case I was signaled that I would not open it because the draw could not be opened safely in the wind. At that time when that signal was given, the fire boat was in a position so that if she had turned with the American side end of the draw downstream, that I think it would have hit the fire boat. The fire boat had hit the end of the cradle already. The fire boat was on the American side of the crib. The Maria Martin was on the south of the crib and the fire boat was on the north. The fire boat was a little bit farther north up the stream than the Maria Martin. The fire boat was under steam and I knew she could back up so that was not any reason why I did not open the draw. * * * I do not think I have refused to open the draw for a boat on a signal at any time late in the season. To my knowledge, the engineer in charge never refused to open the draw for any boat on signal, so that from the time of my employment up to the year after, that was the only time I know of the opening of the draw being refused: That is the only time I know of that boat ever coming up there in a storm to get through. I make it a practice to use my own discretion in opening that draw for boats that come up there in storms. ’ I always open it at other timek I remember that same season of swinging the draw and sinking another boat in October or November. I don’t remember the name of the boat. * * * It wasn’t caused by my refusing to open the draw originally. We have a counter signal; we are provided with a whistle. There are recognized counter signals on the part of the bridge when they do not intend to open. The bridge blows four whistles to show she will not open. Four whistles were not blown by the bridge at this time. I don’t know just why they were not. I w&s in charge. When the fire boat wanted to get through she did not have hold of the other boat. The fire tug did not want to go through. Q. How do you know the fire tug did not want to go through? A. She could not do anything up there. Q. What? A. 1 didn’t surmise she wanted to go through anyhow. Q. What did she give you the signal for opening the draw for? A. I could not say what she gave the signal for. Q. You surmised she didn’t want to go through, is that right? A. Yes, sir. Q. And yet she had given you the signal to open the draw? A. Yes, sir. Q. Why did you surmise such a thing? A. Well I could not say. Q. Now you volunteered this statement and cannot tell why you surmised that? A. Oh, 1 don’t know why. Q. Is it customary for the fire boat to give signals to open the draw when she does not want to go through? A. No, I don’t think so. Q. Then when she gave the signal to you to open the draw did it not mean that she wanted to go through? A. Well 1 didn’t think she did. Likely it meant she wanted to go through, and I didn’t think she did want to go through because of the circumstances that she was in, in trying to pull that other boat. I judge she blew to let the other boat go through and I saw the other boat could not go through and that was the reason I think why I did not try to open the draw.”</p> <p>The chief engineer, in answer to the question, “In your experience at the bridge would you think it was a safe operation to swing the draw for a boat to pass through in a 60-mile gale?” said, “If I was there and they insisted on coming through I would undertake to swing it, but T would give them warning there was danger coming through if there was any way of warning them. They would go through at their own risk, because I would not say that engine would hold the bridge in a gale of 60' miles an hour.Where the wind works both ways — it don’t always work both ways, sometimes it catches the comer and you might lose control of it. The only way to keep control of her is not to let her go fast.”</p> <p>The pilot of the Elliott said: “I backed her around and she was coming along all right until we got almost over to the draw, and when we got almost over to the draw she let go, this stern post let go, and she hit the bridge, and we went down and over on the north side of the pier.”</p> <p>There ho tried to pick up the captain of the Elliott and his assistant, who had jumped off the ship onto the crib. But they could not get aboard in the heavy sea and went up the iron ladder from the crib to the bridge and the fire tug went home. Having related this, the pilot went on: “It was impossible to get aboard, so I swung her around and backed, and there is a kind of pocket in there between that cradle and the dock, just like a pocket. Then with that wind I swung around the best I could, and backed, and I was afraid she would not make it in that corner, so I blowed three whistles to the bridge and the bridge didn’t open, so I managed to get around and get home all right. * * * That pocket lay between the American hank and the cradle, and that is on the north side of the draw. The reason we blew the three whistles was because we were afraid we could not get out of that pocket, and we wanted the bridge swung so that we could get through. After the second line had taken hold of the Martin, we did succeed in pulling the Martin a little distance. We were coming down the river, and when we backed down far enough we could have turned around and went head first down the river, and then suddenly the timber post or the tow post let go, and by that time the Martin had been pulled over to a position near the draw. We were probably at that time 100 feet south of the draw, and the Martin was probably about 50 feet away from xxs. Then after the lino parted or the tow post parted, the wind blew the Martin against the bxldge. From where I was I could not tell whether the cradle or the bridge was hit first. In fact I was busy watching ourselves, that we would not hit something else. As soon as we let go we shot away from her. I could not tell you which end hit first. * * * After this breaking the second time the lirxe gave way, and the fire tug went to the north side of the draw or this cradle. We were considerably below, you know, and I tried to but could not get alongside because the waves were slashing the deck. * * * We were 50 to 75 feet towards the span of the draw then. The pier below the bridge is the length of the draw itself, half the distance of the bridge. It sticks out down below. It is more than 100 feet, I guess. We were iu that pocket. That is when I signaled. My intention was to get out of that pocket and to go through the draw. The only way I understand the bridge could have swung was to eastern because they were fastened with the cables and things that went over on the bridge. If we had swung then the smokestacks and everything would have been knocked off. We were broadsides to the wind at that time. Our own power was able to get us out of that hole, because it did. We were afraid it would not. I didn’t blow those whistles to open the draw of the bridge for the purpose of attempting to get through and hauling the Maria Martin through.”</p> <p>The captain of the Elliott, who was then standing on the crib, said: “When our boat blew three whistles, they [meaning the ship] were about halfway alongside the cradle of the bridge; and this boat was fast here and fast here.”</p> <p>He probably meant by that that its stern was against the pier and its rigging against the unopened draw. “That was when we blew our three whistles and our tug was further east.”</p> <p>The man with the captain of the Elliott said: “We took hold as you say and it gave way, and we also took another hold and that gave .way. The- Martin was about in a position to go through the south side of the draw, that is when our lines parted, backing up, left the Martin on the south side and us on the north side, and in fact we were a little ahead of the Martin in going through the bridge. The Martin was farthest from the bridge, and the pilot gave him two or three blasts to open the bridge. Then the Martin passed into the bridge. She went in broadsides. * * * The stern of the Maria Martin struck the cradle. Whether the bow of the Maria Martin went against the bridge I could not say. I was not on the Martin at that time. * * * When it went against the eradle I jumped off, then the wind continued to blow the Martin against the bridge.”</p> <p>Dorrington said that the pilot of the fire boat told him afterwards his intention was, after the line gave way and they blew the whistle for the bridge to open, to go up through on the north side of the crib and come down to the Martin and pull her through the south side. Dorrington boarded his vessel after she got into the bridge, stayed aboard all night, and tried to protect the vessel by fending her off as much as possible where she was chewing against the crib. He says that the stern of his ship was swinging underneath the draw, and • if the draw had been opened the vessel could not have jammed because her stern was free.</p> <p>In answer to the question, “As a matter of fact it is all guesswork whether or .not she would go through?” he said, “Not with that wind because the stern swung up under the bridge that night, and so it is possible she would have gone through. Q. You mean that boat would have gone through the draw if she struck the bridge, if the bridge had been open? A. Yes, sir.”</p> <p>The libelant claims the city of Detroit is liable to him for the loss of his ship growing out of: First, the negligence of the fire boat in the way she handled herself and his ship, in failing to ask assistance, and in the abandonment of his ship; second, negligence in failing to provide proper equipment for the fire boat; third, negligence of the bridge tenders in that the bridge was not open when, as claimed by libelant, his ship was in the control of the fire boat, and that upon proper signal the draw was not opened.</p> <p>The appellee in its answer below admitted, among other things alleged in the libel: “That said city of Detroit had placed said bridge and the operation of its said draw in charge of one or more bridge-tenders, whose duty it became and was to maintain a watch for all vessels of sufficient size which might wish, or be obliged, to pass through said draw, and that it was the duty of said city and its officials and employes to open said draw- upon [being informed and notified of] the approach of vessels desiring to pass through said bridge, whether ascending or descending the American Ohannel of said Detroit river, said river being a navigable water of the United States, upon which the vessels of the United States have a right to navigate freely and without hindrance.”</p> <p>The answer denied the allegation that the fire boat had control of the ship; denied signaling the engineer on duty at the bridge to open it; avers that it would have been unsafe to have drawn the bridge in a gale of wind blowing at the rate of 60 miles per hour, as it was at the time the ship collided witli ihe bridge; charges the ship with being old, dismantled, and abandoned, and as of no value for the purpose of engaging in navigating the waters of the Great Hakes; charges the libelant with contributory negligence in failing to properly anchor his ship and man her sufficiently; denies negligence, and charges that after tile accident the ship was takeu to a point near Belle Isle; that she remained there unattended and neglected, and a menace to navigation, and was finally removed by the government of the United States.</p> <p>The District Court, holding against the libelant on all questions, dismissed the libel. On appeal here all of the assignments of error which require consideration have to do with the several claims of negligence referred to. The parties have agreed that in the event the judgment of the court below is reversed, the question of damages may be inquired into do novo.</p>

ern District of New York. This cause comes here on appeal from a decree of the District Court of the United States for the Southern District of New York, entered on November 4, 1914, granting an injunction restraining the defendant from printing, publishing, and vending books or cyphers like or substantially like the book and cyphers copyrighted by plaintiff and entitled “Bentley’s Telegraph Cyphers,” and awarding plaintiff profits and damages.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on an appeal from a decree of the United States District Court for the Southern District of New York. The facts are stated in the opinion.</p>

"Appeal from the District Court of the United States for the Southern District of New York. This cause comes here on appeal from a judgment entered upon an order made b.y the United States District Court for the Southern District of New York, which order was filed August 7, 1914, and which dismissed the bill of complaint on the ground that it did not state a valid cause of action in equity. James A. Whitcomb was and is a citizen of the state of Oklahoma.

<p>1. Courts <@=>284 — Federal Courts — Jurisdiction—“Arising Under Laws oe United States.”</p> <p>An acti6n to enforce liability on a bond given in a proceeding in a federal court arises under tbe laws of the United States, of which a United. States court has jurisdiction, irrespective of the citizenship of the parties. , •</p> <p>[Ed. Note. — For other cases, see"Courts, Cent. Dig. §§ 820-826, 831; Dec. Dig. <@=>284.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Arise.]</p> <p>2. Courts <@=264 — Federal Courts — Jurisdiction—“Original Suit.”</p> <p>A suit on a bond given on appeal in a suit in a federal court is not an “original suit,” and the jurisdiction of the original suit gives jurisdiction over the subject-matter of the suit on the bond.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 801; Dec. Dig. <@=264.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Original Suit.]</p> <p>3. Courts <@=284 — Federal Courts — Jurisdiction.</p> <p>A supersedeas bond to secure a stay pending a review by the United States Circuit Court of'Appeals of a judgment of the District Court is an indemnity given in pursuance’ of a law of the United States, and the rights of the parties depend on a law of the United States and rule of the Supreme Court, within the rule governing jurisdiction of federal courts. „</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820-826, 831; Dec. Dig. <@=284.]</p>

<p>1. Mines and Minerals <©=68 — Mining Lease — Construction — Negative-Covenants.</p> <p>Complainant’s predecessor in title leased to defendant a tract of land “for the sole purpose of prospecting for and mining coal and asphalt, the-party of the second part to occupy so much only of the surface * * * as may be reasonably necessary to carry on the work of prospecting for, mining, storing, and removing such coal and asphalt.” The lessee covenanted “to commit no waste upon said premises and to suffer no waste to be committed thereon,” and that it would not use said premises “for any other purpose than that authorized in this lease, nor allow them to be used for any other purpose.” The consideration for the lease was a royalty upon the products mined. The bill alleged that defendant had sunk shafts upon the premises, from which it had extended tunnels into adjacent lands, from which it was mining large quantities of coal and removing the same through such tunnels and shafts; that it was dumping large quantities of shale and waste brought from such adjacent lands upon the surface of the leased premises, and occupying a large part of such surface with buildings and dwellings for the use of employes engaged in said outside mining operations. Hel'd, that the terms of the lease restricted the use of the leased premises to prospecting for and mining coal and asphalt on such premises, that the law would imply a negative covenant not to use the premises for any other purposes, which covenant might be enforced in equity, and that the bill stated a cause of action for injunctive relief.</p> <p>[Ed. Note. — Eor other cases, see Mines and Minerals, Cent. Dig. §§ 188-191; Dec. Dig. <@=68.]</p> <p>2. Mines and Minerals <©=68 — Mining Leases — Equity Jurisdiction to Enforce Negative Covenants.</p> <p>A court of equity may interpose by injunction and indirectly enforce specific performance of negative covenants in mining leases, by preventing the use of the leased premises for purposes inconsistent with that for which they were demised, where such use would operate to the injury of the lessor, although damages therefor may be recoverable at law.</p> <p>Tli'd. Note. — For other cases, see Mines and Minerals, Cent Dig. §§ 188-191; Dec. Dig. @=^>68.]</p> <p>8. Equity <®=o71 — Laches—Suit to Enjoin Violation ov Mining Lease.</p> <p>Delay in commencing suit to prevent the use of premises by a mining lessee contrary to the terms of the lease, while It may affect the question of damages, cannot deprive the lessor of the right to protection against further trespasses.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 201 — 211; Dee. Dig. <§=>71.]</p>

This cause comes here on appeal from an order entered in the District Court of the United States for the Eastern District of New York on October 26, 1914. The complainant is a citizen of the state of New Jersey and a resident of the city of Newark, and is a creditor of the defendant corporation, and upon his application receivers of the property of defendant were appointed.

Sater, Judge. Suit in admiralty Éy the United Coal Company against the Uouisville & Cincinnati Packet Company, as owner of the steamer Uizzie Bay. Decree for libelant, and respondent appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Mandamus by Fred H. Thompson against E. H. Duehay, Superintendent of Prisons of the Department of Justice, and others. The writ was granted (217 Fed. 484), and defendants bring error.</p>

<p>1. Public Lands <3=»102 — Cancellation of Entry — Time of Taking- Effect.</p> <p>The decision of the Commissioner of the General Land Office, sustaining a contest against a land entry and holding the same for cancellation, does not effect a cancellation unless the time allowed for appeal expires without an appeal having been taken. If an appeal is prosecuted, all further proceedings are suspended until it is determined, and if the decision is again in favor of the contestant the entry is then formally canceled, and the notice required by Act May 14, 3880, e. 89, § 2, 21 Stat. 141 (Comp. St. 1913, § 4537), is given the contestant, who has a preference right lor 30 days thereafter to enter the land.</p> <p>[Ed. Note. — For other cases, see Public Lauds, Cent. Dig. §§ 294-297; Dec. Dig. <®=»102.</p> <p>Cancellation of entries, certificates, receipts, warrants, or transfers prior to issuance of patents to public lands, see note to Northern Pac. Ry. Co. v. United States, 101 C. C. A. 3.20.J</p> <p>2. Cbiminal Law <@=>1172 — Review on Error — Harmless Eeeoe — Instructions.</p> <p>Where a single judgment is entered on a conviction on two counts of an indictment, and the sentence imposed is no greater than might have been imposed under the one on which conviction was proper, errors in instructions are immaterial, unless they affect both counts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 312S, 3154-3157, 3159-3163, 3169; Dec. Dig. <@=>1172.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri.</p> <p>Action at law by Joseph Filler against the Joseph Schlitz Brewing</p> <p>Company. Judgment for defendant, and plaintiff brings error.</p>

Appeals from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. Suit by the United States against Helen F. Woods, in which the defendant filed a cross-bill asking that other persons be made parties to the suit and required to litigate their claims to the land in controversy.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valbenburgli, Judge.</p> <p>In the matter of the Jones Dry Goods Company, bankrupt. From a decree allowing the claim of the Commercial Trust Company, Henry C. Flower, trustee, appeals.</p>

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S- Van Valkenburgh, Judge.</p> <p>In the matter of the Jones Dry Goods Company, bankrupt. From a judgment allowing a claim of the Central National Bank, Henry C. F'lower, trustee, appeals.</p>

<p>Bankruptcy <©=>314 — Claims Provable — Loans.</p> <p>Where a loan was in fact made to a bankrupt corporation, the claim was provable against it, though evidenced by the individual notes of the corporation’s executive officers.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 469^473, 478, 483-487, 489, 490; Dec. Dig. <©=3314.]</p>

District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in admiralty by Mary Jane Knash and others against the Compagnie Générale Transatlantique, owner of the steamship Mexico. Decree for respondent, and libelants appeal.

