Volume 224 — Federal Reporter

the District Court of the United States for the District of Montana; George M. Bourquin, Judge. Suit in equity by William Smith against Mary M. Smith, as executrix of the will of John M. Smith, deceased. Decree for complainant (210 Fed. 947), and defendant appeals.

<p>1.- Appeal and Error @==>997 — Directed Verdict — Findings—Conclusiveness.</p> <p>In an action for breach of contract in failing to furnish the variety of cucumber seed ordered, defendant’s request for a directed verdict at the conclusion of plaintiff’s evidence, and at the conclusion of all the evidence, operated as a request that the court find the facts, and the facts as found were conclusive upon the parties; the reviewing court being limited to the correctness of the conclusions of law thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. @=>997.]</p> <p>2. Appeal and Ereoe @=>997 — Review—Effect of Directed Verdict.</p> <p>That a motion for a directed verdict operates as a request that the court 'find the facts, and is conclusive upon the parties upon appeal, does not prevent consideration of the inadmissibility of rejected evidence, nor Waive exceptions to the rulings of law thereon.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4023. 4024; Dec. Dig. @=>997.]</p> <p>3. Sat.es <@=>4-15- — Action fob Breach op Warranty — Directed Verdict.</p> <p>Id an action for breach, of contract in failing to furnish the variety of cucumber seed purchased, testimony by some of plaintiff’s witnesses that they had not known the name of the brand ordered to be used to designate a certain variety of seed did not make plaintiff’s evidence so uncertain as to render the direction of a verdict in ills favor erroneous, where numerous witnesses sustained plaintiff’s contention as to the designation.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1303-1303; Dec. Dig. <@=>445.]</p> <p>4. Sales <©=>442 — Breach op Warranty — Measure op Damages.</p> <p>Where seed is sold to a dealer under a warranty that it is of a special variety, and the dealer in turn sends It to a grower, the warranty is carried forward to the ultimate purchaser, if it appears that such understanding was part of the first sale, and the measure of damages for breach of warranty is the difference in market value between the crop produced and such crop as the specified variety of seed would have produced under like conditions.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. <@=442.]</p> <p>5. Sales <©=>412 — Breach op Warranty — Damages.</p> <p>The purchaser of seed warranted to be of a specified variety, and which he resells to a grower, may recover from the dealer the actual loss due to misrepresentation as to the variety although lie has not liquidated his liability to the sub vendee for breach of warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. <@=3412.]</p> <p>6. Evidence <@=»460 — -Parol Evidence — -Explanation op Terms op Sales Contract.</p> <p>In an action for damages for failing to deliver cucumber seed bought under a written contract as being “Improved Chicago Pickling.” evidence that the purchaser was informed as to the kind of seed actually furnished, that it had been developed from seed purchased from a certain company, and that he agreed that it should be labeled “Improved Chicago Pickling,” was improperly excluded; it being in explanation, and not in variation, of the terms of the written contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dee. Dig. <@=>460.]</p> <p>7. Sales <@=3410 — Breach op Warranty — Sales by Sample,- — Evidence.</p> <p>In an action for damages for failing' to deliver “Improved Chicago Pickling” cucumber seed under a written contract, evidence that the sellér produced cucumbers from the seed contracted for as samples and sent them to the purchaser previous to the delivery was admissible to show notice of the actual nature of the seed to be delivered.'</p> <p>[Ed. Noto. — For other cases, see Sales, Cent. Dig. §§ 1201-1276; Dec. Dig. <S=>410.]</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge. Suit by the State Bank of Chicago against the Idaho-Oregon Light & Power Company and others, in which A. W. Priest and others, personally and .as a bondholders’ committee, intervened. From a decree (219 Fed. 583), the interveners and certain defendants appeal.

<p>1. Sales <&wkey;465 — Conditional Sales — Validxty—Filing of Contract.</p> <p>Under Gen. Code Ohio, § 8568, making conditional sale contracts void as to subsequent purchasers and mortgagees in good faith, and creditors, unless the conditions are evidenced by writing, signed by the purchaser, and a verified statement thereon, made by seller of the amount of the claim, deposited with recorder of proper county, the filing of a contract, which contains the conditions as to payment of the price, and that notes have been given therefor, and which gives the amounts of the notes, the periods they are to run, whore payable, and rate of interest, is sufficient, though the notes containing the additional provision that, on- failure to pay interest at maturity, both principal and unpaid intex-est shall draw interest at a higher rate, and the additional provision waiving demand of payment, protest,- and for payment of attorney’s fees and collection expenses, are not filed for record.</p> <p>[Ed. Note.- — For other Gases, see Sales, Cent. Dig. § 1353; Dec. Dig. <&wkey;465.]</p> <p>2. Sales <&wkey;465 — Conditional Sales — Filins of Contract.</p> <p>Where machinery sold under a conditional sale contract was delivered March 10, 1913, and notes for the unpaid price were given on that date, and the contract was filed April 3d, an affidavit indorsed thereon, hearing the same date and stating that the purchasers named “in the within contract are indebted to” the seller in a specified sum, and that the claim is just and unpaid, and that the contract was entered into in good faith, wag, sufficient as against the objection that interest had aceumur lated on' the notes from their date, which fact was not stated, and as against the objection that it did not appear that the specified sum was due on the contract filed.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1353; Dec. Dig. <&wkey;>465.</p> <p>What constitutes a contract of conditional sale, see note to Dunlop V. Mercer, 86 C. C. A. 448.]</p> <p>3. Sales' <&wkey;465 — Conditional Contracts — Filing fob Record — Renewal Notes — Effect.</p> <p>The rights preserved to a seller in a conditional sale contract, duly filed under Gen. Code Ohio, §' 8568, are unaffected by the fact that the buyer gave renewal notes for the unpaid price, in the absence of any provision in the statute for refiling of contract on giving of renewal notes.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1353; Dec. Dig. &wkey;465.r</p> <p>4. Statutes <&wkey;194 — Construction—Rule of Ejusdem Generis — Applicability.</p> <p>The rule of ejusdem generis is invoked merely as an aid to the ascertainment of legislative intent in construing a statute.</p> <p>[Ed. Note. — For other cases, see Statutes, Óént. Dig. § 272; Dec. Dig. &wkey;194.]</p> <p>5. Statutes <S=»188 — Construction—Meaning of Wr0RDS.</p> <p>Statutes, must, where possible, be construed according to the natural and usual acceptation of terms therein, and where a word has acquired a common and popular meaning, such meaning is prima facie the meaning intended.'</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 266, 267, 276; Dee. Dig. <&wkey;188.]</p> <p>6. Sales <&wkey;479 — Conditional Sales — Statutes—Construction—“Contractor.”</p> <p>A corporation constructing a water-belt line for a city is a contractor within Gen. Code Ohio, § 8570, providing that a seller in a conditional contract may not retake possession without tendering the money paid on the' price, if in excess of 25 per cent., after deducting a reasonable com- ' pensation for the use of the property not to exceed 50 per cent., but declaring that this provision shall not apply to machinery, equipment, and supplies for railroads and contractors, for manufacturing brick, cement, and. tiling, and for quarrying and mining purposes, for a contractor is . one who contracts with another to furnish supplies, or to construct works ,. or erect buildings, or to perform any work or service at a fixed price or rate, and a seller need not tender the price paid to recover machinery used by a contractor in performing the work, and held by it under a ■ conditional sale contract (citing Words and Phrases, Contractor).</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§' 1418-1432, 1434-1438; Dec. Dig. <&wkey;479.]</p> <p>7. Sales <&wkey;479 — Conditional Sales — Statute — Construction — “Machinery.” . •</p> <p>- A tréñch-excavating machine and appurtenances used by a contractor to construct a water-belt line for a city are within the general class of -“machinery” within Gen. Code Ohio, § 8570, providing that the section shall not apply to machinery for contractors.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1418-1432, 1434Í-1438; Dec. Dig. <3=479.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Machinery.]</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio, in Bankruptcy; Howard C. Hollister, Judge.</p> <p>Bankruptcy proceedings against the Hetzell Gelatine Products Company. P'rom a decree of the District Court allowing the Second National Bank of Cincinnati, Ohio, and another a preferred claim against the real estate of the bankrupt, W. A. Hicks, trustee in bankruptcy, appeals.</p>

<p> (Syllabus hy the Court.) </p> <p>1. Master and Servant «&wkey;228-t-lNJURiEs to Servant — Contributory Negligence — Unguarded Machinery — Missouri Statute.</p> <p>A statute of Missouri (Itev. St. 1909, § 7828), which, requires certain, machinery dangerous to' employes when engaged in their ordinary duties to he guarded, does not exempt them from the duty to exercise reasonable care to avoid injury from such machinery, nor deprive their employers of the defense of contributory negligence to actions for injuries caused thereby.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. &wkey;228.]</p> <p>2. Trial <&wkey;213 — Requested Instructions — Application op General Law to Facts — Right to a Charge on Specific Issues.</p> <p>Where a charge states general rules of law governing the case, hut fails to state the specific issues the jury is called upon to determine and to apply tlio law to them, either party, upon request, is entitled to additional instructions which tersely and clearly state the crucial issues which the jury must determine and the law applicable to those issues.</p> <p>[Ed. Note. — For other cases, seo Trial, Cent. Dig. § 480; Dec. Dig <&wkey;>213.j</p> <p>3. Evidence <&wkey;123, 244 — Res Gustas — Admission by Superintendent.</p> <p>Testimony to a statement by a superintendent of a corporation to the witness, made three or four days after an injury to an employé relative to his action at and prior to the injuries, is incompetent. It is too remote in time to be a part of the res gestsu. The superintendent is without authority from the company to admit or create liability on its part, and the testimony is mere hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368, 916-936; Dec. Dig. <&wkey;123, 244.]</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error <&wkey;1012 — Review—Findings of Fact — Action at Law —“Error or Pact.”</p> <p>• When an action at law is tried without a jury by a federal court, and it makes a general of a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or of the judgment based thereon, “for any error of fact” (Rev. St. § 10Í.1 [TJ. S. Comp. St. 1913, § 1672, p. 7001), and a finding of fact contrary to the weight of the evidence is an error of fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. >®=»1012.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Error of Pact.]</p> <p>2. Appeal and Ebbok <S»237 — Presenting Questions Below — -Want of Evidence to Sustain Findings.</p> <p>The question oí law whether or not there was any substantial evidence to sustain such a finding is reviewable, as in a trial by jury, only when a request or a motion is made, denied, and excepted to, or some other like action is taken, which fairly presents that question to the trial court and secures its ruling- thereon before the close of the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1802%; Dec. Dig. <&wkey;237.]</p> <p>8. Appeal and Error &wkey;>273 — Exceptions—Necessity and Sufficiency.</p> <p>An exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to a review of such a ruling.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1006, 1620-1623, 1625-1630, 1761; Dec. Dig. &wkey;273,|</p>

This cause comes here upon writ of error to review a judgment convicting plaintiff in error, who was defendant below of violation of the Food and Drugs Act of June 30, 1906. There were three informations, and two counts under each. The first information dealt with an article of food called “Fruit Wild Cherry Compound.” The first count of this information was quashed before trial.

<p>In Error to the District Court oí the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error from a judgment of conviction of violation of the Pure Pood and Drugs Act of June 30, 1906.</p>

<p> (Syllabus by the Court.) </p> <p>1. RECEIVERS <&wkey;77 — CONDITIONAL SALE-UNRECORDED CONTRACT — CREDITORS —Receiver’s Power to Avoid.</p> <p>A receiver appointed in a suit in equity instituted by a creditor against Ms insolvent debtor to administer and convert into money the property of the debtor, and -distribute the proceeds thereof among his creditors, has the power of creditors “armed with process” to disregard or avoid, under section 2889, Revised Statutes of Missouri 1909, tlie unrecorded condition in a contract of conditional sale to the debtor of personal property, which the receiver finds in his possession and there seizes, even though no creditor had sued out any process before the receiver made the seizure.</p> <p>[Ed. Noto. — For other cases, see Receivers, Cent. Dig. §§ 91, 138-144; Dec. Dig. <&wkey;77.]</p> <p>2.- Courts <&wkey;>365 — Roc ax Law — Decision oe State Court — Federal Courts.</p> <p>The question whether or not such a receiver has such power is a question of local law, of the construction of a statute of the state,- and of the determination of its judicial practico thereunder, and the decision of this question by the highest judicial tribunal of the state is controlling in the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dec. Dig. <&wkey;365.</p> <p>Conelusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. O. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p>

Pollock, Judge.__ Action by G. M. Rushing and another, administrators of the estate of M. D. Sowell, deceased, against the Manhattan Rife Insurance Company of New York. Judgment for defendant, and plaintiffs bring error.

<p> (SyUaJms ~by the Court.) </p> <p>1. RECEIVERS <&wkey;99 — COUNSEL FEES — RIGHT TO ALLOWANCE — UNFOUNDED ■ Charges of Malfeasance.</p> <p>A receiver is entitled to the allowance and payment out of the trust estate of the reasonable fees of his counsel for defending him against unfounded charges of malfeasance and breach of trust in the discharge of his duties as receiver, in the absence of dishonesty,' bad faith, or fraudulent intent on ills part, notwithstanding the fact that, if the claims were well founded, they would entail liabilities upon him individually and would not be payable out of the trust estate.</p> <p>(Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 183-180; Dec. Dig. <§=>99.J</p> <p>2. Receivers <&wkey;99 — Counsel Fees — Right to Allowance.</p> <p>A receiver or trustee is entitled to the reasonable fees of counsel to defend him against claims arising out of mistakes and errors he makes in the discharge of his duties as receiver in good faith and without any fraudulent or dishonest intent.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 183-186; Dec. Dig. <&wkey;99.]</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge.</p> <p>Glaser, Kohn & Co., a corporation, was convicted of selling adulterated food, and it brings error.</p> <p>On or about January 15, 1907, plaintiff in error executed and delivered to Steele-Wedeles Company, of Chicago, Ill., a guaranty in writing signed by it, which guaranty reads:</p> <p>“Steele-Wedeles Co., City — Gentlemen: Replying to your favor 10th inst, would say we hereby guarantee that all goods as furnished you hereafter will comply with the Food and Drugs Act of June 30, '1908, with the understanding, however, that if we at any time use labels or packages furnished by you, or gotten up as per your instructions, we shall not be responsible for the form or wording of the same, but only guarantee that goods covered by same are not adulterated. It is expressly understood that the above shall hold good until notice of revocation be given in writing.</p> <p>“Truly yours, Glaser, Kohn & Co.,</p> <p>“G. I). Glaser, Pres!”</p> <p>Afterwards, and on or about September 15, 1910, and while said guaranty, by its terms, was in full force, plaintiff in error sold and delivered to said Steele-Wedeles Company two dozen jars of preserves, described as “Herald Brand Fruit Preserves Blackberry Flavor, Apple Preserves 74%, Blackberry Preserves 20%!,” which jars of preserves Steele-Wedeles Company shipped in interstate commerce from Chicago to Rock Springs, in the state of Wyoming, on or about October 14, 1910. On or about October 20, 1910, an inspector of the United States Bureau of Chemistry purchased a sample of these preserves and sent the same, properly sealed, to the Bureau of Chemistry of the Depart-meat of Agriculture, where it was duly examined by experts on or about December 8, 1910, who pronounced the sample analyzed to contain mold, and to be partly decomposed, and made from partly decomposed fruit. Thereafter the United States filed its information, containing six counts, against plaintiff in error, of which only the fourth count is here involved, which charges plaintiff in error with unlawfully knowingly selling and delivering to Steele-Wedeles Company the said jars of preserves, contrary to the provisions of the so-called Pure Pood Law óf the United States, approved June 80, 1906, entitled “An act for preventing the manufacture, sale or transportation of adulterated or misbranded or poisonous' or' deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes,” in that said jars of preserves, when and where they were so sold and delivered,-were an adulterated article of food within the meaning of the act, and consisted in part of decomposed vegetable substance, and further, charging that Steele-Wedeles Company shipped said jars contrary to law, by way of a-common carrier in interstate commerce to Rock Springs, Wyo., as aforesaid, basing said information upon said guaranty as having been given and received under the terms of section 9 of said act of June 30, 1906.</p> <p>On the trial the formal facts were stipulated into the record, and evidence of the condition of the preserves when delivered to Steele-Wedeles Company was introduced. This evidence consisted of the opinions of experts, based on the conditions found at the time of the Washington analysis, that the fruit was partly decomposed, not only at that time, but also at the time of the sale and delivery by defendants to Steele-Wedeles Company. Plaintiff in error offered no evidence, but saved exceptions to the introduction of the said letter of guaranty and to the sufficiency of the expert testimony. At the close of the evidence plaintiff in error moved the court to direct'the jury to find plaintiff in error not guilty, which motion the court denied, and an exception was taken. Exception was also taken to that part of the court’s instruction which charged the jury that the said guaranty was a legal guaranty. The jury found plaintiff in error guilty, and the court assessed a fine of $200 and costs, to reverse which sentence this writ of error was sued out.</p> <p>The errors relied on are: (1) The-court held that the alleged guaranty was legal and sufficient to hold plaintiff in error under said section 9. (2) The evidence was insufficient to show that the preserves were adulterated at the time they were delivered to Steele-Wedeles Company.</p>

ín Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge. G. H.’ York was convicted of inducing a woman to go from one state to another in interstate commerce, for immoral purposes, and brings error.’

<p>Petition to Revise an Order of the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>In the matter of Fried Bros., bankrupts. On petition by Ralph B. Finks, trustee, to revise an order reversing an order of the referee.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>“Fannie” M. Moore was convicted of unlawfully introducing intoxicating liquors into the Eastern district of Oklahoma, and brings error.</p>

Petition to Revise Order of the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Petition by T. E. Armstrong against Hugh T. Fisher, as trustee in bankruptcy, etc:, and others, to revise and avoid an order of the District Court.

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

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois; William H. Seaman, Judge. • Separate suits by the Mutual Eilm Corporation and by the H. & H. Film Service Company and others against the City of Chicago and others. From decrees of the District Court denying preliminary injunctions, complainants appeal.

Petition to Revise Order of the District Court of the United States for the Eastern District of Missouri; Elmer B. Adams, Judge. Petition by Claud D. Hall to revise an order of the District Court, affirming an order of the referee in bankruptcy allowing the petitioner and S. II. King a fee jointly for their services as attorneys for petitioning creditors instituting involuntary proceedings in bankruptcy against the Lewis Publishing Company, bankrupt.

<p>Bankruptcy <®=^69l — Partnerships—Determination op Membership.</p> <p>Various orders made in bankruptcy proceedings against related partnerships, determining who were members of such partnerships, considered and affirmed.</p> <p>[Ed. Note. — Nor other cases, see Bankruptcy, Cent. Dig. §§ 51-53, 56; Dec. Dig. <@=>69.]</p>

In the matter of Max Kobre, S'arali Kobre, and Moses Ginsberg, copartners doing business as Max Kobre’s Bank, alleged bankrupts. Adjudication against the partnership and Max-Kobre and Sarah, Kobre individually.

<p>1. Bankruptcy <@=5228 — Certificate of Referee — Findings of Fact.</p> <p>A certificate of the referee in bankruptcy on petition for review, which shows that he decided that it was proper to establish a time limit, as requested by trustees, for the bringing of petitions for the reclamation of securities and the establishment of liens, and that the limit established was reasonable, shows findings of fact which must stand, where the evidence is not reported.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. '<@=5228.]</p> <p>Bankruptcy ©=>224 — Reclamation of Securities and Establishment of Liens — Authority of Referee — Establishing Tim® Limit.</p> <p>The referee in bankruptcy has power to fix a time limit for customers and creditors Qf a bankrupt stockbroker to file petitions for the reclamation of securities and claims to establish liens on cash in possession of the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 383; Dec. Dig. ©=>224.]</p>

<p>1. Chattel Mortgages <@=360 — Execution—Attestation by Employé op Mortgagee.</p> <p>That a mortgage to a bank was attested by an employé of the bank as a notary public does not render it invalid under the law of - Georgia.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 115; Dec. Dig. <@=>60.]</p> <p>2. Words and Phrases — “Attestation.”</p> <p>“Attestation” is the act of witnessing the actual execution of a paper and subscribing it as a witness (citing Words and Phrases, Attest).</p> <p>3. Chattel Mortgages <@=360 — Execution—Attestation.</p> <p>Under Civ. Code Ga. ¿DIO, § 3257, which requires a mortgage to be attested before a notary public or justice of a court, it is not necessary that the notary should attach a formal certificate of acknowledgment.</p> <p>[Ed. Note. — -For other cases, see Chattel Mortgages, Cent. Dig. § 115; Dec. Dig. <@=60.]</p> <p>4. Bankruptcy <@=>184 — Diens—Validity qe Chattel Mortgage.</p> <p>Under Oiv. Code Ga. 1910, § 3260, which provides that “mortgages not recorded within the time required remain valid as against the mortgagor, but are postponed to all other liens created or * * * purchases made prior to the actual record of the mortgage,” a chattel mortgage executed by a merchant in good faith more than four months prior to his bankruptcy, when both he and'the mortgagee believed him solvent, and with the express agreement that he should buy no more goods on credit, is not invalid as preferential, because not recorded until within the four months, but will not be given priority over a debt created by the bankrupt before it was recorded.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. <@=>184.]</p> <p>5. Bankruptcy <@=178 — Liens—Chattel Mortgage. '</p> <p>Bankr. Act July 1, 1898, a 541, § 47a (2), 30 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), by clothing the trustee with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, does not affect tha validity of a chattel mortgage executed more than four months prior to the bankruptcy, and recorded within the four months period, but prior to the bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 221, 261-274, 283, 281; Dec. Dig. <g=»178.]</p>

<p>Bankruptcy <§=>191 — Claims—Priority—Rent.</p> <p>Civ. Code Ga. 1910, § 3340, provides that landlords shall have a special lien for rent on crops made on land rented from them superior to all other liens, except liens for taxes, and also a genera] lien on the debtor’s property liable to levy and sale, and that such general lien shall date from the time of the levy of the distress warrant to enforce it. Bankr. Act July 1, 1898, c. 541, § 42a(2), 30 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), provides that the trustee shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings. Section 67f invalidates all levies and other liens obtained through legal proceedings within four months of the filing of the petition. Helll, that a landlord of other than farm lands has a lien entitling his claim for rent to priority in payment, though there has been no levy of a distress warrant, as the provision that the lien dates from the levy of such warrant would seem merely to provide the time from which the process of the court can be exercised for its enforcement, while the purpose of the amendment of 1910 was to protect general creditors from unrecorded mortgages, unlawful transfers, spurious claims, and to prevent the dissipation ol' the bankruptcy assets through unworthy and unmeritorious demands.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 286, 287, 290, 351; Dee. Dig. <S=»191.]</p>

