Volume 225 — Federal Reporter

Petition to Revise Order of the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge. In the matter of the petition of the Stearns Salt & Lumber Company to revise an order of the District Court in the case of the Handy Things Company, bankrupt, whereby Cleland & Heald were allowed a claim for legal services and expenses.

<p>Collision ©=»125—Suit fob Damages—Defense.</p> <p>Evidence considered, and held insufficient to sustain the allegations of the answer, in suits against a steamer for collision with a schooner at sea, that after the master and crew of the schooner had abandoned her, and come on board the steamer, the master caused her to be set on fire, and thus prevented the steamer from saving her, but rather to show that the schooner was so injured that she could not be saved, and that all parties acquiesced in, burning her as a derelict dangerous to navigation.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 206-279; Doc. Dig. <§=»!25.] •</p> <p><gc^>For other ca>?es see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Petitions to Revise from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, District Judge.</p> <p>In the matter of the W. R. Kuhn Company, bankrupt; W. B. Fell,, trustee. To review a decree denying their claim of priority in payment, Harry P. Kuhn and the Bessemer Investment Company each bring petitions to revise.</p>

<p>In Error to the District Court of the United States for the District of Oregon; Charles K. Wolverton, Judge.</p> <p>Action at law by the American La Prance Fire Engine Company against the City of Astoria, Or. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Public Lands <§=]20—Suits fob Cancellation of Patentr—Statutuky Limitation.</p> <p>Act March 2, 189(5, c. 89, § T, 29 Stat. 42 (Comp. St. 1913, § 4901), limits the time within which suits may be brought for the cancellation of patents to lands issued under railroad or wagon road grants, either before or after its enactment, “provided that no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or its officers to withdraw the same from sale or entry.” Held, that such jiroviso is not limited to lands patented prior to the passage of the act, but applies as well to lands patented after that date.</p> <p>Tied. Note.—For other cases, see Xhiblic Lands, Cent. Dig. §§ 332-335; Dec. Dig. <§=120.J</p> <p>2. Statutes <§=>263—Oonsteuction—Prospective Opekation.</p> <p>Legislative acts are presumed to be prospective in their operation, and courts will not limit them to past acts or past transactions, unless such clearly appears to have been the legislative intent.</p> <p>1 Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 34.4, 349; Dec. Dig. <2=263.J</p> <p><S^eFor other cases see samo topic & K3SY-NUMB22R in all Key-Numbered Digests & Indexes</p>

<p>1. Evidence <@=5333—Records—Statutory Provisions.</p> <p>An instrument, called a birth, certificate, which gives the person’s name, sox, ra.ce, date of birth as August 8, 1880, names of parents, with their X>laee of nativity, occupation of father, residence of parents, and name of midwife, verified by affidavit made 28 years after the birth of the iierson, and bearing indorsements containing the name of a iihysician and the recital: “Certificate of Birth Lporson’s name], Compared. Recorded at request of [phj sician’s name] in book blank of Certificate of Birth,” and signed by deputy recorder—is not admissible under Pol. Code Cal. § 3075, enacted in 1872 and remaining in force until 1905, and requiring all physicians and professional midwives to keei> a register of the time of each birth in which they assist professionally and section 3077 as amended in 1878 and in force until 1905, requiring all persons registering births to file quarterly with the county recorder a certified copy of the register, or under Act March .18, 1905 (St. 1905, p. 104), reidacing the sections, and requiring physicians and midwives assisting at a birth to return in writing within 5 days thereafter to the county recorder' a certificate of registry of birth containing enumerated facts.</p> <p>©:=>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>[E'd. Note.—For other cases, see Evidence, “Cent. Dig. §§ 1247-1257,1259-1265; Dec. Dig. @=333.]</p> <p>2. Aliens @=32—Deportation of Chinese—Evidence—Findings.</p> <p>A finding of the trial judge who saw the witnesses in a proceeding to deport a Chinese person will not be disturbed.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig, @=32.]</p> <p>3. Aliens @=32—Deportation of Chinese—Burden of Proof.</p> <p>A Chinese person has the burden of showing his right to remain in the United States in proceedings to deport him.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84,' 92-95; Dec. Dig. @=32.</p> <p>What Chinese persons are excluded from the United States, see note to Wong You v. United States, 104 C. C. A. 538.]</p> <p>'Fnr other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit for collision by the Bush Terminal Company, owner of the steam hi.”- Eleanor Bush, against the steam lighter James L. Morgan, Cene ral Lighterage Company, claimant, and the ferryboat New Brunsvuck, Pennsylvania Railroad Conipauy, claimant, impleaded. Decree against the New Brunswick alone, and her claimant appeals.

Suit for collision by the Staples, Transportation Company, owner of the coal barge Canton, against the steam tug Minnie and barge Valentine, the Thames Towboat Company, claimant, the steam tug Watuppa, impleaded; and by Henry H. Reed, cargo owner, against the same. Decree dismissing libels, and libelants appeal.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from an order reversing the order of the referee in bankruptcy, allowing a claim of $9,445.58 filed hy the appellants against the estate of the bankrupts.</p>

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding respondent’s ferryboat Montauk solely in fault for a collision with the steam lighter Alice. The collision happened' about 9 p. m. March 4, 1913, in the East River opposite the Hamilton Ferry slip on the Manhattan side. The night was dark but clear, the tide first of the ebb. The Alice was bound from Staten Island for slip between Piers 5 and 6 East River, Manhattan.

<p>1. Patents @=>328—Subjects or Patents -“Manufacture”—Concrete Bo elding Construction.</p> <p>Tlie Turner patent, No. 985,119, for an improvement in steel skeleton concrete construction in structures erected at least in part of reinforced concrete, is for a “manufacture,” within the meaning of the patent law.</p> <p>[Ed. Note.—For olher definitions, see Words and Phrases, First and Second Series, Manufacture.!</p> <p>2. Patents @=>266—Iniringeaient—“User” of Invention.</p> <p>A tenant, occupying under lease a building the construction of which embodies such a patented feature, is not necessarily a “user” of the invention, in such sense as to be an infringer.</p> <p>I Ed. Note.—For other cases, see Patents, Cent. Dig. § 410; Dec. Dig. @=>206.]</p> <p>Bingham, Circuit Judge, dissenting.</p> <p><@c»For other cases see same topic & KI2Y-NUM.BER in all Key-Numbered Digests & Indexes</p>

<p>Patents @=s>328—Validity and Infringement—Tilting Bin.</p> <p>The Walker patent, No. 014,279, for a tilting bin, designed chiefly for use in grocery stores, held valid and infringed.</p> <p>©=jFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <©=>328—Infringement—Tilting Bin.</p> <p>Tlie Walker patent, No. 614,279, for a tilting bin, designed chiefly for use in grocery stores, held infringed.</p> <p>@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents @=>328—Validity and Infringement—Flexible Electrical Conduit.</p> <p>The Osbum patent, No. 652,806, for a flexible electrical conduit, shows merely mechanical or structural improvements on the conduit of the Herrick patent, No. 456,271, and in view of the disclosures of the latter patent the claims of Osbum can only be sustained on a narrow construction, which limits them to the precise structure shown. As so construed, held not infringed.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In 'Equity. Suit by the United States Column Company against the Benliam Column Company. On final hearing.</p>