This cause comes here on appeal from a decree entered on December 3, 1913, in the District Court of the United States for the Southern District of New York dismissing the bill of complaint in a suit brought by complainant against defendant for infringement of claims 5 and 15 of letters patent No. 893,105, granted July 14, 1908, to William D. Slater, on a machine for making what are known as outlook or window envelopes.

<p>1. Patents <@=>328 — Validity—Ties foe Wiee Construction and Dies fob Making Them.</p> <p>Claim 1 of the Williams patent, No. 533,403, for an improvement in ties for wire structures, such as wire fences, and the Tiffany patent, No. 755,-187, for an improvement in dies for forming such ties, held void for lack of patentable invention, in view of prior patents.</p> <p>2. Patents <@=>26 — Validity—Combinations—“Invention.”</p> <p>Where the elements of a combination and the result attained by it were old, and the change in the means of attaining such result showed nothing more than mechanical skill, there was no “invention.”</p> <p>[E’d. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <@=>26.</p> <p>For 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 O. C. A. 123J</p>

<p>1. Appeal and Error @=>356 — Time eoe Perfecting Appeal — Delay Without Eault oe Party.</p> <p>Where an appeal was allowed and the amount of the appeal bond fixed by a Circuit Judge within the prescribed time, but approval of the bond and issuance of citation were referred to one of the District Judges, the appeal will not be dismissed because, by reason of the temporary absence of both District Judges from the district, approval of the bond and issuance of citation were delayed until after the expiration! of 30 days.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. @=>356.]</p> <p>2. Patents @=>112 — Suit for Infringement — Patent as Evidence.</p> <p>The grant of a patent is prima facie evidence that the patentee is the first inventor of the device described and of its novelty.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. @=>112.]</p> <p>3. Patents @=>226 — Suit for Infringement — Evidence—Date of Sale.</p> <p>Sales of infringing articles as acts of infringement are to be regarded as having been made when the contract of sale was made, irrespective of the time of delivery.</p> <p>[Ed. Note. — For other cases, see Patents; Cent. Dig. § 357; Dec. Dig. @=>226.]</p> <p>4. Patents @=>311 — Suit for Infringement — Pleabing.</p> <p>A petition of intervention, filed in an infringement suit for the purpose of showing a change in the ownership of the patent and consequently of the party in interest as complainant since the commencement of the suit, is to all intents an original bill in the nature of a supplemental bill, and where it adopts the original bill, which alleged infringement to the date of its filing, and that defendant “still continues to infringe,” the petition should be treated as operating to extend the time-of the alleged infringement at least to the date when it was filed, especially where it was so treated without objection on the hearing.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 541, 542; Dec. ■ Dig. @=>311.]</p> <p>5. Patents @=>312 — Suit fob Infringement — Sufficiency of Evidence.</p> <p>Evidence considered, and held sufficient to make a prima facie case of infringement, where no evidence was offered by defendaht.</p> <p>[Ed. Note. — Por other cases, see Patents, Cent. Dig. §§ 544-549; Dec. Dig. @=>312.]</p> <p>6. Attorney and Client <§=>21 — 'Liability of Attorney for Costs — Yexatiously Increasing Costs.</p> <p>Under Rev. St. § 982 (Comp. St. 1913, § 1623), which, provides that if any attorney appears to have multiplied the proceedings in a cause so as to increase costs unreasonably and vexatiously, he shall bo required, by order of the court, to satisfy any excess of costs so created, as well as by the common law, a court has power on motion to order costs taxed against an attorney, where it appears that he is unreasonably and vexatiously prolonging the talcing of depositions by excessive cross-examination or unwarrantably obstructing the examination of his client by instructing him not to answer proper questions.</p> <p>[Kd. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 32-36; Dec. Dig. <§=>24. ]</p>

This cause conies here upon writ of error to review a judgment of the District Court, Southern District of New York in favor of defendant in error, who was defendant below. The action was at law for alleged infringement of letters patent No. 551,614 granted December 17, 1895, to plairitiff, for a cable crane with gravity anchor.

<p>Aliens <©=»68 — Naturalization—Admission Without Proof of Declaration of Intention — Construction of Statute. .</p> <p>Naturalization Act June 29, 1906, c. 3592, § 4 (2), 34 Stat. 597, as amended by Act June 25, 1910, c. 401, § 3, 36 Stat. 830 (Comp. St. 1913, § 4352),,provides that a person belonging to the .class of persons who, under existing laws, may become citizens, who has resided constantly in the United States during a period of five years next preceding May 1, 1910, and has in good faith exercised the right of citizenship under the mistaken belief that he had the right to so act, may upon making a showing of such facts satisfactory to the court, “and [if] the court in its judgment believes that such person has been for a period of more than five years entitled upon proper proceedings to be naturalized,” receive from said court a final certificate of naturalization, without proof of a former declaration of intention. Held, that the five years referred to in the latter part of thé proviso is five years before the 'hearing, and that the court is not required to find that the applicant might have been admitted five years before May 1, 1910.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. <®=»68J</p>

In the matter of the Henry Siegel Company, bankrupt. On petition for review of an order of the referee requiring claimants to file a bill of- particulars..

<p>1. Evidence <©=343 — -Judicial Notice — Judicial Records.</p> <p>On a petition to reclaim goods from a trustee in bankruptcy, judicial notice will be taken of the papers on record in the bankruptcy case.</p> <p>TEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. <©=343.]</p> <p>2. Bankruptcy <©=3140 — Ownership op Property — Purchase without Intent to Pay.</p> <p>When a corporation ordered goods, it was hopelessly insolvent, and there was no evidence that those in control of the corporation were not aware of its condition. Seven days after the order, and two days after the last delivery, receivers were appointed, and It was subsequently adjudicated a bankrupt. Meld, that as the corporation’s managers must have known that the corporation could not pay for the goods except by giving the seller a preference, at the expense of other creditors, and as their knowledge was imputable to the bankrupt, the purchase was the legal equivalent of a purchase with an intent not to- pay, and was fraudulent, and the seller might rescind and reclaim the goods from the trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <©=3140.]</p>

In Equity. Suit by the Puget Sound Traction, Eight & Power Company against Charles A. Reynolds and others, constituting the Public Service Commission, and W. V. Tanner, Attorney General, oh the State of Washington, to enjoin the enforcement of an order of such Commission.

In Bankruptcy. In the matter of Nathan Challen, alleged bankrupt. On motion by respondent to dismiss petition. Recommitted to referee for further report.

<p>1. Admiralty <S=»119 — Appeal—Reversal—Interest.</p> <p>Where the Circuit Court of Appeals, ou reversal of a decree in admiralty in favor of one vessel, directed the court below “to proceed on the theory that both vessels were in fault,” rule 30 of the Circuit Court of Appeals rules (150 Fed. xxxv, 79 C. C. A. xxxv), relating to interest, does not deprive the District Court of discretion in the allowance of interest.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 776-790; Dec. Dig. <®=>119.]</p> <p>2. Admiralty <®^122 — Costs—Divided Damages.</p> <p>In an admiralty suit, where the damages are divided, it is the general rule, binding in all cases, unless the circumstances are exceptional, that the costs will also be divided.</p> <p>[Ed. Note.- — For other cases, see Admiralty, Cent. Dig. §§ 797-827; Dec. Dig. <S==>122.]</p> <p>3. Towage <@=11 — Loss of Tow — Demurrage.</p> <p>A tug, which was herself partly in fault for the loss of her tow, is not entitled to demurrage for the time lost in attempting to save the tow.</p> <p>LEd. Note. — For other cases, see Towage, Cent. Dig. §§ 11-23; Dec. Dig. <§=>11.]</p>

<p>In Bankruptcy. In the matter of Thomas A. Kelley, bankrupt. On distribution of fund deposited in composition.</p>

<p>1. Gaming ©=>49 — Wagering Contracts — Purchases and Sales óf Cotton for Future Delivery — Validity of Contracts.</p> <p>Evidence considered, in an action by cotton brokers to recover advances by tliem in settlement of contracts made for defendant for the purchase and sale of cotton for future delivery on the New York Cotton Exchange, and held to show that it was understood by both parties that there was to be no actual delivery of cotton under such contracts, but that they were merely speculative or wagering contracts on the future price of cotton, intended to be settled by the receipt or payment of differences between the contract and market price; the evidence consisting of the undisputed testimony of defendant that he so stated to plaintiffs’ agent, who procured the business, before any of the transactions took place, supported by the correspondence between the parties, which, fairly construed, was consistent oidy with such understanding, and the further fact that, although there was a series of such contracts, no actual delivery was called for or made under any of them.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 100-102; Dec. Dig. @=>49.]</p> <p>2. Gaming ©=12 — Wagering Contracts — Validity of Contract — Dealing in Futures.</p> <p>Where there was a mutual understanding between cotton brokers and a customer that purchases and sales of cotton futures on margin made for the customer were purely speculative and wagering contracts, they are not validated by the fact that they were executed in accordance with the rules of the New York Cotton Exchange and in the form prescribed by snch rules, which called for an actual delivery of the cotton; it being also true that under the rules the contracts could be settled without delivery.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 22; Dec. Dig. ©=12.</p> <p>Sales or purchases under agreements for settlement of differences between contract price and market price as wagering contracts, see note to Ware v. Pearson, 98 C. C. A. 368.]</p>

Appeals from the District Court of the United States for the First Division of the Northern District of California; M. T. Dooling, Judge. . Suits in admiralty by Konstant' Latz and by Aslak Abrahamson against the American steamship Argyll, Union Steamship Company, claimant, and by the Gualala Steamship Company against the Union Steamship Company; Decrees for libelants, and claimant and respondent appeals.

Van Fleet, Judge. Woo Wai and others were convicted of conspiracy to bring into the United States Chinese persons, and they bring error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. This cause comes here from the United States District Court for the Southern District of New York, on petition to review an order dated December 22,1914, denying a motion in bankruptcy proceedings to compel certain creditors of the bankrupt to release an attaching lien.

<p>Corporations <©=>204 — Stockholders—Ricura to Sue in Name of Corporation.</p> <p>A stockholder cannot maintain an action at law in the name of the corporation to recover money damages or specific property, on. the refusal of the corporation to bring the action.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 783-790; Dec. Dig. <©=>204.]</p>

<p>1. Pilots —Licenses—’Revirow of Action of Inspectors.</p> <p>The courts are without jurisdiction, on appeal or writ of error, to review the findings of the steamboat inspectors on an application for a. pilot license, and the most they can do is to see that the inspectors act within their jurisdiction, and that the consliiutional and statutory rights of citizens are not impaired.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. §§ 5, 6; Dec. Dig.</p> <p>2. Pilots <3^>5 — Ramos of Board of Supervising Inspectors — Validity.</p> <p>Rule 7, § 46, of the Rules of the Board of Supervising inspectors, providing that an applicant for pilot license whose application has been refused shall not be re-examined within a year after the first examination, is not in violation of any statutory provision, and is reasonable and valid.</p> <p>[Ed. Note. — For other cases, see Pilots, Cent. Dig. §§ 5, 6; Dec. Dig. <3^5.]</p>

<p>Aliens <@^>69 — Oertiutcate— Issuance.</p> <p>Following the decision of the Circuit Court of Appeals in the Second Circuit, according to our usual practice, the decision of the Second Circuit in Yunghauss v. United States, 218 Fed. 168, 1.34 C. O. A. 07, is followed, and the decree of the District Court in this case of March 8, 1015, is affirmed.</p> <p>TEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 147-153; Dec. Dig. <@^>09.</p> <p>Decisions of courts as authority in other co-ordinate courts, see note to F. B. Vandegrift & Co. v. United States, 97 C. C. A. 472.]</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Proceedings for deportation of Ng Jin and of Ng Wun. From orders of deportation, affirmed by the District Court, defendants appeal.</p>

At Law. Action by Frank Lombardo against the Boston & Maine Railroad. On motion to remand the ca.use to the Supreme Court of the state of Lew York, county of Saratoga, from which court it was removed by the defendant.

<p>Bankruptcy <®=>161 — Rights Vesting in Trustee — Right to Accounting from Former Assignee.</p> <p>A voluntary bankrupt, a year before tbe filing of his petition, assigned the goods in his store to a trustee, who sold the same and paid tbe proceeds pro rata to tbe assignor’s creditors, except tbe shares of two, who- refused to accept them, and which were therefore returned to the assignor. Held that, while the assignment was neither valid as a general assignment under the laws of the estate nor enforceable, yet, haying' been fully executed by the assignee- in good faith more than four months prior to tile bankruptcy, he was not liable for any part of the money to the trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 261-263; Dee. Dig. <@=3161.]</p>

In Equity. Suit by Charles B. Hane, as -trustee in bankruptcy of Charles R. Hertzberg, a bankrupt, against the Crown & Keystone Company and others. On motion to vacate an injunction pendente lite and for a bill of particulars, etc.

<p>In Admiralty. Suit by a seaman for wages against the Dutch steamship Albergen.</p>

<p>3, Judges <@=>47 — Disqualification to Act — Construction of Statute— “Has Been of Counsel.”</p> <p>In Judicial Code (Act March 3, 1911, c. 231) § 20, 36 Stat. 1090 (Comp. St. 1913, § 987), which disqualifies a judge of a District Court to sit when he “is in any way concerned in interest in any suit pending therein or has been of counsel,” the phrase “has been of counsel” has reference to the particular suit before the court.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 214-219, 222, 223; Dec. Dig. <@=>47.] '</p> <p>2. Judges <@=47 — Disqualification to Act — Federal Judges.</p> <p>A federal judge, who was formerly local attorney for a railroad company in a certain county, his employment being restricted to that county, and who was afterward appointed District Judge, is not disqualified on account of such previous employment from presiding at the trial of a case against his former client, which originated and was brought in another county, and with which he had no connection.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 214-219, 222, 223; Dec. Dig. <@=>47.]</p>

<p>1. Removal of Causes <§=3 — Suits Removable — Action under Employers’ Liability a dt.</p> <p>Under Judicial Code (Act Marck 3, 1911, c. 231) § 28, 36 Stat. 1094 (Comp. St. 1913, § 1010), which, expressly provides that no case arising under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]), or any amendment thereto, brought in any state court of competent jurisdiction, shall be removed, such an action is not removable, notwithstanding the fact that diversity of citizenship exists and the requisite amount in controversy is involved.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. <@=»3J</p> <p>2, Commerce <®=>8 — Action for Injury to Servant — Law Governing.</p> <p>If the complaint in an action by an employé against 'a railroad company ■ states two causes of action, one under a state law and one under the federal Employers’ Liability Act, but also shows that at the time of the injury complained of both plaintiff and defendant were engaged in interstate commerce, the federal statute controls the liability and right of recovery.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <S=>8.]</p>

At Law. Action by Obadiah F. Armstrong and another, copartners trading as Armstrong & Demarest, against James M. H. Walters, trading as J. M. H. Walters. On motion and reasons for a new trial and motion in arrest of judgment.