<p>1. Evidence <S^10 — Judicial Notice — Facts or Common Knowledge.</p> <p>Tile court will take judicial notice of the fact that opium is not grown or produced in the United States.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 0-14: Dec. Dig. ¡S=10.j</p> <p>2. Commerce <@=>3 — Foreign Commerce — Regulation—Statutes—Validity.</p> <p>Congress may prohibit the importation of opium, and regulate its relation to interstate commerce, as is done by Act Dec. 17, 1014, providing for the registration with collectors of internal revenue of dealers in opium, imposing a tax on dealers, and making it unlawful for any person who has not registered and paid the tax to have in his possession any opium or derivative thereof, and providing that such possession shall bo presumptive evidence of a violation of the act.</p> <p>[Ed. Note. — For .other cases, see Commerce, Cent Dig. § 3; Dec. Dig. &wkey;>3.]</p>

<p>1. Aliens <&wkey;20 — Constitutional Law <S&wkey;318 — ©epobtation—Appeals— Bight to Appeae by Counsel.</p> <p>Due process of law does not require that an alien ordered deported shall be granted the right to appear by counsel on an appeal to the Commissioner of Labor.</p> <p>[Ed. Note. — For other cases,, see Aliens, Cent. Dig. § 73; Dee. Dig. <&wkey; 20; Constitutional Law, Cent. Dig. § 949; Dec. Dig. <&wkey;>318.]</p> <p>2. Aliens <&wkey;32 — Deportation Peooeedings — Evidence.</p> <p>A certificate issued by a United States commissioner to a person of Chinese descent, granting the right to enter the United States as an American citizen, was not conclusive that he was a native-born citizen in a proceeding involving the .right to enter the United States of an alleged minor son of the certificate holder, as the certificate was neither a judgment nor evidence of a judgment.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;32.]</p>

<p>In Admiralty.- Suit by the Weehawken Dry Dock Company against the. steamboat Ulrica.</p>

<p>In Bankruptcy. In the matter of Meyer Jarmulowsky, bankrupt. On petition by Wolf & Pouker for the payment of rents collected from mortgaged premises.</p> <p>This is an application by a mortgagee against a bankruptcy receiver for an order directing the receiver to pay to him rents which had fallen due, and had been collected, after default upon the mortgage, but before the mortgagee had applied either for a foreclosure receiver, or for a sequestration order of the rents for his benefit. The mortgage contained these clauses: ’</p> <p>“Fifth. That if default shall be made.in the payment of the principal sum mentioned in the said bond, or of any installment thereof, or of the interest which shall accrue thereon, or of any part of either, at the respective times therein specified for the payment thereof, the said mortgagee shall have the right forthwith, after any such default, to enter upon and take possession-of the said mortgaged premises, and to let the said premises, and receive the rents, issues, and profits thereof, and to apply the same, after payment of all necessary charges and expenses, on account of the amount hereby secured,, and said rents and profits are in the event of any such default hereby assigned to the mortgagee.</p> <p>“Sixth. And the mortgagee shall also be at liberty, immediately after any such default, upon proceedings being commenced for the foreclosure of this mortgage, to apply for the appointment of a receiver of the rents and profits of the said premises without notice, and the mortgagee shall be entitled to-the appointment of such a receiver as a matter of right, without consideration of the value of the mortgaged premises as security for the amounts due the mortgagee, or the solvency of any person or persons liable for the payment of such amounts.”</p>

In Bankruptcy. In the matter of Progressive Wall Paper Corporation, bankrupt. On review of order of referee declaring invalid bonds of bankrupt held by First National Bank of Ballston Spa, N. Y., as pledgee.

<p>1. Master and Servant <&wkey;13 — Hours or Service — Statutory Provisions— “Emergency” — “Exigency.”</p> <p>Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1415 (Comp. St. 1913, § 8677), provides that it shall be unlawful for carriers to require or permit any employé subject thereto to remain on duty for more than 16 consecutive hours, provided that no operator, etc., who by telegraph or telephone dispatches, etc., orders affecting train movements, shall be permitted to remain on duty for more than 9 hours in any 24-hour period at places and stations continuously operated, except in case of emergency. Section 3 imposes. a penalty for violations, but provides that the act shall not apply in any case of casualty, unvoidable accident, or the act of God. An operator working from 4 o’clock p. m. until midnight at a continuously operated office at K. was subpoenaed as a witness in an action tried on May 26th, and obtained permission from the chipf dispatcher at R. to obey the subpoena, with the understanding that he would return to K. about 2:30 p. m. The case was not reached for trial until about 4 p. m., and about 1 p. m. the operator wired the dispatcher that he would be delayed, but the next train from It. to K. did not reach K. until 10 p. m. The operator reached K. about 7:30 p. m., but, when requested to return to duty, reported that he was sick. One of the other operators therefore worked from 8 a. m. until 8 p. m., and the other from 8 p. m. until 8 a. m. on the morning of the 27th. Held, that the excessive hours of the first of such operators was due to an emergency, and the carrier was not liable for the statutory penalty, as “emergency” is not synonymous with “accident,” “casualty,” or “act of God,” but is synonymous with “exigency,” and means something arising suddenly out of the current of events; any event or occasional combination of circumstances, calling for immediate action or remedy; a pressing necessity; a sudden and unexpected happening or an unforeseen occurrence or condition.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. § 14; Dec. Dig. c&wkey;l3.</p> <p>Eor other definitions, see Words and Phrases, Eirst and Second Series, Emergency.]</p> <p>2. Master and Servant <&wkey;13 — Hours of Service — Statutory Provisions.</p> <p>It not appearing that the chief dispatcher was not promptly notified that such operator was sick, and there being no suggestion that he did not have an extra operator at R. there was no emergency or casualty excusing the company’s act in allowing the second operator to work three hours, on the morning of the 27th, more than the hours allowed by statute.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. &wkey;>13.]</p> <p>3. Master and Servant <&wkey;13 — Hours of Service — Statute—Liberal or Strict Construction.</p> <p>The Hours of Service Act is remedial in its purpose and scope and penal in its means of employment, and though courts frequently invoke the principle that doubtful language in a remedial statute should be construed liberally to suppress the evil and advance the remedy, while penal statutes should be construed strictly to narrow the scope of the penalty, the better rule is probably to give the entire statute a fair construction for the purpose of ascertaining the legislative mind, and giving effect to its purpose, and an unreasonable relaxation of the rule prescribed on the one hand, or a strained construction on the other, is unwarranted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;13.]</p> <p>4. Master and Servant <&wkey;13 — Horns of Service Aciy-Exceptions and Provisos.</p> <p>The provision of Honrs of Service Act, § 2, as to cases of emergency with respect to the hours oC service of telegraph operators, constitutes an exception and not a proviso.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;I3.]</p> <p>5. Master and Servant <&wkey;>13 — Hours of Service Act — Construction— Meaning of Language.</p> <p>It must he assumed that Congress in excepting cases of emergency from the provisions of the Hours of Service Act, § 2, as to the hours of service of telegraph operators, used the term “a case of emergency” in that sense, and with that meaning given it in general use.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;>13.]</p> <p>6. Statutes <&wkey;18.1¡ — Construction—Harsh or Oppressive Construction.</p> <p>While the courts will endeavor to ascertain and enforce the legislative will, they will not, by strained and forced construction of statutes, give them such effect as will render their enforcement harsh and oppressive.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. &wkey;181.]</p> <p>7. Master and Servant &wkey;>13 — -Hours oe Service — Statutory Provisions.</p> <p>Pell’s Bev. N. C. 1908, § 1613, provides that every witness summoned as directed shall appear and continue to attend court until discharged and, in default thereof, shall pay in civil actions or special proceedings, to the party at whose instance the subpoena issued, $40, jn addition to full damages sustained. Held, that where a railroad telegraph operator, subpoenaed as a witness, was detained in court longer than was expected resulting in other operators working more than nine hours, the railroad company’s immunity from liability under the Hours of Service Act was not affected by the fact that such operator was so. subpoenaed as a witness on behalf of the railroad company, as his attendance at court was at the command of the court and pertained to the administration of justice, and his duty to obey the subpoena did not arise from his contract relation with the company.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dee. Dig. <&wkey;>13.]</p> <p>8. Evidence <&wkey;10 — Judicial Notice — Location of Places.</p> <p>Judicial notice may be taken that Kenly is about ten miles south of Smithfield on the main line of the Atlantic Coast line Bailroad.</p> <p>LEd. Note. — For other casos, see Evidence, Cent. Dig. §§ 9-14; Dec. Dig. <&wkey;10.j</p> <p>9. Evidence <&wkey;40 — Judicial Notice — Jurisdiction and Procedure of Courts.</p> <p>Judicial notice may be taken that the recorder’s court at Smithfield, N. C., has a local and restricted jurisdiction, and usually tries and disposes of eases without the intervention of a jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 51, 55; Dec. Dig. &wkey;> 40.]</p>

In Bankruptcy. In the matter of Sintha A. Coles, bankrupt. On petition of bankrupt for review of an order of the referee approving report of trustee setting apart to her a homestead exemption.

<p>In Bankruptcy. In the matter of A. L. Johnson, bankrupt. On petition by the Pacific Coast Investment Company for the proceeds of mortgaged property.</p>

In Admiralty. Suit by Watts, Watts & Co., Limited, against the Unione Austríaca di Navigazione, etc. This is a libel brought by Watts, Watts & Co., Limited, an English corporation, against the Unione Austríaca di Navigazione, etc., an Austrian corporation, to recover the sura of §45,360, the contract price of bunker coal supplied by the libelant to tlie respondent's steamers at Algiers, a dependency of the French Republic, before the outbreak of war between England and…

<p>Admiralty <@=>75 — Discovery <@=>12 — Production of Writings — Necessity.</p> <p>A lilielant’s motion for discovery of cablegrams and other messages will not be granted, either under the admiralty or the general equity rules, where the libelant has or can obtain originals or copies of all the messages, and all he could gain by discovery would be to establish the authority of the sender and the receipt of the answers, which facts could be established by depositions taken on commission.</p> <p>[Ed. Note. — Por other cases, see Admiralty, Cent. Dig. §§ 559, 586, 587; Dec. Dig. <@=>75; Discovery, Cent. Dig. § 13; Dec. Dig. <@=>12.]</p>

<p>1. Courts @=365— United States Court — State, Daws as Rule op Decision — Action for Personal Injury.</p> <p>In actions in the United States courts for personal injuries the rule adopted by the federal courts must prevail, rather than the rule of the state court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971; Dec. Dig. @=365.]</p> <p>2. Equity @=363 — Motion to Dismiss — Effect as Abmission.</p> <p>A motion to dismiss a bill in equity admits all the allegations of the bill which are well pleaded.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 762-766, 768; Dee. Dig. @=363.]</p> <p>3. Release @=24 — Right to Contest — Return of Consideration.</p> <p>Where an injured servant, who had been cared for in his employer’s hospital by his employer’s physician, and paid only the amounts expended by him for such care and the value of his time during that period, at his former wages, not as compensation for future’ damages, but under a mutual mistake that his injuries were practically cured, executed a release of all further claim, and, thereafter became very much worse, and was seriously and permanently injured, he can have the release set aside without returning or offering to return the amount received therefor.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 41-46; Dee. Dig. @=24.]</p> <p>4. Cancellation of Instruments @=34 — Proceedings—Haches—Release—■ Right of Action Barred.</p> <p>An injured servant, who signed a release more than a year prior to the expiration of the time limited by Rem. & Bal. Code Wash. § 159, for bringing an action for his injuries, and immediately thereafter became much worse, and so continued until after the expiration of the time limited, cannot then sue to have the release canceled, since it was his own. laches, and not the mistake as to the extent of his injuries, which prevented the bringing of his action within the time limited.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 49-54; Dec. Dig. @=34.]</p> <p>5. Limitation of Actions @=95, 104 — Fraud—Mutual Mistake.</p> <p>The statute of limitations does not begin to run against the right of action so long as the plaintiff is prevented from bringing the action by the defendant’s fraud or by mutual mistake.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 33.7, 473, 474, 511-513; Dec. Dig. @=95, 104.]</p>

<p>In Equity. Suit by Joseph C. Meekins against the Branning Manufacturing Company and another.</p> <p>Bill filed by plaintiff for an accounting of the value of timbér cut from lands of which he alleges defendant, Branning Manufacturing Company, and himself, are tenants in common, heard upon the pleadings and an agreed statement of facts.</p>

In Admiralty. Petition by the Chesapeake Steamship Company of Baltimore City, as owner of the steam tug Southern, for limitation of liability. On hearing on question of liability for collision.

<p>In Admiralty. Suit by Hiram Bingham and Alfreda Bingham against the steamship Cretic; Oceanic Steam Navigation Company, Rimited, claimant.</p>

In Bankruptcy. In the matter of the Pacific Electric & Automobile Company, a corporation, bankrupt. On petition to review order of referee, denying a reclamation petition of the Burrows Adding Machine Company.

<p>1. Conspiracy <&wkey;43 — Indictment—Statute.</p> <p>An indictment found by the grand jury of the District of Columbia, which charges the defendant with conspiracy to obtain money by false pretenses without charging any overt act, does not charge an offense under Penal Code (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (Comp. St. 1913, § 10201), making punishable by not more than two years’ imprisonment a conspiracy to defraud the United States, where one or more of the conspirators do any act to effect the object of the conspiracy, but charges a common-law conspiracy, which is punishable under Code of Laws 1901 D. C. (Act March 3,1901, c. 854, 31 Stat. 1337) § 910, providing for the punishment of criminal offenses, not covered by any section of the Code, by imprisonment not to exceed five years.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§■ 79, 80, 84-99; Dec. Dig. <&wkey;43.]</p> <p>2. Criminal Law <&wkey;10 — Offenses—Common-Law Offense in District of Columbia.</p> <p>Under Act Feb. 27, 1801, c. 15, 2 Stat. 103, accepting the cession of the District of 'Columbia and continuing in force the laws of Maryland in. that District, the common law, both civil and criminal, was extended to that District, and there may be common-law offenses against the United States committed therein.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 8; Dec. Dig. &wkey;>10J</p> <p>3. Habeas Corpus <&wkey;30 — Grounds fob Relief — Error.</p> <p>Where the trial court imposed sentence under a statute which he determined to be applicable, error in that determination could be corrected only •by writ of error, not by habeas corpus proceedings.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dee. Dig. <&wkey;30.]</p>

<p>1. Process @=>119 — Service on Nonresidents — Validity.</p> <p>Nonresidents, who appeared by their agents in response to an order of the referee in bankruptcy in summary proceedings, may not while in attendance on the court at the hearing, be served with process in another suit; and service is not good, if taken advantage of promptly.</p> <p>[Eel. Note. — For other cases, see Process, Cent. Dig. §§ 148, 149; Dec. Dig. @=5119.]</p> <p>2. Bankruptcy @=>293 — Courts—Jurisdiction.</p> <p>The United States District Court for a district of Georgia, adjudging bankrupt a resident contractor, under contract to construct a building for an owner residing in South Carolina, has no jurisdiction of an action at law or suit in eguity by the trustee in bankruptcy against the owner and other nonresidents to determine the validity of orders, given by the contractor to nonresidents, on the owner, for the matter in controversy is only what the owner owes for the completion of the work, and the court is not in possession through its trustee of the res.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. @=293.]</p> <p>3. Bankruptcy @=>293 — Courts—Jurisdiction.</p> <p>The court has no jurisdiction as to residents merely holding claims against the bankrupt contractor and having nothing belonging to the bankrupt, where all the persons interested in the performance of the contract are not parties to the proceedings and cannot be made so, because outside the jurisdiction.</p> <p>[Ed. Note.' — Eor other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig, @=>293.]</p>

<p>In Equity. Suit by W. A. Carlisle against C. Elmer Smith and others. On motion to dismiss by plaintiff.</p>

In Bankruptcy. In the matter of the Consumers’ Albany Brewing Company, bankrupt. On application by Edward Murphy, 2d, trustee, for an injunction 'against Eugene Weill and the German Hall Association.

<p>Iii Bankruptcy. In the matter of Wolf M. Levitan, bankrupt. On motion to vacate an order staying the enforcement of a judgment.</p>

<p>In Bankruptcy. In the matter of the Culgin-Pace Contracting Company, alleged bankrupt.</p>

<p>1. Bankruptcy <§=>72 — Corporations Subject to Bankruptcy Act — “Manufacturing” — “Mercantile Pursuit.”</p> <p>xV corporation generating electricity and transmitting it over its wires to its consumers for a consideration is not engaged in “manufacturing” or a “mercantile pursuit,” witMn Bankr. Act July 1, 1898, c. 541, § 4, 30 Stat. 547, as amended by Act Eeb. 5, 1903, c. 487, § 3, 32 Stat. 797 (Comp. St. 1913, § 9588), and it cannot be adjudged a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 17; Dec. Dig. <§=>72.</p> <p>For other definitions, see Words and Phrases, First and S.econd Series, Mercantile.]</p> <p>2. Bankruptcy <§=>72 — Corporations Subject to Bankruptcy Act — Public Service Corporations.</p> <p>A corporation organized under a state statute to manufacture electricity, and supply light, heat, and power by electricity, with the right to a certain extent of exercising eminent domain, and with authority from the state to use the highways of a municipality, subject to reasonable regulations of the municipality, and defined by state statute as a public service corporation, and manufacturing and supplying electricity for light, heat, and power is not within Bankr. Act July 1, 1898, § 4, as amended by Act Feb. 5, 1903, § 3, providing that any corporation engaged principally in manufacturing or mercantile pursuits may be adjudged a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 17; Dec. Dig. <§=>72.]</p>

<p>In Bankruptcy. Proceedings against the M. L. B. Sturkey Company, Incorporated. On exceptions to the report of the referee disallowing the claim of the Chase City Manufacturing Company to certain property in the hands of the trustee.</p>

<p>1. Corporations <©=>557 — Stockholders’ Actions — Sufficiency op Bill.</p> <p>In a stockholders’ suit for a receivership of the corporation and other relief, an allegation on information and belief that the chief executive officer of the corporation asserted an indebtedness against the company in a large amount, which indebtedness was not admitted by plaintiffs, that the validity of such indebtedness should be carefully investigated, and that there were equitable rights in favor of the corporation against such officer, which should be asserted in favor of the company, by one whose interest did not conflict with his duties, was insufficient under equity rule 27 (198 Fed. xxv, 115 C. C. A. xxv), providing that every bill brought by stockholders and founded on rights which may properly be asserted by the corporation must be verified by oath and contain an allegation that plaintiff was a shareholder at the time of the transaction of which he complains, or that his share has since devolved on him by operation of law, that the suit is not a collusive one to confer jurisdiction on a court of the United States, and must also set forth with particularity-plaintiff’s efforts to secure such action as he desires on the part of the managing directors or trustees and the causes of his failure to obtain such action or the reasons for not making such effort.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227, 2228, 2230-2236; Dec. Dig. <@=>557.]</p> <p>2. Corporations @=3557 — Stockholders’ Actions — Sttittciency op Bill..</p> <p>In a stockholders’ suit for a receivership and to enjoin persons claiming to be the president and vice president of the corporation from exercising the powers of those or any other offices, the bill alleged that it would be useless to make demand upon the president to file suit against himself, that plaintiff had made demand upon the corporation and its officers and directors that it sue such officers for the purpose of restraining them and their agents from acting as officers and directors and diverting the assets of the company and restraining them from asserting claims against the corporation, that for reasons unknown to the plaintiffs this demand had been refused, and that the suit was not filed for the purpose of col-lusivoly giving jurisdiction to- the court of a cause of which it had not jurisdiction. Meld, that this allegation was sufficient under equity rule 27, relative to the allegations of stockholders’ bills.</p> <p>[IOd. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227, 2223, 22; ¡0 2230; Dec. Dig. @=3557.]</p> <p>3. Equity @=>363 — Motions to Dismiss — Suppiciiüncy op Bill.</p> <p>Where the original and supplemental bill in a suit in equity were presented to the judge designated to hold District Court, and such judge allowed them to be filed, this was persuasive, though not controlling, on a motion to dismiss, that they made a case justifying the interposition of a court of equity. -</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 762-766, 768; Dec. Dig. @=>363.]</p>

<p>Bankruptcy <®=»172 — Rishts op Trustee — Transfers.</p> <p>A manufacturer of fire apparatus, contracting witii a city to make and deliver -fire apparatus subject to inspection and acceptance by tbe city, assigned the money due from the cityi under the contract to an assignee in consideration for a loan made or note discounted. The assignee had no notice or reason to suspect the insolvency of the manufacturer. A few days before the bankruptcy of the manufacturer, and while he was insolvent and so known to be by the assignee, the manufacturer transferred to the assignee the apparatus specified in the contract. The as-signee took possession as security for the loan. Held, that the transfer of the property was void, and the trustee in bankruptcy was entitled to possession thereof, for the assignment did not include a transfer of the apparatus, and the assignee obtained no rights thereunder until the- city inspected and accepted it.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 220; Dec. Dig. <S=172.]</p>

<p>1. Habeas Cobptis <@=>5 — Appeal-—Determination.</p> <p>Where a Chinese held íor deportation applied for a writ of habeas corpus because his appeal had not been determined by the Secretary of Labor or a duly authorized Acting Secretary, and after a commission had been ordered to take the testimony of witnesses as to the authority of the one who heard the appeal, the appeal was considered by the Secretary himself, and the order for deportation affirmed, that hearing gives the petitioner all that he could secure by writ of habeas corpus, and the commission will be recalled, and the petition for writ denied.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 5; Dec. Dig". <@=S.]</p> <p>2. Aliens <@=332 — Expulsion—Appeal—Right of Counsel.</p> <p>On an appeal to the Secretary of Labor from an order deporting a Chinese, the applicant has no right to appear by counsel or to introduce further evidence in Ms own behalf.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 8d, 92-95; Dec. Dig. <g=»32J</p>

In Bankruptcy. In the matter of William L. Daly, bankrupt. On petition for leave to file an application for a discharge. The above-named bankrupt presents a supplemental petition, verified June 30, 1915, and asks for an order permitting the filing of his petition for a discharge, verified January 30, 1915, and then presented to the court for filing. This supplemental petition, while verified June 30, 1915, was presented to the court July 13, 1915.

In Bankruptcy! In the matter of the Brown Wagon Company, bankrupt. On petition for review of referee’s decision disallowing claim of the J. E. Fay & Egan Company as a secured claim.