<p>Patents €==>109, 328—Validity and Infringement—Connkctok fob Electrical Conductors.</p> <p>The Williams patent, No. 831,815, for a connector for electrical conductors comprising a pair of separable members composed of insulating material which receive and confine the ends of the conductors, makes hermetically sealing the confined ends of the conductors and the connecting means by tbe Insulating material an essential element of each claim, ami inasmuch as such feature is not mentioned in the original specification, but was added to the claims by amendment without oath of invention, the claims are not within the application and are void. Also, held void as for unpatentable aggregations and for anticipation and not infringed.</p> <p>ÍEd. Note.—For other cases, see Patents, Cent. Dig. § 152; Dec. Dig. €=->109.]</p> <p>other cases seo same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Marconi Wireless Telegraph Company of America against the De Forest Radio Telephone & Telegraph Company, the Standard Oil Company of New York, and Fee De Forest, for infringement of the Marconi patent, No. 763,772, and the Fodge patent, No. 609,154, each for wireless telegraph apparatus. On motion for preliminary injunction.</p>

<p>1. Patents <§=»328—Invention—Duplex Envelope.</p> <p>The Stevens patent, No. 1,013,571, for a duplex contribution envelope, is void for lack of patentable invention in view of the prior art.</p> <p>2. Patents <®=v37—Invention—Improvement Patents.</p> <p>Every simple improvement of an article is not patentable, but it must be the result of an original conception of something which is new and useful and adds substantially to the knowledge of the art.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 41-44; Dec. Dig. <@=»37.)</p> <p><gss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Bill by William G. Orr against Aschenbach & Miller, Incorporated. On final hearing.</p>

<p>Patents @=»328—Validity and Infringement—Automobile Horn.</p> <p>The Hutchison patent, No. 1,120,057, for an automobile horn, was not anticipated, and discloses patentable invention; also, held infringed.</p> <p>(gsoFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <©=>259—Infringement—Sufficiency of Proof.</p> <p>A defendant cannot be held chargeable with infringement for purchasing and using an infringing product, where it is not shown that the patentee’s product was marked, or that defendant had notice of his rights. ■ [Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 400-402; Dee. Dig. <©=>259.]</p> <p>2. Patents <©=>328—Infringement.</p> <p>Evidence held insufficient to establish infringement of the Byerley patent, No. 524,130, for a process of making asphaltic products from the residuum of petroleum after distillation and the products themselves.</p> <p><g=3l<’or other eases see same topic & KEY-NUMBER in all Key-Numbered Digests &, Indexes</p>

<p>1. Food ©=15—Misbranding—Statutory Provisions—Intent.</p> <p>The purpose ,of Food aud Drugs Act June 30, 1906, c. 3915, § 8, 31 Stat. 77i (Comp; St. 1913, § 872-1), providing that an article shall he deemed misbranded, if labeled or branded so as to deceive or mislead the purchaser, or to purport to be a foreign produel; when it is not so, is to protect the public from deception, and the intent of one charged with misbranding is immaterial.</p> <p>[Ed. Note.—For other cases, see Food, Cent. Dig. § 15; Dec. Dig. @=>15.¡</p> <p>2. Food ©=>15—“Misbrand”—Acts Constituting.</p> <p>Where macaroni manufactured in the United States bore a label containing Italian words, including the name of a town in Italy where macaroni is extensively manufactured, and the general purchaser, looking at the label, would conclude that it represented an Italian product, the macaroni was “misbranded,” within Food and Drugs Act, § 8, though the letters “Mfg. U. S. A.” appeared in small type within less than an inch of space on a very narrow white margin on the lower edge of the label.</p> <p>[Ed. Note.—For other cases, see Food, Cent. Dig. § 14; Dec. Dig. @=>15.</p> <p>For other' definitions, see Words and Phrases, Second Series, Misbrand.!</p> <p>©^sFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Madge Wilson was convicted of violating the Harrison Anti-Narcotic, Law, and she moves for a new trial.</p>

<p>L New Trial <3=99—Grounds- -Newly Discovered Evidence.</p> <p>In an action for personal injuries sustained at a railroad crossing, affidavits that a certain person, if called as a witness, would testily that plaintiff hurried down the street, did not stop when he reached the gate, and went under it just as a train came along, although in direct conflict with the plaintiffs evidence on the trial, do not present evidence newly discovered, or so plainly likely to affect the result, as to necessitate a new trial.</p> <p>[ Ed. Note.—For other cases, see New Trial, Cent Dig. 201, 207; Dee. Dig. <3=99.1</p> <p>2. New Trial <3=101—Grounds—Newly Discovered Evidence.</p> <p>Where a physical opportunity existed to obtain certain witnesses during the trial, but there was lack of time to investigate for the purpose of determining whether their evidence would be introduced, such evidence is not newly discovered in the legal sense.</p> <p>IJCd. Note.—For other cases, see New Trial, Cent. Dig. §§ 205, 206; Dec. Dig. <3=101.]</p> <p>8. New Trial <3=101—Grounds—Newly Discovered Evidence.</p> <p>After-investigation cannot supply, as newly discovered evidence, something that the parties might have gone into before the trial, if it had been considered material.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 205, 206; Dec. Dig. <3=101.1</p> <p>4, New Trial <3=100—Grounds—Newly Discovered Evidence.</p> <p>In an action for personal injuries, where plaintiff had testified that his earning capacity was $30 a week, and that he had made $90 during the month preceding the trial, evidence, from investigation after the trial, that his earning capacity was small, and that he had actually earned much less than $90 during the preceding month, did not constitute after-discovered evidence.</p> <p>[Ed. Note.—For other cases, see New Trial, Cent Dig. §§ 183, 201-204, 208, 209; Dec. Dig. <3=100.1</p> <p>QzzzFor other cañes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the Louis J. Bergdoll Motor Company, bankrupt. On petition of the North Broad Street Realty Company to review a referee’s order deducting certain payments as being preferential from the amount allowed petitioner as rent.

<p>1. Aliens @=54—Deportation Proceedings—Medical Certificate—Judicial Review.</p> <p>The exclusion by the Immigration Department of an alien will not be interfered with by the courts, where essential justice was attained, and the medical certificates as to the alien’s physical inability were not so defective that action based on them was illegal and void.</p> <p>[Ed. Note.—Eor other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. @=54.]</p> <p>2. Aliens @=54—Exclusion—Proceedings Before Immigration Officials— Prejudicial Error.</p> <p>Error in refusing the attorney of an alien, in proceedings before immigration proceedings to exclude him, to appear before officers in behalf of the alien, did not render the proceedings resulting in exclusion so unfair as to warrant the court on habeas corpus to grant relief, where the alien was excluded because of physical defects which might affect his ability to earn a living, and where his attorney was refused permission to make his argument before the immigration officers, who considered additional evidence offered by him, and where the result was clearly right under the evidence.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. @=54.]</p> <p>3. Habeas Corpus @=30—Grounds—Exclusion of Aliens—Fair Hearing —Substantial Jusetc®—Representation by Counsel.</p> <p>An application by an alien, ordered deported, for habeas corpus, on the ground that by refusing to permit counsel to argue in his behalf before the board he was denied a fair hearing, should not be granted, unless he can make out a prima facie case, so that, where he was excluded because of physical defects which might affect his ability to earn a living, and the facts were not in dispute, but the only questions were the deductions therefrom, habeas corpus should not be granted.</p> <p>[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. @=30.]</p> <p>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Omo Manufacturing Company against the Mystic Rubber Company.</p>

<p>In Equity. Suit by the Union Trust Company against the Beach Manufacturing Company, in which W. S. Patterson & Co. intervened, claiming the property. Report of the master, allowing the claim of the interveners, confirmed. .</p>

In Equity. Suit by the Union Trust Company against the Beach Manufacturing Company, in which Mrs. S. A. Du Free intervened, claiming the property. Report of the master, allowing the claim of the intervener, confirmed.