<p>In Admiralty. Suit by Anderson Jackson and others against the steamer J. P. Schuh.</p>

<p>1. Contracts @=>212 — Time of Performance — When Time is Not Specified— “Reasonable Time:”</p> <p>When a contract specifies no time of performance, a reasonable time is implied, and what constitutes a “reasonable time” depends on tbe circumstances of tbe particular case.</p> <p>[Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 944-955; Dee. Dig. @=>212.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Reasonable Time.]</p> <p>2. Contracts @=>214 — Contracts fob Building Materials — Time for Payment.</p> <p>Where a written contract to furnish certain materials to a contractor for a building for a gross sum did not specify when such sum should be paid, it did not become due and payable until full performance of the contract by delivery and acceptance of the last of the material.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 989-995; Dec. Dig. @=>214.]</p> <p>3. Contracts @=>171 — “Entire Contract.”</p> <p>An “entire contract” is one the consideration of which is entire on both sides.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 754-757; Dec. Dig. @=>171.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Entire Contract.]</p> <p>4. Words and Phrases — “Debt.”</p> <p>A “debt” is a sum of money due by contract, express or implied, and it has accrued when it has ripened into a vested right, an available demand, or an existing cause of action.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases) First and Second Series, Debt.]</p>

<p>At Haw and in Equity. Action by G. S- Kimball against the Atlantic States Life Insurance Company, with ancillary proceedings in equity, in which a receiver of the company was appointed, and judgment rendered for plaintiff. On application of McElreath & Akerinan, attorneys of plaintiff, for compensation payable out of the fund in court.</p>

<p>X. Appeal and Error @=5 — -Mode oe Review — Daw Action Tried to Court.</p> <p>The judgment in an action at law in a federal court, although a jury is waived and the cause tried to the court, is reviewable only on writ of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. @=5J</p> <p>2. Removal oe Causes <@=>5 — Causes Removable — Action by State Receiver.</p> <p>An independent action by a receiver of a state court against a nonresident defendant to recover money alleged to be due the receivership estate is not ancillary to the suit in which the receiver was appointed, and is removable where the requisites for removal exist.</p> <p>[Ed. Note. — Por other cases, see Removal of Causes, Cent. Dig. §§ 21, 22; Dec. Dig. @=5.]</p> <p>8. Evidence @=>148 — Competency—Assumption oe E'acts in Issue.</p> <p>In an action hy the receiver for an elevator company against a corporation conducting a grain commission business in which the principal question at issue was whether certain speculative transactions conducted through defendant and on account of which it was given checks of the elevator company signed hy its secretary were those of the company or of the secretary personally, testimony of an officer of defendant in answer to questions by its counsel based on the assumption that the transactions were those of the elevator company, held incompetent, and other testimony of the witness as to his understanding held immaterial and irrevelant and erroneously admitted over plaintiff’s objections.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 438; Dec. Dig. @=>148.1</p> <p>4. Witnesses @=>142 — Competency—Persons Interested eor or Against Representatives oe Persons Deceased — Actions in Which Testimony is Excluded.</p> <p>In an action by the receiver for a corporation in whicli the principal question in issue was whether certain transactions were between the corporation and defendant or between its secretary individually and defendant, tlie fact that the secretary was dead at the time of trial did not render the testimony of an officer of the corporation as to the transactions incompetent under Code Civ. Proc. S. D. § 486, subd. 2, providing that in actions by or against executors or administrators neither party nor any person who has any interest adverse to the other party shall be allowed to testify against such party as to any transaction with the deceased; neither the witness nor the jiersonal representative of the deceased secretary being a party, and the estate of the latter being in no way involved.</p> <p>[Ed. Note. — Por other cases, see Witnesses, Cent Dig. §§ 580, 581; Dec. Dig. @=>142.]</p> <p>5. Evidence @=471 — Opinion Evidence — Conclusion oe Witness.</p> <p>Testimony of various witnesses held erroneously admitted on the ground that it stated merely the conclusions of the witnesses.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. @=471.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action at law by the National Bank of Commerce in St. Louis against E. B. Allen, United States Collector of Internal Revenue for the First District of Missouri. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the. United States for the District of South Dakota; J. D. Elliott, Judge.</p> <p>Suit in equity by the Northwestern Port Huron Company against Howard Babcock. Decree for defendant, and complainant appeals.</p>

T. Dooling, Judge. Petition for habeas corpus by Choy Gum, sometimes referred to as Lo King, against Samuel W. Backus, as Commissioner of Immigration at the Port of S'an Francisco. From a judgment dismissing the petition on sustaining a demurrer thereto, petitioner appeals.

E. Wolverton, Judge. Action by the Hamilton Trust Company against the Cornucopia Mines Company of Oregon and others, in which John E. Bisher, Jr., by John L. Bisher, his guardian ad litem, intervened. Erom a judgment in favor of the intervener, complainant and the defendants appeal.

Petition for Revision of Order of the District Court of the United States for the District ofi Oregon; Robert S. Bean, Judge. Petition by the Blake-McFall Company and others to have the Equal Rights Company, Incorporated, adjudged a bankrupt. On petition by R. L. Sabin for revision of an order denying a motion to dismiss the creditors’ third amended petition in bankruptcy.

This cause conies here upon appeal from a decree of the District Court, Eastern District of New York, adjudging that 45 shares of stock of the Arthe Levy Bernhard Company are the property of the estate in bankruptcy of defendant John C. Arthe, and directing that Lancaster, the record owner of the stock, execute and deliver to the trustee an assignment of said shares. The opinion of the District Judge will be found in 221 Led. 134.

<p>In Error to the District Court of the United States for the Northern District of Ohio; William R. Day, Judge.</p> <p>Action by Thomas Sweeney, executor of Thomas Finnerty, deceased, against the JBrownell Improvement Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by the Phœnix Knitting Works against Samuel Grushlaw, trading as the Pennsylvania Knitting Mills. From a decree denying him recovery of damages oh injunction bond, defendant appeals.</p>

Dietrich, Judge. Suit in equity by the Utah Implement-Vehicle Company against N. C. Mickelson, D. W. Standrod & Co., .a corporation, as trustee for the Idaho Lumber Company, and the George A. Lowe Company and others. Decree for complainant, and defendant trustee appeals. N. G. Mickelson, the owner of. certain real estate in the district of Idaho, during the summer of 1910 caused a building to be erected thereon.

This cause comes here upon appeal from a decision of the District Court, Eastern District of New York, reversing an order of deportation made by the United States commissioner. The opinion of the District Judge will be found in 214 Fed. 456.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from an order of the Dislric Court, Southern District of New York, affirming an order of the United States commissioner and ordering defendant’s deportation to China.</p>

Appeals from the District Court of the United States for the Eastern District of New York.

<p>Judgment <§=>585 — Conolusivicnkss—Matters Concluded.</p> <p>Plaintiff was employed to defend T., who was charged with murder. On August 8th, as claimed by him, T.’s mother, to induce him to extend credit to T., represented that gll disbursements theretofore made by her for the defense of T. were made in her own behalf, and not as loans to T., that she had agreed with T. to pay all sums necessary in his defense other than plaintiff’s charges, and that under his father's will T.’s income was subject only to, specified restrictions. Plaintiff sued the mother oil an alleged contract, made on August 8th, to make on her own behalf all disbursements necessary in the defense of T., other than payments to plaintiff, and the complaint was dismissed, on the ground that no breach of the contract pleaded was shown. Hold that, while this dismissal barred a new action for representations, subsequent to August 8th, that she was making all such disbursements as agreed, since plaintiff had elected to rely on the contract, and not upon her representations that she was performing it, the judgment did not bar an action for the representations as to existing conditions prior to August 8th, nor as to the availability of T.’s income to meet his own obligations.</p> <p>I Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 1002-1064, 1067, 1073, 1084, 1085, 1092-1095, 1132; Dec. Dig. <§=>585.</p> <p>Conclusiveness of judgment as dependent on theory of action or recovery, see note to Miller Iron Mining Co. v. M’Kinney, 96 C'. C. A. 163.]</p>

<p>In Error to the District Court of the United' States for the Eastern District of New York.</p> <p>On writ of error to review a judgment of conviction entered upon the verdict of a jury in the Eastern District of New York upon an indictment charging the defendant with counterfeiting and having in his possession counterfeit coin made to resemble silver coins of the United States. . . • .</p>

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

<p>In Error to the District Court of the United States for the Southern • District of New York.</p> <p>This cause comes, here on writ of error to review a judgment of the District Court, Southern District of New York, in favor of defendant in error who was defendant below. The action is on supersedeas bonds given by defendant on appeals taken by it to this court and to the Supreme Court in a suit in equity between the same parties, which suit was brought by the plaintiff herein, as trustee in bankruptcy of Lathrop Haskins & Co. to recover the possession of certain securities delivered by that firm to defendant, on the ground that the delivery constituted a voidable preference under the Bankruptcy Act.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree of the District Court, Southern District of New York, setting aside a sale of the entire stock of Israel Kruger, bankrupt, as null and void as against creditors, and adjudging defendants to pay $2,500 to the trustee as the value of the goods thus disposed of. The opinion of the District Judge will be found in 210 Fed. 202.</p>

1 and holding the tug Wellington solely at fault for the damages sustained by the libelant’s coal barge Governor Glynn. The collision which resulted in the injury to the Glynn occurred November 26, 1913, in the Harlem River opposite Kittle Hell Gate and near the New York shore, between the libelant’s coal boat in tow of the tug Harlem River No. 1, bound down, and the sand scow Whitehall, in tow of the tug Wellington, bound up.

<p>Collision <@=>153 — Meeting Tows in Canal — Fault.</p> <p>A finding by the trial court, on conflicting evidence, th at a collision between meeting tows in tbe Erie Canal was due solely to the fault of one in sheering to tbe. wrong side of the channel, affirmed.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 305-307, 311; Dec. Dig. <@=>153.</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John Englis, 100 C. C. A. 581.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree of the District Court of the United States for the Southern District of New York finding claim 3 of letters patent No. 958,484 granted to A. B. Evans and G. C. H.. Wiehmann valid and infringed.</p>

' Appeal from the District Court of the; United States for the Southern District of Iowa; Smith McPherson, Judge. Suit in equity by the Guaranty Trust Company of New York and another against the Bettendorf Axle Company. Decree for defendant, .and complainants appeal.

This cause comes here1 upon appeal from an order of the District Court, Southern District of New York, refusing a preliminary injunction to restrain alleged infringement of United States patent No.' 738,688 issued September 8, 1903, to Herbert Krantz for a floor box.

In Equity. Suit by Herbert L. Hildreth against A. Leopold Auerbach and another, for infringement of the Hildreth patent, No. 832,-384, and the Thibodeau patent, No. 857,770, for improvements in candy-pulling machines. Bill dismissed as to the Hildreth patent, and decree for complainant as to the Thibodeau patent.

<p>1. Habeas Corpus <®=»45 — Petition—Demurrer.</p> <p>Whether or not a formal demurrer will lie to a petition for a writ of habeas corpus, Rev. St. § 755 (Comp. St. 1913, § 1283), requires a federal court to refuse to issue the writ, if it appears from the petition itself that the petitioner is not entitled thereto.</p> <p>LEd. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <§=s45j</p> <p>2. Habeas Corpus <S^54 — Jurisdiction oe Federal Courts — Prisoners in Jail — Subjects of Foreign State — Law of Nations.</p> <p>Under the provision of Rev. St. § 753 (Comp. St. 1913, § 1281)_, that “the writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he, * * * being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color 1 hereof, the validity and effect whereof depend upon the law of nations,” a petition which does not show the domicile of petitioner does not bring him within the statute, nor do allegations that he is a lieutenant in the army of a foreign nation, of which he is a subject, and committed the acts charged to be violations of the criminal law of the United States, and for which he is held for trial, in connection with, Mid as a necessary part of, an attack upon the territory of a county with which his nation is at war, without alleging that such acts were authorized or commanded by his government, present any question dependent on the law of nations.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 51; Dec. Dig. <@=>54.]</p> <p>3. Habeas Corpus <©=>92 — Proceedings—Scope op Inquiry.</p> <p>Where an order is made by a judicial officer of one federal district, having authority to act, for the removal,,of a person arrested in that district to another, where he is charged with crime, and the order is regular on its face and was based on proceedings of which the court had jurisdiction, it will not be reviewed by the court in the latter district in habeas corpus proceedings.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 81, 83, 87-96; Dec. Dig. <©=>92.]</p>

<p>In Bankruptcy. In the matter of the McGowin Number Company, bankrupt. On review of order of referee allowing claim of J. O. Stewart & Co. as entitled to priority.</p>

<p>Shipping <@=>132, 141 — Liability for Damage to Cargo — Burden of Proof.</p> <p>A provision of a bill of lading exempting a ship from liability for damage to cargo from decay does not include decay due to negligence of the carrier, and where it is shown that the cargo was received in good condition, and delivered in a decayed condition, due to the action of sea water, the case is not brought within the exception, and the burden rests on the ship to show that the entry of the sea water was due to dangers of the sea or other cause excepted or for which it is not responsible.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487, 493, 497-499; Dec. Dig. <@=>132, 141.]</p>

Suit in admiralty by the Pacific Creosoting Company against the Thames & Mersey Marine Insurance Company, Limited. Decree for libelant, and respondent appeals.

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott,.Judge.</p> <p>Action at law by Denton Deo Belt against Stanley U. Clark. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Collision <@=>102 — Steamsíiips Meeting — Concurring Faults.</p> <p>A collision on the Detroit river on a calm and clear night, in an 800-foot channel, between two meeting steamships, held due to concurring faults on the part of both vessels; the up-bound vessel being in fault for failing to maintain a proper lookout at and after the time the passing agreement was made and for inattentive navigation thereafter, and the down-bound vessel also being in fault in that, although the master thought such passing dangerous and blew an alarm, he accepted the signal without alteration of Ms helm or reducing speed to bare steerageway, as required by rules 23 and 26 of the Navigation Buies for the Great Lakes (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649 [Comp. St. 1913, §§ 7933, 7936J).</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. <@=3102.</p> <p>Signals oí meeting vessels, see note to The New York, 30 O. C. A. 630.]</p> <p>2. Admiralty <@=>70 — -Pleading—-Variance.</p> <p>Under the liberal rules of practice prevailing' in the admiralty courts, the failure of a party to allege in his pleading a fact which proves material, where it was not designedly omitted, and where it was shown by evidence introduced without objection, will'not prevent its consideration by either the trial or appellate court.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 544-556; Dec. Dig. <S=»70.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Criminal prosecution by the United States against George L. Col-burn and M. G. Winegar. From a judgment of conviction, defendants bring error.</p>

Rudkin, Judge. Action for statutory penalties by the United States against the Oregon-Washington Railroad & Navigation Company. Judgment for plaintiff (213 Fed. 688), and defendant brings error.

The suit was brought to recover damages to 21 cases of raw silk, total weight of silk 3,319 pounds, shipped on a car of defendant’s railroad, which was knocked overboard in a collision due to causes for which defendant was liable. The sound market value of the goods was $6,273.20; after disaster they were sold for $2,831.39. The respondent has paid and libelant accepted $3,319 (and interest), which is SI per pound, without prejudice to the further rights of either party.

Action by Otto E. Sauter against the Columbia & Puget Sound Railroad Company. Judgment for plaintiff, and defendant brings error. The Columbia & Puget Sound Railroad Company is a local corporation of the state of Washington, and was, at the time of the happening of the accident about which inquiry is made, operating a steam railroad within the state, and engaged in interstate commerce.