<p>In Bankruptcy. In the matter of Haynes Son & Co., bankrupt. Ancillary proceedings in aid of a receiver in Alabama.</p>

<p>At Law. Action by the Maryland Casualty Company against Price, Smith, Spilman & Clay.</p> <p>'This is an action brought by the Maryland Casualty Company against the defendants, who were the regularly retained counsel of plaintiff company at Charleston, W. Va. The plaintiff company is engaged, inter alia, in issuing policies of liability insurance, and had issued such a policy to the Wylie Permanent Camping Company, a corporation of the state of West Virginia, doing a transportation and camping business in Yellowstone National Park, in the state of Wyoming. It appears that in the year 1908, and during the life of the said policy, an accident occurred to Mrs. Gail V. Lynch, a citizen and resident of the state of Ohio, which resulted in the bringing of a suit by Mrs. Lynch in this court against said Wylie Permanent Camping Company for the sum of $15,000 damages for the injury to her.</p> <p>Under its policies of insurance the plaintiff company was empowered and was obligated to defend suits against its policy holders, and upon notification of the pendency of this action' brought by Mrs. Lynch they notified the defendants, who were their regularly retained counsel at Charleston, of the fact, and instructed said firm' to enter an appearance on behalf of the defendant therein. The original declaration then proceeds to aver that thereupon it became the duty of the defendants to enter such appearance and to take such further steps as were necessary to prevent a judgment from being rendered against said Wylie Permanent Camping Company; that said defendants on January 26, 1909, advised plaintiff that an appearance at rules was not necessary, and had not been made, but, that defendants would look after the case and keep plaintiff advised as to its progress; that it became and was the duty of defendants to protect plaintiff against a judgment by default, and to advise plaintiff of the time when said case was set for trial, so that plaintiff could be ready with witnesses at the trial, .etc.; and that it relied upon defendants to discharge their professional duties in these respects.</p> <p>Plaintiff further avers that it made an effort to settle and compromise this litigation, and that it could have done so at any time up to the rendition of judgment therein for the sum of $2,000. , It avers that by reason of the neglect of the defendant a default judgment was entered against Wylie Permanent Camping Company on the 2d day of July, 1909, and an inquiry of damages executed, resulting in a verdict and judgment against said company for the sum of $15,000 and for costs of said suit, both of which judgments plaintiff was, under its contract of insurance, compelled to pay to said Wylie Permanent Camping Company because of its failure to defend said action.</p> <p>Plaintiff by an amended declaration avers that under its contract with Wylie Permanent Camping Company its limit of liability, had it defended said action, would have been $5,000, and.it could not have been liable for more, had defense been made by defendants as instructed; but it does not aver that the terms of its said contract were communicated to defendants, ■or that any' information of facts constituting a defense were ever communicated to the- defendants.</p>

The Northwestern Fisheries Company was charged with willfully, knowingly, and unlawfully delivering and offering for transportation in interstate commerce unwholesome food products. On motion for a directed verdict of not guilty.

<p>Benjamin Friedman was indicted for violation of the Harrison Anti-Narcotic Raw.</p>

<p>Thelma Woods, W. Thompson, George Smith, William Ross, Fred Wayne, and F. White were indicted for offenses. On demurrers to the indictments.</p>

<p>' Bankruptcy @=293 — Possession oi? Property — Property op Trustee— J rjRISDICTION.</p> <p>Kan hr. Act July 1, 3898, c. 541, § 23b, 30 Stat. 552 (Comp. St. 1913, § 9607), provides that suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt might have brought or prosecuted them, unless by consent of the defendant, except suits lor the recovery of property under sections 60b, 67e, and 70e. Section 60b provides that if a bankrupt shall have procured or suffered a judgment against him or made a transfer of his properly within four months before the filing of the petition in bankruptcy, which judgment or transfer shall operate as a preference, it shall be voidable by the trustee and he may recover the property or its value, and any court of bankruptcy shall have jurisdiction concurrent with the state court of an action for that purpose. Section 67e requires the trustee to recover by legal proceedings property conveyed within four months prior to the petition with intent to defraud creditors, Section 70e requires the trastee to avoid any transfer by the bankrupt which any of his creditors might have avoided, and to recover the property from any person who may have received it except a bona fide holder for value, and gives the bankruptcy courts and state courts concurrent jurisdiction of actions for that purpose. Held, that an action by the trustee in bankruptcy to recovery property valued at $183 taken from the bankrupt by force does not come within any of the last three sections, and is not within the jurisdiction of the United States District Court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. @=293.]</p>

<p>Bankruptcy <@==>184 — ‘Lie,ns—Chattel Mortgages — Delay in Piling.</p> <p>Item. & Bal. Code Wash. § 9061, requires chattel mortgages to be^flled within 10 days in the auditor's office of the county, and section 3662‘pro-vides that such filing shall be notice to all the world of the existence and conditions of such mortgage. Bankr. Act July 1, 1898, c. 541, § 47 (2), 30 Brat. 057, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. Ht. 1913, § 9631), provides that the trustee shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, and as to property not in the custody of the bankruptcy court, all the rights of a judgment creditor holding an execution duly returned unsatisfied. Hold, that, though a chattel mortgage was not filed within 10 days, where it was filed before bankruptcy proceedings were commenced the mortgagee’s rights were superior to those of the trustee; it not appearing that there were any creditors of the bankrupt prior to the recording of the mortgage.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. <©==>184.)</p>

<p>1. Criminal Law <@=31089 — Appeals—Allowance ok Appeal.</p> <p>Defendant, when arraigned for a felony, pleaded guilty under the advice of counsel, and the court, after hearing both defendant and his counsel, imposed sentence. Six months thereafter, and after two terms of court had intervened, he petitioned to have an appeal allowed, further proceedings stayed, and the record and proceedings printed for the purpose of an appeal. An assignment of errors was attached to the petition, in which it was stated that defendant was unlawfully deprived of a jury trial. Held, that the petition would not be entertained, nor would any order for the purpose of bringing about a review be made.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2899; Dec. Dig. <@=31069.]</p> <p>2. Criminal Law <@=3301 — Evidencie—Judicial Notice — Court Proceedings.</p> <p>On an application for the allowance of an appeal, a stay of proceedings, and. to have the record printed for the purpose of an appeal, the court may take judicial notice that defendant was tendered a jury trial at the time of his arraignment, and that under advice of counsel of his own selection he voluntarily pleaded guilty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 2951% ; Dec. Dig. <@=3804.]</p>

In Bankruptcy. In the matter of R. A. Bohrman, bankrupt. Application of H. R. Jackson, attorney, for payment for services out of the estate of the bankrupt.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Intervening petition by the Buckeye Wheel Company and others against H. H. Haines, receiver of the New Decatur Buggy Company, in which the First National Bank of Middletown, Ohio, made a motion. From a judgment for petitioners, the receiver appeals.</p> <p>On June 25, 1907, appellant was appointed receiver of the New Decatur Buggy Company, a corporation, by a decree made and entered by the lower court in the case of Harry W. Quackenbush v. Harry H. Elwood et al. Four days later and on June 29, 1907, the receiver petitioned the court for authority to continue the business of the corporation and to borrow the sum of $3,000 for that purpose. His petition was granted and an order made and entered accordingly. Inasmuch as the decision of this controversy hinges upon the construction to be„ given to this order of the court, the receiver’s petition and the order are here set forth ini full:</p> <p>Petition.</p> <p>“Tour petitioner, H. H. Hainfes, having been duly appointed receiver herein, represents to the court:</p> <p>“First. That in his opinion it is proper and necessary that he should make an inventory and appraisement of all the property and assets coming into his •hands as said receiver, and he therefore respectfully suggests to the court that the court appoint three judicious disinterested persons as appraisers of all said porperty and assets.</p> <p>“Second. Tour petitioner further represents that in his opinion it is wise and expedient and for the best interest of the creditors and other parties interested that the business of the New Decatur Buggy Company should he continued by him as receiver -for the following reason, to wit: There is on hand in the factory of said company at Middletown, Ohio, a large quantity of stock and materials for the manufacture of buggies and other vehicles, and that there are in various stages of manufacture buggies and other vehicles in said plant; that said stock and materials and partly manufactured products are of an approximate value of $40,000 to $50,000.</p> <p>“Your petitioner further says that the spring season for the manufacture and sale of buggies and other vehicles is now at hand; that said spring season has been delayed by the rains and inclement weather of the past spring and summer; and that said period for the sale of said products will be most profitable commencing about July 1, 1907, and continuing until about November 1, 1907. .</p> <p>“Your petitioner further says that, unless said stock and materials shall be so manufactured into the products of said concern, said stock and materials will have to be sold at a great sacrifice and w.ork great loss to both creditors and parties interested.</p> <p>“Your petitioner further says that said company now has many orders for manufacture and shipment of goods, and that it can procure many more; that in the opinion of your petitioner orders can be obtained of such a number and size as to keep said factory continually and profitably in operation.</p> <p>“Your petitioner further says that said factory having been closed so recently, the necessary working force thereof can be readily assembled for the purpose of running said plant.</p> <p>“Wherefore, your petitioner prays for an order authorizing him to reopen said factory and employ the necessary working force and continue said business until the further order of said court.</p> <p>“Third. Your petitioner says that it will be necessary in order to manufacture said goods and reopen said factory and employ said hands to use certain money, and that there is nothing on hand in the treasury of said company, and he therefore prays for an order of this court authorizing him to borrow money, not to exceed $3,000, at a rate of interest not exceeding (> per cent., and that he be authorized to issue receiver’s certificates or other evidence of indebtedness therefor.”</p> <p>Order.</p> <p>“This day this cause came on to be heard on the application of H. H. Haines, receiver herein, praying for an order appointing appraisers to make an inventory and appraisement of the property and effects coming into his hands as said receiver, and was submitted to the court, and the court being fully advised in the premises finds that it is proper and necessary to grant said order, and does hereby order that said inventory and appraisement he made by said receiver, and that R. B. Edson, W. T. Harrison, and L. T. Palmer, he and they hereby are appointed appraisers for said purpose.</p> <p>“Second. Thereupon this cause came on for further hearing on the application of said receiver for an order of court to reopen the factory of the Now Decatur Buggy Company, referred to in the application, and to employ the necessary working force, and to continue said business, and was submitted to the court.</p> <p>“On consideration whereof the court finds that it is necessary and for the best interests of the creditors and all parties Interested that said order be granted, and the court does hereby order said receiver to reopen said factory, employ the necessary working force and continue said business until tiie further order of this court.</p> <p>“Third. Thereupon this cause came on for further hearing upon the application of said receiver for authority to borrow money, and was submitted to the court.</p> <p>“On consideration whereof the court finds that it is proper and necessary for the profitable operation of said plant that said order be granted.</p> <p>“It is therefore ordered by the court that said receiver be and he is hereby authorized and empowered to borrow money for the purpose of continuing said business in a sum not to exceed $3,000 at a rate of interest not to exceed 0 per cent., and ho is hereby authorized and empowered to issue receiver’s certificates or other proper evidence of indebtedness therefor.”</p> <p>Pursuant to the authority so granted, the receiver immediately borrowed from the hirst National Bank of Middletown, Ohio (hereinafter called the “bank”), the sum of $3,000, and gave his promissory notes therefor. On July 25, 1907, the receiver again petitioned the court for authority to borrow an additional $2,000 “in order to carry on said business and meet the pay roll and other necessary expenses incurred by him as receiver.” On the same day the court made an order authorizing him to borrow “money not exceeding $2,000, in addition to the money heretofore authorized to be borrowed by him.” immediately thereafter he borrowed $1,000 from the .bank upon his promissory note. These sums of money aggregating $1,000, so borrowed by the receiver, with interest, constitute the claim of the bank.</p> <p>The business of the New Decatur Buggy Company, which was continued by the receiver, consisted largely of assembling the parts of buggies which it purchased from dealers and manufacturers and then selling the completed product. Without applying for or obtaining other authority than that contained in the order of June 25, 1907, the receiver commenced at once to purchase ,on credit additional merchandise and parts of buggies from the Buckeye Wheel Company and many other concerns. Ho continued to operate the factory for about eight months, and, during that time, his purchases on credit aggregated about $34,000 and his payments thereon about $20,700, leaving a balance of upwards of $13,000 then owing by Mm. When the factory finally shut down in February, 1908, he owed the Buckeye Wheel Company alone more than $4,000 and his other merchandise creditors more than $9,000. Since then he has paid on these accounts about $7,200, leaving a balance of about $5,800 still owing to siich creditors. The business was conducted at an enormous loss, and, through shrinkage in values as well as losses in operation, the receivership has terminated disastrously for all concerned. The net results are that the creditors of the New Decatur Buggy Company have received nothing, the entire estate (appraised at upwards of $93,000) has been lost, and the receiver now has in his hands about $4,000 with which to pay debts, amounting to nearly $10,000 owing by him to the bank and other creditors.</p> <p>On September 28, 1908, the bank filed its intervening petition against the receiver to recover the moneys borrowed by him and evidenced by his notes. The receiver answered the petition, admitting the indebtedness, but presenting a counterclaim in an amount larger than the indebtedness. In its reply the bank denied liability upon the counterclaim. On May 5, 1911, a decree was made by the District Court disallowing the counterclaim of the receiver and ordering and directing him to pay to the bank the sum of $4,900 with interest out of the funds and assets in his hands. This decree was affirmed by this court. Haines v. First National Bank of Middletown, Ohio, 203 Fed. 225, 121 O. C. A. 431.</p> <p>On April 14, 1910, the receiver filed his first report from which it appears that he had then sold and converted into money all of the property which had come into his possession, and that “his total receipts from the operation of said plant and the running of said business, the collection of accounts, sales of property, and from all other sources up to March 21, 1910, amounted to $89,-725.44; his disbursements for the same period amounted to $81,041.63, leaving a balance of cash on hand for distribution of $8,683.81.” Attached to Ms report as exhibits are tabulated statements of his receipts and disbursements. Among the receipts appears the $4,000 borrowed from the bank, and among the disbursements appear the payments to Ms merchandise creditors aggregating $28,015.70.. The report contains no hint of the fact that he was still owing upwards of $5,800 to his merchandise creditors. While the record is imperfect and incomplete as to the court’s action upon this report, it may fairly be inferred that the report was received, the account approved, and the receiver allowed $2,000 as compensation for his own services and $2,000 for the services of his attorneys. More than three years later and on May 12, 1913, the receiver filed his second report from which it appeared, for the first time, that he was still owing the Buckeye Wheel Company and 13 other merchandise creditors the sum of $5,835.63. The second report also shows that the receiver’s debt to the bank was still unpaid and that, after paying $2,000 to himself and $2,000 to his attorneys and other small incidental expenses, he had in Ms hands the comparatively small sum of $3,854.08.</p> <p>On June 2, 1913, the bank filed a motion stating that the receiver had failed to pay its claim and asking for an order requiring him to carry out the provisions of the decree of May 5, 1911, as affirmed by this court, and to pay to it the amount therein directed to be paid with interest. On June 7, 1913, the Buckeye Wheel Company filed its intervening petition in behalf of itself and other creditors of the receiver in like situation, alleging therein that the receiver had borrowed $4,000 from the bank pursuant to the authority conferred by the orders of June 29 and July 25, 1907, that the receiver had purchased from petitioner goods- and merchandise of the value of $7,296.54 upon which he had paid $5,340.50, leaving a balance unpaid of $1,956.04, that the receiver had purchased of petitioner and other merchandise creditors goods and merchandise to the amount of $34,365.51 upon which he had paid $28,529.88, leaving a total indebtedness to merchandise creditors then due and payable of $5,835.63, and that, after applying the moneys in his hands upon the payment of the bank’s claim, nothing would be left with which to meet Ms obligations to Jiis merchandise creditors; charging that the receiver’s purchases of goods and merchandise on credit were all made without authority and in violation of the orders of the court, and “that the purchase of said goods and merchandise and the contracting of said indebtedness by said receiver, as to any excess over said $5,000, were wasteful, extravagant, and such conduct as to constitute negligence and faulty management on his part,” and praying for an order allowing its claim and directing the receiver personally to make payment if lie had not sufficient funds ill his hands as receiver to meet his obligations. In ills answer to the intervening petition, the receiver admitted the Indebtedness, denied lack of authority to purchase goods and merchandise on credit, and denied personal liability.</p> <p>The motion of the bank and the petition of the Buckeye Wheel Company were hoard together. At the hearing, all charges of wastefulness, negligence, and mismanagement were waived and withdrawn. The District Court found that the receiver acted without authority and in contravention of the court’s orders in contracting indebtedness for goods and merchandise,’ and that llis accounts should he surcharged for the purpose of meeting and paying such unauthorized indebtedness. After reciting the findings, the decree proceeds as follows:</p> <p>“it is now ordered, adjudged, and decreed that said receiver’s accounts be surcharged, and that lie repay into this court within thirty days from the entry hereof the amount heretofore allowed him as compensation for services, to wit, $2,000; that, in addition to said sum of $2,000, said receiver shall pay into this court within 30 days from the entry hereof a sum which shall bo sufficient, taken together with the foregoing and the amount in his hands and with the amount now on deposit in the First National Bank of Middletown, Ohio, to pay the coste herein, the debt of said bank as aforesaid, and the debts of said goods and merchandise creditors (as above set forth).</p> <p>“Of the funds in said receiver’s hands he is ordered to make distribution as follows, viz.: He will first pay and deduct the costs, if any, which are due at this date and which may be properly and necessarily incurred in carrying out this decree and order of distribution. He will permit the First National Bank of Middletown, Ohio, to retain said sum of $216.90 held by it to the credit of said receiver, and apply same towards the payment and satisfaction of the debt of said bank. The balance in his hands, he will forthwith pay to the said bank or to Its attorneys, Benjamin F. Harwitz and Joseph W. O’Hara.</p> <p>“Of the funds to be paid into court by the receiver, as aforesaid, ho is ordered to make distributions as follows, viz.: He will first pay the amounts hereafter fixed by this court as allowances to the solicitors for the Bnekeyo Wheel Company, he will then pay the balance to said bank and merchandise creditors according to the amounts then due upon their respective debts as above mentioned.”</p>

<p>In Error to the District Court of the United Slates for the Eastern District of Oklahoma; Erank A. Youmans, Judge.</p> <p>Action by Steven Collier, a minor, by his next friend, Louis Collier, against E. N. Gillespie. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeals from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Petition by the F. A. Kinsey Company against A. W. Heckermann, trustee in bankruptcy of James D. Patton, to establish a lien on certain machinery sold to the bankrupt. From a decree establishing the lien as to a portion of the machinery, but denying it as to the rest, both the petitioner and the trustee appeal.</p> <p>Those are cross-appeals from a decree entered in the court below January 30, 1915. Patton, trading as the Commercial Packing Company, and also as the Patton Manufacturing Company, had been adjudicated a bankrupt and. Heckermann appointed trustee. According to stipulation of the parties, the following in substance are the facts: At and before the bankruptcy, Patton was engaged in the manufacture of automobile electric lamp eonneejors. He was occupying and using as a manufactory the west half of the fourth floor of what is known as the Murdock Building, in Cincinnati. The building had been designed and intended to afford space for light manufacturing purposes, and iho floor space mentioned was held by him under a lease for one year from February 1, 1913. Pursuant to contracts with Patton, the Kinsey Company sold and delivered to him in July, 1913, at the manufactory mentioned, certain machines at specified prices: 1 No. 0 B. & S. tool grinding machine, 2 No. 0 B. & S. wire-feed screw machines, and 1 B. & S. No. 2 wire-feed screw machines. The Kinsey Company, on November 10, 1913, filed in the office of the recorder of Hamilton county, Ohio, an instrument in due form asserting a mechanic's lien against this machinery. The occasion for the purchase of the two No. 0 B. & S. wire-feed screw machines was a sudden change In demand of the trade, from double circuit connectors to single circuit connectors. These machines replaced an automatic screw machine theretofore furnished by the Kinsey Company, and this machine was returned to the Kinsey Company as a credit against the unpaid price therefor. The rest of the machinery so sold and delivered was added to the machinery equipment in the manufactory, for the purpose of enabling the bankrupt to manufacture parts of the product which had theretofore been specially made for him; by others and at greater cost. The machines so supplied aggregated something more-than 3,400 pounds in weight; one was fastened to a table and the others were screwed to the floor of the manufactory, and all were connected by belting and countershafting with an electric motor which supplied the power for the entire manufactory. The machines were capable of being removed without appreciable damage to the building, and were regarded by the parties and also the lessor as personal property, not as fixtures. The Kinsey Company consented to a sale of the machinery supplied by it, separately from the other assets, and to a transfer of its asserted lien to the proceeds of sale without prejudice. Further, no part of the machinery sold by the Kinsey Company to the bankrupt was used to alter or repair any other machine or equipment of the bankrupt. “It either supplanted and displaced other machinery and equipment or was added to the machinery and equipment owned by the bankrupt at the time” of the Kinsey sale to him.</p> <p>The Kinsey Company filed a petition in the bankruptcy proceeding, in which it set out its claim for the machinery so supplied, alleged that the claim was unpaid, that the machinery was “furnished in good faith in and about the construction, alteration, and repair” of the manufactory, described the manufactory and the lot on which it is located, the steps it had taken to acquire the mechanics’ lien, and prayed its enforcement. The referee denied the lien entirely. Upon review, the District-Court allowed the lien upon part of the machinery and disallowed it as to the rest; but the claim, independently of the lien, does not appear to have been questioned. While the appeals are each general in form, yet, through the assignments, the effect of each is limited — that of the Kinsey Company to the portion of the decree disallowing, and that of the trustee to the portion allowing, the lien on part of the machinery.</p>

Action by Louella Gillespie, administratrix of A. E. Gillespie, deceased, against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant brings error.

Appeals from the District Court of the United States for the Eastern District of New York. On cross-appeals from a decree of the District Court for the Eastern District of New York.

Petition for Review and Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. In the matter of the Breakwater Company, a bankrupt. There was an order (220 Fed. 226) dismissing the petition of the American Surety Company for a review of an order allowing commissions to Rhine Russell Freed, trustee, and Edward F. Hoffman, referee, and petitioner petitions for review of and appeals from the order of dismissal.