<p>1. Receivers @=>163—Claims against Estate—Effect of Assignment to Receivers.</p> <p>Receivers for a street railroad company were appointed first in a creditor’s suit and afterward successively under first and • second mortgages. The receiver of another company filed a claim against the estate which, after negotiations, was assigned to the first-named receivers, who were described in tbe assignment as receivers under the mortgages. Meld, that such description was not conclusive as to tbe rights of the parties, and that, the consideration for the assignment having been paid from the gen- ■ eral estate, in part from the earnings of the receivership, the claim could not be proved against the general estate for the benefit of the mortgagees alone, but inured to tbe benefit of all creditors, and the effect of the assignment was to cancel it.</p> <p>[Éd. Note.—For other cases, see Receivers, Cent. Dig. §§ 312-316; Dec. • Dig. @=>163.]</p> <p>2. Receivers @=>148—Claims against Estate—Enlargement by Assignee.</p> <p>Where an itemized claim filed against an estate in the hands of receivers was afterward assigned, the assignee cannot thereafter enlarge it, either by adding to the items or to the amounts claimed thereunder.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. § 260; Dee. Dig. @=>148.]</p> <p>3. Street Railroads @=>58—Construction of Lease—Right to Rentals.</p> <p>Under a provision of a lease of street railroad property requiring the lessee to pay as rent quarterly dividends on the stock of the lessor company, an installment of rent falling due before the appointment of a receiver, in a suit to foreclose a mortgage agáinst the lessor, hold to belong to the stockholders, and the right thereto not to have passed to the receiver.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. § 135;' Dec. Dig. @=>58.]</p> <p>4. Street Railroads @=>58—Insolvency and Receivership—Claims Provable against Estate.</p> <p>A receiver for a street railroad company, appointed in a suit to foreclose a second mortgage, who paid interest on the first mortgage on default of a lessee which was obligated to pay it, may prove a claim for the amount of such Interest against the receiver for the lessee.</p> <p>[Ed. Note.—For other eases, see Street Railroads, Cent. Dig. § 135; Dec. Dig. @=>58.]</p> <p>5. Street Railroads @=>49—Leases—Liability of Lessee.</p> <p>A lessee of a street railroad system, including lines leased by the lessor and controlled by it through stock ownership, which control passed to the lessee, held liable for failure to keep the controlled lines in repair and for taxes and other liens existing when the lease was terminated by insolvency of the lessee.</p> <p><S=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>I lid. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 123, 320; Dec. Dig. <g=>49.j</p> <p><gs5>Pcr other eases see same topic & Kisy-NI.JMB.EK in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Pennsylvania^ Steel Company and another against the New York City Railway Company and another, and three other causes. On distribution of proceeds of an action against Metropolitan Securities Company.

<p>In Bankruptcy. In the matter of the Oak Leaf Coal Company, bankrupt. Petition by one Hood to review order of referee permitting purchasers at the trustee’s sale to take possession of a railroad.</p>

In Bankruptcy. In the matter of Joseph N. Frankel, bankrupt. Petition by trustee in bankruptcy to review order of referee directing the delivery by the trustee of property to a seller of the bankrupt on failure to pay the price due.

<p>In Bankruptcy. In the matter of Margaret G. O’Callaghan, bankrupt. Heard on certificate from the referee on an agreed statement of facts.</p>

<p>Oor,:im'..i'Tn C•>•>!.—Tnwíingkment—Acts Constituting.</p> <p>finder Copyright Act Mare?»' 4, 1909, c. 320, § 20, 35 Stat 1080 (Oorap. St, 1913, § 9341), providing that where a copyright proprietor has sought to comply with the act with, respect to notice, the omission by accident or mistake of the notice from a particular copy or copies shall not invalidate tíie copyright, or prevent a recovery of damages against a person who after actual notice of the copyright infringes it, but shall prevent roeovery of damages against any innocent infringer misled by the omission of the notice, a copyright proprietor, whose notice of copyright is defective because of the characters or symbols therein being so small that an average observer may discover nothing therefrom, may not recover-damages against one innocently infringing the copyright, and on ascertaining the facts promptly discontinuing the use thereof; but he will be enjoined from future use, if injunction is desired by the proprietor, for the defects in the notice do not invalidate the copyright.</p> <p>«s=>Por other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes'</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. §§ 29, 30; Dec. Dig. <@=»29J</p> <p>^s^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>L Tbade-Marks and Trade-Names <@=>3—Trade-Mark—What is—“Vacuum”—“Suction.”</p> <p>An automobile tire, the tread of which consisted of four or five circular rows' of cup-shaped rubber projections, was called. a “vacuum cup” tire, and it was advertised that the suction hold of the vacuum cups would prevent skidding. Held, that the name was merely descriptive, meaning no more than suction cups, for the expressions “vacuum” and “suction” are practically synonymous, although suction may be the result of vacuum, and hence there could be no trade-mark either in “vacuum cup” or “vacuum tread.”</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. <©=>3.</p> <p>For other definitions, see Words and Phrases, Suction.]</p> <p>2. Tbade-Marks and Trade-Names <§=>70—Unfair Competition—What Constitutes.</p> <p>Complainant’s tires had on each side the words “Pennsylvania Vacuum Cup Oil-Proof,” preceded and followed by a monogram, consisting of the capital letters “V” and “C,” and also the words “Pennsylvania Rubber Co,. Jeannette, Pa.,” and numerals indicating the dimensions of the tire. Defendant’s tires had on one side the words “Made by the Dreadnaught Tire & Rubber Co., Baltimore, Md., and numerals indicating the dimensions, and on the other side the words “Vacuum Tread” and similar numerals. The wrappers were equally dissimilar, and the color of defendant’s tires was different from those of complainant’s. Held, that defendant was not guilty of attempting to palm off its tires as those of complainant, and hence would not be restrained, though a party not having a trade-mark in a name will be protected, where another attempts to use it to defraud the public into believing his goods were made by the other.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. <§=>70J</p> <p>3. Trade-Marks and Trade-Names <§=>70—Unfair Competition—What Constitutes.</p> <p>Defendant sold its “seconds,” which were defective tires sold without a guaranty, to a store near complainant’s factory, without branding them as seconds and without removing the words “Vacuum Tread,” although it removed its name. Complainant’s tires were on sale in the same vicinity Held, that defendant was guilty of unfair competition, in putting it within the power of the retailer to deceive the public, and hence should either obliterate the words “Vacuum Tread” from its tires, or indicate that the tires were made by defendant.</p> <p>[Ed. Note.—For other cases, see Trade-Marks -and Trade-Names, Cent. Dig. § 81; Dee. Dig. <§=>70.]</p> <p>4. Trade-Marks and Trade-Names <@=>70—Unfair Competition—Liability.</p> <p>Where a manufacturer puts it within the power of a dealer to deceive the public, and the public is deceived into believing that the manufacturer’s goods were made by another, the manufacturer is guilty of unfair competition.'</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. <@=>70.]</p> <p>5. Trade-Marks and Trade-Names <@=>93—Unfairi Competition—Fraud— ■What Constitutes.</p> <p>Fraud, constituting unfair competition, must be satisfactorily proven.</p> <p>[Ed. Note.—For other cases, see Trade-Marks, and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. <§=>93.]</p> <p>®=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Trade-Marks and Thade-Namios <3=>35—Unfair Competition—Injunction —Right to.</p> <p>An isolated act of fraud for which the law would furnish an appropriate remedy would not justify a general restraint of a legitimate business under the law of unfair competition.</p> <p>]Ud. Nolo.—For other cases, see Trade-Mirks and Trade-Names, Cent. Dig. § 108; Dee, Dig. <S=»93J</p> <p>7. TiAPE-iriRKS and Trade-Names ®=»8f{—Unjtaie OomunaTioN—Actions— Evidence.</p> <p>Evidence held insufficient to show that defendant tire company was guilty of fraud and unfair competition, in disposing of its tires as tiiose oí complainant.</p> <p>¡Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-108; Dec. Mg. <gss>9&]</p> <p>S. TRAl'E-IViARSvS AND TbAMS-N AMES @=»98-—UjSFAIB OOMPETITION—ACCOUNTijmb—Right to.</p> <p>in a suit for unfair competition, whore it did not appear that any one desiring to obtain complainant’s tires was misled into purchasing defendants, no accounting will bo ordered.</p> <p>¡Ed. Note.—For other c.ues, sec Trade-Marks and Trade-Names, Cent. Dig. § 112; Dee. Dig. <g=»9tí.]</p> <p>GsaFov other cases see same topic & KEY-NUMBER in aU Key-Numbered Digests & Indexes</p>