<p>Petition for writ of mandamus by the Camden Iron Works Company and another directed to Hon. John E. Sater, District Judge for the Southern District of Ohio, to compel the approval and settlement of a bill of exceptions.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by Jesse Tharp, by F. N. Tharp, as next friend, against the Cincinnati, New Orleans & Texas Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

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

<p>1. Equity <2=114 — Pasties—Eight oe Intervention.</p> <p>The right of intervention does not necessarily follow from the absence of other remedy; but an intervener should have some interest in or claim to the demand in suit, or some connection with, interest in, or lien upon the subject-matter of the litigation.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 275-279; Dec. Dig. <2=114.]</p> <p>2. Mortgages <2=438 — Fobeclosube—Pasties—Intervention.</p> <p>One having an unliquidated demand against the complainants in a foreclosure suit in a federal court, who are nonresident aliens, is not, because of such fact, entitled to intervene in the suit for the purpose of litigating his claim and enforcing the same against the interest of complainants therein.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1289; Dec. Dig. <2=436.]</p> <p>3. Gouets <2=497 — -Pboi’Ebty in Custodia Legis.</p> <p>Mortgage bonds deposited in a federal court in a foreclosure suit are not subject to attachment or garnishment under process from a state court.</p> <p>[Ed. Note. — For other cases, see Courts, Gent. Dig. §§ 1386, 1397, 1398, 1404-1406; Dec. Dig. <2=497.]</p>

This cause comes here upon appeal from a decree in favor of libel-ants. The suit was brought to recover the value of one case of merchandise short delivered by respondent’s steamship. The value of the missing case was'over $500.

<p>Master and Servant <@=3116 — Master’s Liability for Injury to Servant— Defective “Scaffolding.”</p> <p>Labor Law N. X. (Consol. Laws, c. 31) § 18, which prohibits the furnishing for use of an employ® unsafe, improper, or unsuitable scaffolding, etc., not so constructed as to give proper protection to the life and limb of ■the workman, applies although the injured workman built or helped to build the defective structure, and a plank, supported between two girders of the bridge, upon which the workman lay when painting the under side of parts of the bridge, is a “scaffolding” within the meaning of the statute.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 207; Dee. Dig. <@=3116.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Scaffold.)</p>

<p>On Appeal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, • Judge.</p> <p>Suit in equity by Mary C. E. Morley and Fred Morley against R. C. Bell, Mary A. Bell, and the American Surety Company of New York. Decree for complainants, and defendants appeal.</p>

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>This cause comes here upon writ of error to review a judgment in favor of defendant in error who was plaintiff below. The action was brought to recover damages for the death of Salvatore Orsini, who was killed by being run over by a train on defendant’s railroad. The action was brought under the federal Employers’ Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]).</p>

<p>Bankruptcy <@=>440 — Review—Appeal or Revision as Proper Remedy.</p> <p>Bankr. Act July 1,1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608), gives the Circuit Courts of Appeals jurisdiction to superintend and revise in matters of law the proceedings of the bankruptcy courts. Section 25a (3) authorizes appeals from judgments allowing or rejecting debts or claims of $500 or more. Held that, where a claim of $3,500 was presented for allowance as a preferred claim, the claim of preference being based upon an attachment levy within four months before bankruptcy, a decree denying the claim of preference should have been reviewed by appeal, and not by petition to revise.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. <@=>440.</p> <p>Apneal and review in bankruptcy cases, see note to In re Eggert, 43 C. O. A. 9.]</p>

Bledsoe, Judge. Suit in equity by ¡V. Thompson against Thomas W. Pack, Stella Schuler, and Joseph K. 'Hutchinson. From an order granting a preliminary injunction, defendants appeal.

of the Southern District of California; Benjamin B. Bledsoe, Judge. Suit in equity by Cecil C. Carter against Thomas W. Pack, Stella Schuler, and Joseph K. Hutchinson. Prom an order denying a motion for vacation of a temporary restraining order, defendants appeal.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge.</p> <p>^ Suit in equity by E. Thompson against Thomas W. Pack, Stella Schuler, and Joseph K. Plutchinson. From an order granting a preliminary injunction, defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge.</p> <p>Suit in equity by E. Thompson against Thomas W. Pack, Stella Schuler, and Joseph K. Hutchinson. From an order denying a motion to dissolve a preliminary injunction, defendants appeal.</p>

<p>Mines and Minerals <§=>38 — Mining Claims — Proceedings to Forekit Interest of Co-owner — Injunction,</p> <p>A preliminary injunction held properly granted to restrain forfeiture of the interest of 'a part owner of mining claims, under liev. St. § 2324 (Comp. St. 1913, § 4620).</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 87%-113; Dec. Dig. <§=>38.]</p>

<p>Mines and Minerals <®=38 — Mining Claims — Proceedings to Forfeit Interest of Co-owner — Injunction.</p> <p>A preliminary injunction held properly granted to restrain forfeiture of the interest oí a part owner of mining claims, under Rev. St. § 2324 (Comp. St. 1913, § 4620).</p> <p>¡Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 8714-113; Dec. Dig. <$=>38.1</p>

<p>Bankruptcy @=>311 — Provable Debts — Bonds of Corporation.</p> <p>A provision in bonds of a bankrupt corporation that at maturity of the bonds, if after the corporation shall have paid its debts and 5 per cent, annual dividends on its stock, there shall remain a surplus, ,it shall be divided between the bondholders and stockholders, does not operate to defeat the right of bondholders to prove their-claims as general creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-500; Dec. Dig. @=311.]</p>

the District Court of the United States for the Southern District of New York. This cause comes here on appeal from a decree of the District Court, Southern District of New York, dismissing the bill. The suit was brought for infringement of United States patent No. 664,151, granted December 18, 1900 (application filed January 21, 1898), to Willis K. Hodgman for a mechanical movement.

States for the Southern District oí New York. This cause comes here upon cross-appeals from a decree of the District Court, Southern District of New York. The suit was brought for alleged infringement of two patents, both owned by complainant — No. 832,384, granted October 2, 1906, to complainant for a candy-pulling machine, and No. 857,770, granted June 25, 1907, to Charles Thibodeau, assignor, for a candy-pulling machine.

<p>In Bankruptcy. Proceedings against Samuel Pineman. On motion to dismiss the petition.</p>

<p>’ 1. Domicile <§=>10 — Evidence—Sotwioienoy.</p> <p>On motion to dismiss a voluntary petition in bankruptcy, evidence held, not to show that the bankrupt had established a domicile within the territorial jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. § 39; Dec. Dig. <§=>10.]</p> <p>2. Domicile <®=>4 — Requisites—Acts.</p> <p>Intention alone is not sufficient to establish a domicile, which is a man’s permanent home, as distinguished from transitory residences; but such intention must be supported by acts to become effective.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. §§ 5-23; Dec. Dig. <§=>4.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Domicile.]</p> <p>3. Domicile <§=>10 — Evidence,—Registration.</p> <p>Tiie acts of town authorities in registering a man as a voter and assessing a poll tax against him are evidence of his domicile, but are not judicial determinations, conclusively establishing his status.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. § 39; Dec. Dig. <§=>10.]</p>

In Bankruptcy. Proceedings against the E. & G. Theatre Company. On review of the referee’s rulings and findings. Report of referee confirmed, and adjudication ordered.

<p>1. Bankruptcy §=149- — Partnership-—Dissolution of Firm — Rights of Creditors.</p> <p>Where a firm is dissolved, and a partner sells his interest therein to the copartner, who is adjudged. „ a bankrupt, thfe firm creditors may, as against individual creditors, have the firm property applied in the first instance to-the payment of their debts in the settlement of the estate of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent, Dig. § 229; Dec. Dig. §=149.]</p> <p>2. Bankruptcy §=62 — Adjudication of Partnership as Bankrupt.</p> <p>A partnership cannot, after its dissolution and so long as there is a solvent former partner, be adjudicated a bankrupt, even under Bankr. Act July 1, 1898, e. 541, § 5a, 30 Stat. 547 (Comp. St. 1913, § 9589).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 57; Dec. Dig. §=62.] ’ t</p> <p>3. Bankruptcy §=84 — Involuntary Petition — Amendments—Allowance.</p> <p>A petition in involuntary bankruptcy against a firm and the partners may, on it appearing that the firm had been dissolved and that a partner had transferred Ms interest therein.to a copartner, be amended by striking out the firm and the partner, so that proceedings to adjudicate the copartner a bankrupt may be had, as against the objection of the partner having claims against the copartner coming into existence after the filing of the original petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig. §=84.]</p>

<p>1. Courts @=307 — United States Courts — Jurisdiction—Diversity op Citizenship.</p> <p>An unmarried man, having an office and lodgings in Boston, gave up his lodgings there and removed his personal effects to Providence, where he engaged lodgings, for the express purpose of obtaining a residence there, in order that he might sue a Massachusetts corporation in the federal courts, and with the intention of doing everything necessary for that purpose. He retained his office in Boston, and, though having no regular lodgings there, spent more nights in Boston than in Providence, and spent comparatively little timo in Providence. His work required him to travel a considerable part of his time, and he customarily registered as from Boston. He had Ms name taken off the -Boston voting list, and asked to have it placed on the Providence voting list, but learned that a personal application was necessary, which he did not make. He received all his mail at his Boston office, and paid therefrom the bills for his Providence lodgings. Held,, that while, had lie in fact changed his domicile, his reason for doing so would be immaterial, the facts showed that there was no actual change of domicile, and that he was still a resident of Massachusetts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 850-854; Dec. Dig. @=307.]</p> <p>2. Courts @=323 — United States Courts — Jurisdiction—Diversity oe Citizenship— Evidence.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 37, 36 Stat. 1098 (Comp. St. 1913, § 1019), provides that if, in any suit commenced in a District Court, it shall appear to the satisfaction of such court that such suit does not really and substantially involve a dispute or controversy properly within its jurisdiction, it shall dismiss the suit. In an action in which diversity of citizenship was the only ground of jurisdiction relied upon, a plea in abatement denying plaintiff’s claimed residence in another state was seasonably filed. Held that, assuming that the burden of proof is on the party denying jurisdiction, defendant was only required to establish such lack of jurisdiction by a fair preponderance of the evidence, and if a requested ruling that the burden was on defendant to convince the court to a legal certainty of its lack of jurisdiction required anything more than a fair preponderance of the evidence, it would not be given.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 885, 886; Dec. Dig. <&=3o23.]</p>

<p>In Bankruptcy. In the matter of the Simon Hotel Company, bankrupt. On petitions to review an order of the referee disallowing claims for liens for rent.</p>

<p>1. Bankruptcy <§=60 — Act of Baikbuhoy-Appointment by State Court of liisCEXVKE — Effect.</p> <p>Tile appointment by a Washington state court, under Rem. & Bal. Code, § 741, of a receiver of a corporation, is not, in the absence of testimony, a conclusive showing of the Insolvency of the corporation, within Bankr. Act, July 1, 1898, c. 541, § 1, subd. 15, 30 Stat. 544 (Comp. St. 1913, § 9585).</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. @=60.]</p> <p>2. Bankruptcy @=54 — Corporations—Unpaid Stock Subscriptions — “Assets.”</p> <p>Unpaid subscriptions of stock of a corporation are “assets” of the corporation, in determining whether it is insolvent, within Bankr. Act, § 1, subd. 15, where a stipulation has practically been effected whereby the subscribers would contribute any deficiency to satisfy claims, though there is testimony that the stockholders will contest liability.</p> <p>[Ed. Note.- — Por other eases, see Bankruptcy, Cent. Dig. §§ 54, 84, 85; Dec. Dig. @=54.}</p> <p>3. Bankruptcy @=20 — Rights of Creditors — Election of Remedies.</p> <p>Where a receiver of a corporation was appointed in a state court, the creditors could pursue their remedies in the state courts or proceed under the Bankruptcy Act; and where they induce acts or proceedings in the state court under the receivership, they could not subsequently remove the matter to the bankruptcy court.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. @=20.]</p> <p>4. Bankruptcy @=20 — Rights of Creditors — Election of Remedies i</p> <p>A state court appointed, after hearing, a receiver of a corporation. Soon thereafter claims of creditors were filed. Thereafter a' creditors’ committee was 'appointed to examine into the condition of the corporation and report to the creditors. The committee reported that it was for the best interests of the creditors that the state court should retain jurisdiction. Claims filed were passed on by the-receiver. Chattels of a corporation were sold by the receiver under order of court, with knowledge of the creditors’ committee. Held, that the creditors participating in the proceedings or acting as members of the committee could not maintain a petition in bankruptcy against the corporation.</p> <p>[Ed.-Note. — Por other cases, see Bankruptcy,_ Cent. Dig. § 23; Dec. Dig. @=20.}</p>

<p>1. Insubance <@=>435 — Indemnity Insubance — Liability.</p> <p>Defendant issued a policy insuring a trustee in bankruptcy carrying on the bankrupt’s business against loss from injuries to employes. The trustee, under an order of the court, sold the bankrupt’s property to purchasers, who, under the order, assumed the trustee’s liability to employés for injuries, and who convoyed the property to the G. Co. Between the confirmation of the sale and the delivery of title, while the business was being conducted at the purchaser’s risk, the policy was treated as subsisting. An employs recovered judgment against the trustee for injuries sustained while the trastee was operating the business, and the trustee paid such judgment with a voucher check of the G. Co. It being conceded that the policy insured against loss, and not against liability, defendant contended that the bankrupt estate had suffered no loss and that it was not liable. Held that, while the payment by the G. Co. could not be treated as a loan which the trustee was obligated to repay, and while it was immaterial that, if payment of such judgment had not otherwise been provided for, the creditors would have been required to refund a part of their dividends, the insurer was nevertheless liable, since the requirement that the purchaser assume the liability to employés would induce the bidder to reduce its bid, while, if the purchasers, relying on the indemnity, bid without deduction for the liability assumed, they suffered the loss, and were entitled to be subrogated to the rights of the estate.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig.- § 1144; Dec. ■Dig. <@=>435.]</p> <p>2. Insurance <@=>512 — Indemnity Insurance — Amount of Recovery.</p> <p>Under a policy insuring against loss on account of injuries to employés, the amount recoverable was limited to the face of the policy, with costs; paid by insured, and legal interest on such amounts from the date of payment; interest accruing pending .an • appeal in excess of the face of the policy not being recoverable.</p> <p>[Ed. Note. — F'or other eases, see Insurance, Dec. Dig. <§=>512.]</p>

<p>Conspiracy <@=^27, 48 — Criminal Offense — Statutory' Provisions — Overt</p> <p>Criminal Code (Act March 4, 1909, c. 321) § 37, 35 Stat 1096 (Comp. St. 1913, § 10201), providing that where two or more persons conspire to commit an offense against the United States, and one or more of them does any act to effect the object of the conspiracy, all parties thereto' shall be liable to punishment, modifies the common-law offense of conspiracy, which was complete when the unlawful conspiracy was formed, and provides that there must not only he an unlawful conspiracy, but an overt act; and an indictment alleging that defendants at Vancouver feloniously conspired to violate the White Slave Traffic Act, and that it was their purpose to feloniously transport, and aid and assist in obtaining transportation for, a female in foreign commerce from. Vancouver to Seattle, in the Northern division, of the Western district of Washington, for immoral purposes, in violation of the White Slave Traffic Act, and which sets forth overt acts done to effect the object of the conspiracy in such district, charges an offense within the jurisdiction of the court, notwithstanding Const. Amend. 6, declaring that all criminal prosecutions must be had in the district wherein the crime shall have been committed.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 38, 39, 79, 89, 84-99; Dec. Dig. @=»27, 43.]</p>

<p>At Law. Action by George A. Ross against the Western Land & Irrigation Company and another. On motion to quash service of summons and dismiss.</p>

<p>Bankruptcy @=>387 — Composition—Confirmation—Effect.</p> <p>Under Bankr. Act'July 1, 1898, e.. 541, § 12e, 30 Stat. 549 (Comp. St. 1913, § 9596),- providing that on the confirmation of a composition the consideration shall be distributed as the judge shall direct, and the case dismissed, and section 13, authorizing the judge, on application within 6 months after confirmation, to set the same aside and reinstate the case, *and section, 63b, providing for the liquidation of unliquidated claims against’ the bankrupt as the court shall direct, and section 57n, providing that claims liquidated by litigation within 30 days before or after one year after adjudication in bankruptcy shall be proved within 60 days after judgment, and section 70f, providing that on the confirmation of a composition the title to the bankrupt’s property shall revest in him, the confirmation of a composition not set aside nor challenged operates, under section 14c, as a discharge of the bankrupt from all debts other than those he has agreed to pay under the composition, and a judgment liquidating a claim rendered in a suit pending at the time of the filing of the petition in bankruptcy, not filed and proved within the statutory time, cannot thereafter be proved as against the bankrupt estate, and the bankrupt is, as against the judgment, entitled to a return of the bonds deposited as security for the payment of debts made a part of the composition confirmed by the court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 603-605, 607-616; Dec. Dig. @=>387.]</p>

In Bankruptcy. Proceeding against one Roellich. On motion to review an order of the referee denying the petitions of certain creditors for goods claimed to have been delivered to the bankrupt on consignment.