<p>Appeal from the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge.</p> <p>Proceeding to deport Ng You Nuey-. From a decree affirming an order of deportation, defendant appeals.</p> <p>Complaint was filed before a United States commissioner for the Southern district of Ohio, February 21, 1913, charging that appellant “is a Chinese manual laborer and is now within the limits” of such district “without the certificate of residence required by the act of Congress entitled ‘An act to prohibit the coming of Chinese persons into the United States,’ approved May 5, 1892 (27 Stat. 25, c. 60), and the act amendatory thereof, approved November 3, 1893 (28 Stat. 7, c. 14), and the act amendatory thereof, approved April 27, 1904” (33 Stat. 428, c. 1630, § 5). Appellant appeared upon warrant before the commissioner. The complaint was “fully read and explained” to him, whereupon he entered a plea of “not guilty.” The matter was subsequently heard before the commissioner, with counsel representing both parties. Two witnesses were sworn and examined on the part,of the government; a typewritten draft of certain questions and appellant’s answers thereto, together with a lease of certain property held by appellant under another name as lessee, were introduced in evidence. Thereupon the government rested its case, and appellant moved to dismiss. The motion was overruled, and appellant declined to introduce testimony. The commissioner found the complaint to be true, and entered an order of deportation to China. The matter was appealed to the District Court, and there tried upon proofs offered by both sides. The government called a witness to show that appellant, Ng You Nuey, “is a person of Chinese descent.” This was admitted by Nuey’s counsel, but with the limitation that the admission should not imply that Nuey “was born in China.” The government then rested its case, motion to dismiss Nuey was overruled, and no exception reserved. Nuey then offered his proofs, the government presented proofs in rebuttal, the court affirmed the order of the commissioner, and Nuey appeals.</p>

Suit in equity by the New England Confectionery Company against the National Wafer Company. Decree for defendant, and complainant appeals. The following is the opinion of Dodge, Circuit Judge, in the court below: This bill complains that the defendant has infringed a certain registered trade-mark belonging to the plaintiff. The relief it can obtain in this suit is limited to that which can be afforded for such an infringement.

‘ In Error to the District Court of the United States for the District of Oregon; R. S. Bean, Judge. Action by John A. Parker against the C. A. Smith Dumber & Manufacturing Company. There was a judgment for the plaintiff, a,nd defendant brings error.

This cause'comes here tipon appeal from a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought under the federal Employers’ Act to recover damages resulting from the death of Timothy S. Banker, a locomotive engineer, who was killed by the derailment of a train he was running.

<p>1. CONSTTTUTIONAT, I>AW <&wkey;48 — STATUTES—-VAm DTTY — JUDICIAL POWER. Only in a clear case may the eouiis declare an act unconstitutional.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <&wkey;48.]</p> <p>2. Commerce <&wkey;55 — Foreign Commerce — Roweb of Congress.</p> <p>Act July 31, 1912, c. 263, 37 Stat. 240 (Comp. St. 1913, §§ 10416-10118), making it unlawful to bring into the United States any film of any prize fight, which is designed to be used or may be used for purposes of public exhibition, is a valid exercise of the power conferred by the commerce clause, though it may indirectly interfere with the police power of the states.</p> <p>IjEd. Note. — For other eases, see Commerce, Cent. Dig. S§ 72-102: Dec. Dig. &wkey;55.]</p> <p>3. Commerce <§=s8 — Foreign Commerce — Power of Congress.</p> <p>The right to determine what articles, offered for import, shall he admitted into the country, is solely for Congress, and the right to admit on terms implies the plenary right to refuse admission on any terms, though after an article has once' been admitted, and has become part of the common stock of property, Congress may lose control over it; but an article does not become subject to the power of the states until it has been admitted into the country.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dee. Dig. <&wkey;>8.]</p> <p>4. Commerce <&wkey;>55 — Foreign Commerce — Power of Congress — Statutes— Construction.</p> <p>An importation of moving picture films of a prize fight is within the prohibition of Act July 31, 1912, prohibiting the importation of prize fight films, designed to be used or which may be used for purposes of public exhibition, for the films are articles of commerce, capable of being sold or leased, and the mere fact that the importer has no present intent of using them for any other purpose than exhibition does not change their cháracter or remove them from the subject of commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§■ 72-102; Dec. Dig.’ &wkey;>55.]</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill. Complainants are importers of tea. Respondents, United States General Appraisers, are members of the appellate board, created under the act of March 2, 1897 (as amended May 16, 1908), known as the Tea Law, to re-examine teas already examined by tea examiners appointed under the same act.

Rud-kin, Judge. In the matter of the estate of the Prager-Schlesinger Company, a bankrupt. Proceedings by the Clere Clothing Company against the Union Trust & Savings Bank, trustee in bankruptcy, to establish claims. From a decree rejecting the claims, the Clere Clothing Company ap-licáis.

Otis Humphrey, Judge. In the matter of Midland Motor Co., bankrupt;- Edward D. McCul-loch, trustee. From an order denying a petition by the Herschell-Spill-man Company for the reclamation of certain property, the petitioner appeals.

<p>1. Corporations <®=>S8 — Stock Subscriptions — Rescission—Recovery or Payment.</p> <p>An Illinois corporation in January received $50,000 from D. under a contract which provided that it was to become a part of the capital stock as soon after July 1st as an increase in the capital stock could be arranged ; that it was to become special ■ capital until it could be merged into the general capital stock; that it was to bear the same percentage of dividends as regular stock from January 1st, and in addition interest until July 1st; that, if D. or his son desired to become officers and directors, sucli arrangement would be made; and that the president would give the son every legitimate opportunity of learning the business. The son was employed by the corporation. The corporation gave out a financial statement stating that D.’s investment was special capital until July 1st, when it was intended to increase the capital stock. Interest was paid to September 1st, but no dividends were paid, and in August the corporation was adjudicated a bankrupt. Iledd, that while the president and directors of an Illinois corporation have no authority to sell a prospective, but unauthorized, increased issue of stock, and therefore payment in advance under such a eontrapt could be recovered, D. could not recover Ms payment on this theory, since the payment was not merely an advance payment on account of stock, and even if treated as a loan, until the increase of the stock, the implied obligation of the corporation to repay the loan was an enforceable counter promise for the payment, and barred a rescission, notwithstanding the lack of enforceability of the promise to issue tile stock.</p> <p>I Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 337-364, 425-428; Dec. Dig. @=>88.]</p> <p>2. Corporations @=>88 — Stock Subscriptions — Rescission—Recovery op Payment.</p> <p>D. could not rescind as for a failure of consideration, as the engagement of his son and the promise to pay, in addition to interest, a sum equal to dividends, were partial considerations for the payment, though the son derived little, if any, benefit through his employment, and the company’s condition made it extremely improbable that dividends could be declared, and hence there was at most only a partial failure of consideration, which gives no right of rescission.</p> <p>(Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 337-364, 425 -428; Dec. Dig. @=>88.]</p> <p>S. Corporations @=>560 — Investment op “Special Capital” — Rights as Against Creditors — ‘‘Capital.”</p> <p>Even if D. was entitled to priority in the distribution of the funds of the corporation as against stockholders, he did not have the standing of a creditor as against other creditors, since the “capital” of a stock company or of a business is the fund intended to be subject to the risks of tile business, and contributed to meet the obligations of the business, and to be repaid to the contributors only after all other obligations have been satisfied, and, while the phrase “special capital” in reference to a corporation has no established legal meaning, the parties evidently intended that the investment should be subject to the risks of the business, and share in the profits in exactly the same way as the actual capital.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dee. Dig. @=>566.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Capital.]</p> <p>4. Estoppel <S=83 — Representations as to Financial Standing — Investments — Stockholder ok Creditor.</p> <p>In an event, D. was estopped as against those creditors relying on the financial statement, as, even though it was not expressly authorized by him, it stated the facts in exact accordance with the agreement, and was therefore impliedly authorized by him.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 218, 227-229; Dec. Dig. @=>83.]</p>

F. Bledsoe, Judge. Habeas corpus by Ernest C. Reed against, the United States of America, Charles E. Sebastian, Chief of Police of the City of Los Angeles, and Patrick J. Phelan, agent of the State of Iowa, for the discharge of petitioner, restrained under an extradition warrant. From an order discharging the writ and remanding petitioner to custody, he appeals.

Appeal, from the District Court of the United States for the Southern District of New York. .This cause comes her.e upon appeal from a decree dismissing the bill in a suit for infringement of two trade-marks, registered under the act of February 20, 1905. The opinion of the District Judge will be found in 221 Fed. 281.

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge.</p> <p>Action by Henry E. Fushey, as administrator, against the Monad-nock Mills. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Suit in admiralty for collision by Herbert E. Heyliger, master of the. schooner E. S'tarr Jones, against the steamship Brand, and cross-suit by Edward Ballestad, master of the Brand, against the schooner. Decree for cross-libelant (214 Fed. 266), and libelant appeals.</p>

<p>1. Food ©==>22 — Food and Drugs Act — Violation.</p> <p>In a prosecution for violation of the Food and Drags Act of June 30, 190b, e. 3915, 34 Stat. 768 (Comp. St. 1913, §§ 8717-8728), where there was evidence that macaroons are made: (1) Of ground almonds, sugar, and white of eggs; (2) oí eoeoanut, sugar, and white of eggs; and (3) of cocoanut, sugar, white of eggs, and glucose — and defendant was charged with having adulterated macaroons made by him by the add'd ion of glucose, the question of the normal composition of the article of food known as a “macaroon” was for the jury.</p> <p>[Ed. Note. — For oilier cases, see Food, Cent. Dig. § 23; Dee. Dig. ©=>22.</p> <p>What constitutes a violation oí pure food regulations, see note to Brina v. United States, 105 C. C. A. 559.]</p> <p>2. Food ©=>5 — Food and Drugs Act--Adulteration.</p> <p>In a prosecution for violating tile Food and Drugs Act of June 30, 1906, by adulterating macaroons by the addition of glucose, if the only respect in which glucose differed from cane sugar, the ingredient for which it was subst ituted, was in its degree of sweetness, no standard of sweetness for macaroons being fixed by the law or otherwise, the defendant was not guilty.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 1; Dec. Dig. ©=»5.]</p> <p>3. Food ©=>5 — Food and Drugs Act — “Adulteration.”</p> <p>In a prosecution of a macaroon manufacturer under the Food and Drugs Act oí June 30, 1906, where the evidence showed that a macaroon is a mixed food composed of various ingredients, that its name is distinctive, and that the glucose which the defendant added, producing the charged adulteration, was not poisonous or deleterious to health, the defendant was not guilty of “adulteration” under section 8 (section 8724) of the act, providing that a mixture known by a distinctive name shall not be regarded as adulterated if it does not contain any added poisonous or deleterious ingredient.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 1; Dec. Dig. <@=>5.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Adulterate.]</p> <p>4. Food @=>22 — Food and Deugs Act>-Misbbanding.</p> <p>In a prosecution under the Food and Drugs Act of June 30, 1906,. for misbranding macaroons, where there was evidence that a macaroon, as commonly understood, was made of ground almonds, sugar, and white of eggs, and that the defendant’s product was made of coeoanut, sugar, white of eggs, and glucose, the question of misbranding was for the jury.</p> <p>[Ed. Notei — For other cases, see Food, Cent. Dig. § 23; Dec. Dig. @=>22.]</p> <p>6. Food @=>15 — Food and Drugs Act — “Misbranded.”</p> <p>In a prosecution for misbranding macaroons, brought under the Food and Drugs Act of June 30, 1906, section 8 (section 8724) providing that an article of food is misbranded if it be an imitation of or offered for sale under the distinctive name of another article, or if the package containing it, or its label, shall bear any statement regarding the ingredients or substances contained therein, which statement shall be false or misleading in any particular, if a macaroon consists of coeoanut, sugar, and white of eggs, articles shipped by defendant containing glucose in addition, and branded “Macaroons,” were “misbranded” within the act</p> <p>[Ed. Note. — 'For other cases, see Food, Cent. Dig. § 14; Dec. Dig. @=>15. For other definitions, see Words and Phrases, Second Series, Misbrand.]</p>

<p>1. Municipal Corporations <&wkey;347 — Contracts—Bonds—Obligation of Principal and Surety.</p> <p>An obligation by one, as principal, a city contractor, and another, as surety, to secure persons furnishing labor or material'to the principal, is a joint and several obligation as to persons furnishing labor or material, and each is liable as principal to such persons, though as between themselves the principal is the principal debtor and the surety is surety only.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 876, 877; Dec. Dig. &wkey;347.]</p> <p>2. Bankruptcy &wkey;>345 — Claim—Sureties.</p> <p>An obligation by a contractor and his surety was joint and several as to third persons. The principal by contemporaneous agreement indemnified the surely company against any payments that the latter might make under the obligation. The surety paid into court the penal sum of the obligation, which was distributed ratably among creditors; each receiving about 50 per cent. The contractor was adjudged a bankrupt after the surety had paid the-money into court. Held., that the surety was entitled to subrogation, and its claim against the contractor for the amount paid must be allowed, while a creditor oE the contractor, secured by the obligation, must credit the amount received on the distribution of money paid into court and confine himself to the balance.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 531, 532, 534, 539, 540; Dec. Dig. &wkey;>345J</p>

<p>1. GommeRCe <&wkey;60 — Interstate Commerce — Validity ov State Law.</p> <p>Personal Property Law N. Y. (Consol. Laws, c. 41) § 65, provides that when articles are sold, title to remain in the vendor until payment of the price, and they are retaken by the vendor, they shall be retained for 50 days, during which time 1lie vendee may comply with the contract; that after such period, if the terms of the contract are not complied with, the vendor may cause the articles to be sold at public auction; and that, unless they are so sold within 30 days after the expiration of sucli period, the vendee may recover of the vendor the amount paid on such articles under the contract. Held, that while, as applied to a sale of property to be sent from Pennsylvania to New York, this statute indirectly affects interstate commerce, it- is in no sense a regulation thereof.</p> <p>[Ed. Note. — For other cases, ■ see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. @=>60.]</p> <p>2. Sales @=>481 — Conditional Sales — Retaking ' Property — Recovery of Payments.</p> <p>Where a contract for the conditional sale of property to be sent from Pennsylvania to New York was executed in New York, and the property was to be used there and paid for there, the vendor, when it retook the chattels upon the vendee’s default, did so subject to the New York law, and, hot having sold the property at public auction, as required by Personal Property Law N. Y. § 65, it was liable to the vendee for the amount paid by him on account.</p> <p>[Ed. Note. — For other cases, see Sales, Cent Dig. §§ 1449-1455; Dea Dig. <&wkey;481.]</p> <p>3. Sales &wkey;481 — Conditional Sales — Retaking Property — Recovery of Payments.</p> <p>Where a vendor of property sold conditionally agreed to accept advertising in a magazine in .part payment, and it subsequently retook the property because of the vendee’s default in making stipulated cash payments, and did not sell the property at public auction, as required by Personal Property Law. N. Y. § 65, the purchaser was entitled to recover the amount paid by publishing the advertisement, though it was not shown that he paid anything for the advertising, parted with any value, or suffered any detriment in relation thereto.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1449-1455; Dec. Dig? <&wkey;481.</p> <p>What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 C. C. A. 448.]</p>

This cause comes here on writ of error to review a judgment of the District Court of the United States for the Southern District of New York. The complainants in the action below, hereinafter referred to as complainants, were copartners in business, under the firm name of Murphy Bros., and resided and did business in the Southern district of New York.

Mack, Judge. Billb of review by John A. Lewis and another, as executors of John Alexander Dowie, deceased, against William B. Holmes and others. From decrees dismissing the bills, complainants appeal. These appeals are from decrees dismissing bills filed by complainants for the purpose of reviewing the proceedings in the suit of William B. Holmes v. John Alexander Dowie et al., 148 Fed. 634, commenced in the United States Circuit Court July 7, 1906.

<p>1. Criminal Law <&wkey;1216 — Trial—Punishment—JURISDICTION or Court.</p> <p>Accused, under an indictment charging two offenses, was convicted of violating the Mann Act (Act June 25, 1910, c. 395, 36 Slat, 825 [Comp. St. 1913, §§ 8812-8819]), and sentenced to imprisonment for ten years. The maximum punishment provided in the act for one offense is five years. Nothing appeared to show that the offenses were continuous in their nature. Held, that, ujuler the circumstances,, the court did not exceed its jurisdiction in sentencing petitioner for ten years, for one sentence may he imposed on a conviction for two or more offenses, where the sentence is not in excess of the maximum allowed by law for all of the offenses of which accused has been convicted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3310-3319; Dec. Dig. &wkey;1216J</p> <p>2. Criminal Law <&wkey;995 — Punishment—Sentence—Suottoibnct.</p> <p>Under Code of Law D. C. 1901, § 925, declaring that, whenever the punishment shall be imprisonment for more than one year, it shall be sufficient for the court to sentence defendant to imprisonment in the penitentiary without selecting the penitentiary, and the imprisonment shall be in such penitentiary as the Attorney General shall from time to time designate, a sentence which did not specify the penitentiary is warranted.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2521, 2523-2526, 2528%, 2530, 2536-2543; Dec. Dig. &wkey;995.]</p> <p>3. Criminal Law &wkey;>1178 — Appeal—Waiver op Errors.</p> <p>A contention on appeal, unsupported by citation of authority, or argument, oral or written, may be considered waived.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. &wkey;>1178.]</p>

Suit by William A. Rogers, Limited, against John J. Nichols and another, for an injunction to restrain defendants from infringing a trade-mark and for damages. From a decree denying relief, complainant appeals.

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Thomas Andrews, alias Thomas J. Murphy, and others, were convicted of conspiring to commit a crime against the United States, and they bring error.</p>

This cause comes here upon appeal from a decision of the District Court, reversing an order of deportation made by the United States commissioner.

<p>1. Criminal Daw <§=>1159 — Appeal—Review—Verdict Against Weight or Evidence.</p> <p>An assignment of error by one convicted of crime that the verdict was against the weight of the evidence presents no question for review by the circuit court of appeals.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig-. <@=»1159.]</p> <p>2. Criminal Law <®=»442 — Evidence—Letter—Identification of Handwriting.</p> <p>In a prosecution of a Chinese for manufacturing smoking opium without a bond, a letter found in defendant’s pocket, written in Chinese, but which had never been signed or sent, and which he denied having written, is admissible, where two genuine signatures of accused were admitted without objection for the purpose of comparison,' and a witness familiar -with Chinese had testified that the letter in question was in the same handwriting as the signatures on the others, giving his reasons for his belief.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1027; Dec. Dig. <@=442.]</p> <p>3. Poisons <§=>9 — Witnesses <@=>405 — Evidence—Admissions.</p> <p>In a prosecution for manufacturing smoking opium without bond, the fact that defendant smoked opium is not a collateral matter as to which his reply is binding on the prosecution, but is relevant, and a written statement by him that he had been unable to give up smoking is admissible after he denied that he smoked.</p> <p>[Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. <@=>9; Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. <§=>405.]</p>

Appeals from the District Court of the United StatesYor the Southern District of New York. This cause comes here upon two appeals, both prosecuted by Lilian R. Sire. The main appeal is from a decree of the District Court, Southern District of New York.

<p>John J. Shea and others were convicted of a crime, and they bring error. On motion of the United States to docket and dismiss the case, and petition of plaintiffs in error for an order enlarging the time for return of citation.</p>

Anderson, Judge. Separate suits for injunction by William M. Barrett, president of the Adams Express Company, against William H. O’Brien, Auditor of the State of Indiana. Decrees for defendant, and complainant appeals.

' This cause comes here upon appeal from a decree dismissing a bill in equity. The cause was before us on appeal from a decree sustaining demurrer; the averments of the bill are quite fully set forth in our opinion, which will be found in 206 Fed. 452, 124 C. C. A. 358.

<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 the United States District Court for the Eastern District of New York to review a judgment entered upon the verdict of a jury finding the defendants guilty under an indictment containing two counts, the" first charging the defendants with manufacturing opium, not being citizens of the United States, and the second charging them with having manufactured opium without having given the bond required by law.</p>

<p>Bankruptcy <@=303 — Voidable Transfers of Property.</p> <p>Evidence held, to sustain the allegations of. a bill by a trustee in bankruptcy that certain corporate stock, which prior to the bankruptcy and when the bankrupt was insolvent was taken over by creditors, Who were relatives, and sold and the proceeds applied largely in payment of their own claims, was owned by the bankrupt, and not by his son, as claimed, and to entitle complainant to recover the sums so received by defendants as voidable preferences.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 458 — 462; Dec. Dig. <@=>.303.]</p>

<p>Bankruptcy <&wkey;165 — Liens—Pledge Within Four-Months Period.</p> <p>A bank, which, when a bankrupt was insolvent and within four months prior to his bankruptcy, advanced money to be used in redeeming stock owned by the bankrupt from a valid pledge of the same to another bank, and which then, in accordance with the agreement, took the stock as collateral to its own note, held entitled to retain payments received on its note, and to enforce its lien for the balance due thereon.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 266; Dec. Dig. <&wkey;>165.]</p>

<p>Towage <&wkey;18 — Tug Engaged in Docking Steamship — Injury by Propeller.</p> <p>A tug engaged with others in docking a large steamship, which took a position alongside near her stern, and when she started her starboard propeller was drawn by suction within reach of the blades and injured, held not entitled to recover from the steamship, which, as customary, was to be expected to use her propellers whenever necessary to aid the work of the tugs, but to have assumed the risk of the position it took.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 40; Dec. Dig. <&wkey;>18.] ♦</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>On writ of error to review a judgment of the District Court for the Southern District of New York entered upon the verdict of a jury for $5,000 in favor of the plaintiff, as damages for an injury to the plaintiff’s left eye while working for the defendant in its stockyards at Homestead, Pa.</p>

<p>INJUNCTION <&wkey;241 — Liability on Bond — Mannek or Detebmining.</p> <p>On dissolution of a preliminary injunction, for which a bond was given, the court has the discretion to itself determine the liability thereon, or to leave the defendant to his remedy by an action at law.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 544-552; Dec. Dig. &wkey;>241.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal by the Great Northern Paper Company, owner of a cargo of paper which was being carried by the steamer Millinocket from Stockton Springs, Me., to New York via Boston, from a decree dismissing its libel against the steamer Persian. At about midnight on. July 24, 1913, the Millinocket collided with the Persian, a large, iron passenger steamer which was on her regular voyage from Philadelphia to Boston. The place of the collision is about two miles N N E of Pollock Shoals Lightship. The stem of the Persian struck the Millinocket a glancing blow on the starboard quarter, causing her to leak so badly that she put into Vineyard Haven in a sinking condition. The negligence of the Millinocket is not disputed but the libelant appellant insists that, being an innocent party, it is entitled to recover against the Persian if the latter is wholly or partly in fault for the collision, leaving the owners of the Persian to recoup half the damages from the Millinocket.</p>

rk. , . This cause comes here upon appeal from an order of the District Court which awarded a fund of $7,500, in the' possession of the trustee, to the estate as against the appellants, and declared that a mortgage dated June 23, 1913, made by the bankrupt to one Isabelle P. Doyle, and thereafter assigned to the appellants, Devy Bros., was invalid and inoperative as security for, the indebtedness therein stated as against the general creditors of the Metropolitan Dairy…

This cause comes here upon appeal from an order of the District Court, Eastern District of New York, reversing an order of deportation of a Chinese person made by a United States commissioner,

This cause comes here upon appeal from a decision reversing an order of deportation, under the Chinese Exclusion Acts, made by a United States commissioner.