<p>1. Indemnity <§=>11—Liability of Indemnitor—Grounds.</p> <p>A surety, against which a judgment has been rendered for default of the principal, may, without showing payment of the judgment, recover from an indemnitor, who has agreed to save the surety harmless against every demand and judgment, and place the surety in funds to meet every demand.</p> <p>[Ed. Note.—For other cases, see Indemnity, Cent. Dig. §§ 21-25; Dec. Dig. @=>11.]</p> <p>2. Stipulations @=>14—Operation—Amendment of Pleading.</p> <p>The effect of a stipulation between a surety and its Indemnitor as to surety’s items of expense incurred in defending a suit against it for default of the principal is to amend the complaint, setting forth the contract of indemnity and averring the rendition of judgment against the surety for a specified sum.</p> <p>[Ed. Note.—For other eases, see Stipulations, Cent. Dig. §§ 24-37; Dec. Dig. @=>14.]</p> <p>8. Evidence- @=349—Records of Judicial Proceedings—Authentication-Statutory Provisions—Applicability.</p> <p>Rev. St. § 905 (Comp. St 1913, § 1519), providing for the authentication of the records of judicial proceedings of the courts of any state or territory, applies only to the authentication of records of judicial proceedings in the states and territories, and does not provide for the authentication of judicial proceedings in foreign countries.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1384-1387; Dec. Dig. @=>349.]</p> <p>4. Pleading @=>122—Denial of Matters on Information and Belief—Presumptions.</p> <p>To deprive a defendant of the right under the Code of Washington to interpose a denial on information and belief, the matter so denied must be presumptively within his knowledge.</p> <p>■ [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§1 249-252; Dec. Dig. @=>122.]</p> <p>5. Pleading @=>122—Denial of Matters on Information and Belief—Presumption—“Access to Public Records.”</p> <p>A defendant has such presumptive knowledge of his personal acts or those of his agent, or of public records to which he has access, or allegations of rendition of judgment against him, as to deprive him of the right under the Code of Washington to interpose a denial thereof on information and belief; but a defendant is not presumed to know matters of record in foreign countries, and the existence thereof he may deny on information and belief, the right of “access to public records” including, not only a legal right of access, but a. reasonable opportunity to avail oneself of the same.</p> <p>©=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Noto.—For other cases, see Pleading, Cent. Dig. §§ 219 252; Dec. Dig. <3=55122.]</p> <p>6. Pleading <3^>121—Denial oí Matters oh Information and Belief—Prksumption.</p> <p>A cl1 Izen and resident of the state of Washington may, on information and belief, deny the existence of a judicial record of the Supreme Court of British Columbia, for, though it may be presumed, that they are public records, it is not reasonable to require him to inform himself of tiie contents thereof, to qualify himself to answer in a suit against him in tho United States.</p> <p>[Ed. a ote. For other cases, seo Pleading, Cent. Dig. §§ 245-248; Dec. Dig. C-.U'; l.|</p> <p>7» Indemnity ••/....> M jui, tv of Indemnitor—Estoppel.</p> <p>An indemnitor of a surety, who has notice of the pendency of an action against tho surety on his bond,' and who has been called on to defend is estopped, when sued on his indemnity, to deny tho conclusiveness of judgment rendered.</p> <p>[Ed. jhote-—-For other cases, see Indemnity, Cent. Dig. § 41; Dec. Dig. <3r¿14.]</p> <p>8. Indemnity ■Liability of Indemnitor—Evidence.</p> <p>An indemnitor oí a surely on a bond o£ a contractor for work in British Columbia, who was not made a party to an action in British Columbia against tiie surety on tho bond, and who had nothing to do with the con-, dud; of the action, may insist on strict proof of the judgment against tho surety relied on as a basis for recovery, for he is not presumed to have knowledge of tiie records of courts of foreign countries.</p> <p>[Ed. Nbie.— For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. <3-=!15.]</p> <p>9. Evidence <S=>:?49—Judicial Rbcobds—Foreign Countries—Authentt city.</p> <p>A certified copy of a judgment rendered by a court in British Columbia, certified as a true copy by tiie district registrar, and bearing the impress of what purported to be a seal of tho court of British Columbia, and certificate of the consul general of the United States in Vancouver, to the effect that tho registrar was duly appointed and commissioned registrar of the province of British Columbia, is inadmissible for want of proper authentication.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1384-1387; Dec. Dig. <g=»349.]</p> <p>10. Husband and Wife <&=»268—Community Debts—What Are.</p> <p>A husband and wife had no financial interest in a construction company contracting to construct special work. The husband, without consideration and without the knowledge of the wife, agreed to indemnify the surety of tiie company at a time the company was constructing a building for the husband and wife, but which buiiding was then substantially completed and paid for by the husband. The husband paid, direct, materialmen furnishing supplies to the company for other construction work. A stockholder of tiie company promised to indemnify the husband, who brought suit to enforce the agreement. About the time the husband agreed to become indemnitor, ho became surety on notes of the company, and later stock of the company was delivered to his attorneys pending investigation as to whether he would, in self-protection, undertake to complete the construction company’s work, and ho also caused certain property to be deeded over to another company, of which he owned stock, to secure the notes on which he was surety. Meld, that the liability incurred by the husband as indemnitor was not a community debt, and property acquired by the husband and wife after their marriage was not under the laws of Washington liable therefor, but the husband was alone liable.</p> <p>igssFor oilier cases see same topio & KM Y-NUMBEit In all Key-Numbered Digests & Indexes</p> <p>[Kd. Note.—For other cases, see Husband and Wife, Gent. Dig. § 562; Dec. Dig. <@=^268.]</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by John V. Rice, Jr., against Joseph R. Wilson and another.</p>

In Admiralty. Suit by Joseph H. O’Brien, by his guardian Henry J. Gorin, against the steamship Cuzco, Aktieselskabet Cuzco, claimant, On exceptions to special plea.

In Admiralty. Suit by the Alaska Pacific Fisheries Company against the steamship Jeannie, Alaska Coast Company, claimant.

In Bankruptcy. Petition, in the matter of the Union Dredging Company, bankrupt, for review of orders of the referee disallowing claims for compensation for services rendered in the course of the administration of the bankrupt estate.