<p>1. Limitation of Actions <§=>169 — Actions for Injuries to Passengers — >• Applicability of Statute — “Cause of Action.”</p> <p>Where a Maryland railroad company, operating a railroad from Chicago to New York, sold in Chicago a ticket for carriage from Chicago to New York, and the passenger boarded the train at Chicago, and was injured by derailment of the train in Indiana, the law of Indiana governing limitation of actions was applicable to an action by the passenger, brought in a state court in Ohio and transferred to the federal court, for a cause of action within Rev. St. Ohio 1890, § 4990, declaring that, where by the laws of the state where the cause of action arose the action is barred, it is also barred in Ohio, comes into being only when a right possessed by one has been infringed by another.</p> <p>[Ed. Note, — For other cases, see Limitation of Actions, Cent Dig. § 655; Dec. Dig. <§=169.</p> <p>For other definitions, see Words and Phrases, First and Second Series,. Cause of Action.]</p> <p>2. Limitation of Actions <§=>31 — Actions fob Injuries to Person.</p> <p>Burns’ Ann. St. Ind. 1894, § 294, fixing two-year limitation for actions for injuries to person or character, cover’s causes of action involving injuries to the person, whether arising on contract or in tort, and includes an action for injuries to a passenger, whether recovery is sought on contract or in tort.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 142; Dec. Dig. <§=31J</p> <p>8. Evidence <§=>29 — Judicial Notice — Laws of States.</p> <p>The United States Circuit Court of Appeals takes judicial notice of the laws of a state.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. <§=>29. ]</p> <p>4. Evidence <§=5 — Judicial Notice — Facts of Common Knowledge.</p> <p>The United States Circuit Court of Appeals takes"judicial notice of the character and importance of the Baltimore & Ohio Railroad Company, and of the fact that it is a common carrier, and will presume that it does business in Indiana.</p> <p>[Ed. Note.- — For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. <3=5.1 "</p> <p>5. Carriers <§=312 — Injuries to Passengers — Right of Action — Jurisdiction.</p> <p>Under Bums’ Ann. St. Ind. 1894, §jj 312, 315, 318, authorizing an action against a railroad company for injury to a person on its railroad,, may be brought in any county into which the railroad passes, and summons served in any county, and providing that actions may be brought against a foreign corporation in any county within the state where any property, money, credits, or effects belonging tc? it may be found, and providing for the service of summons in actions against a foreign corporation, a passenger of a Maryland corporation, sustaining an injury by the derailment of the train of the corporation in Indiana, while running between Chicago and New York, may sue the corporation in Indiana.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. <§=312.]</p> <p>6. Limitation of Actions <@=>88 — Statutory Provisions — Nonresidence.</p> <p>A Maryland corporation, operating a road between Chicago and New York, through Indiana, and doing business in Indiana, is not a nonresident of Indiana, within Bums’ Ann. St. 189Í, § 298, providing that the period of absence shall not be computed in any of the periods of limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, -Cent. Dig. § 463; Dec. Dig. <@=>88.]</p>

<p>1. Courts <@=312 — Jurisdiction of Federal Courts — Suits by Assignees.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231)' § 24 (1), 36 Stat. 1091 (Comp. St. 1913, § 991), which provides that no District Court shall have cognizance of any suit (except upon foreign bills of exchange) to recover on a promissory note or other chose in action in favor of an assignee “unless such suit might have been prosecuted in such court to recover upon such note or other chose in action if no assignment had been made,” where the requisite diversity of citizenship exists between the parties to such a suit, jurisdiction depends on whether it could have been maintained in that court as between the original parties to the instrument, and the citizenship of intermediate assignees is immaterial.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 865-875; Dec. Dig. <§=312.]</p> <p>2. Trial <@=236 — Instructions—Facts Impeaching Party as Witness.</p> <p>Where a defendant in his verified answer explicitly denied allegations of the complaint which he admitted on the trial, among others the execution of the contract sued on, and defendant was a witness in his own behalf, it was hot error for the court in its charge to call the attention of the jury to such fact.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 531-533; Dec. Dig. <@=236.]</p> <p>3. Contracts <@=163 — Construction—Conflict Between Written and Printed Clauses.</p> <p>Where there are inconsistent provisions in a contract, one being written in, and the other part of a printed form, the written provisions (certainly in the absence of any proof of the contrary) will be assumed to express the intent of the parties.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 745; Dec. Dig. <@=163.]</p> <p>4. Sales <@=350 — Remedies of Seller — Action for Purchase Price.</p> <p>Plaintiff contracted to sell to defendant 1,500 boxes of prunes, to’ be shipped by water from California to New York. Payment was to be made by defendant 10 days after shipment, on presentation of draft with bill of lading, etc., attached. The parties knew that the prunes could not arrive inside of 3 weeks. Held that, under Sales of Goods Act (Laws N. Y. 1911, c. 571) § 144, subds. 1, 2, which provides that “where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract,” on defendant’s refusal to pay the draft when duly presented, plaintiff could maintain an action for the price, although it was named as consignee in the bill of lading and the title to the goods had therefore not passed.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 988-992; Dec. Dig. <@=350.]</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>Action by William W. Downey, receiver of the Stewart Vehicle Company, against the Hartford Fire Insurance Company of the City of Hartford, Conn. Judgment for plaimiíf, and defendant brings error.</p>

Ttíttle, Judge. Suit in admiralty by the Boston Insurance Company and others against the steamer R. E. Schuck, the Gilchrist Transportation Company claimant. Decree for libelants, and claimant appeals.

<p>Appeal from tlie District Court of the United S'tates for the Western Division of the Southern District of Ohio, in Bankruptcy; John E. Safer, Judge.</p> <p>Petition by Leopold Stern and another, partners doing business as Stern Bros. & Co., against Robert De V. Carroll, trustee in bankruptcy of the Herman Keck Manufacturing Company, for the allowance of a claim. From an order confirming the findings of the referee and directing the trustee to pay the claim, the trustee appeals.</p> <p>The Keck Company, an- Ohio corporation, was adjudged an involuntary bankrupt. The Duhme Company was also an Ohio corporation, and, for the purposes of the present controversy, it should be assumed that all of its capital stock, save qualifying shares, was owned by the Keck Company. Pending the adjudication in the matter of the Keck Company, creditors filed a petition alleging that the Duhnie Company “is in fact a mere department and adjunct of said Keck Manufacturing Company”; that the Duhme Company was operated as the retail department of the Keck Company, under common management; and that the merchandise of.the two companies was intermingled and confused. Thereupon the District Court in bankruptcy (then held by the late Judge Thompson) appointed a receiver for the Duhme Company, and he took possession of the assets. At a considerably later time, and when it was supposed that each of the corporations was insolvent in about the same degree, the District Court made an order that the receiver of the Duhme Company — who was also trustee in bankruptcy of the Keck Company — should “turn over to himself, as trustee in bankruptcy of the bankrupt herein,'all qf the property and assets, including cash now in his hands as such receivér, and that he keep an account thereof, separate and distinct from his account of the balance of the property of said bankrupt.” By a simultaneous opinion, the District Court directed that the bankruptcy trustee should receive these effects from the receiver, and, if there was any unsold property coming from that source, should convert it into cash, and that he should “apply the funds and the proceeds of property yet to be sold to the satisfaction of debts due those who dealt in good faith' with that company [the Dhhme Company].” ,</p> <p>Stem Bros, had been selling -goods for years to the Keck Company, and carried a ledger account of such sales. Later their salesman solicited orders from the store occupied by the Duhme Company, reported to Stern Bros, these orders as sales to the Duhme -Company, the goods were shipped to and received by the Duhme Company, and they or their proceeds or substitutes must be presumed to form part of the assets which went to the receiver. These transactions were entered in Stern Bros.’ order book and other primary records as if sales- to the Duhmé Company, but were posted in the ledger account of the Keck Company, with the identifying initial “D-.” One of Stern Bros, testifies that he understood the Keck Company had bought out the Duhme Company and was running it as a retail department, so he supposed there was a liability against the Keck Company. For the total of such later indebtedness, Stern Bros, accepted the Keck Company notes — upon which nothing was ever paid — and they also appeared as creditors of the Keck Company in negotiations, extensions, etc., which were had in the unsuccessful effort to avoid bankruptcy. It finally developed that the Duhme Company, considered separately, was-solvent, and claims which could be established against the proceeds of the Duhme stock could be paid in full. Stem Bros, then filed a petition to have their claim allowed as of this class, and an issue was made and a trial had before the referee. The parties and the referee seem to have regarded the controlling question to be, “To which company was credit given?” Balancing ail the facts, the referee found that Stern Bros, were creditors of the Duhme Company, not of the Keck Company. On petition for review, the District Judge, in a careful opinion, confirmed this conclusion and directed the trustee to pay the claim. The trustee appeals.</p>

Iu Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge. Criminal prosecution by the United States against Russell G. Belden and A. Eugene Wayland. Judgment of conviction, and defendants bring error. The indictment charges Russell 6.

In Error’to the District Court of the United Statens for the Southern. District of New York. This cause comes here on writ of error to the United States District Court for the Southern District of New York to review a judgment entered upon a verdict of guilt rendered July 7, 1914. The plaintiffs in error are hereinafter referred to as the defendants.

The defendant was indicted for having feloniously detained and delayed two- letters intrusted to his care as letter carrier.

C. Van Fleet, Judge. Action by the Trinity Gold Dredging & Hydraulic Company against Angele Beaudry, individually and as executrix of Frederic Beaudry, deceased. Judgment for defendant, and complainant appeals.

Action by A. J. Steinman against the Clinchfield Coal Corporation, in which the Clinchfield Coal Company petitioned to be made a party. There was a judgment for plaintiff against defendant, and a denial of the petition of the Clinchfield Coal Company, and it and defendant separately bring error.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge.</p> <p>Action by the United States against the Virginian Railway Company. Judgment for the United States, and defendant brings error.</p>

Rose, Judge. Suit by the Bellevue Mills Company and another against the Baltimore Trust Company, trustee and individually. From a decree for complainants (214 Fed. 817), defendant appeals.

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge.</p> <p>Action by Claude S. Jarvis against Robert Johnson and another. From a judgment for plaintiff (208 Fed. 353), defendants appeal.</p>

Sessions, Judge- Condemnation proceedings by the United States against the Pennsylvania Company. Judgment confirming the award made by the commissioners, and defendant brings error. This is a condemnation proceeding. The Pennsylvania Company owned 1,800 feet of frontage along navigable water in Grand river, just above its opening into Lake Michigan.

<p>1. Post Office <§=35 — Use of Mails in Aid of Scheme to Defraud — Elements of Offense.</p> <p>Under Criminal Code (Act March 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 19Í3, § 10385), providing that whoever, having devised any scheme or artifice to defraud, shall, for the purpose of executing such scheme or artifice, or attempting to do so, place or cause to he placed any letter, etc., in any post office, station, etc., shall be fined or imprisoned or both, the government is not bound to prove that an intention to use the mails was a part of the original scheme to defraud.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <§=35.]</p> <p>2. Indictment and Information <§=130 — Joinder of Counts — Statutory Provisions.</p> <p>Under Criminal Code, § 215, there is no restriction as to the number of counts an indictment may contain, or the period within which the separate offenses charged must have been committed, as was the case under Rev. St. § 5480, which provided that the indictment might severally charge offenses to the number of three when committed within the same six ■ calendar months.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 419-423; Dec. Dig. <§=130. ]</p> <p>3. Post Office <§=48 — Use of Mails in Aid of Scheme to Defraud — Sufficiency of Indictment.</p> <p>An indictment for using the mails in the execution of a scheme to defraud, which not only described the offense in the language of the statute, but accompanied such language with the statement of facts fully apprising defendants with what they had to meet, was sufficient.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <§=48.]</p> <p>.4. Criminal Law <§=372 — Evidence—Other Offenses.</p> <p>Defendants were charged with using the mails in aid of a scheme to defraud which embraced the listing of property with them for sale; the making of a deposit by the owner for advertising and services, to be deducted from the commission when sold; and an examination of the property by some person who would either express dissatisfaction or offer an unsatisfactory price, with the result that there would be no sale and no money returned. 3eld, that evidence of other transactions in the same business, and done in the same way, with the same result as the transactions charged in the indictment, was admissible to establish the intent to defraud and to show the system of doing business.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dee. Dig. <§=372.]</p> <p>5. Post Office <§=49 — Use of Mails in Aid of Scheme to Defraud — Questions for Jury.</p> <p>That defendants, after being arrested effected a sale through another broker of the property mentioned in one count of the indictment, was a fact for the jury’s consideration.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. <§=49.</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p> <p>6. Post Office -Use of Mails in Aid of Scheme to Defraud — Matters to be Proved.</p> <p>In tie absence of an express allegation in the indictment that the defendants intended to defraud every one who deposited money with them, the government was not bound to prove such an intent.</p> <p>[Ed. Note. — Dor other cases, see Post office, Cent. Dig. §§ 8R86; Dec. Dig. <S^49.]</p> <p>7. Criminal Law <§=>369 — Evidence—Dormer Acquittal in Another Court.</p> <p>On a trial for using the mails in aid of a scheme to defraud, proof of the unsuccessful prosecution of one of the defendants in a state court on complaint of one of those claimed to have been defrauded was not admissible, especially where no record proof was offered, as the prosecution was not for the same offense.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. (®=^3G9J</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a judgment in favor of defendant in error, who was plaintiff below. The action was brought under the New York Employers’ Liability Act (chapter 31 of Consolidated Laws, as' amended by chapter 352, Laws of 1910) to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence, in that its foreman ordered deceased' to get upon a hod hoist used in the construction of a building, which the foreman knew was an unsafe hoist for people to ride on, whereupon either through a defect in the hoist, or negligence of an engineer, or both, an accident resulted, causing injuries to intestate from which he died.</p>

This cause comes here upon appeal from an order affirming an order of a United States commissioner directing the deportation to China of the defendant, a Chinese person and a laborer, who was found to be unlawfully within the United States without the certificate required by the Chinese Exclusion Act of May 5, 1892, as amended by Act Nov. 3. 1893. -

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge.</p> <p>' Action by William J. Shelton against the Southern Cptton Oil Company. From an order dismissing the action on plaintiff’s motion, defendant brings error.</p>

' Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from an order dismissing a petition in bankruptcy filed March 12, 1914, against the alleged bankrupts, and denying a motion made by Valori and others, as intervening creditors, to confirm a report of the special master recommending an adjudication.