<p>Appeau and EReob <&wkey;1050 — Haemxess Ereoe — Evidence.</p> <p>Where, in an action for balance due for goods sold and delivered, the court submitted to the jury the statement of the accounts according to the figures of both parties, and on a sheet containing the figures of plaintiff showing a balance the court inadvertently wrote opposite the balance the words “Due on account according to defendant,” instead of “according to plaintiff,” the defendant was not prejudiced by the mistake plainly appearing on the face of , the paper.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§• 1068, 1069, 4153-4157, 4166; Dec. Dig. &wkey;1050.]</p>

<p>Bankruptcy <&wkey;440 — Order Bequiring Bankrupt to Turn Oves Property —Mode op Beview.</p> <p>An order of court in bankruptcy requiring a bankrupt to turn over property to his trustee, entered on exceptions to a special master to take testimony and report under order requiring the bankrupt to show cause why he should not be compelled to turn over a specified sum to his trustee, is reviewable only by petition to revise, under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608), and is not appealable under sections 24a, 25a (section 9609).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. <&wkey;440.</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9J</p>

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>On motion for rehearing.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Page Morris, Judge.</p> <p>Suit by the New York Scaffolding Company against Egbert Whitney. From a decree for defendant, the Scaffolding Company appeals.</p>

the United States for the Eastern Division of the Northern District of Illinois; Arthur D. Sanborn, Judge. ■ _ .Suit in equity by the Hoskins Manufacturing Company against the General Electric Company. • Decree for complainant, and defendant appeals. This patent was sustained and found to be .infringed by the District Court. It was granted to A. L. Marsh for an electric resistance element on' February 4, 1906, as patent No. 811,859.

<p>Patexts <©=>328 — Ixvextiox—Weighing Machine.</p> <p>Tlie Baldwin patent, No. 659,910, for an improvement in weighing machines especially designed for automatic coin-operated machines for weighing persons, and which consists in placing either upon or adjacent to the dial a table of the normal weight of persons of different heights, is void for lack of Invention, in that the machino and the table, both of which were old, do not co-operate to form a true combination.</p>

This action was brought upon claims 1 and 3 of a patent issued to E. J. Manning, No. 609,036, dated August 16, 1898; claims 16 and 18 of a patent to P. X. Wagner, No. 624,135, May 2, 1899, and all the claims, five in number, of a patent to É. G. Kunath, No. 845,240, of February 26, 1907. After the hearing, a motion was made by the complainant to add to the record letters patent No. 1,100,301 issued .to the defendant as assignee of Hess, June 16, 1914. This motion was granted.

714,880 granted December 2, 1902, to Carleton Ellis for a composition for removing paint and varnish. The patent has been the subject of protracted litigation but it has been uniformly sustained not only by Judge Lacombe and Judge Learned Hand in the present suit ([D. G.] 220 Fed. 681), but also by Judge Hazel in the Southern District of New York in an action against the De Ronde Company ([C. CJ 146 Fed. 988).

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge. _ ' _ Suit in equity by the United States Hoffman Company against the Becker & Wade Company. Decree in part for complainant, and both parties appeal.

Sessions, Judge. Suit in equity by the Underwood Typewriter Company against the Fox Typewriter Company for infringement of letters patent No. 811,-183, for a typewriting machine, granted to B. C. Stickney January 30, 1906. Decree for complainant, and defendant appeals.

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

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>This cause comes here on appeal from a decree dismissing the bill in a suit for alleged infringement of patent. The patent is No. 783,126, granted February 21, 1905, upon application filed April 27-, 1904, for “credit accounting appliance.” The opinion of Judge Ray, who held the patent valid, but not infringed, is found in 217 Fed. 415. The same patent was before Judge Orr in the Western district of Pennsylvania; he held the patent void. McCaskey v. Divens (C. C.) 181 Fed. 171. Upon appeal the Court of Appeals, Third Circuit, held that the patent was a very narrow one, and that, if it were sustained, it must be narrowly construed, with no broad range of equivalents. McCaskey v. Divens, 194 Fed. 967, 114 C. C. A. 603.</p>

<p>Patents @=>328- — 'Validity and Infringement — Body Braces.</p> <p>Tile MacClemmy patents, Nos. 948,233 and 948,234, for body braces, are valid, but in view of the prior art must be narrowly construed, and are not entitled to a large rango of equivalents, nor can any of the elements enumerated be disregarded as unimportant. As so construed, held not infringed.</p>

<p>Patents <&wkey;328 — Invention—Impeovement in Computing Scales.</p> <p>The Bane & Crane patent, No. 937,573, for an improvement in computing scales, whereby an electric lamp is automatically lighted when the weighing operation begins and is put out on its completion, held void for lack of invention.</p>

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

<p>In Equity. Suit by the Elliott Machine Company against Rothschild & Co. and the Independent Button Fastener Machine Company. On final hearing.</p>

<p>, 1. Patents i&wkey;328 — Validity and Infringement — Recording Coin Safe.</p> <p>The Fisher patent, No. 793,779, for a recording safe for holding coins, discloses invention and is valid; claim 8 also held infringed.</p> <p>2. Patents <&wkey;165 — Constbuction op Claims — Dimitation by Amendment.</p> <p>When an applicant for a patent, having devised a new mode of operation, in order to meet a reference amends a claim by inserting a limitation which modifies the.operation, such limitation is a material one, even though the amendment was unnecessary because the combination as a whole was new.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dee. Dig. &wkey;165.]</p> <p>3. Patents &wkey;>328 — Validity and Infbingement — Recording Coin Safe.</p> <p>The Fisher patents, No. 990,534, claim 7, No. 990,535, and No. 1,073,847, all relating to recording safes for holding coins, held valid, but not infringed.</p> <p>4. Patents &wkey;>328 — Validity and Infringement — Recording Coin Safe.</p> <p>The Thompson patent, No. 758,340, claim 4, for a recording safe for holding coins, held valid, but not infringed.</p> <p>5. Trade-Marks and Trade-Names^ <&wkey;3 — Validity—Teller as ■ Name of Coin Safe.</p> <p>The word “Teller” held a valid trade-mark for a recording safe for holding coin,- and also infringed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. &wkey;3.]</p> <p>6. Trade-Marks and Trade-Names <&wkey;70 — Unfair Competition — Imitating Form of Article.</p> <p>The manufacture and sale by defendant of a coin safe so nearly resembling complainant’s patented safe, previously in the market, that it could be distinguished only by careful examination, and that purchasers were in fact deceived, held to constitute unfair competition.</p> <p>. [Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. &wkey;>70.]</p>

<p>In Equity. Suit by the Automatic Recording Safe Company against the W. F. Burns Company. On final hearing.</p>

<p>Patents <&wkey;328 — Infringement—Recording Coin Safe.</p> <p>Tlie Fisher patent, No. 793,779, for a recording safe for holding coins, claim 8, held infringed.</p>

<p>Patents <&wkey;>328 — Infringement—Recording Coin Safe.</p> <p>The Fisher patent, No: 793,779, for a recording safe for holding coins, claims 6 and 7, held infringed.</p>

In Equity. Suit by the Klauder-Weldon Dyeing Machine Company against John H. Giles and the John H. Giles Dyeing Machine Company for infringement of claim 1 of letters patent No. 659,906, for a rotary dyeing machine, granted September 18, 1899, to Geonard Weldon, and claims 1 and 2 of letters patent No. 645,698, for apparatus for mercerizing, granted September 18, 1899, to tke same patentee. On motion for preliminary injunction.

In Equity. Suit by the Walker Bin Company against Magdaline Leibe, Jr., trading as the William Leibe Refrigerator Manufactory, for .infringement of letters patent No. 614,279, for a tilting bin, issued to ' ' Edwin J. Walker November 15, 1898. On final hearing.

<p>In Bankruptcy. In the matter of the Georgia Steel Company, bankrupt. Injunction restraining collection of school taxes issued.</p>

<p>Proceeding to deport Lem You. From an order of Commissioner Houghton directing his deportation under the Chinese Exclusion Act, defendant appeals.</p>

<p>Aliens <&wkey;32 — Deportation of Chinese — Procedure.</p> <p>Where a Chinese person sought to be deported was afterwards given an opportunity to appear with counsel, to be examined, to cali witnesses, and to cross-examine the government’s witnesses, it was immaterial that he was first examined in the absence of counsel, or whether such preliminary inquisition was before an inspector or commissioner.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <S&wkey;32J</p>

<p>In Bankruptcy. Proceedings against the Trion Manufacturing Company.</p>

<p>At Law. Action by the Southern Photo Material Company against the Eastman Kodak Company of New York. On challenge as to sufficiency of service of process.</p>

<p>Equity <§=392 — Reheating—New Evidence — Laches.</p> <p>A rehearing in an equity case will not be granted to allow the introduction of new evidence, where such evidence was known at the time the briefs were filed, but no motion was made to suspend or delay the case for the purpose of introducing such evidence.</p> <p>[Ed. Note. — For other cases, see Equity, -Cent. Dig. §§ S34-S51; Dec. Dig. <§=392J</p>

<p>In Bankruptcy. In the matter of David H. Sage, bankrupt. On petition-.by Johnson B. Angle, trustee, for an order against McDermott Turner, state receiver, for the delivery of property.</p>

<p>In Equity. Suit by John D. Rockefeller against P. C. O’Brien, County Treasurer of Cuyahoga county, Ohio.</p>

Richard Murphy and others were indicted for offenses. On challenge to the panel of jurors.

<p>In Equity. Suit by the Great Atlantic & Pacific Tea Company against the Cream of Wheat Company. On motion for preliminary injunction.</p>

<p>1. Specific Performance @==>86, 121 — Parol Contract to Make Wills — Enforcement- — Evidence.</p> <p>A parol agreement to make a will, if legally enforceable, will not be enforced, unless tbe evidence shows a reasonably definite and certain contract, established by clear, full, and irrefragable evidence, and performed to such an extent and in such manner that the beneficiary cannot be properly compensated in damages.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 223, 224, 387-395; Dec. Dig. @=>86, 121J</p> <p>2. Wills @=>58 — Contract to Make Wills — Evidence,—Sufficiency.</p> <p>Evidence held, not to establish a contract to make a will by one in favor of his stepdaughter and her children.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. @=>58.]</p> <p>■3. Trusts @=>44 — Parol Trusts — Evidence—Sufficiency.</p> <p>Evidence held not to establish a trust, binding the widow of testator to hold a part of testator’s property in trust for testator’s stepdaughter and her children.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. @=>44.]</p>

<p>1. Internal Revenue <@=o2 — Income Tax — Constitutionality.</p> <p>Act Oct. 3, 1913, c. 1C, 38 Stat. 114, imposing a tax upon incomes, is not unconstitutional as applied to the tax upon returns made in 3914, and estimated or based upon the income for a certain definite preceding period, though such period was partially prior to the enactment of the law, since, if a person is liable for the tax in the future, the method of its computation as estimated upon the past does not invalidate the tax.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. § 2; Dec. Dig. <@x=>2.]</p> <p>2. Internal Revenue —Income Tax — When Income Accrues.</p> <p>Act Oct. 3, 1913, c. 16, § 2, div. A, subd. 1, 38 Stat. 166 (Comp. St. 1913, § 6319), imposes an annual tax upon the entire net income arising or accruing from all sources to citizens or residents of the United States. Section 2, div. B (section 6321), provides that the net income of a taxable person shall include gains, profits, and income derived from salaries or compensation for personal service, of whatever kind and in whatever form paid, or from businesses, commerce, gains, profits, and income derived from any source whatever. By a contract between an insurance company and an agent he was to receive, as compensation for soliciting insurance, certain specified percentages of the premiums paid on policies written through his solicitation for the first and subsecpient years for 20 years from the date of each policy; the contract providing that the commissions should accrue only as the premiums were paid to the company, and that the liability for any particular commission would terminate it the policy ceased to be in force. Held, that the specified percentages of premiums for the second and subsequent years of the life of policies, issued prior to the enactment of the statute, constituted income which accrued when such premiums were paid, and were taxable as such.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. § 870; Dec. Dig. <g=»7.]</p> <p>3. Internal Revenue <@=37 — Income Tax — Incomes Subject to Tax.</p> <p>The liability of the agent’s percentage of such premiums to the income tax imposed by Act Oct. 3, 1913, was not affected by the fact that the agent hired subagents and maintained an office force, and that his percentage to some extent represented merely deferred returns, which ho had already anticipated and partially expended for office expenses; nor was the liability to the tax affected by the fact that such expenses were paid before the passage of the statute.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Gent. Dig. §§ 8-10; Dec. Dig. <®=»7J</p> <p>4. Internal Revenue <@=>2 — Income, Tax — Constitutionality.</p> <p>Act Oct. 3, 1913, is not unconstitutional as applied to the agent’s percentage of such premiums on policies issued prior to the passage of the act.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. § 2; Doc. Dig. <@=32.]</p>

<p>1. Courts <§=>209 — Jurisdiction of Federal Courts — Local Suits.</p> <p>A federal court lias jurisdiction of a suit against a nonresident defendant to foreclose a mortgage on land within the district, although neither party is a citizen of the state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. <@=269.]</p> <p>2. Covenants <@=>93 — Covenant of Title — Liability of Covenantor.</p> <p>A covenantor of title in a deed is not liable to the covenantee for damages sustained by the latter by reason of an unsuccessful attack upon his title by a third person.</p> <p>, [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 101-103; Dec. Dig'. <3=393.1</p> <p>3. Vendor and Purchaser <@=>143 — Suit to Foreclose Purchase-Money Mortgage — Defenses.</p> <p>A purchaser of timberland under a contract which gave it 20 days in which to examine the abstracts of title and provided that any objections to the title not made within that time should be deemed waived, and which has held undisturbed possession and removed the greater part of the timber from the land, cannot defend against a purchase-money mortgage on the ground that as to some of the land there was no title of record in the grantor.</p> <p>LEd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 207-270, 811; Dec. Dig. <@=>113.]</p> <p>4. Partnership <@=>147 — Contracts—Power of Partner to Bind Copartner.</p> <p>The partner of a grantor in a warranty deed, who claimed an interest in the property, held to have no authority to bind him by an undertaking to indemnify the purchaser against any possible attacks which might bo made upon the transfer of title by such grantor, the partner, or their heirs or personal representatives.</p> <p>[Ed. Note. — For other cases, see Partnership, Gent. Dig. §§ 25G, 257; Dec. Dig. <§=>147.J</p> <p>5. Interest <§=350 — Stjeeicie.ncy—Keeping Tender Good.</p> <p>Tenders by tbe maker of notes to tbe bank at wbicb tbe notes were payable, after tbe death of tbe payee and without the knowledge of bis administrator, but wbicb were conditioned on delivery of bis receipt and were not kept good by any deposit of tbe money, held ineffectual to stop tbe running of interest.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. § 114; Dec. Dig. <§=350.]</p>

<p>1. Corporations @=414 — Officers—Powers.</p> <p>An officer of a corporation, witli authority to issue its promissory notes, has no authority to issue notes for other than corporate purposes.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1640-1646; Dec. Dig. @=>414.]</p> <p>2. Corporations @=399 — Authority of Officers — Issuance of Notes — Liability.</p> <p>Where a note of a corporation is issued by an officer acting with apparent authority and within the general scope of his powers and in the regular course of business, any one dealing with him may assume that the note is that of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1588, 1602-1610; Dec. Dig. @=>399.]</p> <p>3. Corporations @=>429 — Authority of Officers — Issuance of Notes — Liability.</p> <p>Where a person dealing with an officer of a corporation knows, or is put oil inquiry which will lead to knowledge, that the officer is acting without authority or in fraud of the corporation, the corporation is not bound by the act of the officer.</p> <p>[Ed. Note — For other cases, see Corporations, Cent. Dig.'§§ 1720-1723, 1725; Dec. Dig. @=>429.]</p> <p>4. Corporations @=>464 — -Acts of Officers — Ultra Vires.</p> <p>The giving by a corporation of a note is not ultra vires, and becomes such only when the purpose in the giving of it is not for the use of the corporation, but in payment of the obligation of another, without consideration moving to .it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1829, 1821, 1828; Dtec. Dig. @=>464.] ;</p> <p>5. Corporations @=>432 — Acts of Officers — Ultra Vires.</p> <p>Where prima facie a note of a corporation has been issued without authority and in fraud of its rights, the holder in a proper case may be required to prove authority, or prove facts rendering the corporation liable; but where, on its face, the act is within corporate powers and in the regular course of business, such proof-is not necessary to hold the corporation liable.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. @=>432.]</p> <p>6. Bankruptcy @=>340 — Claims—Establishment—Evidence.</p> <p>A seller sold lumber to an individual under the understanding that a corporation to be formed would take over the lumber and would be bound for the price as substituted buyer. The corporation was organized, and its notes were exchanged for those of the individual. The seller acted in good faith. The corporation renewed the notes from time to time, and made partial payments by checks. A proposition to purchase the lumber from the individual by issuing to him certificates of stock was not carried out, and certificates were never issued. The seller at first declined to accept the notes of the corporation, but subsequently did so. Meld, that, on the corporation being adjudged a bankrupt, the seller could establish a claim against it for the amount due on the notes.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Ilig. § 527; Dec. Dig. <§==>340.;]</p>

<p>At Law. Action for damages by the United States against Carl Pitan and another. On demurrer to the complaint.</p>

<p>1. Bankruptcy <@=¿>320 — Claims oh? Sureties for Bankrupt.</p> <p>Bankr. Act July 1, 1898, c. 541, § 63b, 30 Stat. 502 (Comp. St. 1913, § 9044), provides that unliquidated claims may, on application to the court, be liquidated as it shall direct and may be proved and allowed. General Order XXI, subd. 4 (89 Fed. x, 32 C. C. A. xxiii), provides that claims of persons contingently liable for tlio bankrupt may be proved in the name of the creditor, when known, but that no dividend shall he paid thereon, except upon proof that it will diminish pro tanto the original debt. Claimant guaranteed the rent of $50 a month under a lease to a partnership, which had 3% years still to run, when bankruptcy intervened. Arbitrators appointed by the referee reported that the rental value was 833% a month. The lessors were not parties to the arbitration, and it did not appear whether they had elected to declare the term forfeited for failure to pay rent, to hold claimant for the full rent, or to take the property at the rental value fixed by the arbitrators. Held, that claimant’s claim for the difference between, the rent reserved and such rental value could not be allowed, but that she might prove the claim for the amount of which she was contingently liable in the name of the lessors, and the dividend thereoD should be paid to the lessors in exoneration pro tanto of her liability.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 479, 480; Dec. Dig. <§=3320.]</p> <p>2. Bankruptcy <@=>309 — Claims Provable — Partnership and Individual Assets.</p> <p>E.’s wife loaned him 82,000, and he loaned B.- $500 thereof; each putting the borrowed money into the business of a partnership organized by them. E. transferred to his wife B.’s note for the borrowed money. On September 9, 1914, the goods and accounts of the firm inventoried $11,550, and the indebtedness, exclusive of that due E.’s wife, was $6,000. On that; day E. sold his interest to his wife, and on September 24th she sold such interest to !>., taking his notes for $1,500 in payment. On January 29, 1915, B. filed a petition in bankruptcy. Held, that the debts due E.’s wife were provable and entitled to share in the assets, consisting of the stock in trade and open accounts, as B. had prior to the bankruptcy become the sole owner of the property formerly belonging to the partnership, and there were no partnership assets entitling the partnership creditors to priority, and E.’s sale to his wife was supported by a consideration, consisting of his indebtedness to her, and was apparently in good faith.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 555 -564; Dec. Dig. <@=>309.]</p> <p>3. Bankruptcy <@=>44 — Voluntary Proceedings — Parties—Partnerships.</p> <p>B., a member of a firm composed of himself and E., purchased E.’s interest and continued the business in the firm name. He subsequently filed a petition in bankruptcy, which he signed “B. & E., by B.” Held, that the proceedings should he regarded as having been instituted by B., doing business as B. & E.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 43-46; Dec. Dig. @=>44.]</p>

<p>1. Constitutional Law <§==>277 — Dub Process op Law — “Property”—Mortgage.</p> <p>Under Const. U. S. Amend. 14, providing that no state shall deprive any person of life, liberty, or property without due process of law, and Const. Iowa, art. 1, § 9, providing that no person shall be deprived of life, liberty, or property without due process of law, a mortgage or trust deed securing an indebtedness is “property.”</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 762, 766, 949; Dec. Dig. <§=>277.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>2. Constitutional Law <§=>251 — “Due Process op Law.”</p> <p>“Due process of law” means ordinarily judicial proceedings in court.'</p> <p>[Ed. Note. — For other, cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. <§=>251.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]</p> <p>3. Judgment <§=>685 — Conclusiveness—Persons Concluded — Mortgagee»</p> <p>Where a street railway company had mortgaged its property to a trust company to secure a bond issue before an action was begun by the city to have it declared that the franchise had expired, and the mortgagee was not made a party to that action, it is not bound by the judgment therein, since there is privity between <a mortgagor and mortgagee in a judgment only where the rights of the latter arose after the action was begun.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1208; Dec. Dig. <§=>685.]</p>

<p>In Bankruptcy. In the matter of Ida A. Dixon, bankrupt. Petition to review an order of the referee denying a petition by the trustee.</p>

<p>In Bankruptcy. In the matter of J. L. Philips & Co., a corporation, bankrupt. Application of bankrupt for discharge, and petition of J. S. Bailey for stay of discharge.</p>

In Admiralty. Libels by Jerry Petrie against the steamship PL mcn-nia, the Hamburg-American Line, claimant, and another, and ., die Erie Railroad Company against the steamship Allemannia, her mAicí, etc.

<p>In Bankruptcy. In the matter of Orlando Ricciardelli, bankrupt. On a certificate of the referee denying a petition of the trustee to require the bankrupt to show cause why he should not be required to turn, over to the trustee a specified sum.</p>

In Bankruptcy. In the matter of Adolph Mandel, a bankrupt. On motion by Adolph Mandel to compel the district attorney of New York to deliver to the receiver in bankruptcy books and papers. This is a motion to compel the district attorney of New York to deliver to Mandel’s receiver in bankruptcy books and papers which he is about to use in the trial of an indictment in the state court.