<p>In Equity. Suit by the United States against the Southern Pacific Company and others. On motion to dismiss the bill.</p>

<p>1. Injunction @=>105—Restraining Criminal Prosecutions—Invalidity of Statute—Invasion of Property Rights.</p> <p>The jurisdiction of a court of equity to enjoin the enforcement of a -void, statute is not affected by the fact that the statute is of a criminal or penal nature, if its enforcement will destroy property rights, to the irreparable injury of complainant.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 17S, 179; Dec. Dig. @=>105.]</p> <p>2. Injunction @=>85—Subjects of Protection—Constitutional Rights.</p> <p>That a state Legislature has vested a commission with discretionary power to do certain acts constitutes no defense to a suit to enjoin such acts, if they would be in violation of the rights of complainant under the Constitution of the United States.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. @=>85.]</p> <p>3. Commerce @=>60—Constitutional Law @=>240—Intoxicating Liquors @=>15—State License Law.</p> <p>Act Ala. April 6, 1911, regulating the sale of liquors, and known as the “Smith Law” (Acts Ala. 1911, p. 249), by section 12, imposes a license tax of $1,500 on breweries, which also entitles them to sell their product at wholesale without additional license. It further provides that “each agency of a brewery of another state doing business in this state shall pay • an annual license tax of $1,500, and any person, whether retail dealer or not, selling the goods or product of any brewery of another state, shall be deemed and held an agent thereof, unless- such brewery shall have an established agency in this state.” Held that, under Wilson Act Aug. 8, 1890, c. 728, 26 Stat 313 (Comp. St. 1913, § 8738), subjecting liquors shipped in interstate commerce to the laws of the state after their delivery to the consignee, such act is not invalid as imposing a tax on, interstate commerce, nor is it unjustly discriminatory as against the foreign manufacturer, but as to him is a valid exercise of the police power of the state.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. @=>60; Constitutional Law, Cent. Dig. §§ 688, 693, 697-699; D.ec. Dig. @=>240; Intoxicating Liquors, Cent Dig. §§ 17, 18; Dec. Dig. @=>15.]</p> <p>,<@=>For otli,er oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Wn.in <3=6P3—Construction—Property Dkviked.</p> <p>TestMor save Ills residuary estate to trustees, to pay the income to the direcíoir. oí a hospital. A brother oí testator predeceased testator, and icí¿ a will making gifts to tes calor. Testator ins! ilutad suits, resulting in accrues adjudging that the enjoyment of the gifts was postponed. There war? itoiiihig to indicíate that testator believed he hud no interest in Ms brotlioi'» estate, but, on the contrary, it was fair to assume that lie knew he had an interest therein, of which the, right to possession was merely postponed. Held, that testator intended that the residuary clause should include whatever interest he acquired under the will of his brother.</p> <p>¡Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1603-1600; Dec. Dig. 0^>(W3.]</p> <p>oilier canes see same topic & KEY-NUMÍ5J0R, in all Key-Numbered Digests & Indexes</p> <p>2. Wills <@=>683—Construction—Property Devised.</p> <p>The words “all the rest, residue and remainder of my estate,” in a residuary clause, are broad enough to include any interest testator had under the will of his predeceased brother, whether he believed he had any interest or not.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1603-1606; Dec. Dig. <@=>683.]</p> <p>■3. Wills <@=>449—Construction—Estate Devised—Knowledge of Testator.</p> <p>The mere fact that a testator may not have knowledge of his estate does not canse' intestacy, unless he lacked capacity to know of what Ms estate consisted.</p> <p>LEd. Note.—For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. <@=> 449.]</p> <p>4. Wills <@=>683—Construction—Testamentary Trust.</p> <p>Testator gave Ms residuary estate to trustees, to lend, invest, and reinvest the same, and to pay the income and interest arising therefrom to a hospital, for the purposes for which the hospital was incorporated, and authorized the trustees, on conditions specified, to divide the principal sum of the trust estate and unused accumulations of interest or income among charitable institutions and hospitals they might select. Held, that the words “invest,” “interest,” “income,” and “principal sum,” did not qualify the nature of the residuary estate, but expressed merely the duties to be performed by the trustees, and the residuary clause was sufficient to include any interest testator had in the estate of Ms predeceased brother.</p> <p>[Ed. Note.—For other eases, see Wills, Cent. Dig. §§ 1603-1606; Dec. Dig. <@=>683.]</p> <p>■5. Wills <@=>452—Construction—Distribution in Conformity to Rules of Inheritance and Distribution,</p> <p>The rule that the law favors a distribution as nearly as possible in conformity to the general rules of inheritance and distribution is entitled to weight in construing a will, when the language thereof is obscuro, and when it appears that next of kin have been dependent on testator, but is not of great value where the language is not obscure, and it is not shown that any of the next of kin have been dependent on him.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 968-970; Dee. Dig. <@=>452.]</p> <p>•6. Trusts <@=>147—Rights of Beneficiaries—Estoppel.</p> <p>A release executed by a beneficiary under a testamentary trust does not operate by way of estoppel, since no one has been or can be affected by it to his injury.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. S' 192; Dec. Dig. <@=> 147.]</p> <p>•<@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the New York & Philadelphia Package Company. On petition to review two orders of the referee.</p>

<p>1. Conspiracy <S^43^To Defraud United States—Character of Acts— Necessary Allegations.</p> <p>Where an indictment charged conspiracy to defraud the United States hy the removal of oleomargarine from a factory without payment of the tax thereon, it need not allege that the defrauding was to be accomplished by deceit, misrepresentations, or concealment, since the intent to defraud in such case is supplied by the allegation that the prohibited act was to be done unlawfully and knowingly.</p> <p>[Ed. Note.—Por other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. <§==>43.]</p> <p>2. Conspiracy @=»43—Offense Against Revenue Law—Sufficiency of Indictment.</p> <p>An indictment, found in the Southern district of New York, charging defendants with conspiring to defraud the United States hy removing oleomargarine from the factory at Providence, R. I., without payment of the tax thereon, and alleging as overt acts that the defendants purchased palm oil in New York, its shipment, payment for it, etc., is had, for a conspiracy must be found in the clause of the indictment which sets it forth, and cannot be enlarged by the overt, acts .alleged, which, in the instant case had no necessary connection with the conspiracy, and while in cases of conspiracy an unlawful plan may make unlawful, as parts of itself, what otherwise would he innocent acts, and while an overt act may be one inno- ' cent in itself, an indictment, charging conspiracy, which seeks to make an innocent act an ingredient of the offense, must allege a plan, including it directly or indirectly.</p> <p>LEd. Note.—Por other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84r-99; Dec. Dig. <@=>43.]</p> <p>3. Conspiracy <§=»43—Offense Against Revenue Laws—Sufficiency of Indictment-Aider by Allegation of Overt Acts.</p> <p>Where the indictment charged conspiracy to defraud the United States by removing oleomargarine from the factory at Providence, R. I., without payment of the tax thereon, allegations that the defendants purchased palm oil in New1 York, etc., were too uncertain to render the indictment subject to construction as one for conspiracy to defraud by unlawful procurement or covert manufacture.</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>1E<1. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dae. Dig. ©=343.]</p> <p>4. Conspiracy <8=343—Indictment—Overt Acts.</p> <p>Whore an overt act alleged in an indictment charging conspiracy must be qualified by circumstances to make it relevant to the particular conspiracy charged, it should be pleaded with the circumstances which make it relevant.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Doc. Dig. <8= 13.]</p> <p>5. Conspiracy ©=343—Indictment—Aijvecatton off Overt Acts.</p> <p>Where the jurisdiction of the court depends solely upon an overt act alfi-ged in an indictment for conspiracy, it must be alleged with all the definiteness and certainty of any other jurisdictional fact, and the connoaiou between the overt act and the conspiracy charged must be made to appear specifically by necessary recitals.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Doe. Dig. ©=343.]</p> <p>6. Conspiracy ©=>5—Criminad Daw <8=3113—Venue—Conspiracy to Deekaitd United States.</p> <p>To the statutory offense of conspiring to defraud the United States, defined by Cr. Code, § 37 (Comp. St. 3913, § 30201), which prescribes, as necessary to the offense, not only the unlawful conspiracy, hut that one or more of the parties must do an act to effect its object, an overt act, forming at least a step towards exec-uiion of the conspiracy, is an essential ingredient, and may he the sole basis of local jurisdiction.</p> <p>I í'd. Note.'—For other cases, see Conspiracy, Cent. Dig. § 4; Dec. Dig. ; Criminal Daw, Cent. Dig. §§ 190, 232; Dec. Dig. <8=3113,]</p> <p><£^r%For cases see same topic & KI5Y-NUMBER m all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Charles M. Gaylord and another, comprising the firm of the Crescent Park Market, bankrupts. Review of an order of the referee in bankruptcy, allowing the claim of George C. Woodworth as an unsecured claim, but denying it as a secured claim, by virtue of a chattel mortgage executed by the bankrupts.