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Suit by the Fidelity Trust Company, trustee, against D. T. McKeithan Lumber Company and others. From decree (212 Fed. 229) for complainant and defendants J. M. Barr, W. R. Bonsai, and D. T. Mc-Keithan, defendant Lumber Company appeals.</p>

<p>Appeal from-the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by Myra J. Roberts against ida R. Roberts and another. From a decree for plaintiff, defendants appeal.</p>

<p>Bankruptcy <s=>482 — Attorney’s Fees — Allowance—.Statutory Provisions.</p> <p>Under Bankr. Act July 1, 1898, c. 511, § 72, added by Act Feb. 5, 1903, c. 487, § 18, 82 Stat. 800 (Comp. St. 1913, § 9656), providing that neither the referee, receiver, marshal, nor trustee in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized in Iho act, trustees in bankruptcy may not recover for legal services performed, for creditors petitioning for adjudication, or for the bankrupt, since one who accepts the position of trustee of a bankrupt’s estate renounces the right to compensation in any other form or guise, and all services rendered must be referred to his position as trastee, and they may recover only for services properly chargeable against the estate rendered prior to their appointment as trustees.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 874-876, 897;. Dec. Dig. <§=s>482.]</p>

This is an application for alternative mandamus directed to the District Judge, District of Connecticut, its object being to secure his allowance of an appeal to this court from an order of said District Court.

<p>Patents <®=»:í28 — Anticipation—1Typewriter.</p> <p>The Rose patent, No. 754,242, for a typewriter, claims 1 and 5, the distinguishing feature of which is the provision of means whereby the platen and its carriage may be folded into compact relation to the banks of keys, giving the machine a compact form for purposes of transportation, held void for anticipation by the device of the Carmona patent, No. 001,819.</p>

This cause comes here on an appeal from a final decree entered in the District Court of the United States for the Southern District of New York, which decree was entered on September 21, 1914, and dismissed the complainant’s bill. The complainant is a citizen of the United States and a resident of the borough of Manhattan, city and state of New York.

<p>1. Patents @=>328 — Validity and Infringement — Starch Glue.</p> <p>The Perkins reissue patent, No. 13,436 (original No. 1,020,655), arid, the Perkins patent, No. 1,020,656, each for a proces of making starch glue and the resulting product, were not anticipated by patents or processes in use in the paste-making art, disclose invention, and are valid; also1 held infringed.</p> <p>2. Patents @=>27 — Invention—Adaptation to New Use.</p> <p>If an inventor finds a chemical substance devoted to a particular use, conceives the idea of applying it to a new purpose, and on experiment discovers that the substance must be treated in a particular way to suit his purpose, which method of treatment is essential to his end, but of less importance in obtaining the prior art results, he may be a real inventor, even though he selects a specific treatment in an occupied field.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. @=>27.]</p>

<p>United States <&=>121 — “Claim Against the United States” — Ekattd— “Writing in Support op Any Claim.”</p> <p>A preliminary sworn application for the purchase of land under the Timber and Stone Act, conferring merely the privilege of purchasing land on compliance with the law and rules of the Land Department made in pursuance thereof, is not a “writing in support of, or in re- . lation to, any claim,” within Or. Code (Act March 4, 1909, c. 321, § 29, 35 Stat. 1094 [Oomp. St. 1913, § 10193]), punishing presentation of any writing in support of, or in relation to, any claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeit, since a claim, within the statute, is a demand of something from the United States on the ground of right, as the assertion of a right to the title, possession, or ownership of property, or the affirming of a debt, obligation, or the like, and to constitute the crime there must be such an account claim existing or pending, and the false writing must be presented in support of, or in relation thereto.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 109; Dec. Dig. <®=5>121.</p> <p>For other definitions, see Words and Mirases, First and Second Series, Claim.]</p>

<p>1. Aliens <@=23 — Chinese—Depobtation.</p> <p>A Chinese student, entering the United States under treaty with China providing that Chinese students shall be permitted to enter with the rights, privileges, immunities, and exemptions accorded to citizens and subjects of the most favored nation, may not be deported because he has become a laborer, and has no Chinese laborer’s certificate of residence, notwithstanding the rules adopted by the Secretary of Labor, under Chinese Exclusion Act Sept. 13, 1888, c. 1015, § 8, 25 Stat. 478 (Comp. St. 1913, § 4309), providing for the exclusion of a Chinese student who has completed his studies, and who has not been granted the privilege of remaining and following some exempt occupation, for the Chinese Exclusion Act, providing for identification and admission of Chinese students, does not supersede the treaty.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 76 00; Dec. Dig. <@=>23.j</p> <p>2. Aliens <@=>28 — Chinese Labobebs — Certificate oe Residence — Applicability op Statute.</p> <p>Act Nov. 3, 1893, c. 14, 28 Stat. 7, providing that a Chinese laborer found in the United States without a laborer’s certificate shall be deported on failure to obtain a certificate within a certain time after the passage of the act, does not apply to a Chinese student entering the country long subsequent to the act, and he may not be deported on his becoming a laborer, though not obtaining a laborer’s certificate of residence.</p> <p>I Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 88-90; Dec. Dig. <@=>28.]</p>

<p>Application of George A. Fleury to become a citizen of the United States.</p>

<p>' At Raw. Action by the United States, to the use of Frank Miller and others, creditors of Edmund H. Mitchell ánd another, doing business as Mitchell & Co., against Edmund H. Mitchell and Henry T. Mitchell, doing business as Mitchell & Co., and another.’ On motion to vacate decree.</p>

<p>1. Trade-Marks and Trade-Names @=>73 — Unfair Competition — Use, of Names.</p> <p>The Ford Motor Company is entitled to enjoin a dealer in auto parts adapted for use on its automobiles, but not manufactured by it, from advertising them as Ford articles and issuing a publication entitled “Fordealer,” thus indicating dealings in articles of Ford manufacture, since, while such dealer has a right to inform the public that he is manufacturing articles suitable for use on such machines, in common acceptation the word “Ford” indicates articles manufactured by such company.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 84; Dec. Dig. @=>73.]</p> <p>2. Trademarks and Trade-Names @=>87 — Unfair Competition — Laches or ' Acquiescence.</p> <p>Even though such company had some knowledge of defendant’s description of his articles as Ford articles, mere nonaction or the ignoring of a few violations of its rights could not deprive it of the right to stop such unauthorized use of its name when it became of considerable magnitude, nor confer upon defendant any right to put forth his goods with a misrepresentation as to their manufacture.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 96; Dec. Dig. <&=>87.]</p>

<p>Aliens <3==>82 — Expulsion—Deportation op Chinese — Evidence.</p> <p>Evidence held to sustain a finding that a Chinese was not entitled to remain in the United States on the ground of citizenship.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <S=>32.]</p>

At Law. Action by Edgar A. Emens, as executor of the last will of Martha E. Emens, deceased, against the Lehigh Valley Railroad Company. .On motion by defendant to set aside verdict and for new trial.

Habeas corpus proceeding by Chin Toy You to secure a discharge from custody on a warrant for deportation as an alien unlawfully within the United States. On hearing on the agreed statement of facts. Petitioner found not to- have had a fair hearing before the immigration authorities, and final action in habeas corpus proceeding delayed for 30 days to afford opportunity to give the petitioner such hearing.

<p>In Admiralty. Suit by the American Import Company and others against the British steamer Skipton Castle.</p>

<p>At Law. Action by Charles Nickerson against the Warren City Tank & Boiler Company. On motion to set aside service of writ.</p>

<p>1. Copyrights ©=»48 — License Agreement for Use of Copyrighted Works— Construction — “Musical Composition.”</p> <p>A license agreement, which recites-that plaintiff is the owner of a copyrighted musical composition, that defendant desires to secure the privilege of using it in the manufacture of its music rolls, and which declares that plaintiff gives to defendant the privilege to use the copyrighted musical composition in the manufacture of its sound records in any form, and consents to extending the original copyright to the instruments serving to reproduce mechanically the musical work, does not permit defendant to print, and distribute without additional charg-e, on separate sheets of paper, the words of the composition in the boxes containing the rolls, though the words and music were not copyrighted separately ; the words “musical composition” having a more limited meaning in the license agreement than in the copyright statute, where the expression means both words and music.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 46; Dec. Dig. <S=»18.</p> <p>For other definitions, see Words and Phrases, Second Series, Musical Composition.]</p> <p>2. Copyrights <g=»75 — Infringement—Defenses.</p> <p>Copyright Act March 4, 1909, c. 820, § 1, 35 Stat. 1076 (Comp. St. 1913, § 9519), giving any person entitled thereto, on complying with the act, the exclusive right to print, reprint, publish, copy, and vend a copyrighted work, to perform the copyrighted work publicly for profit, and requiring a copyright owner using the musical composition himself for the maintenance of parts of instruments serving to reproduce mechanically the musical work, or licensing others to do so, to file notice thereof, and providing that any failure to file notice shall bo a defense to any suit for any infringement of such copyright, does not prevent an owner of a copyrighted musical composition to maintain an action for protection of his exclusive right to print, reprint, publish, copy, and vend the copyrighted work, merely because he has licensed others to use the copyrighted work on parts of instruments serving to reproduce mechanically the musical work and has failed to file a notice thereof.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 65; Dec. Dig. <S=»7o.]</p> <p>3. Copyrights <S=>87 — Infringement—Damages.</p> <p>Where a licensee of the right to ase a copyrighted musical composition in the manufacture of sound records infringed the copyright by distribuUng free with the perforated rolls copies of the words of the composition, but discontinued the practice almost immediately after it was begun, and he realized no profits from the practice, nor damaged the licensor, tlie court, in a suit for infringement, would only allow nominal damages, under Copyright Act 1909, § 25.</p> <p>pld. Note. — For other cases, see Copyrights, Cent Dig. § 81; Dee. Dig. <S=>87.]</p> <p>4. Copyrights <©==>90 — Infringement—Costs.</p> <p>A defendant, unsuccessful In a suit against him for infringement of a copyright, is liable to reasonable counsel fees, awarded to plaintiff as provided by Copyright Act 1909, § 40.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 85; Dec. Dig. <@=>90.]</p>

<p>In the matter of J. Herbert Waite and another, individually and as copartners trading as John Turnbull, Jr., & Co., bankrupts. On objections to the bankrupts’ discharge.</p>

<p>1. Bemoval of Causes <@=>49 — Bight to Bemove, — Separable Controversy— “All.”</p> <p>Pierce’s Code Wash. 1912, tit. 81, §§ 217, 259, abolish common-law forms of pleading and provide that, for the purpose of determining the effect of a pleading, its allegations shall be liberally construed. In an action against a railway company, its engineer, and the operators of an automobile, struck by a railroad train, for the death of a person riding in the automobile, the complaint alleged that the railroad company was negligent in not maintaining warning signals at the crossing a»nd in not keeping its right of way clear, that the engineer and the railroad company ran the train at a negligent and unsafe speed and gave no warning or signal of its approach, and after the automobile was upon the crossing negligently failed to stop the train and negligently ran into the automobile, that the driver of - the automobile negligently failed to stop Defore crossing the railroad, and that “by reason of all of said negligent acts” deceased was killed. Held, that this sufficiently charged joint and concurrent negligence on the part of the several defendants to prevent the removal of the caiise by the railway company on the ground that a separable controversy was involved as to it, since the word “all” is very comprehensive in its meaning, and was used in the complaint as meaning altogether or conjointly, especially as in Washington such a tort is joint, not only as between the master and servant, through whose negligence the master is charged, but in those cases where the master is also further charged as negligent in other respects.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. 88 95-99; Dec. Dig. @=>49.</p> <p>For other definitions, see Words and All.] Phrases, First and Second Series,</p> <p>2. Courts @=>347 — Separable Controversy — State Daws As Rules of Dev CISION.</p> <p>In determining whether an action involves a separable controversy, the federal courts will follow the state rule as to whether a cause of action is entire.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dee. Dig. @=>347.]</p> <p>3. Removal of Causes @=>48 — Right to Remove — Separable Controversy-Effect of Recovery.</p> <p>To constitute a nonseparable controversy in an action in which defendants are charged with joint and concurrent negligence, it is not necessary that a recovery be had on the trial against all those charged with such joint negligence.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 93, 94; Dee. Dig. @=>48.]</p>

<p>1. Copyrights <@=>60 — Infringement—Other “Version” of Copyrighted Book.</p> <p>Sheets of memoranda, prepared for and used in the tutoring of students in the subject-matter of a copyrighted text-book, which are given or lent to each student, and contain, besides occasional quotations of words and sentences from the book, a reproduction, so far as is possible in an abridged and paraphrased form, of the author’s treatment of the subject, are an infringement, under Copyright Act March 4, 1909, c. 320, § 1, 35 Stat. 1075 (Comp. St. 1913, § 9517), which gives the Owner the exclusive right to “make any other version” of the copyright work.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 56; Dec. Dig. <@=>60.]</p> <p>2. Copyrights <@=>55 — Infringement—Printing.</p> <p>Typewriting or mimeographing constitutes a “printing,” within the meaning of the copyright statutes.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 52; Dee. Dig. <@=>55.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Print.]</p> <p>3. Copyrights <@=>55 — ‘Infringement—“Publication.”</p> <p>It is not nedessary, in order to constitute a “publication” of a work in infringement, of a copyright, that copies should be offered in the market to ail who choose to buy; but there may be such publication, which will entitle the owner of the copyright to an injunction, although the number of persons to whom copies are delivered is limited, and their rights to the copies also limited by agreement with them.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent Dig. § 52; Dec. Dig. <@=>55.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Publication.]</p> <p>4. Copyrights <@=>86 — Suit for Infringement — Injunction.</p> <p>Proof of actual damages is not necessary to warrant the granting of an injunction to restrain infringement of a copyright, if infringement appears and damages may probably follow from its continuance.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 79, 80; Dec. Dig. <§=>86.] ,</p>

<p>1. Courts <@=>493 — Conflicting Jurisdiction — Priority of Jurisdiction.</p> <p>Tbe pendency in the state courts of suits involving the validity' of a state statute, under tbe federal Constitution, does not oust a federal cburt of jurisdiction of causes subsequently brought between tbe same or other parties involving tbe decision of the same question, nor afford any reason for declining to assume jurisdiction, as to make the res in two, causes identical, and exclude the jurisdiction of all co-ordinate courts other than that first obtaining jurisdiction, it is not sufficient that similar questions be involved in the two cases.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 1346-1352; Dec. Dig. <@=>493.]</p> <p>2. Courts <@=>493 — Conflicting Jurisdiction — Priority of Jurisdiction.</p> <p>The R. Co. and other nonresident liquor dealers sued in the Alabama state courts to enjoin an express company from refusing to receive shipments of intoxicatingi liquors pursuant to a state statute claimed to be unconstitutional, but the R. Co. was subsequently stricken from the plaintiffs in such suit. The Attorney General brought suit in the name of the state against the express company and such liquor dealers to restrain such dealers from prosecuting their suit and other suits, and from delivering to the express company and the express company from receiving such liquors for transportation, and obtained an ex parte temporary injunction. The R. Co. then sued in the federal court and sought an injunction restraining the express company from refusing such shipments. It did not appear that the express company was acting in collusion with the state, or that it was acting .dilatorily in the litigation in the state court. Held that, to avoid a clash between the state and federal courts, and the injustice resulting from placing the express company in a position of enforced disobedience to the orders of one of the courts, the injunction should be denied, notwithstanding the probable loss ol business to the 11. Co., pending a final hearing in the state court, since, though it was doubtful whether that court had jurisdiction over the nonresident liquor dealers, so long as it retained and was exercising jurisdiction, a co-ordinnte court could not treat Its proceedings as coram non judiee, and, moreover, it had undoubted jurisdiction to enjoin the express company from receiving such shipments.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1346-1352; Dec. Dig. <3=»d93.]</p>

<p>In Bankruptcy. In the matter of Max M. Levenson, alleged bankrupt. Objection to- offer of composition sustained, and withdrawal of objection refused.</p>

Action by Charles A. Moore against the Clymer-Jones Lithograph Company. On exceptions to report of special master surcharging the receiver for the payment of a claim.