<p>1. SeameN <&wkey;32 — Wages and Effects of Deceased Seamen — Shipping Com-missionebs’ Allowances — Statutory Provisions.</p> <p>Rev. St. § 4543 (Comp. St. 1913, § 8332), requiring every shipping commissioner to. turn over the money, wages, and effects of deceased seamen, subject, to such deductions as may be allowed by the District Court for expenses incurred, gives the court power to allow expenses, provided they are reasonable, notwithstanding section 4545, as amended by Act March 3, 1897, c. 389, § 7, 29 Stat. 689 (Comp. St. 1913, § 8334), providing for the payment into the United States treasury of claimed wages and effects of deceased seamen, which does not mean that all the money paid into court by the commissioner shall be paid to the treasurer.</p> <p>TEd. Note. — For other cases, see Seamen, Cent. Dig. §§ 215-217; Dec. Dig. <&wkey;32.]</p> <p>2. Seamen <&wkey;32 — Wages and Effects of Deceased Seamen — Shipping Commissioners’ Allowances — Statutory Provisions.</p> <p>Allowances paid to a shipping commissioner as expenses under order of court, pursuant to Rev. St. § 4543, as previously construed by the Circuit Judge for the circuit, and followed with no objection, cannot be recovered back by the United States, where the allowances are not excessive, and the United States, wishing to contend that the amount paid under the practice is too large, can do so when' a subsequent case arises.</p> <p>[Ed. Note. — For other' cases, see Seamen, Cent. Dig. §§ 215-217; Dec,. Dig. <&wkey;32.]</p> <p>3. SEAMEN &wkey;32 — Wages and Effects of Deceased Seamen — Shipping Commissioners’ Allowances — Statutory Provisions.</p> <p>Act June 19, 1886, e. 421, 24 Stilt. 79, providing ior the payment to shipping commissioners of salaries, instead of fees for specified services, does not affect Rev. St. § 4543, requiring shipping commissioners to turn over money, wages, and effects of deceased seamen, subject to deductions allowed by the District Court for expenses incurred.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 215-217; Dec. Dig. <&wkey;>32.J</p>

<p>1. Copyrights <&wkey;66 — Infringement—Musical Compositions.</p> <p>Though otherwise the musical compositions are considerably different in theme and execution, it is enough to warrant the charge of piracy and infringement of copyright that the words “I hear you calling me,” with practically identical music accompanying them, appear in the two songs, and are the main thing that impresses one technically untutored.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Cent Dig. § 63; Dec. Dig.</p> <p>2. Copyrights <&wkey;85 — Temporary Injunction — Suspension.</p> <p>Temporary injunction in a suit for infringement of copyright of a song will be suspended, on defendant giving a bond and filing statements of sales, where sale of defendant’s composition cannot interfere with sale of plaintiffs’-composition, because of the inherent difference, generally speaking, of the tastes to which they appeal; but the case involves solely the rights under the statute.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Cent. Dig. § 78; Dec. Dig. &wkey;85.]</p>

<p>In Admiralty. Suit by Charles Griffin against the Davison Lumber Company, Limited, and others.</p>

<p>Proceedings by the United States for the deportation of Dew Ah Jung. Order of deportation rendered by the commissioner.</p>

In Equity. Suit by James W. I/usk and another, receivers of the St. I,ouis & San Francisco Railroad Company, against the Town of Dora, to enjoin the enforcement of a municipal ordinance.

<p>1. Maritime Liens <&wkey;14-1-AD vances — Authority of Master to Pledge Vessel.</p> <p>That libelant had previously made advances to masters of claimant’s vessels for their disbursements in port, which were repaid from freights there collected, and that such fact was known to claimant, did not imply authority on the part of the masters to pledge the vessels for such advances which entitled libelant to an implied lien on a vessel for ad-' 'vanees made to her master which he appropriated to Ms own use, on Ms bare statement that they were needed for her disbursements, when in fact they were not so needed and the master violated his instructions in borrowing the money.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 18; Dec. Dig. <&wkey;14J</p> <p>2. Maritime Lusks <&wkey;65 — Pledge op Credit of Vessel — Presumptiok.</p> <p>The credit of a vessel is presumed not to have been pledged, except when no other means were available to the master to meet her necessities.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 103; Dec. Dig. &wkey;>G5.]</p>

Suit by the Insurance Company of North America against William McCoach, Collector of Internal Revenue, to recover taxes paid. There was a judgment for plaintiff for less than he demanded (218 Fed. 90S), and he brings error.

<p>1. Co-umivrck <s=^>58 — Regulation op Holes or Service — Validity</p> <p>Hours of Service Act March 4, 1007, c. 2939, 34 Stat. 1415 (Comp. St. 3913, S8 8677-8680), limiting 1lie hours of service of employes of carrier;! engaged by railroad in interstate commerce, is within the power of Congress to enact.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §1 77-86, ICO; Dec. Dig. @=>58.]</p> <p>2. Master and Servant @=>13 — Regulation of Hours of Service — Validity.</p> <p>The purpose of Congress in enacting the Hours of Service Act, limiting the hours of service of employes of carriers by railroad engaged in inter ■ state commerce, Is to deal with all telegraph offices through which interstate train orders are transmitted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §’ 14; Dee. Dig. @=313.]</p> <p>3. Master and Servant @=>13 — Regulations—Hours- of Service — Statutes —Construction.</p> <p>The statutory limits of service which can be exacted of a telegraph operator within a 24-hour period, as prescribed by the Hours of Service Act, must be observed; and a railroad company may not so dispose of hours of wort as to require service by operators in excess of the statutory limit, notwithstanding ample resting intervals are in the company’s opinion provided for.</p> <p>LEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 14: Dec. Dig. @=>13.]</p> <p>4. Master and Servant @=>13 — Regulation of Employment — Hours of Service — Telegraph Offices.</p> <p>A telegraph office in charge of one operator from 4:30 a. m. to 6 a. m., from 7 a. m. to 11 a. m., and from 12 m. to 5 p. in., while another operator serves from 12 m. to 9:30 p. m., and a telegraph office in charge of one operator from 6:30 a. m. to 12 m., and from 1 p. m. to 6 p. in., and in charge of another operator from 11 a. in. to 1 p. in., and from 2 p. in. to 5 p. m. and 6 p. m. to 11 p. in., are offices within the Hours of Service Act, limiting the hours of service of employés, and providing that no operator, who by the use of the teleg'raph, reports, transmits, receives, or delivers orders pertaining- to or affecting interstate train movements, shall be permitted to be or remain on duty for a longer period than 9 hours, etc., in offices continuously operated night and day, nor for a longer period than 13 hours in offices operated only during the daytime.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. @=>13.]</p> <p>5. Constitutional Daw @=>238 — Equal Protection of Daw — Classification.</p> <p>The Hours of Service Act, classifying telegraph offices into two classes, one class composed of offices continuously operated night and day, and another class composed of offices operated only during the daytime, and declaring that no operator shall be permitted to remain on duty for more than 9 hours in any 24-hour period in night and day offices, nor for more than 13 hours in daytime offices, provides for a classification which is reasonable and valid.</p> <p>(Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ eSS-690, 695, 706-708; Dec. Dig. @=>238.]</p> <p>6. Master and Servant @=13 — Regulation of Employment — Hours op Service — Statutory Provisions — “Continuously.”</p> <p>A telegraph office operated from 4:30 a. m. to -9:30 p. m., subject to negligible intermissions and a telegraph office operated from 6:30 a. m. to 11 p. m. subject to negligible intermissions, are not offices operated only during the daytime, but are offices operated during the day and night, within Hours of Service Act 'limiting the hours of service of employés, and declaring that no operator reporting, transmitting, receiving, or delivering train orders shall be permitted to remain on duty for more than 9 hours in any 24-hour period in offices continuously operated night and day, nor for more than 13 hours in offices operated only during the daytime, for the words “only” and “continuously” must be read in connection with their respective classes, and as descriptive of conditions recurring and demanding day service on the one hand, and night and day service on the other, and offices are “continuously” operated night and day whenever the same or similar and substantial lengths of service .recur therein, regularly every day and night for a series of successive 24-hour periods, even though the offices are not operated continuously during every hour from midnight to midnight.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § »14 Dee. Dig. @=13.</p> <p>Eor other definitions, see Words'and Phrases, Eirst and Second Series, Continuous.]</p> <p>7. Master and Servant @=313 — Regulation—Hours op Service — Statutes — Construction.</p> <p>The Hours of Service Act, limiting the hours of service of employés of carriers by railroad in interstate commerce, though enforceable through penalties will not be construed so strictly as to defeat the obvious intention of Congress to promote the safety of employés and travelers on railroads.</p> <p>LEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. @=13.</p> <p>Hours of service of employés, see note to United States v. Houston Belt & T. Ry. Go., 125 C. C. A. 485.]</p>

<p>Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge. _</p> <p>_ Suit by Joseph W. Woolfolk against John T. Jones. From a decree •(216 Eed. 807) against the American Surety Company of New York, the surety on an injunction bond, in favor of the defendant and in favor of Henry R. Miller and another, special master and stenographer, respectively, Jones and the Surety Company appeal.</p>

Action by the United States against the. National Bank of Commerce. There was a judgment for the United States, and defendant brings error. During the years 1907, 1908, and 1909 ohe M. P. McCoy was an examiner of surveys and special disbursing agent for the Interior Department of the United States.

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

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Dickinson, Judge.</p> <p>Suit in equity by the E. I. Du Pont de Nemours Powder Company and another against Walter E. Masland and others to restrain defendant from divulging trade secrets. From an order refusing to vacate a temporary restraining order (222 Fed. 340), defendants appeal. Reversed.</p>

<p>1. Trade-Marks and Trade-Names &wkey;3 — Unfair Competition.</p> <p>Descriptive words, like geographical and proper names,_ may acquire a secondary significance, and in that meaning are the subject-matter of ownership, to be protected against unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. &wkey;3.</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. O. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376J</p> <p>2. Trade-Marks and Trade-Names <&wkey;3 — Unfair Competition.</p> <p>Complainant’s product was known as “Ruberoid” roofing, and although the word was descriptive and as such not subject to appropriation as a trade-mark, it had acquired a secondary meaning which indicated complainant’s product. After it was decided that complainant had no trademark in the name, the defendant corporation, known as the ““Rubberoid Roofing Company,” was organized, and its product was advertised as “Rubberoid,” there being an obvious intent to palm it off as the goods o£ complainant Held, that complainant would, by an injunction, be protected from such unfair competition.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. &wkey;3.j</p>

Pollock, Judge. Habeas corpus by Dan A. Ward and another against Thomas W Morgan, Warden of the United States Penitentiary at Leavenworth. Kan. Prom an order discharging the petitioners, the defendant appeals.

<p>Appeal from the District Court of the United S'tates for the Eastern District of Missouri; Walter H. Sanborn, Judge.</p> <p>Application by James W. Dusk and others, receivers of thé St. Louis & San Francisco Railroad Company, to disaffirm and renounce a contract with the Kansas City Southern Railway Company. From an order granting the application, the Railway Company appeals.</p>

<p>Courts <®=»264 — Federal Courts — Restraining Suits in State Courts.</p> <p>A suit by a trustee of a mortgage of a railroad company for appointment of a receiver and distribution of the property of the company among all its creditors, brought in the same District Court in which the trustee had previously sued to foreclose the mortgage, without praying for a receiver and without necessity for a receiver, is not ancillary to the foreclosure suit, but is independent of it, and the court may not in such suit enjoin the prosecution of actions in state courts instituted before such suit was begun.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 801; Dec. Dig. ®=?264.</p> <p>Enjoining proceedings in state courts, see notes to Gamer v. Second Nat. Bank, 16 C. C. A. 90; Central Trust • Co. v. Grantham, 27 C. C. A. 575; 'Copeland v. Bruning, 63 C. C. A. 437.]</p>

<p>1. Goki’orations <@=5116 — Sam, off Stock — Construction ok Contract — New Contract.</p> <p>Where complainant originally purchased certain mining stock out of the proceeds of a note executed by him to defendant and discounted on the credit of defendant as indorser, with an agreement that defendant could pay the note and acquire the stock at the cost price, hut subsequent dealings between the parties confused their rights to the stock, and thereafter complainant wrote defendant, demanding payment of interest on the note, and stating that the complainant had no right or interest in the stock and was in no way liable for the payment of the note, to which letter defendant agreed, the exchange of letters created a new contract between the parties, and the complainant thereafter had no right in the stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 493, 494, 496; Dec. Dig. <S=»116.]</p> <p>2. Appeal and Error <@=5719 — Assignments off Error — Necessity.</p> <p>In a suit to determine the rights of the parties arising out of a.,mining stock transaction, where defendant had tendered certain stoc-k to complainant, who'refused it, error, if any, in considering such tender, because it was made conditionally, where there was no allegation that complainant was thereby excused from accepting the tender, is not an error which will be noticed withont an assignment of error, under Sixth Circuit Court of Appeals rale 11 (202 Fed. viii, 118 C. C. A. x), authorizing the court at its option to notice a plain error not assigned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <@=5719.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; William H. Hunt, Judge.</p> <p>Action by Eva Vuknic against Harrison Rinehart and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois; J. Otis Humphrey, Judge.</p> <p>Suit in equity by Joseph Stuber and Henry G. Kuck against the Central Brass & Stamping Company. Decree for defendant, and complainants appeal.</p>

<p>Patents ©=328 — Validity and Ineeingement — Panel Boabd eoe Electrical Power Distribution.</p> <p>The McWilliams patent, No. 920,490, for a panel board for electrical power distribuí Ion especially adapted for use in large office buildings and for a system of electrical power distribution, was not anticipated and discloses invention; also field infringed.</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Suit in equity by Mark W. Woods, substituted for Werter S. Far-rar, against Christopher J. Lawless. Decree for complainant, and defendant appeals.</p>

<p>At Raw. Action by the Gray' Engine Starter Company against Gray & Davis, Incorporated. On demurrer to declaration.</p>

In Equity. Suits by Hiram Walker & Sons against Jacob H. Grub-man, doing business as the West Shore Wine & Riquor Company, Maurice Lewis, and Albert Berge; against Samuel Luria and/, Charles-A. Schreiber; against Henry Eising, Edwin Eising, and Emil Stein-barter, doing business as the E. Eising Company, Charles Spanton, and Alice Schoenholz; against Adolph Prince & Co., .a New York corporation, Adolph Prince, Felix Prince, and Leonard Prince; against Louis M. Goldberg and…

In Bankruptcy. In the matter ofi the bankruptcy of James T. Mosh-er.

Proceeding by the United States for the deportation of Chin Sing Quong. From an order and judgment of a United States commission-ei directing the deportation of Chin Sing Quong, he appeals.

<p>1. Bankruptcy <©=3223 — Compensation op Referee — Commissions.</p> <p>A referee is not entitled to commissions on money paid out by a trustee in conducting the business of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§• 888-894; Dec. Dig. <©=>223.]</p> <p>2. Bankruptcy <©=>223 — Commissions oe Referee — Disbursements for Rent.</p> <p>Where a trustee at the request of the creditors continued the mercantile business of the bankrupt, from that time forward the rent of the business premises was an expense of the business, and the referee is not entitled to commissions on the disbursements therefor; but rent accruing before that time, for which a lien was given by the state statute, was an indebtedness of the estate. '</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 888-894; Dec. Dig. <©=>223.]</p> <p>3. Bankruptcy <©=>223 — Commissions of Referee — Composition.</p> <p>The majority of ¿-editors of a bankrupt joined in acceptance of an offered composition, and in such acceptance waived deposit in court of the amount offered, and only such amount was deposited as necessary to cover costs, disbursements, and claims of creditors who did not join in the waiver. The composition was confirmed, but in the meantime the term of the referee had expired, and a successor had been appointed. Held, that under Bankr. Act 1898, c. 541, § 40a, 30 Stat 556 (Comp. St. 1913, § 9624), which provides that referees, shall receive as commissions “one-half of one per.centum on the amount to be paid to creditors upon the confirmation of a composition,”'commissions were allowable only on the amount actually paid in and disbursed in the bankruptcy proceedings, and that such commissions were payable to the succeeding referee, whose appointment took effect prior to the confirmation or to any disbursement of the fund.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 888-891; Dec. Dig. <§=j223.]</p>

<p>1. Wills <@=>566 — Construction—Property Devised — “Money in Bank.”</p> <p>A testator devised, real estate appraised at a specified value to a nephew, bequeathed to his wife all his shares of capital stock of a bank amounting to 20 shares, made small cash bequests, gave to a brother the residue “of my money in bank” remaining after payment of debts, expenses of administration, and legacies, and gave his residuary estate to his wife. Testator was, at the time of the making of the will, past 60 years of age and childless, and had retired from business. Testator and his wife had talked over the matter of the disposition of his estate, and had agreed thereon when he sent for a lawyer who drew the will according to instructions. Held, that the term “money in bank” in the will included, not only a checking account, but also time and savings deposits of testator.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1238%, 1239; Dec. Dig. <@=>566.]</p> <p>2. Wills <@=>439 — Construction—Intention or Testator.</p> <p>The court in construing a will must ascertain the intention of testator which, when ascertained,' governs.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 952, 955, 951; Dec. Dig. <@=>439.]</p> <p>3. Wills <@=^765 — Construction—Bights of Beneficiaries.</p> <p>Testator gave his money in bank to a brother, and gave to his wife all his stock in a bank “amounting in all to twenty shares.” He also gave her his residuary estate. Testator at the time of his death owned but 12 shares of stock, and it did not appear whether he was mistaken as to the amount of his holdings at the time he made his will, or whether he subsequently disposed of the 8 shares. When testator and his wife and the lawyer who drew the will talked over the disposition to be made, it was understood that the wife was to have 20 shares of bank stock as her portion. Held, that the wife was entitled to 20 shares of stock, or their equivalent in value.</p> <p>[Ed. Note. — For other cases, see Wills, Cent Dig. § 1979; Dec. Dig. <@=> 765.]</p>

In Bankruptcy. In the matter of C. Dumond Place, bankrupt. On petition of review filed April 5, 1915, of two orders made by the referee in bankruptcy and each of which was made and filed March 25, 1915, and one of which adjudges the rights of the parties in certain property claimed by the trustee in bankruptcy, and directs the payment of certain sums of money by George H. Austin to said trustee, and the other of which denies an application by the said Austin, made after the…

In Bankruptcy. In the matter oí the Reading Hat Manufacturing Company. Petition for review of an order of the referee dismissing the petition of a purchaser at a trustee’s sale to.recover a cieposit in the hands of the trustee as stakeholder.

<p>1. Bankeuptcy @=3399 — Homestead Exemptions — Right to.</p> <p>Under Code Ga. 1910, § 33S0, declaring that it shall be the duty of every person claiming the benefit of the exemption allowed in the article to act in perfect good faith and to make a full and fair disclosure of all personal property which he may possess, a bankrupt who conceals personal property, omitting it from the schedule is not entitled to claim the exemption.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. @=3399.]</p> <p>2. Appeal and Error <§==>1017 — Findings by Referee — Conclusive,ness.</p> <p>Findings by a referee on questions of fact wil] not be lightly disturbed. [Ifld. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 35)13, 3901, 3990-4005; Dee. Dig. <S=>1017.1</p> <p>3. Bankruptcy @=>398 — Exemptions—Homestead Exemptions.</p> <p>- Where a bankrupt claimed a homestead exemption, there was not complete exemptibn which could be transferred until approval by the referee of the exemptions set apart by the trustee, or the lapse of 20 days without any objections of creditors being filed to the allowance.</p> <p>[lid. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 676, 677; Dec. Dig. @=>398.]</p> <p>4. Bankruptcy @=400 — Homestead Exemptions — Power of Courts.</p> <p>The bankruptcy court has no control over the bankrupt’s exemptions for iiie purpose of distributing them among creditors holding notes waiving the exemptions, and will pay over the fund claimed as exempt to the bankrupt or some one‘duly constituted and appointed to receive it.</p> <p>SEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 670-675; Doc. Dig. @=>100.1</p> <p>On Rehearing on Objections to Homestead Exemption.</p> <p>5.Bankruptcy @=>395 — 'Homestead Exemptions' — Right to.</p> <p>A bankrupt, who had given several creditors notes waiving his statutory homestead exemptions, claimed the exemption for the avowed purpose of preferring one of such creditors. Meld, that the court of bankruptcy would not, under the circumstances, sustain the claim of homestead exemption, for that would be subverting the statute which was for the benefit of the bankrupt’s dependents to enable him to give a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 658; Dec. Dig. @=395.]</p>

<p>1. Bankruptcy <&wkey;>354 — Creditor op Insolvent Partnership — Eight to Share in Insolvent Estate op Partner.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 5f, 30 Stat. 547 (Comp. St. 1913, § 9589), providing that the proceeds of partnership property shall he appropriated to the partnership debts and the proceeds of the individual1 estate of each partner to his individual debts, and that any surplus of the property of a partner after paying his individual debts shall be applied to the partnership debts, and any surplus of the partnership property shall be applied to individual debts, a creditor of a firm was not entitled to share ratably with an insolvent partner’s creditors in the settlement of such partner’s individual estate, although there were no partnership assets available for partnership creditors.</p> <p>[Ed. Note. — For other', cases, see Bankruptcy, Cent. Dig. §§ 555-564; Dee. Dig. <&wkey;354J</p> <p>2. Bankruptcy c&wkey;340 — Preference—Burden oe Proof.</p> <p>The burden to show reasonable cause on the part of a creditor to believe that an estate is insolvent is upon those seeking to avoid a claim on the ground of preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. &wkey;>340.]</p> <p>3. Bankruptcy <&wkey;166 — Preferences—Knowledge oe Insolvency oe Partner.</p> <p>Knowledge of a partnership creditor that the partnership is insolvent does not charge the creditor with knowledge that an individual partner is insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. &wkey;160J</p> <p>4. BANKRUPTCY <&wkey;340-PREFERENCES — SUFFICIENCY OE EVIDENCE.</p> <p>Evidence held insufficient to charge the creditor of a partnership, taking individual notes of the partners after dissolution for the firm debt, with knowledge that one partner was insolvent and unable to pay both his individual and partnership liabilities.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. ©=>310.]</p>

<p>1. INTERNAL REVENUE <&wkey;9 — SPECIAL TAX ON BUSINESS-STATUTES — CON- . STRUCTION.</p> <p>Act Aug. 5, 1909, c. 6, 86 Stat. 112 (Comp. St. 1913, §§ 6300-6307), im- • posing a tax on corporations doing business, must be construed as imposing an excise tax, and not a franchise, property, or other direct tax.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;9.]</p> <p>2. Internal Revenue <&wkey;9 — Special Excise Tax on Corporations — “Dome Business.”</p> <p>A street railway company, which surrenders to another company the management and control of its physical possessions, and which transfers to the latter company its rights and franchises to operate its railway, reserving only its corporate existence and the right to receive and disburse its income, and which subsequently does nothing more than is necessary to its existence as a corporation and the distribution of its annual income, such as tie retiring of bonds under a sinking fund provision of a mortgage under which they were issued, joining as a party to extension agreements for the payment of bond issues of underlying railway companies, or some of them, and the receipt of sums as compensation for the transfer of its rights, for organization expenses, and for money which it paid out to and for the underlying companies, is not “doing business,” within Act Aug. 5, 1909, imposing a special excise tax on corporations doing business.</p> <p>[Kd. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;>9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p>

<p>In Admiralty. Suit -by George Bailey against the Manufacturers5 .Cumber Company.</p>

<p>In Equity. Bill by J. II. Fordham against T. B. Hicks. On demurrer to'bill, as amended, in form of motion to' dismiss.</p>

<p>Bankruptcy <@=>20 — Jurisdiction over Property — Possession of State Court.</p> <p>A sale of property of a bankrupt, proposed to be made by a state officer, pursuant to a decree of a state court, entered before the petition in bankruptcy was filed, in proceedings to foreclose a valid mortgage, 'which was executed more than four months prior to the adjudication in bankruptcy, could not be temporarily enjoined by the United States court of bankruptcy to permit the trustee to attempt to secure a purchaser and to advertise the proposed sale more than the state officer had done, thus to realize more for creditors, since the general rule that possession of the res vests the court thus acquiring jurisdiction with power to determine all controversies relating thereto, and for the time being disables a court of co-ordinate jurisdiction from exercising like power, and from interfering with the former court, is applicable to courts of bankruptcy, and is not restricted to cases where property has been actually seized under judicial process before the proceedings are instituted in another court, but applies also where suits are brought to enforce liens against specific property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. <S=>20.]</p>

<p>COPYRIGHTS ©=>65 — INFRINGEMENT—Dr ASIATIC COMPOSITION.</p> <p>A producer oí a play held not chargeable with infringement of the copyright of another play l>y a different author to some extent similar in plot aud treatment; it appearing that he had no knowledge of it and that the two plays, while independently written, were both suggested by the same magazine story dealing with hypnotism.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent Dig. § 62; Doc. Dig.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, dismissing the bill in a suit to enjoin alleged infringement of copyright.