<p>In Bankruptcy. In the matter of the T. H. Bunch Commission Company, bankrupt. Intervention petition by Mrs. Laura L. Bunch, for the possession of personalty in the possession of the trustee in bankruptcy.</p> <p>This is an intervention by Mrs. Daura D. Bunch, for the possession of certain personalty in the possession of the trustee in bankruptcy in this cause. ¡She claims title thereto by virtue of a chattel mortgage executed by the bankrupt to her for the purpose of securing an indebtedness due her from the bankrupt. To this petition of intervention the trustee filed an answer, admitting the possession of the property claimed by the intervener, and the execution of the mortgage as set forth in the petition, but denied that it was a valid mortgage as against the trustee, for the reason tlsa.t the bankrupt corporal ion was created and existed under the laws of the state of Arkansas, and hail its principal office in the county of Pulaski, and that the mortgage was not legally filed for record until October 7, 193.4, within four months before the filing of the petition in bankruptcy herein; that at the time of such recording in Pulaski county tlio said Commission Company was insolvent, and the effect of the enforcement of said mortgage would and will be to enable the intervener to obtain a greater percentage of her debt than other creditors of the Commission Company, of the same class, whose debts were in existence at the time said mortgage was given and accepted, and thereafter; that at the time of recording the said mortgage in Pulaski county, as aforesaid, the intervener had reasonable cause to believe that the enforcement of said mortgage would prefer her to other creditors.</p> <p>The intervention was referred to the referee in bankruptcy as special master, and was submitted to him upon an agreed statement of facts, the substance of which is: ‘‘That the Commission Company, the bankrupt, is a corporation organized November 3, 1909, under the laws of the state of Arkansas. Its principal place of business and its office for the transaction of business is, and at all times was, in Pulaski county, state of Arkansas. That T. H. Bunch has been the president ever since its organization, and the intervener is his wife; that on December 18, 1913, the said T. H. Bunch, acting for the Commission Company, borrowed from the intervener $20,000 in money, and for the purpose of securing the same executed in behalf of the Commission Company a note for $20,000 to Mrs. Bunch and a chattel mortgage on the property in controversy. After it had been delivered to her, she requested her husband to take such steps as were necessary to validly file or record the mortgage. That the mortgage was filed on January 10, 1914, with the recorder of deeds of Lonoke county, Ark., but with no directions to record same, nor was there any indorsement made thereon, as provided by section 5407 of Kirby’s Digest. The personalty covered by the mortgage was at that time in Lonoke county. On October 1, 1914, a suit was filed in the chancery court of Pulaski county, Ark., by creditors of the Commission Company, asking for the appointment of a receiver of the Commission Company to wind up its affairs, upon the ground that it was insolvent. That upon a hearing the court by consent of the parties appointed a receiver on October 3, 1914, upon the ground of said insolvency. On October 3, 1914, the attorney for Mrs. Bunch, who was also the attorney of the Commission Company, was advised that her mortgage was on file in the recorder’s office in Lonoke county, but had not been recorded or indorsed, so that it could be legally filed without recording, whereupon the attorney withdrew the mortgage and immediately fefiled it with the recorder of deeds of Lonoke county, with an indorsement as required by law for filing, but not recording, chattel mortgages. On October 7, 1914, the attorney for Mrs. Bunch directed the recorder of Lonoke county to record the mortgage in that county, and when recorded to return it, whereupon it was indorsed by the recorder of Lonoke county, ‘Piled for record at 11:00 o’clock a. m. October 7, 1914.’ He immediately recorded it, and then sent it to this attorney at Little Rock, in Pulaski county, who then filed it for record with the recorder of Pulaski county, at 3:20 p. m. October 7, 1914, and the same is now of record in said county. The attorney who attended to these matters was also the attorney of the Commission Company, and had, up to that time, also been the attorney for Mrs. Bunch, but another attorney was employed by Mr. Bunch to act for Mrs. Bunch thereafter. At that time Mrs. Bunch was away from home, and all this was done by direction of her husband, the president and manager of the Commission Company. She returned home on October 11, 1914, and after being advised of what had been done, ratified the employment of a new attorney and everything that had been done on her behalf during her absence by either of the attorneys. At the time she ratified these acts she knew that the receiver had been appointed by the chancery, court and was in charge of the property of the Commission Company, including the mortgaged personalty, and she also knew that the Exchange National Bank, a creditor of the Commission Company, claimed that within the preceding two or three months approximately $35,000 or $40,000 had been obtained by the Commission Company from the bank in an unlawful way, and, as a result of the action of the bank on its claim, said receiver had been appointed and the Commission Company had ceased to transact business. At the time the application for a receiver was made to the chancery court the Commission Company was insolvent, having unsecured creditors whose claims exceeded in amount the fair valuation of its assets, and has been insolvent ever since.”</p> <p>The agreed statement also contains this stipulation: “It is stipulated and agreed that T. H. Bunch, if sworn as a witness in this cause, would testify that at the time of and after the appointment of the receiver for the Commission Company by the Pulaski chancery court, he did not personally think the said Commission Company was insolvent, but thought that the company could not pay some debts that' were then due, but that its assets were sufficient to pay all its debts. Notwithstanding, for the purpose of the trial of this intervention, it is stipulated and agreed that at the time of and at all times after the appointment of said receiver by the Pulaski chancery court, the said T. H. Bunch had-actual knowledge, acquired by him while acting not adversely to the interests of Mrs. Bunch, of such substantial facts and surrounding circumstances as would put a man of ordinary prudence or business experience on inquiry, which inquiry, if pursued with reasonable diligence, would have disclosed that the said T. II. Bunch Commission Company did not have sufficient assets at a fair valuation as a going concern to pay its debis, and, further, that if said mortgage in favor of Mrs. Bunch was enforced, she would get a greater percentage of her debt than general creditors. It is agreed that T. II. Bunch had access to the sources of information, which, If reasonably pursued, would have disclosed the above facts. At no time did the said T. H. Bunch, or any officer of the T. II. Bunch Commission Company, or Mrs. Laura L. Bunch, or her attorneys, attempt or intend to conceal the existence of the said debt or the said mortgage from any one. On October 19, .1914, a petition in bankruptcy herein was filed, and on November 9, 1914, adjudication in bankruptcy therein was had. The debt secured by the mortgage is still unpaid. Ifor the purpose of this case it is stipulated that the said T. M. Bunch, as president of the said Commission Company, had authority to make the loan and execute the noto and mortgage on behalf of file Commission Company.”</p> <p>At 1he hearing before the master the parties agreed that the cause be submitted upon two issues only: (1) Whether the debt, in the securing whereof the chattel mortgage was made, is to be deemed a pre-existing debt as of the date of the transfer itself, or as of the date of the recording of said transfer itself, or as of the date of the recording of said transfer in Pulaski county, Ark.; (2) whether the recording of said transfer was by law required within the meaning of section CO of the Bankruptcy Act. The special master found in favor of the trustee, and dismissed the intervention.</p>

<p>At Law. Action by the G. W. Parsons Company against the United States Fidelity & Guaranty Company of Baltimore, Md.</p>

<p>Mae iron? Liens <3=335'—Property Affected—Insubance Money.</p> <p>The lien of one who furnished supplies to a vessel at the request of its owner or master does not, after the destruction of the vessel by fire, attach to the insurance money, which is the proceeds of a collateral personal contract between the owner and the insurer, and not of an interest in Ihe vessel.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Dec. Dig. <@=>35.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Floyd & Hayes, bankrupts. On petitions to review an order of the referee relative to the claim of the American Agricultural Chemical Company.</p>

In Equity. Suit for an injunction by Albert T. Sanden against Edward Al. Morgan.