<p>1. Bankruptcy <§=345 — Bankruptcy op Tenant — Lien op Landlord — Priority as Against Claim op General Creditors.</p> <p>A lien of a landlord exists from tbe beginning of tbe tenancy, enforceable by a ministerial act of proper officer, and is superior to tbe claim of general creditors of tbe tenant, adjudged a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy,- Cent. Dig. §§ 531, 532, 534, 539, 540; Dec. Dig. <§=345.]</p> <p>2. Bankruptcy <§=191 — Claims—Priority.</p> <p>Under Bankr. Act July 1, 189S, c. 541, § 47, cl. 2,30 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), giving to trustees in bankruptcy, as to all property coming into the custody of tbe court, tbe rights, remedies, and powers of a creditor bolding a lien by legal or equitable proceedings; a trustee in bankruptcy of a tenant has a judgment lien superior to any claim of the landlord, entitled under Civ. Code Ga. 1010, § 3340, to a special lien on crops and a general lien on the property of the debtor liable to levy and sale, which general lien dates from the time of the levy of distress warrant to enforce the same, where the landlord did not take out a distress warrant until after bankruptcy.</p> <p>I'Ed. Note. — Por other cases, see Bankruptcy, Gent. Dig. |§ 280, 287, 290, 351; Dec. Dig. ®=»19i.'j</p>

Action by the Buckeye Powder Company against the F. I. Du Pont de Nemours Powder Company and others. There was a judgment for defendants, and plaintiff brings error.

This cause comes here on writ of error to the United States District Court for the Western District of New York to review a judgment entered in that court, on, June 15, 1914, upon the direction of a verdict by the court in favor of the defendant and against the plaintiff upon the merits and for the sum of $106.41 costs. The plaintiff first brought her action in the proper court of the state of New York.

This cause comes here on writ of error to the United States District Court for1 the Southern District of New York on a judgment entered on a verdict in the said court on December 23, 1914, in favor of plaintiff and against defendant.

This cause comes here upon writ of error to review judgment of conviction of the plaintiffs in error upon an indictment charging them and several others with conspiracy and with devising a scheme to defraud and using the mails in furtherance thereof. Sections 37 and 215, Criminal Code.

This cause comes here on an appeal from an order entered on the 19th day of August, 1914, dismissing intervening petitions to recover from the trustee in bankruptcy certain stocks, bonds and other property.

Defendants were tried under two indictments. The first contained 8 counts.

<p>1. Courts <©=>375 — Limitation op Actions <©=>11 — Actions bt United States.</p> <p>An action by the United States against a corporation to recover dividends which have been declared by defendant on stock owned by plaintiff is not brought as a stockholder, but as a creditor, and such action cannot be barred by a state statute of limitation.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 983; Dec. Dig. <©=>375; Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. <©=>11.)</p> <p>2. United States <3=>141 — Actions by to Recover Debt — Presumption of Payment from Lapse of Time.</p> <p>Xlie presumption of payment from lapse of time, unlike limitation o£ ad ions, is not a matter of affirmative defense, but arises usually from plaimiifs own ease. It is a question of the sufficiency of evidence to establish a cause of action. If plaintiff’s evidence shows that 20 years have elapsed since the indebtedness accrued, the presumption of payment inmiediafelj arises, and he cannot recover unless he goes further and repels such presumption by evidence; and this rule applies as well to an action by the United States to recover a debt as to one by a private individual.</p> <p>[lid. Note. — For other cases, see United States, Cent. Dig. §§ 336-139; Dec. Dig. <®=»1UJ</p>

<p>1. Landt.obd and Tenant <S^>159 — Damages fob Bbeacii of Gbound Lease— Title of Lessob. ' ,</p> <p>A ground lease for 97 years required the lessee to erect a building during the first year, and to secure such agreement he gave a surety Rond. He failed to erect the building, and after two years the lessor terminated the lease under its terms for default in the payment of rent Held, that the measure of damages for which the surety was liable for failure of the lessee to erect the building was not different because the lessor was himself a lessee for 99 years, and not owner of the fee.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 573, 608, 611; Dec. Dig. <§=>159.] ,</p> <p>2. Landlord and Tenant <§=>111 — Rent—Duty of Landlord on Default.</p> <p>A landlord is under no obligation to a tenant or to his surety to declare a forfeiture of the lease and re-enter on a default in the payment of rent, at least unless the facts indicate that the tenant has abandoned the lease. •</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. g 336; Dee. Dig. <§=>111.]</p> <p>3. Landlord and Tenant <§=>199% — Action for Rent — Defenses.</p> <p>That there was an outstanding lease having a short time to run on property leased for 97 years is not a defense to an action for rent against the surety < for the second lessee, where it is not shown that the first lessee was in possession or claimed the right of possession, and the second lessee paid the rent for the time covered by the first lease without objection.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 761; Dec. Dig. <§=^199%.]</p> <p>4. Words and- Phrases — “Lot.”</p> <p>The word “lot,” as used in building ordinances, held, to mean a parcel of land which, whether covering more or less than a platted lot, is purchased or .leased and then occupied as one parcel for building purposes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lot.]</p> <p>5. Evidence <§=>437 — Parol Evidence to Add to Lease.</p> <p>The fact that prior to the execution of a long term lease of city property, which required the lessee to erect a building of designated dimen-, sions and material, the lessee had contemplated building a hotel on the property, which was known to the lessor, does not render parol, evidence admissible to invalidate the lease by showing that the building described therein was to be a hotel, and that as suclvit would be in violation of then existing building ordinances, where the use to be made of the building was not stated in the lease, but it was expressly provided that in its erection the lessee.should .comply with all laws and ordinances, and especially where there is no evidence that the ordinances had in .'fact interfered with the erection of the agreed building.</p> <p>[Ed. Note.- — 'For other cases, see Evidence, Cent. Dig. §§ 2025-2029; Dec. Dig. <§=>437.]</p> <p>6. Contracts <§=>141 — Excuses for Nonperformance — Illegality.</p> <p>■ One who refuses to perform a contract on the ground that it ig illegal must carry the burden of showing the illegality, and it is not sufficient to create confusion and suggest doubts as to its legalits'.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 461, 1760, 1761, 1785; Dec. Dig. <§=>141.]</p>

<p>1. Criminal Law ©=>586 — Continuance—Discretion—Review.,</p> <p>A motion l'or a continuance is addressed to the discretion of the trial court, and its action is not subject to review, unless such discretion is abused.</p> <p>LEd. Note. — For other cases, see Criminal Daw, Cent. Dig. § 1311; Dec. Dig. ©=>586.]</p> <p>2. Criminal Law ©*»598--Continuance — Absence of Witnesses — Diligence.</p> <p>Defendant, residing in the Southern district of West Virginia, was indicted at Clarksburg in the Northern district on October 9th. On October 28th, he appeared before a commissioner of the Southern district and gave bond lor his appearance in the Northern district on the first day of the next regular term; the recognizance not naming the place at which the court was to be held. On November 5th, without his knowledge or consent, the case was transferred to Philippi, where it was docketed on November 11th, and called for trial the following day. On the day the case was docketed he secured process for witnesses, and when the case was called for trial moved for a continuance because of their absence. Such witnesses were in different states and traveling from one place to another, and their testimony was material, //eld, that the refusal of a continuance, because due diligence to procure the attendance of the witnesses had not been used, was erroneous.</p> <p>TEd. Note. — For oilier cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. ©=>598.1</p> <p>3. Criminal Law ©=G19 — Trial—Adjournment—Absence, of Witnesses.</p> <p>Where defendant was forced into trial over his protest, after he had filed an affidavit as to the materiality of absent witnesses, the impossibility of securing them, the exercise of duo diligence on his part, and his inability to prove'the facts by any other witnesses, the request of his counsel, at the close of the government’s case, that the trial be prolonged until the next day to enable him to procure the presence of two witnesses, whose presence he believed he would be able to secure, should have been granted, and it was prejudicial error to deny his motion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1512-1515; Dec. Dig. ©=>649.]</p>

Bean, Judge. Action at law by the Snake River Valley Railroad Company against M. A. Miller, Collector of Internal Revenue for the District of Oregon, and David M. Dunne,_ ex-Collcctor. Judgment for plaintiff, and defendants bring error.

<p>1. Street Railroads <§=>117 — Injury in Collision at Crossing — Action— Questions for Jurít.</p> <p>In an action against a street railroad company to recover for injuries-sustained in a collision at a street crossing between a street car and an automobile in which plaintiffs were riding, where the evidence as to the speed of both the car and the automobile was directly in conflict, the question of negligence and contributory negligence ■ held properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. <@=>117.]</p> <p>2. Negligence <§=H21 — Actions—Presumptions and Burden of Proof.</p> <p>In an action for personal injury, even though negligence of the defendant is shown, there is no presumption that such negligence was the proximate cause of the injury; but the burden in all eases rests on plaintiff to establish such fact by evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-220, 224— 228, 271; Dec. Dig. <@=>121.]</p> <p>3. Appeal and Error <@=>1064 — Review—Instructions—Harmless Error.</p> <p>In an action against a street railroad company to recover for an injury received by plaintiffs while riding in an automobile in‘a collision with a car of defendant at a street crossing, the charge of the court, while containing erroneous statements of the law, held not prejudicial to defendant in view of the evidence in the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <§=>1064.]</p>

In the matter of the National Boat & Engine Company, bankrupt; Walter I. Woodman, trustee. From orders disallowing claims of William _W. Butterfield and others (216 Fed. 208), claimants appeal, and petition to revise.

Appeals from the District Court of the Uniicd States for the Western District of Micliig; '; Clarence W. Sessions, Judge. Suit by the Central Trust Company and another against the Steams Lighting & Power Company, William L. Hammond, trastee, and others. Prom a decree for complainants, the defendants named appeal. The appellants were two of the defendants below; the appellees were complainants.

<p>1. Sales <@=382 — Breach ov Contract — Actions—Evidence—Admissibility.</p> <p>In an action for breach of contract to buy flour, there was evidence that the buyer called for shipments for a while, and then countermanded its order because the flour was not satisfactory to its customers. The buyer introduced evidence that during the running of the contract the flour was not good, that a short time before the contract the seller changed its millers and employed new men, and changed the grade and quality of the wheat used, aud that the buyer received many complaints from its retail customers as to the flour. JleM, that evidence in rebuttal that during the running of the contract only the buyer complained of the quality of the flour furnished, though, in the same immediate section of the country, the seller sold as much as 38,000 barrels of tile samo quality and kind, was admissible to show that there had been no deterioration in the flour, either by the change of employes or of the quality of the wheat used, and to throw light on whether a decline in the price of flour might not have influenced the buyer in countoimanding its order.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1096; Doc. Dig. <3= 382.J</p> <p>2. Sales <@=119, 425 — Contracts—Remedy oe Buyer.</p> <p>A buyer of 5,000 barrels of flour in bulk, who accepted and paid for 1,650 barrels, 1,035 whereof were received after alleged complaints from retail customers as to the quality of the flour, and after complaints had ceased and the buyer had made inquiries as to other purchases of flour, could not rescind the contract because of alleged defect in the quality of some of the flour furnished; but his remedy, if any, was by way of offset or recoupment from the price, or by suit for broach of contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 293, 1207, 1208; Dec. Dig. <@=119, 425.]</p> <p>3. Sales <@=260, 262% — Contracts—Construction—'Warranty.</p> <p>A seller of flour specified as “White Satin Flour” to a buyer for resale under its trade brand of “Royal Blue,” in its own sacks so stamped, did not expressly or impliedly warrant that the White Satin flour should be satisfactory to the buyer’s customers.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 719-726, 740-748: Dec. Dig. <@=260, 262%.]</p> <p>4. Sales <@=14 6 — Contracts—Breach—Actions—Evidence—Instructions.</p> <p>An instruction, in an action for breach of contract to buy flour for resale, relating to an implied warranty of the seller, in the absence of am inspection by the buyer, that the flour was salable and merchantable, and, when found not to be, that the buyer could rescind, was properly refused for failing to consider that the alleged defect in quality consisted, not in the flour measuring up to the grade specified in the contract, but because it did not meet the demands of the buyer’s customers under its trade-name, and failed to recognize that the seller’s liability was measured by what it contracted to furnish, and not by the demands of the buyer’s customers.</p> <p>TEd. Note. — For other cases, see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. <@=446.]</p> <p>5. Trial <©=>260 — Instructions — Refusal of Instructions Covered by Charge Given.</p> <p>It is not error to refuse instructions covered by instructions given, which fully and fairly submit the ease as favorably as the party requesting instructions could ask.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <©=>260.]</p>