<p>1. Post Office <&wkey;35 — Offenses Against Postal Daw — Use of Mails to De-ska un — Statute.</p> <p>Criminal Code (Act March 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 1913, § 10385), declares that whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money by means of false pretenses, shall, for the purpose ol' executing such scheme, place any letter, writing, or advertisement in any post office of the United Stales, to be sent by the post office establishment, or shall take or receive any such therefrom, shall be punished. The statute as first enacted in 1872 (Act June 8, 1872, c. 335, 17 Stat. 283) omitted the words “or for obtaining money or property by means of false and fraudulent pretenses.”' The statute was amended in 188!) (Act March 2, 1889, e. 393, 25 Stat. 873 [Comp. St. 1913, § 103851), so as to cover the subject of dealing in counterfeit money, and when incorporated in the Code the words “or obtaining property by means of false or fraudulent pretenses” were added after the words “scheme or artifice-to defraud,” while the requirement that the intention to use the post office establishment must be an element of the-original scheme was eliminated. Held, that the statute in its present form applies to the act of one engaged generally in a legitimate business, who, for the purpose of obtaining money or property for financial gain, knowingly makes a false statement of his financial condition, and sends such statement through the mails.</p> <p>LEd. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. &wkey;35J</p> <p>2. Post Office <&wkey;48 — Postai, Crimes — Use of Mails to Defbattd — Indictment.</p> <p>Defendant, who was president of a corporation, mailed a false statement as to the corporation’s financial condition to a company from which' the corporation desired to borrow money. The indictment, charging defendant with using the mails to defraud, charged that the list of liabilities, which was part of the financial statement, was intended by defendant to be, and was, false and fraudulent. Held, that the indictment was. sufficient to charge that defendant knew the falsity of Ms financial statement.</p> <p>[Ed. Note. — 'For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. t&wkey;> 18.]</p> <p>3. Post Office <&wkey;35 — Postal Cetmes — Using Mails to Defraud.</p> <p>Accused, tlie president of a corporation, prepared, and sent a false financial statement to one through’ whom he expected to borrow money. In tlie statement the liabilities of the corporation were much underestimated, though according to the corporate books the corporation was then solvent. Criminal Code, § 215, declares that whoever, having devised a scheme to defraud, shall send anything through the mails to carry out his plan, shall be punished. Held that, though the corporation was then solvent, an intent to injure might still be inferred, for the purchasers of the paper were injured when the possession of their money was obtained by materially false representations of the financial worth of the borrower, and they thereby subjected to substantial risk of failure to recover back their money.</p> <p>[Ed. Note. — Por other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. &wkey;35.]</p> <p>4. Post Office <&wkey;49 — Offenses—Schemes to Defraud — Evidence.</p> <p>In a prosecution for sending a false financial statement, through the mails to one from whom defendant expected to borrow money for the-corporation of which he was president, evidence 'held sufficient to warrant a verdict that defendant knew of the falsity of the statement.</p> <p>[Ed. Note. — For other eases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. &wkey;49.</p> <p>Nonmailable matter, see notes to Timmons v. United States, SO C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p> <p>5. Criminal Law <&wkey;314 — Knowledge of Corporate Officers — Presumptions.</p> <p>There is a presumption that the president of a corporation, who was the chief stockholder and managed its affairs, knew of the falsity of a financial statement which he signed and sent to one through whom he expected to borrow money for the corporation.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 747; Dec. Dig. <&wkey;314.]</p> <p>6. Criminal Law <&wkey;823 — Trial—Instructions.</p> <p>In a prosecution for sending, through the mails, to one from whom defendant expected to borrow money, a false statement of a corporation’s financial condition, the court charged that there was evidence that defendant knew that the statement was false, if the jury should find it was false. There was another instruction that defendant was not presumed to know the contents of the corporation’s books, of which he was president, and for which he was acting, and he could not be charged with knowledge without a showing that he had such connection or familiarity with them as to justify an inference of knowledge. There was sufficient evidence to sustain a finding that defendant knew the falsity of the statement. I-Ield, that the instruction was not erroneous, as defendant could not under the charge be convicted without a finding beyond a-reasonable doubt of his knowledge that the statement was false.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. &wkey;S23.]</p> <p>7. Post Office <&wkey;49 — Offenses—Use, of Mails to Defraud — Evidence.</p> <p>.In a prosecution for using the mails in a scheme to defraud, evidence held sufficient to show defendant’s knowledge of the purpose of a financial statement which was required by one from whom his company desired to borrow money.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-80; Dec. Dig. <&wkey;49J</p> <p>8. Criminal Law &wkey;>369 — Evidence—Other Offenses — Use of Mails to Defraud.</p> <p>Where the president of a corporation was charged with sending through the mails a false financial statement to one from whom the corporation desired to borrow money, evidence of several loans made on the faith of such statement is admissible, for such evidence is at most unnecessary, and is not objectionable as relating to other offenses.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <©=^309.]</p> <p>9. Post Office <&wkey;49 — Offenses—Use of Mails to Defraud — Evidence.</p> <p>In such case, evidence that the loans would not have been made, had the falsity of the statement been known, is admissible.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86; Dec. Dig. <&wkey;49.]</p> <p>10.- Criminal Law &wkey;>444 — Evidence—Admissibility.</p> <p>In such case, where the prosecution desired to introduce the corporation’s books, testimony that they had been in the possession of the witness since his election by corporate creditors as trustee in bankruptcy is admissible, though the corporation’s bookkeeper might have identified the books.</p> <p>[Ed. Note. — For other casos, see Criminal Law, Gent. Dig. § 1028; Dec. Dig. <&wkey;>144.]</p> <p>11. Post Office <&wkey;48 — Offenses—Use of Mails to Defraud — Indictment.</p> <p>Whore the indictment, charging the use of mails to defraud, used the language of a false financial statement sent by accused, a letter written by accused, correcting ■ an obvious clerical error, was admissible, not amounting to an amendment of the indictment.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 07-80; Dec. Dig. <&wkey;>48.]</p> <p>12. Criminal Law <&wkey;721T4 — Trial—Remarks of Counsel.</p> <p>In a prosecution against the president of a corporation for using the mails to defraud, in that he sent a false financial statement to one from whom the corporation expected to borrow money, a witness was asked as to the form of notes given by the corporation. On objections by the defense that the notes were the best evidence, the district attorney, replying to the court’s question whether he wished to be heard, stated that he did, but that one of them would force him to state it in the presence of the jury. lie continued that the court was well familiar with the law, that accused could not be required to produce anything, and that the notes were in Ms possession. After exception by the defense, the district attorney withdrew his remarks. Held, that the record does not present an invasion of the defendant’s privilege against self-incrimination.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. &wkey;721%.]</p> <p>13. Criminal Law <&wkey;1169 — Appeal—Harmless Error.</p> <p>In such ease, the admission of corporate books, which wore not used to show corporate transactions after the false statement was sent, was harmless, though the books contained transactions thereafter.</p> <p>fEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130,3137-3143; Dec. Dig. &wkey;1169.]</p> <p>14. Criminal Law ®=»444 — Mviuknoe—Corporate Books.</p> <p>in such case, where the bookkeeper, who was in charge of the corporation’s books up to within a few days of the time when the false financial statement was sent, testified to their accuracy up to that time, and his successor testified to the accuracy of subsequent entries and the completion of the postings, the books were sufficiently authenticated to be received.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. <&wkey;444.]</p>

<p>1. Tost Office <§=>35 — Use of Mails to Defraud — Criminal Offense.</p> <p>One devising a scheme to defraud by inducing another to send him Jewelry on approval, with intention of converting same to his own use without paying therefor, and using the mails in carrying out the scheme by ordering jewelry, violates Criminal Code (Act March 4, 1909, c. 321) § 215, 35 Sfat. 1092 (Comp. St. 1913, § 10385), punishing the use of mails to promote frauds.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <§t=35.]</p> <p>2. Criminal Law <§=1167 — Appeal—Harmless Eeeok — Misuse of Mails — Indictment— Sufficiency.</p> <p>That an indictment charging the use of mails to promote fraud, punishable by Criminal Code, § 215, alleged that the use of the mails was an element of the original scheme to defraud, and that the instructions required the jury so to And before convicting, though the fact charged was not an element of the offense, could not have misled accused to his prejudice.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3101, 3103-3106; Dec. Dig. <§=>1167.1</p> <p>3. Criminal Law <g=840! — Motion for Directed Verdict — 'Waiver.</p> <p>An exception to refusal of accused’s motion for directed verdict at the close of all the testimony is available, though a similar motion at the close of the government’s case is waived by accused introducing evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2021; Dec. Dig. <§=840.j</p> <p>4. Criminal Law <§=>1159 — Verdict—Reversal.</p> <p>Where the court on appeal can, say that the testimony, taken together, is as consistent with accused’s innocence as with his guilt, a conviction must be reversed.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <§=>1159.1</p> <p>5. Post Office <§=>35 — Misuse of Mails — Elements of Offense.</p> <p>That a scheme to defraud would not have deceived one of ordinary intelligence does not relieve the wrongdoer of liability for using the mails to carry out the deception.</p> <p>[Ed. Nota — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <§=35.1</p> <p>6. Post Office <§=>49 — Misuse of Mails — Evidence—Sufficiency.</p> <p>On a trial for the use of mails to promote fraud, evidence held to sustain a conviction.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent Dig. §§ 84-86; Dec Dig. <§=49.]</p> <p>7. Criminal Law <§=369 — Evidence—Admissibility—Other Offenses.</p> <p>On a trial for the misuse of mails in furtherance of a scheme to defraud, by inducing prosecutor to send to accused jewelry on approval, under the pretense that, if approved, accused would pay for it, hut with intent to convert it to his own use, evidence that accused was committed to jail, and remained in jail for about a month, in default of bail, was admissible as bearing on accused’s ability to pay, where one of the letters in furtlier-anee of the scheme was written while he was in jail, and the other’ was written after he had furnished hail.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 822-824; Dec. Dig. <@=>869.]</p> <p>8. Criminal Law <@=>369 — Evidence—Admissibility.</p> <p>Competent and relevant evidence, tending to establish the guilt of accused of the crime charged, is not incompetent because it may also tend to show his guilt of another offense.</p> <p>[Ed. Note. — For other cases, see Crimnal Law, Cent. Dig. §§ 822-824; Dec. Dig. <@=>369.]</p> <p>9. Criminal Law <@=>1059’ — Questions Reviewable — Rulings on Evidence.</p> <p>Where accused objected to a question put to a witness, but did not state the ground of the objection when taking an exception to the overruling thereof, the ruling was not reviewable.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. <@=>1059.3</p> <p>1|0. Criminal .Law <@=>1044 — Rulings on Evidence — Unresponsive Answers —Remedy.</p> <p>Where an improper answer is made to a proper question calling for competent testimony, the matter cannot be considered on writ of error, in the absence of criticism presented to the trial judge, by motion to strike out the answer or otherwise.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2672, 2674, 2675; Dec. Dig. <@=>1044.]</p> <p>' 11. Criminal Law <@=>1169 — Harmless Error — Erroneous Rulings on Evidence.</p> <p>Where, on a trial for the misuse of mails in furtherance of a scheme to defraud, by inducing prosecutor to send goods to accused on approval, while he intended to convert them to his own use, there was competent testimony of the value of the property of accused, and the amount of recorded mortgages thex-eon was definitely shown, error in permitting a witness to testify that accused’s property was mortgaged at as much as the witness considered its value, or more, was not prejudicial where the witness subsequently stated that he did not recall the amount of the mortgage, and had no idea of the value of the property, and claimed to have no knowledge of mortgages, except so far as he found them on record.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=>1169.]</p> <p>12.. Criminal Law <@=>1038,1059 — Instruction—Objections—Review.</p> <p>Where accused did not present any requested instructions, and did not take any exception to the charge given, except “generally to the charge as given,” the instructions were not in the situation presented reviewable on writ of error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 2671; Dec. Dig. <@=>1038, 1059.]</p> <p>13. Criminal Law- <@=>878 — Misuse of Mails — Verdict—Separate Counts.</p> <p>Where an indictment charging the misuse of the mails to promote a fraud charged in one count the mailing of a letter on March 6th, in furtherance of the scheme, and in another count charged the mailing of another letter on the preceding February 20th, for like purposes, an acquittal of an intent to defraud by the mailing of the letter of February 20th was not necessarily inconsistent with the existence of a fraudulent intent when the letter of March 6th was mailed, and an acquittal on the second count did not prevent a conviction on the first count.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. §§ 2098-2101; Dec. Dig. <@=>878.]</p> <p>14. Post Office <§=^50 — Misuse of Mails — Trial.</p> <p>Where, on a trial for the misuse of mails in furtherance of a scheme to defraud prosecutor, by inducing him to send to accused diamonds on approval, it appeared that accused ordered through the mails one diamond for approval, while prosecutor sent two, and that accused converted them, a charge that,' if accused devised the scheme to defraud before sending the_ order, he was guilty, and that it was immaterial whether accused himself wanted both diamonds sent him in the first instance, was not erroneous, for accused's guilt or innocence depended on his intent when the order was mailed and his ability to pay so far as it related to intent concerned only the one diamond ordered.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. s§ 87-89: Dec. Dig. <3=»50.</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. G. A. 548.]</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur E. Booth, Judge.</p> <p>Action by the Barber Asphalt Paving Company against the City of St. Paul, Minnesota. There was a judgment for defendant, and plaintiff brings error.</p> <p>Tins is a writ of error to reverse a judgment entered on the verdict of a jury in favor of the defendant iu error, defendant in the court below, by direction of the couit. The only question involved is upon the construction of the contracts entered into between the plaintiff paving company, and the city of üt, Paul, hereafter referred to as the “city.” There were twelve contracts entered into between the parties for the paving of streets. The first contract was entered into in 1901 and the last in 1907. The provisions of the contracts are practically identical so far as they affect the issues involved in this ease. These provisions were:</p> <p>“It is further agreed between the parties hereto, that the party of the first part shall, and docs hereby guarantee the pavement hy it to be constructed ruder the terms of this contract, and of the specifications hereto annexed and made a part hereof, for the term of ten years from the date of the completion of the work herein and hereby required to be done and performed, and its acceptance and approval by the board of public works of the party of the second part; and that, for the purpose of effectuating the foregoing guaranty, the said party of the first part shall a ud will keep said pavement in good and sufficient repair during the term of ten years aforesaid, repairing the same whenever settlements or irregularities causing a variation in the rat-■face of three-eighths of an inch or over, measured within the length of a four foot straight edge, or any cracks of three-eighths of an inch or over in width, either of which show disintegration from any cause whatever occur, and at the end of said term of ten years shall and will turn said pavement over to the party of the second part hereto, in good order and condition, reasonable wear and tear excepted, making all the necessary repairs therein as specified above; and if during said term of ten years if shall be found that the pave meiit is defective from overburning or improper mixing, or any other preventable cause, or that the work has been done in an unskillful manner, the party of the first part hereto-, shall, at its own proper cost and expense, upon the order of the commissioner of public works of the party of the second part, entirely remove any such defective portion of the pavement and replace the same to the satisfaction of the said commissioner of public works, who- shall bo the sole and final judge as to whether or not the pavement is in good and Huilicieiit order and condition during the continuance of and at the end of the said term of ten years; and if at any time within the period for which, the pavement is herein and hereby guaranteed by the said party of the first part, as above specified, it shall, in the judgment of the said commissioner of public works require to be repaired as further specified above, the said commis-si oner shall notify the party of the first part to make the repairs so required, and if the party of the first part shall fail and neglect to make suc-h repairs wiihin six days of the date of the service of such notice, then said commissioner shall have the right to cause such repairs to be made in such a manner as may be deemed best by him, pursuant to law, and the cost and expense thereof shall bo paid by and recoverable from the said party of the first part hereto, or may be deducted from any balance remaining in the special fund hereinafter. provided.</p> <p>“It is further agreed between the parties hereto that for the purpose of further assuring the performance of the work to be done under this contract and for the purpose of assuring the performance of the guarantee hereinbe-fore set forth, during the period of ten years above mentioned, the party of the first part hereto will execute a bond conditioned therefor in an amount equal to twenty-five per cent, of the entire cost of the improvement, which said bond just above mentioned shall be executed and delivered to the said party of the second part, in a form to be approved by its corporation attorneyj and placed on file with its city comptroller before any final audit or estimate shall be allowed to the said party of the first part hereto as aboye mentioned, and further for the purpose of assuring the performance of the guarantee hereinbe-fore set forth, during the period of ten years aboye mentioned, the party of the second part hereto will retain ten per cent, of the entire cost of the improvement for the period of ten years from the date of the completion and acceptance of the pavement herein and hereby required to be laid and constructed, which said amount so retained shall constitute the special fund hereinbefore referred to, and the party of the first part hereto shall be entitled to interest at the rate of three per cent, per annum, upon the balance remaining in said fund so retained, from time to time, subject however to the following conditions, to wit:</p> <p>“If the party of the first part hereto, at the end of each six mouths from said completion and acceptance, shall have fully complied with all the terms and requirements of this agreement in the matter of guaranty repairs and of beeping the pavement in good and sufficient and proper condition, then, upon the order of the commissioner of public works, the said party of the first part shall be'entitled to the interest on the said retained amount of'ten per cent, of the contract price for such period of six months, but if the party, of the first part shall have failed to make the necessary and proper repairs as directed by said commissioner at any time within said period of ten years from and after the date of the completion and acceptance of said work, then the said commissioner shall have the power to apply any interest then earned and unpaid, and if necessary, any part or all of said fund of ten per cent, so retained, to the making of such necessary and proper repairs as may be included within the terms of said guaranty.”</p> <p>The plans, profiles, and specifications for the letting of the contracts were expressly made a part of the contracts, containing in addition to the provisions hereinbefore quoted, the following:</p> <p>“Bidders must examine and judge for themselves as to the location of the proposed work, the nature of the excavation to be made, and the work to be ■done. It is understood that the whole of the work under this contract is to be done at the contractor’s risk, and -he is to assume the responsibility and risk of all damage to the work or the property on the line of said work, which may be occasioned by floods, backwater, caving of the street, settling of the foundations of buildings or from any other cause whatever; and he shall remove from the street all surplus material, earth, rubbish, etc., immediately after the completion of the work.”</p> <p>From the time the work had been completed under the different contracts until October, 1912, the paving company made all the repairs necessary to keep the streets in good condition in conformity with the guaranty provision of the several contracts, without making any claim for compensation therefor, and, as was admitted by counsel at the hearing, without expectation of receiving any consideration therefor, the company being under the impression, which it is now claimed was a mistake, that it was1 obliged to do so under the terms of the contracts. These repairs were made without any direction from the city; the yardage of the repairs was measured daily and reported to the main officers of the company. The only charges which were made were for repairs on the streets made after the expiration of the ten years’ guaranty, and such repairs as were made necessary by reason of the tearing up of the pavement by the public service companies. The bills for these last-mentioned repairs were sent to and collected from the public service companies, whose operations had necessitated the repairs.</p> <p>Upon the conclusion of the testimony the court sustained a motion of the city for a directed verdict in its favor, upon the ground that under the contract between the parties the repairs sued for had to be made by the paving company at its own expense during the guaranty period of ten years.</p> <p>The undisputed evidence shows that, at the time the plaintiff made its bids for the work and entered into the several contracts, it had knowledge of the gas mains and the street railway tracks, and was, under the specifications, required to take notice of the subsoil of the streets, and made its bids with such knowledge.</p>

Elliott, Judge. Action by Fred G. Huntington, as trustee in bankruptcy of Gideon N. Carlson and Adolph P. Rosdahl, against Ansel E. Sunday and another. There was a judgment for plaintiff, and .defendants brings error. This is an action at law instituted by the defendant in error against the plaintiffs in error, who will ha referred to herein as the “plaintiff” and “defendants,” as they were in the court below, to recover an alleged preference.

This cause comes here on writ of error to review a judgment of the United States District Court for the Southern District of New York, entered on January 2, 1913, dismissing the complaint on the merits. The action was brought to recover the sum of $115,000, reduced by the plaintiff at the trial to $80,000, as damages for the failure of the Carlin Company to enter into a contract.