<p>Corporations <@=>642—Foreign Corporations Doing Business Within the State. ■</p> <p>Rem. & Bal. Code Wash. § 226, subd. 9, provides that summons shall be served by delivering a copy thereof, if the suit be against a foreign corporation doing business within' the state, to any agent, cashier, or secretary thereof. The defendant corporation, which was chartered in Minnesota and conducted mining operations in Alaska, maintained a purchasing agent in Seattle, paying his salary, office rent, and expenses. The name of the agent and of the corporation appeared in the directories; but the purchasing agent could make no purchases which were not approved by the corporation. Held, that the corporation was not doing business within the state, so that service of summons upon the purchasing agent would give the court jurisdiction over the corporation.</p> <p>[Ed. Note.-—For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. <@=642.]</p> <p><ft£s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the Metropolitan Motor Car Company. On petition to review an order of the referee fixing the allowance of the receiver. Referred back to the referee, to make a reasonable allowance within the statutory limits:

<p>1. Internad Revenue <&=>38—Penalties—Payment Under Duress—Recovery.</p> <p>Plaintiff company leased for 999 years all the property constituting the manufacturing plant of another corporation, its manufacturing sites, mines, roads, and ways, and not to exceed 10,000 acres of coal and other lands, and took possession of the property, and took over the cash, contracts, and entire business of the lessor, agreeing to pay as rental 4 per cent, of the lessor’s outstanding capital stock directly to its stockholders, and a further amount to cover the cost of maintaining the lessor’s organization, and to pay all taxes on the lessor’s property. On demand against the lessor for a special excise tax, for which the lessor’s property was liable to a lien and distraint under Rev. St. § 3186' et seq. (Comp. St. 1913, § 5908 et seq.), and after the lessor’s claim for an abatement was rejected, and to avoid the penalty threatened by the defendant as collector, and distraint and sale' of the leased property, the lessee paid the taxes under protest. Held, that the payment was not voluntary, but was made under duress, so that the plaintiff was entitled to sue for its recovery, without regard to privity of contract between it and the defendant collector.</p> <p>,[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <§==>38.]</p> <p>2. Corporations ®=>459—Property—Lease.</p> <p>Under Act Pa. Feb. 25, 1862 (P. L. 50), expressly authorizing an iron company to sell and dispose of its real and personal property, and without such authority, in the absence of express legislative restraint, the company’s lease of all its property, after which it quit carrying on business, though it maintained its corporate organization out of an amount paid by the lessee, so that its only income was the rental, paid directly to its stockholders, was not ultra vires.</p> <p>[Ed. Note.—For other eases, see Corporations, Cent. Dig. §§ 1811, 1812; Dec. Dig. <§=459.]</p> <p>3. Internal Revenue t@=>9—Excise on Corporations—“Doing Business.”</p> <p>An iron company, which, with the approval of its stockholders, leased to another company for 999 years all the property constituting its manufacturing plant, sites, mines, and roads, and coal and other lands, not to exceed 10,000 acres, and assigned to the lessee all its cash, contracts, and entire business, in consideration of a rental equal to 4 per cent, on its outstanding stock, payable directly to its stockholders, together with an additional amount to cover the cost of maintaining its organization, after which it merely existed as landlord and lessor, and had no other income than the rent, was not “doing business,” within the meaning of Corporation Tax Act Aug. 5, 1909, c. 6, 36 Stat. 112 (Comp. St. 1913, §§ 6300-6307), imposing an excise upon the doing or carrying on of business in a corporate capacity in a state.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <@=>9.</p> <p>For other definitions, see Words and -Phrases, First and Second Series, Doing Business.]</p> <p><§z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Commerce @=>31—Interstate Commercet-Statutes.</p> <p>Imports from a foreign country to the United States are not included in Interstate Commerce Act Feb. 4, 1887, c. 304, 24 Stat. 879; but commerce of a domestic origin, transferred into or through a foreign country, falls within its provisions.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 24; Dee. Dig. @=>31.]</p> <p>2. Carriers <$=>30—Interstate Commerce Act—Applicability of Statutes.</p> <p>Though Interstate Commerce Act Feb. 4, 1887, c. 104, § 6, par. 2, 24 Stat. 380, as amended by Act June 29, 3906, c. 3591, § 2, 34 Stat. 586 (Comp. St. 1913, § 8569), does not specifically provide for the publication of passenger rates where the journey is through a foreign country to another point in the United States, yet in view of the. entire provision for the publication of freight rates for shipments over such a route, the carrier must publish passenger rates.</p> <p>[Ed. Nolo.—For other cases, see Carriers, Cent. Dig. § 81; Dee. Dig. <S=>30.]</p> <p>3. Carriers <$=>32—Interstate Commerce—Offenses. .</p> <p>Where a theatrical company, by promise of rebates, was induced to route its shows over a railroad line which ran between two points in the United States, though part of the route lay through the Dominion of Canada, the rebates being made from the aggregate fares for the entire journey, the agreement was in violation of Interstate Commerce Act, § 6.</p> <p>LEd. Note.—For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. @=>32.]</p> <p>4. Conspiracy @=>-10—Giving of Rebates—Agreement.</p> <p>Interstate Commerce Act, § 6, makes it unlawful for a railroad company to give or a shipper to receive rebates, but does not provide, any punishment for receiving rebates. A railroad company and a shipper entered into a conspiracy for the giving of rebates. U eld, that both could be prosecuted, under Rev. St. § 5440, making a conspiracy to violate the laws of the United States an offense.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 73, 75-78; Dec. Dig. @=>40.]</p> <p>5. Conspiracy @=>45-—Prosecution—Evidence.</p> <p>In a prosecution for conspiring to violate the laws of the United States by giving and receiving rebates, alleged overt acts, which were in themselves lawful, being connected with the object of the conspiracy, may be shown in evidence.</p> <p>other eases se© same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 100-104; Dec. Dig. @=>45.]</p> <p>@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the United States, to the use of William T. Fowden and others, against J. W. Emery and the Fidelity & Deposit Company of Maryland. Rule for judgment for part of the claim, the affidavit of defense to which is insufficient.

In Equity. Suit by the Triumph Electric Company against Louis H. Thullen. Heard on bill, answer, and proofs. Specific relief prayed for denied, with leave to plaintiff to have the cause transferred to the law side of the court, or for relief under the general relief prayer.