<p>1. Birrs and Notes ©=3341. — Bona Fide Purchasers — Facts Putting upon Inquiry.</p> <p>A newly organized railway company entered into a construction contract, agreeing toi advance to the contractor for engineering1 work 85,000, and the contractor ag-reed to procure for Ihe railway company a loan of §75,000 on its note indorsed by its promoters. Plaintiff' was then the president of a trust company, and advised the promotel’s to give a note, which was given by the railway company for a part of such engineering expenses, assuring them that the deal would go through, lie subsequently purchased the note for value after receiving- reports as to the financial condition of the promoters which he knew would lead his company to refuse to accept their indorsement for ihe §75,000. The enterprise fell through from failure to raise the «§75,000 on the promoters’ indorsement. Plaintiff, when the note purchased by him was given, had faith in the enterprise, and at that time a good part of the engineering work had been clone. Pell’s Bevisal N. O. 1908, § 2205, provides that, to constitute notice of an infirmity in a negotiable instrument or a defect in the title of the person negotiating it, the purchaser must have had actual knowledge of the infirmity, or of such facts that Ms action in taking the instrument amounted to bad faith. Held, that plaintiff was a purchaser in good faith, as his assurance to the promoters did not make him a guarantor or surety for the contractor, and knowledge of the nature of the consideration, or that the consideration is something to be done in the future, does not affect the title of the holder of a promissory note, nor put him upon inquiry as to whether the consideration has failed.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 829; Dec. Dig. @=>341.]</p> <p>2, Bills and Notes @=>482 — Actions—Pleading—Admissions—“Protest.”</p> <p>In an action on a note, the complaint alleged that when the note fell due it was promptly presented to the defendants and payment demanded in the regular course of business, and that, when the defendants refused to honor or pay it, it was promptly and properly protested for nonpayment against the makers and indorsers. The answer denied this paragraph of the complaint, except that it admitted “that said note was protested for nonpayment,” and it expressly denied that the note was ever presented to the indorsers, that notice of dishonor was given to the indorsers, and that presentment was made by the holder or any person authorized to receive payment, or that notice was given to the indorsers by or on behalf of any party to the note who might be compelled to pay it to the holder, and who would have a right to reimbursement from the party to whom notice was given. Held, that the answer admitted presentment of the note to the maker and a refusal to pay, especially as the specific denial of presentment was limited to the denial of presentment to the indorsers, since, while a “protest” is, strictly speaking, only a formal declaration .executed by the notary, the notary could not “properly” make such declaration without presentment, and moreover the word “protest,” in its usual sense, implies due presentation and notice of nonpayment.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1533, 1562; Dec. Dig. @=>482.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Protest.]</p> <p>3, Bills and Notes @=>429 — Notice oe Dishonor — Sueeiciency oe Notice.</p> <p>Pell’s Revisal N. O. 1908, § 2240, provides that notice of dishonor of a negotiable instrument may be given by or on behalf of the holder, or any party who might be compelled to pay it to the holder, and who upon taking it up would have a right to reimbursement from the party to whom notice is given. Section 2243 provides that, when notice is given by or on behalf of a party entitled to give notice, it inures to the benefit of the holder and all parties subsequent to the party by whom notice is given. Held that, where a bank holding a note for collection gave verbal notice of dishonor to one of the indorsers, and all of the indorsers discussed the matter among themselves and determined to refuse payment, the notice was sufficient, as the indorsers notified each other, and this notice inured to the benefit of the holder; each of the indorsers having a right to a measure of reimbursement from the others.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1138-1140; Dec. Dig. @=>420.]</p> <p>4, Courts @=>322 — United States Courts — Jurisdiction—Allegations as to Jurisdiction.</p> <p>In an action on a note by an indorsee thereof, brought in the Western district of North Carolina, an allegation that the note was given to the I. Co., a corporation duly chartered, organized, and existing under the laws of Delaware, sufficiently showed that the I. Co. could have brought the suit in the federal court on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 876-881, S87; Dec. Dig. @=>322.]</p> <p>5. Courts <@=3.323 — United States Courts — Jurisdiction—Proof.</p> <p>Where, in an action by an indorsee oí a note brought in the Western district of North Carolina, the complaint alleged that the note was given to the I. Co., a corporation organized under the laws of Delaware, an admission by stipulation of the articles of incorporation, and the due incorporation and existence of the corporation, was an admission that it existed under the laws of Delaware and was a citizen of that slate, and' showed diversity of citizenship, as the whole record may be looked into to determine the question of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 885, 886; Dec. Dig. <@=>323.</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 219; Mason v. Dullagliain, 27 C. C. A. 298.]</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge.</p> <p>Action by B. F. Rhodehamel against rthe City Bank of Wheeling. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western Division of the Southern District of Ohio ; John E. Sater, Judge.</p> <p>Actions by the Columbus, Newark & Zanesville Electric Railway Company and by the Dayton & Eastern Traction Company against Bernhard Bettman, Collector of Internal Revenue, and by the Ft. Wayne, Van Wert & Lima Traction Company, by the Columbus, Newark & Zanesville Electric Railway Company, by the Indiana, Columbus & Eastern Traction Company, and by the Cincinnati Street Railway Company against Andrew C. Gilligan, Collector of Internal Revenue. Judgment for defendant in each case, and plaintiffs bring error.</p> <p>Under the above arbitrary title we group six causes which were heard as one. In each, the question involved was whether the plaintiff in error, plaintiff below, was “carrying on business,” so as to be subject to pay the excise tax under the Corporation TUx Law (Act Aug. 5, 1909) § 38, 36 Stat. 112. In each ease, the tax was paid under protest, suit was brought to recover the same, judgment was directed in the court below for the defendant revenue collector, and plaintiff has brought error. Each one of the plaintiffs is an intemrban or street railway, organized under the laws of Ohio, which had built and operated a railroad, and then, before the accruing of the tax involved, had leased the railroad to an operating company (for the whole franchise period), and had ceased to carry on business, unless maintenance of its corporate organization and office, receiving of accrued rentals and distributing them as dividends among its stockholders, investing its undistributed receipts, and the other acts hereafter specified constituted such “carrying on” of business as required the imposition of the tax. Elach case is, in a general way, analogous to McCoach v. Minehill, etc., R. R., 228 U. S. 295, 33 Sup. Ct. at page 419, 57 L. Ed. 842. In these cases, as in that, it must follow that the lessor railroads were exempt from this tax, unless the additional circumstances hero presented are sufficiently distinguishing. The claims of such distinction are based upon that portion of the opinion of the court in the McCoach Case which says (page 305 of 228 U. S., at page 423 of 33 Sup. Ct. [57 L. Ed. 842]): “It should be mentioned that there is nothing in the record to show that during the taxing years in question the company exercised its power of eminent domain, or put in force any othef special corporate power, in aid of the business of the lessee. We therefore do not pass upon the question whether, if it should do so, it would be taxable under the act in question.”</p> <p>The supposedly distinguishing circumstances, which, appear in one or another of these cases, can be classified into three groups:</p> <p>(a) Two of the leases provided for the sale of portions of the real estate and the substitution of other property. The pertinent portions of tile respective leases on this subject are quoted in the margin.1 One lessee sold one and the other sold two comparatively trifling parcels of real estate, and the lessors joined in the deeds. In another instance, which belongs in this group, the lessee company made a traffic contract with another traction company, permitting the latter to run some of its cars over some of the railroad lines covered by the lease, and upon the foot of this contract the president of the lessor company, pursuant to a resolution of its board, indorsed the consent- and approval of the lessor company thereto. This approval was not required, either by the lease or by the traffic contract.</p> <p>(b) One of the lessees, in constructing an extension to the leased lines, was about to cross, at grade, a steam railroad, and the latter was proposing to resist such construction. Thereupon action was brought against the steam railroad in the name of the lessor traction company, as plaintiff, to enjoin the steam railroad from preventing such crossing. This action was prosecuted in the trial court to a final decree for injunction, but had been appealed and was still .pending. The lessee was the real party in such action, managed the same, and paid all expenses, and the lessor had no connection therewith, except to permit the use of its corporate name therein pursuant to a provision of the lease whereby the lessor covenanted “that the lessee may use the name of the lessor in bringing, prosecuting, or defending any suits or proceedings in law' or in equity which may be necessary or proper in the opinion of the lessee for taking action hereafter for the protection and preservation and full enjoyment by the lessee of all the property, rights, and privileges hereby leased; * * * hut the lessee shall pay and hold the lessor harmless and indemnified from and against all loss, cost, damages, and expenses whatsoever arising therefrom.”</p> <p>(e) Some of the lessors, during the year involved, had issued their treasury capital stock, or caused to be issued their reserve bonds in the hands of their mortgage trustees, for the purpose of financing the lessees in making extensions or betterments or acquiring new items to be added to the body of leased property. This was pursuant to lease provisions substantially similar in different cases, and examples of which are given in the margin.2</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, judge.</p> <p>In the matter of the Dayton Coal & Iron Company, Limited, alleged bankrupt. From a judgment entered on a directed verdict, dismissing the petition, the James Supply &, Hardware Company and others, petitioning creditors, bring error.</p>

Sanford, Judge. Suit in equity by the Mississippi Valley Trust Company against the Cumberland Coal & Coke Company and others. From a decree denying her right to share in a mortgage lien, Mrs. Amelia M. G. Hinvichs, intervener, appeals.

Burns, Judge. Suit in equity by Chas. Dillingham, receiver of the Houston Oil Company of Texas, and others, against the Thompson & Ford Lumber Company. Decree for complainants, and defendant appeals.

<p>1. Evidence <@=>129 — Similar Transactions — Indorsement op Note.</p> <p>In an action against alleged indorsers of a note, defended on the ground that their indorsements were not genuine, evidence that plaintiff took a nonsuit as to another indorser, and a question asked plaintiff’s cashier as to whether it did so because it became convinced that such indorser did not sign the note, were properly excluded; the cashier having expressed no opinion as to the genuineness of defendants’ alleged- signatures.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. <@=>129.]</p> <p>2. Bills and Notes <@=>502 — Actions—Evidence.</p> <p>In an action against the mother-in-law -and a' brother-in-law of the president of a corporation on their alleged indorsements of the corporation’s note, which they claimed were not genuine, evidence as to the relations i between defendants and such president at the time of the trial and “in the last few months” was properly excluded^ the note having been negotiated 15 months before the trial, since, even'though their relations subsequently became unfriendly, this would not tend to show that the disputed signatures were not genuine.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1708-1716; Dec. Dig. <@=>502. J</p> <p>3. Appeal and Error <@=>1048 — Witnesses <@=>268 — Cross-examination-Scope.</p> <p>The defendant in an action was cross-examined at some length without objection concerning his property interests and various suits and judgments against him, and among the matters inquired into were his transaction with W., who he said was not of kin to him, though he married W.’s niece. He was further asked whether two of his brothers married daughters of W., and whether he consulted his brother about buying an orange grove. Held, that the admission of these questions was not error, and, even though technically incorrect, the error was clearly inconsequential.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. <@=>1048; AVitnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. <@=>268.</p> <p>Cross-examination of witnesses to show interest or bias, see note to Ammerman v. United States, 108 C. C. A. 7.]</p> <p>4. Trial <@=>27 — Demonstrations and Experiments — Imitation op Hand-writings.</p> <p>In an action involving the genuineness of alleged indorsements of a note, it was not error to refuse to permit an expert engraver to reproduce by freehand drawing the signatures of the defendants in the presence of the jury, for the purpose of showing that, they were easily imitated.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 76; Dec. Dig. <©=27.3</p> <p>5. Evidence <©=567 — Experts on Handwriting — Cross-Examination — Scope — Discretion of Court.</p> <p>Where, in an action involving- the genuineness of alleged indorsements on a noto, a large number of witnesses on the subject of handwriting had been allied, and no such test bad been suggested in connection with the testimony of previous witnesses, it was within the court’s discretion to refuse to permit defendants, in cross-examining almost the last witness called, to test Ms ability as an expert by submitting genuine and imitated signatures, and asking him to pick out those that were genuine and those that were spurious.</p> <p>LEd. Note. — For other cases, see Evidence, Cent. Dig. § 2391; Dec. Dig. <@=3(>7.]</p> <p>6. Evidence <@=567 — Expert Testimony — Cross-Examination of Experts.</p> <p>Such evidence was properly excluded as incompetent, as a witness may compare the disputed signature only with other signatures which are admitted or proven to be genuine.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2391; Dec. Dig. <@=567.3</p> <p>7. Evidence <@=179 — Documentary Evidence.</p> <p>In an action on alleged indorsements of a corporation’s note, held by a Norfolk bank, defended, on the ground that the indorsements were not genuine, a witness testified that one of the defendants asked him to find out how much paper he and his mother and sister were on, and whether 850,000 would relieve them from liability, and that the “Norfolk paper" was referred to; that ho took the matter up with the cashier of a Raleigh bank, and received from him a letter to such defendant, which he delivered to him. Such defendant, when called upon to produce the letter, denied receiving it, and the witness then testified that a letter from the cashier to him contained the substance of the letter to defendant. Held, that such letter was properly admitted, as against the defendant in question, especially as the contents of it had been fully stated by the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 595-599; Dec. Dig. <@=179.3</p> <p>8. Evidence <@=213 — Effort to Compromise.</p> <p>The facts did not bring the evidence within the doctrine of privilege relative to a proposed compromise.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. <©=213.]</p> <p>9. Appeal and Error <@=1051 — HARvrrjsss Error — Admission of Evidence.</p> <p>In an action on a note, in which defendant denied indorsing the note, he was cross-examined without objection concerning other suits against, him, in which he denied Ms liability under oath, and the papers containing such denials were read to him in full in connection with the examination. Held that, the contents of the papers having thereby been fully disclosed, lie was not harmed by the admission of the papers themselves in evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <@=1051.1</p>

<p>1. Principal and Surety <§=>144 — Right of Surety to Set-Off — Statutory Provisions.</p> <p>Under Code Va. 1904, § 3298, authorizing a surety to assert as a set-off any claim which his principal would have had against plaintiff, suing the surety, a surety of plaintiff and a defendant may, when sued with defendant for a debt due from defendant to plaintiff, assert as a set-off a claim due from plaintiff to defendant, though the transactions out of which the debts arose are distinct, and though defendant is bankrupt.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 393-396; Dec. Dig. <§=>144.]</p> <p>2. Principal and Surety <§=>144 — Right of Surety to Set-Off — Statutory Provisions.</p> <p>Under this statute, a surety of two contractors with the government for distinct public works, conditioned on the contractors’ faithfully executing their contracts, may, when sued by one contractor for a debt due from the other contractor,' set up as a set-off a claim due the latter contractor from the former contractor, in the absence of anything to show that there are persons asserting claims for supplies and materials protected by the bond of the latter contractor, or that there are such claims to be paid.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 393-396; Dec. Dig. <§=>144.]</p> <p>3. Courts <§=>342 — Equitable' Defenses in Actions at Law — Statutory Provisions.</p> <p>Act Cong. March 3, 1915,-authorizing equitable defenses in actions at law, substantially abolishes all technical distinctions between proceedings at law and in equity.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 912, 913; Dec. Dig. <§=>342.</p> <p>Equitable defenses in actions at law, see note to Standard Portland Cement Co. v. Evans, 125 C. C. A. 5.]</p>

Dayton, Judge. James Oates, Frank Eedvinski, Hiram Stephens, and Fanny Sullens were each found guilty of contempt of court in separate proceedings, and they bring error.

<p>Cross-Appeals from the District Court of the United States for the Northern District of West Virginia, at Philippi; Alston G. Dayton, Judge.</p> <p>Suit by Mary S. Kerr against Arthur Brooks. From a decree granting relief, both parties appeal.</p>

<p>1. Commerce <@=>8 — Limitation of Carrier’s Liability — Validity—Law-Governing — “Federal Question.”</p> <p>The validity of a contract between a shipper and a carrier, limiting the' carrier’s liability in case of the loss of an interstate shipment to the declared value of the shipment, is a “federal question,” to be determined under the general common law, and is not within the field of state law or regulation.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <@=>8.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Federal Question.]</p> <p>2. 'Carriers <@==>158 — Declaring Value of Shipment — Estoppel.</p> <p>Where a carrier, under its tariffs filed with the Interstate Commerce Commission, has two rates on a certain commodity, one applicable wnen. the value of the commodity is declared by the shipper not to exceed a specified amount, and the other when the value is declared to exceed that amount, or is not declared at all, a shipper, who has declared the lower value and thereby obtained the lower rate, is estopped, in case the property is lost, from recovering on the basis of a higher valuation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent.* Dig. §§ 663-667, 699-703%, 708-710, 718, 718%; Dec. Dig. <@=>158.]</p> <p>3. Principal and Agent <@=>155 — Authority of Shipper’s Agent — Limitation of Liability.</p> <p>An interstate carrier’s tariffs, filed with the Interstate Commerce Commission, provided two rates on household goods;' the lower being based on a declared value not exceeding a specified amount, with a limitation of liability to that value. Unknown to the carrier, a shipper’s agent tendering property for transportation had no authority to declare its value for the purpose of obtaining such lower rate; but he nevertheless signed a household goods release, declaring their value not to exceed the value on which such rate was based. Held, that the carrier was .-justified In relying upon the authority o£ the agent tendering the shipment to sign such contracts concerning the transportation as were provided for in its published tariffs, and the shipper was bound by such contract.</p> <p>[Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 571 582; Doc. Dig. <3=105.J</p>

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

Appeals from the District Court of the United States for the Western District of New York. This cause comes hero upon appeal from a decree of the District Court, Western District of New York. The suit is for infringement of United States patent No. 665,977, issued January 15, 1901, to Walter H. I’umplu'ey, for a coin-controlled mechanism. Validity and infringement of claims 5 and 6 were found, and defendant appeals from so much of the decree.

<p>In Error to the District Court of the United States for the District of Connecticut. Each of these causes comes here upon appeal from a judgment of the District Court, District of Connecticut, in favor of defendant in error who was plaintiff below. (D. C.) 218 Fed. 188, 208. The causes were tried by the court without a jury.</p>

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

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

This cause comes here upon appeal from an order of the District Court, Southern District of New York. The suit is for infringement of letters patent No. 906,765, issued^ August 9, 1910, to Harry Read, for a mixing machine. It came on for hearing upon pleadings and proofs before Judge Hunt, who held the patent valid and infringed and entered decree for injunction and accounting. (I). O.) 212 Fed. 951.

<p>Appeal from the District Court of the United States for the Western District of New York. This cause comes here upon appeal from a decree of the District Court, Western District of New York, finding infringement by defendants of United States patent No. 747,686, granted December 22, 1903, to J. L. Crevelling, assignor to complainant. The patent is for a “system of electrical regulation.” It discloses a storage battery chai-ging system adapted for use in connection with what ax-e called axle car-lighting systems, in which the genex-ator is driven fx-om the car axle. The opinion of the District Judge will be found in (D. C.) 222 Fed. 310.</p>