Iii Error to the District Court of the United States for the Southern District of New York. This cause comes here upon writ of error to review a judgment in favor of defendant in error, which was defendant below. A jury was duly waived, and the cause was tried before Judge Martin, who, besides making findings of fact and conclusions of law, wrote a full and careful opinion, which will be found in a note hereto and may be referred to for facts not hereinafter stated.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; Henry Clay McDowell, Judge.</p> <p>Suit in equity by Sidney Uansburgh, administrator of the estate of Max Uansburgh, deceased, Rebecca Uansburgh, widow, and Sidney Uansburgh and others, heirs at law of Max Uansburgh, against Henry B. McCormick, Vance C. McCormick, William M. Ritter, and the Pocahontas Coal & Coke Company. Decree for defendants, and complainants appeal.</p>

Appeals from the-District Court of the United States for the Southern District of New York. These causes come here upon appeal from decrees of the District Court, Southern District of New York, in favor of- libelants. The questions presented are the same in each -case and it will tend to simplify the matter if the facts in the first case only are discussed in this opinion.

<p>1. Partnership <©=72 — Contracts—Bights and Obligations of Parties.</p> <p>A contract between four persons, which recited that each agreed to furnish an equal amount of money sufficient to option and control a coal field, and which declared that each should share alike in all the options taken, executed when they expected that $5,000 would finance the scheme, which sum was paid by each paying his share, imposed on each to pay his share of any additional sum necessary to carry out the object; and, where one of them refused to put up his share of an additional sum, his associates were not bound by the provision to share alike in all options taken, and a decree awarding his assignee a share, determined by the ratio which $1,250 bore to the aggregate sum contributed by all the parties out of the gross profits realized, gave adequate relief.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 117; Dec. Dig. <©=72.]</p> <p>2. Partnership <©=306 — Contracts—Bights and Liabilities of Parties.</p> <p>H., A., W., and G. entered into a contract stipulating that each would furnish an equal amount of money sufficient to option and control a coal field. Each contributed $1,250, but it developed that a further sum of $8,000 was needed. W. refused to pay his share of the $8,000, and his associates paid the same. H. subsequently executed an assignment, which recited that W. was the owner of a fourth undivided interest. A. and G. knew nothing of the transfer until long afterwards, and H. was not personally concerned, for he took the assignment for the sole purpose of turning it over to the wife of W., which he did on the same day. Held, that there was no recognition of the right of W. to share equally in the profits realized by his associates after his refusal to make his contract contribution.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 706-709; Dec. Dig. <©=306J</p> <p>3. Judgment <©=>241 — Separate Judgments — Assignee.</p> <p>Where an assignee of one of four partners was entitled to recover1 against the remaining three partners, it was not error to direct a separate judgment against the three.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 426; Dec. Dig. <@=241.]</p>

C. Van Fleet,” Judge. Action by M. E. Dittmar against the Phoenix Securities Company. Judgment for plaintiff, and defendant brings error. The defendant in error was the plaintiff in an action at law to recover a commission upon a sale of mining properties.

<p>1. Carriers @==>316 — Personal Injury — Presumption and Burden or Proof —Negligence.</p> <p>Prima facie, when a passenger on a railroad train is injured by reason of an unusual occurrence on the train, negligence on the part of the carrier is presumed, and the burden of proof shifts to it to show that it was not guilty of negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1261, 1202, 1283, 1285-1294; Dec. Dig. @=316.]</p> <p>2. Carriers @=320 — Personal Injury — Question for Jury — Negligence.</p> <p>In an action for injuries from negligence in causing the train and caboose in which plaintiff was riding to be violently and suddenly jolted, where the evidence as to the jolt was conflicting, it was the duty of the court to submit the defendant’s negligence to the jury, especially in view of Kirby’s Dig. Ark. § 6773, enacted pursuant to Const. Ark. art. 17, § 12, declaring that all railroads built and operated in the state shall be responsible for all damages to persons caused by the running of trains.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. @=320.]</p> <p>3. Evidence @=474% — Opinion Evidence — Severity of Train Jolt.</p> <p>In an action for personal injury from negligence iu causing the train and caboose in which plaintiff was riding to be violently and suddenly jolted, nonexpert testimony as to the severity of the jolt was admissible; the weight thereof being for the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. @=474%.]</p> <p>4. Evidence @=127 — Res Gestas— Statement Accompanying Transaction.</p> <p>Evidence that at the time of the accident, and when arising from his fall, plaintiff said “I believe the train hurt me,” was admissible as a part of the res gestie.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. @=127.]</p> <p>5. Evidence <@=>555 — Opinion Evidence — Subject-Matter—Pain.</p> <p>Testimony of the physician and surgeon who had treated the plaintiff for Ills injury that plaintiff suffered a great deal Qf pain, based on statements made to him by the plaintiff, was admissible.</p> <p>ííld. Note. — For other cases, see Evidence, Cent. Dig. § 2376; Dec. Dig. <§=>555.J</p> <p>6. Evidence <@=>192 — Demonstrative Evidence.</p> <p>There was no error in permitting the plaintiff, suing for personal injuries, to give a practical illustration of his condition before the jury.</p> <p>flíd. Note. — Por other cases, see Evidence, Cent. Dig. § 677; Dec. Dig. <g=>192.]</p> <p>7. Triad @=»295 — Instructions—-Construction as a Whole.</p> <p>Appellant, in his assignments of error, cannot select one sentence of the charge on a subject; but the .charge must be taken as a whole, and if it then states the law correctly there is no cause for complaint.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; D’ec. Dig. <@=>295.]</p> <p>8. Carriers <@=>298 — Passengers—Degree of Care.</p> <p>In an action for personal injury, while riding on defendant’s local freight train in a caboose from a violent jolt, an instruction that under the laws of Arkansas the defendant was required to carry passengers for hire upon its local freight trains, but not required to equip its cabooses like passenger cars, that one traveling in the caboose of a local freight train is bound to know that it is subject to more violent jerks in stopping and starting than passenger trains, and that plaintiff asumed the risk of injury from any usual or ordinary jerk, stated the law correctly.</p> <p>fEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1192, 1205, 1200; Dee. Dig. <3=>298J</p> <p>9. Trial <@=>260 — Instructions—Credibility of Witnesses.</p> <p>A charge that, in weighing the evidence, to find whether it was equally balanced, or in whose favor it preponderated, the jury would not necessarily be controlled by the number of witnesses on either side, given in connection with a charge that they were the sole judges of the credibility of the witnesses and the weight to be given to the testimony of each witness, was sufficient.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>200.]</p> <p>10. Trial <@=>260 — Instructions.</p> <p>When a requested Instruction is included in the charge given, it is not error to refuse it</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. <@=>260.]</p>

<p>Colusión <&==96 — Vessels in Harbor— Steamship and L-i&hter.</p> <p>A collision occurred in the daytime in Havana Harbor between the steamship Metis, which had just left her loading berth and was passing out between two anchored steamships, which was the only practicable passage, and the sail lighter General Prim, which appeared from the opposite side of one of such steamships which it was unloading. Eeld, on the evidence that the Metis was proceeding at slow speed, gave all proper signals to warn boats which might be expected to be unloading the other vessels of her. approach, and did all that was possible to avoid collision after the General Prim was seen, and that she was not in fault.</p> <p>• [Ed. Note.- — For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. <§=¿596.]</p>

<p>1. Carriers <@=>247 — Carriage, oe “Passengers” — Who Abe.</p> <p>. In view of Kirby’s Dig. Ark. § 6613, declaring that all passengers who do not procure regular tickets shall be transported over all railroads at the same price charged for such tickets, plaintiff, who repaired to the station of the defendant railroad company to take passage on its train but did not buy a ticket because informed that none would be sold, was, while waiting to get on board, a passenger entitled to protection as such, and, having been injured, defendant cannot complain that the court submitted to the jury the question whether plaintiff was a passenger.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. <@=>247.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Passenger.]</p> <p>2. Carriers <@=>283 — Carriage oe Passengers — Liability for Acts of Servants.</p> <p>Where a brakeman on defendant’s train placed a torpedo which he found at the station on the track to see whether it would explode and it did, injuring a passenger, the carrier was liable; for a carrier is bound to protect its pa'ssengers from the assaults of its own servants even when they are malicious or aggressive and are without the scope of the servant’s duties.</p> <p>- [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1119-1124, 1140, 1141; Dec. Dig. <@=>283.]</p> <p>3. Carriers <@=>302 — Injuries to Persons at Station — Liability of Carrier.</p> <p>Where a passenger standing on defendant’s station was injured by a torpedo placed on the track, and exploded by the train, defendant is liable under Kirby’s Dig. Ark. § 6773, declaring that all railroads shall be responsible for all damages to persons and property done or caused by the running of trains.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1221-1223; Dee. Dig. <@=>302.]</p> <p>4. Trial <@=>105 — Admission of Evidence — Motion to Strike.</p> <p>Where defendant did not move to strike the testimony or request an instruction to the jury to disregard it, it cannot complain that such testimony might have been misleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. <S=>105.]</p> <p>5. Appeal and Ekeor ¡®=>1004 — Weit ojt Eeeoe — Matteks Review a ble.</p> <p>On writ of error, the question of the excessiveness of a verdict cannot be reviewed.</p> <p>TlOd. Note. — Bor other cases, see Appeal and Error, Oent. Dig. §§ 3944-3947; Dec. Dig. <@=?1004.]</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit in equity by Old Colony Trust Company, of Boston, Mass., and others against the Ft. Dodge, Des Moines & Southern Railroad Company, Wickard Bros., and about ISO others, interveners. From provisions in the decree in favor of interveners, complainants and the Railroad Company appeal.</p>

<p>1. CORPORATIONS &wkey;409 BONDS — LEGALITY 03T ISSUE — PLEDGE TO SEGURE Antecedent Di’bt — Missouri Constitution and Statute.</p> <p>Bonds of a corporation of Missouri, issued by it to secure an antecedent debt, with no new consideration, except an extension of the debt, are void by virtue of the constitutional or statutory provision of that state prohibiting its corporations from issuing bond's, except for money paid, labor done, or property actually received.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1832; Dec. Dig. <&wkey;409.]</p> <p>2. Corporations <&wkey;469 — Bonds—Issuance “fob” Money, Labor, oe Property.</p> <p>In the constitutional or statutory provision of Missouri that “no corporation shall issue stock or bonds except for money paid, -labor done or property actually received,” the word “for” is used in the sense of “in place of”; the purpose of the provision being to prevent the issue of stock or bonds unless the corporation receives in place of the same an amount in value, in money, labor, or property, equal to their par value.</p> <p>[Ed. Note. — I’or other cases, see Corporations, Cent. Dig. § 1832; Dec. Dig. <&wkey;>469.</p> <p>For other definitions, see Words and Phrases, First and Second Series, For.] '</p> <p>3. Courts <&wkey;366 — Federal Courts — Authority op State Decisions.</p> <p>The construction of the Constitution and statutes of a state by its highest judicial tribunal is controlling in the national courts, in the absence of any question of general or commercial law or of a violation of the Constitution or statutes of the United States.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960 -968; Dee. Dig. <§=>366.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 O. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468; Converse v. Stewart, T18 C. C. A. 215.J</p>

<p>Corporations- &wkey;>628 — Insolvency and Receivers — Distribution op Assets.</p> <p>Where, prior to the appointment by a federal court of a receiver for the property of a corporation, a creditor had obtained a judgment against the corporation in a state court which was a lien on its real estate, and a garnishment had also been issued and served, the receiver took the property subject to the liens thereby acquired., and the federal court was without authority to require the creditor to surrender the lien secured by its garnishments as -a condition to sharing in the proceeds of the real estate sold by the receiver.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. &wkey;>628.]</p>

<p>In Error to the District Court of the United States for the District of Massachusetts; Geo. H. Bingham, Judge.</p> <p>Action by Schuyler S. Bartlett, executor, against James D. Gill, Collector of Internal Revenue. There was a judgment for plaintiff (221 Fed. 476), and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller, Judge.</p> <p>Action at law by the Hocking Valley Railway Company against the Lackawanna Coal & Lumber Company. From the judgment, plaintiff brings error.</p>

<p>Trade-Marks and Trade-Names <&wkey;35 — Sale oe Good Will — Right to Use Name.</p> <p>G., widely known as a candy manufacturer and whose name was a valuable asset in connection with the business, transferred to a corporation organized by him certain property and rights, together with the good will and use of the name G., for the purpose of manufacturing and selling candies under the G. label. Afterwards he withdrew from the company and launched a new candy enterprise, in which he made his name prominent in every way, using his full name, instead of his surname only, as formerly. HeM, that he was properly enjoined from using his name as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. <&wkey;>35.</p> <p>Right to use one’s own name as trade-mark or trade-name, see notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner’s Malzkaffee Fabriken Mit Beseliraenkter Haftung v. Pastor Kneipp Medicine Co., 27 C. C. A. 357; Borden Ice Cream Co. v. Borden’s Condensed Milk Co., 121 C. O. A. 205.]</p>

<p>1. INDICTMENT AND INFORMATION &wkey;sl33-VALIDITY OS’ INDICTMENT — MODE OF Testing.</p> <p>• The validity of an indictment cannot be tested by an objection to any evidence on the part of the government.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 434-108; Dec. Dig. &wkey;>133.]</p> <p>2. Indians &wkey;>38 — Offenses—Introduction of Liquor.</p> <p>An indictment charging that accused introduced liquor into the state of Oklahoma from without the state, Into a county within that which was formerly the Indian Territory, charges a violation of Act March 1, 1S95, c. 145, 28 Stat. 097, § 8.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. <&wkey;:58J</p> <p>3. Indians &wkey;>38 — Offenses—Introduction of Liquor Into Indian Territory — Evidence.</p> <p>In a prosecution lor introducing liquor into what was formerly the Indian Territory from without the state of Oklahoma In violation of Act March 1, 1895, c. 145, 28 Stat. 697, § 8, evidence held sufficient to go to the jury.</p> <p>LEd. Note. — For other cases, see Indians, Cent. Dig. §§1 22, 64, 66; Dec. Dig. &wkey;38.</p> <p>Introducing intoxicating liquors into Indian country, seo note to Joplin Mercantile Co. v. United States, 131 O. O. A. 171.]</p> <p>4. Criminal Daw <&wkey;814 — Tin Air — Instructions.</p> <p>In a prosecution for violating Act March 1, 1895, c. 145, 28 Stat. 697, § 8, relating to the introduction of liquor into the Indian Territory, requests applicable to Act Jan. 30, 1897, e. 109, 29 Stat. 506, § 1 (Comp. St. 1913, § 4137), are properly refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. &wkey;814.]</p>

<p>Patents <&wkey;:>2S — Anticipation—Ahmob-Piebcin0 Projectile.</p> <p>The Davis patent, No. 915,492, for an armor-piercing projectile, comprises in combination a sharp-pointed projectile, a soft metal cap surrounding and supporting the point of said projectile, and a hollow contour cap or shell over the same which, when secured to 1-he projectile, leaves a hollow space between its extreme point and the forward point of the soft metal cap. All of these elements were not only singly old in the art, tat there were also kno wn combina lions of the pointed pro jectile with the soft nose cap and with the contour-cap and of a blunt head projectile with both. Held, that in view of such prior art the patent is void for anticipation, especially by the Hadfleld British patent, No. 16,901, of 1898.</p>

<p>Cross-Appeals from the District Court of the United States for the Western District of Pennsylvania; Joseph Buffington, Judge.</p> <p>Suit in equity by the Carnegie Steel Company against the Cambria Iron Company. Decree for complainant, awarding damages, and both parties appeal.</p>

<p>1. Patents <§=>255 — Purchaser of Patented Article — Right to ■ Make Improvements.</p> <p>By a valid sale of a patented article it becomes the private property of.the purchaser, who, as against the owner of the patent, may use it until it is worn out, and may repair and improve it as he sees fit.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. §§ 397, 399; Dec. Dig. <§=>255.)</p> <p>2. Patents <§=>328 — Infringement—Apparatus for Separating Solids from Liquids.</p> <p>The Deming patent, No. 885,450, for an apparatus for separating solids from saccharine solutions, which is an improvement patent, and one element of which is a water-tight cover for the settling tank, held, not infringed by a tank which did not include such feature.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur E. Sanborn, Judge.</p> <p>Suit in equity by the Simmofts Manufacturing Company against the Kinney-Rodier Company, Frank W. Kinney, and F. E-. Williams. Decree for defendants, and complainant appeals.</p> <p>Complainant, assignee of John F. Gail, the grantee in letters patent 639,223 fepr “Improvements in Spring Beds and Seat Bottoms,” filed its bill charging defendants with infringement. The court below held the patent void, and this appeal is from a decree dismissing the bill.</p>

This cause comes here upon appeal from a decree finding infringement of letters patent No. 850,681, granted April 16, 1907, to the complainant George U. Smith for “fire and temperature alarm or indicator.” The opinion of the District Judge will be found in 221 Fed. 673.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by the Sanitary Street Flushing Machine Company against the City of Kansas City. From an order granting a preliminary injunction, defendant appeals.</p>

This cause comes here upon appeal from a decree dismissing the bill in a suit for infringement of patent. The patent sued upon is No. 887,997, issued May 19, 1908, to Edwin B. Cadwell for a vehicle tire.

<p>In Equity. Two suits by the Hide-ite Leather Company and others against the Fiber Products Company and the Waterproof Leatherboard Company, respectively.</p>

<p>•In Equity.^ Suit by the Goodyear Tire & Rubber Company against the Hood Rubber Company. On final hearing. Decree for defendant.</p>

<p>In Bankruptcy. In the matter of J. C. Williams, bankrupt. Petition to review the report of the referee disallowing the priority of a mortgage in favor of the Covington Company.</p>

<p>1. Bankruptcy <&wkey;191 — Preferences—Lien for Rent- — Necessity of Recording Lease.</p> <p>A lease, giving a landlord a lien for the rent on property on the leased premises, under the law of Rhode Island, created tin equitable lleii, good as against creditors, though the lease was not recorded; and lienee, though it was recorded a few days before bankruptcy, when the lessor had reasonable cause to believe ¡hat the lessee was insolvent, and that the lien claimed would constitute a preference, the lien did not amount to a voidable preference.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 28(1, 287, 290, 851; Dee. Dig. &wkey;191J</p> <p>2. Bankruptcy <&wkey;151 — Rights of Trustee — Application ok State Law.</p> <p>Under Bankr. Act July 1, 1898, c. 511, § 47a (2), 80 Stat. 557, as amended by Act June 25, 1910, e. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), giving a trustee, as to all property coming into the custody of the bankruptcy court, all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, the trustee’s rights depend upon the law of the state, as the “rights of a creditor holding a lien by legal or equilable proceedings” are essentially a matter of stale law.</p> <p>¡Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 193, 239; Dec. Dig. <&wkey;>151.]</p>

<p>Courts &wkey;> 344 — Jurisdiction op Federal Courts — Local Actions — Situs op Patent Rights — “Property.”</p> <p>A patent right is not such “property” as may have a situs in the district of the owner’s residence, within Judicial Code (Act March 3, 1911, e. 231) § 57, 36 Stat. 1102 (Comp. St. 1913, § 1039), which authorizes service by publication on a nonresident defendant in a suit to enforce “any lega<l or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought.”</p> <p>[Ed. Note. — Por other cases, see Courts,' Cent. Dig. § 917; Dec. Dig. &wkey;344J</p>

<p>1. Accord and Satisfaction <§=>11 — Demurrage—Acceptance of Check for Freight.</p> <p>The acceptance of a check in full for “freight” due under .a charter h,ekl not an accord and satisfaction of an additional claim for demurrage.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-82 ; Dec. Dig. <®=»11J</p> <p>2. Shipping ©=>181 — Demurrage—Computation of Lay Days.</p> <p>Under a charter party requiring discharge of a cargo of lumber at the rate of 35,000 feet per day, without any exception, Sundays are to be excluded from the lay days allowed, but included in the time for which demurrage may be claimed after the lay days have expired.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 589-592; Dec. Dig. <@=>181.]</p>

<p>In Equity. Suit by William P. Odell against the Bedford Company. On petition of the Edison Electric Illuminating Company of Brooklyn for current 'furnished to receivers of .defendant.</p>

In Admiralty. Suits for collision by W. Irving Pearce, owner of the schooner Malcolm Baxter, Jr., against the steamship Vera, the steamship Melrose impleaded; by Dampskibs Actieselskabet International, owner of the steamship Vera, against W. Irving Pearce and others; same against the steamship Melrose; and by New England Coal & Coke Company, owner of the Melrose, against the Vera.

<p>1. Aliens <§^>65 — Naturalization—Discharge erom Navy — Construction oe Statute.</p> <p>Naval Appropriation Act June 30, 1914, c. 130, 38 Stat. 395, provides that any alien otherwise qualified for admission to citizenship, who has served for one enlistment of not less than four years in the navy or marine corps, and has received therefrom an honorable discharge, or an ordinary discharge with recommendation for re-enlistment, shall be admitted to become a citizen upon his petition without any previous declaration of intention and without proof of residence on shore, that his discharge shall be accepted as proof of good moral character, and that any court of competent jurisdiction may immediately naturalize such alien. Under the law as It then stood a person serving a term of four years in the navy or marine corps and receiving an honorable discharge, or an ordinary discharge with recommendation for re-enlistment, on re-enlistment within four months was entitled to a certificate of continuous service and increased pay, but by a department ruling such benefits were only allowable to citizens. Held, that such provision was especially designed to enable aliens coming within its terms and desiring to re-enlist to become naturalized at once and thus secure the increased pay; that, construed in connection with other statutes in force, it did not entitle such an alien, who, without any intention of re-eniistiug, waited a period of years before filing his petition, to become naturalized without complying with the requirements of the general statute by posting his petition for 90 days, proving his residence since his discharge and his good moral character during that time.</p> <p>LKd. Note. — Dor other cases, see Aliens, Cent. Dig. § 129; Dec. Dig. <§=^>65.1</p> <p>2. Alif.ns <®^>68 — Naturalization—Discharge from Navy — Statute Governing.</p> <p>So much of such provision, however, as reduces the length of service necessary to entitle the petitioner to naturalization without previous declaration of intention, to four years, instead of five years, as fixed by Act July 26, 1894, e. 165, 28 Stat. 124, which relates only to the quantum of proof, may be taken advantage of by an applicant whose petition is hoard after its enactment, although, it was filed prior thereto.</p> <p>LEd. Note. — For other cases, see Aliens, Gent. Dig. §§ 138-145; Dec. Dig. <@^68.]</p>

<p>At Law. Action by Charles A. Strout, trustee, against the United Shoe Machinery Company and others. On motion to amend a special replication and demurrer thereto.</p>

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

<p>Appeal from the District Court of the United Stales for the District of Indiana.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>Appeals from the District Court of the United States for the District of Indiana.</p>

<p>Appeal from the District Court of the United States, for the Southern District of Illinois.</p>

<p>In Erf or to the District Court of the United States for the Northern District of Illinois.</p>

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

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

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

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

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

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

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

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

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

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

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

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