<p>At Law. Action by Mary Murray and another against the Southern Pacific Company.</p>

<p>1. Criminal Law <©=>281—Pleas in Arateme,nt—Grounds—Demurrer.</p> <p>That accused, filing pleas in abatement to an indictment on the ground of irregularities in the constitution and summoning of the grand jury, had presented Ms objections to another district judge on challenge to the array before indictment, and that his objections had been overruled, may be the subject of replication, but is not available on demurrer to, the pleas.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 652; Dec. Dig. <©=>2S1.]</p> <p>2. Criminal Law <©=>280—Plea in Abatement—Grounds.</p> <p>A plea in abatement to an indictment on the ground o-f the production of documentary evidence in violation of the professional privilege of counsel for accused and of the rights of accused under the fourth amendment to the Constitution, which shows a compulsory production, by the chief clerk of the legal department of accused, of records, documents, and confidential papers of accused and in the official custody of the chief clerk, in which they were placed by counsel for accused for use in the preparation of defense of accused to the offense charged in the indictment, is insufficient to bring the matter within Const. U. S. Amend. 4, relating to unreasonable searches and seizures.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 045-651; Dec. Dig. <©=>280.]</p> <p>see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes other</p> <p>3. Witnesses <@=>304—Self-Incrimination—Privilege.</p> <p>The right, under Const. U. S. Amend. 5, to refuse to incriminate oneself, is purely a personal privilege of an individual witness, and is not without the aid of the fourth amendment to be extended to a corporation defendant.</p> <p>[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1051,' 1052; Dec. Dig. <@=3304.]</p> <p>4. Criminal Law <@=3280—Plea in Abatement—Calling of Unsworn Witness.</p> <p>A plea in abatement to an indictment for calling an unsworn witness before the grand jury, but which does not aver that the witness testified without being sworn according to law, is insufficient.</p> <p>[Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 645-651; Dec. Dig. <@=3280.]</p> <p>5. Criminal Law <@=3280—Plea in Abatement—Presence of Unauthorized Person in Grand Jury Room.</p> <p>A plea in abatement to an indictment because of the presence of a person not authorized by law in the jury room is insufficient for not specifically averring the capacity in which the person acted while so .present.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 645-651; Dec. Dig. <@=>280.]</p> <p>6. Criminal Law <@=3280—Plea in Abatement—Grounds—Production of Improper Documentary Evidence.</p> <p>A plea in abatement to an indictment because of the production of improper documentary evidence before the grand jury is insufficient for failing to allege that there was no other competent evidence to warrant the finding of the indictment.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 645-651; Dec. Dig. <@=3280.]</p> <p>7. Criminal Law <@=>280—Plea in Abatement — Grounds — Possession of Stenographic Notes of Testimony Before Prior Grand Jury.</p> <p>A plea in abatement to an indictment on the ground of the possession by the United States attorney, or his assistant, of stenographic notes of testimony taken before a previous grand jury, is insufficient, where it does not aver that the grand jury considered the notes, or that any one called their attention to any fact set out therein.</p> <p>[Ed. Note.—For other cases, see Criminal Law,. Cent. Dig. §§ 645-051; Dec. Dig. <@=>280.]</p> <p>8. Criminal Law <@=>280—Plea in Abatement—Grounds—Irrelevant Opinion Evidence.</p> <p>A plea in abatement to an indictment because of the asking of witnesses questions as to irrelevant opinion evidence is insufficient for failing to aver that the witnesses answered the questions.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 645-651; Dec. Dig. <@=>280.]</p> <p>9. Criminal Law <@=>280—Plea in Abatement—Grounds—Improper Production of Testimony.</p> <p>A plea in abatement to an indictment which avers the improper production before the grand jury of a photographic copy of a demurrage tariff, alleged to have been in force during the time set forth in the indictment, and that the United States attorney improperly questioned witnesses to show that accused violated the tariff, though the attorney knew that the tariff was not the tariff filed with the Interstate Commerce Commission and was not the tariff covering the shipments during the times set out in the indictment, but that another tariff was filed and was then in force, goes to the want of proof of the copy as evidence, and its irrelevancy based on the time during which the tariff was In force, but is insufficient tor want of averment that other tariffs were not produced or that there was not other legal evidence on which the grand jury could find the indictment.</p> <p><®=x>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 615-651; Dec. Dig. @=^280.]</p> <p>10. Grand Jury <§=?26—Powers—Inquisitorial Proceedings.</p> <p>The grand jury possesses the broadest kind of inquisitorial powers and has jurisdiction to proceed without any specific charge against any one.</p> <p>[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 64, 65; Dec. Dig. <S=»26J</p> <p>11. Criminal Law <S=»1166—Evidence bei-ose Grand Jury— Review-Prejudice.</p> <p>While the prosecuting officer conducting a proceeding before the grand jury is presumed to be familiar with the rules of evidence, and while lie must take care that no inadmissible evidence is received, yet the court will not review the testimony taken before the grand jury in the same manner as before a petit jury on motion for new trial, and will not review the conduct of an officer in his presentation of evidence unless accompanied by some impropriety by which the grand jury is shown to have been influenced to the prejudice of accused, or of such'nature that prejudice will be presumed.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. ®=»1166.]</p> <p><gE5>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Ben R. Bradley, bankrupt. Petition of Mrs. K. D. Wilcox, landlord, to review order of referee disallowing lien for rent.</p>

<p>Bankruptcy @=5481-—Compensation of Referee—Appointment as Special A! \STFB.</p> <p>Under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, and especially in view of the provision o" section 72, added by Act Feb. 5, 1903, c. 487, § 18, 32 Stat. 800 (Comp. St. 1013, § 9656), ¡that a referee shall not “in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized and proscribed by this act,” the court has no power to allow a referee additional compensation for the doing of anything which it is expressly by the act or by the general orders made Ms duty to do, or which it is by such act or general orders made permissible with the judge to refer to him for hearing and report; but the court may under its general powers refer matters not within the scope of such express or permissive provisions, although arising In a bankruptcy proceeding, to a referee or another as a special master, and may allow U10 usual compensation of special masters for his services therein.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Gent. Dig. § 886; Dec. Dig. C=»481.]</p> <p>{^%>For orner eases see same íopic & KBIY-NUiiDEIl in all Key-Numbered Digests & Indexes</p>

In the matter of the bankruptcy of Max Traunstein and Joseph White. Petition by the E. R. Brown Beer Pump Company for property delivered by the trustee to the New England Trust Company. On review of the referee’s denial of the petitioner’s motion to discontinue its petition.

<p>J. Lindsay Wells was charged with violating the Pure Food and! Drug Act, and he demurs to the information.</p>

<p>In Bankruptcy. In the matter of M. Ziff, bankrupt. Petition to review an order of the referee, overruling exceptions to the trustee’s report and allowing exemptions to the bankrupt.</p>

<p>1. Bankruptcy ísv>310—Proof op Claim—Allowance—“Duly Proved.” .</p> <p>A proof of claim, which does not comply with, Bankr. Act July 1, 1898, c. 511, § 57, suMs. “a,” “b,” 30 Stat. 560 (Comp. St. 1913, § 8641), as to the statement of the claim and its consideration, is not prima facie evidence of the allegations therein made, and should not be allowed, in the absence of Impeaching evidence, for section 57, snbd. “d,” declaring that claims which have been duly proved shall be allowed, impliedly requires the rejection of others.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 527; Dee. Dig. <3=»310.]</p> <p><§x^>For other eases see same topic & KEY-NUMBBR, in all Key-Numbered Digests & Indexes</p> <p>2. Bankruptcy <®=>330—Proof of Claim—Sufficiency.</p> <p>A .proof of claim recited that the consideration, was for legal services in specified months, and that the claimant appeared for the corporate bankrupt during those months, and as its counsel prepared the schedules filed. Bankr. Act, § 57, subds. “a,” “b,” require proofs of claim to set forth the consideration therefor, and, if founded upon instruments in writing, to set forth such instruments. Held that, as the statement Of claim and its consideration must he sufficiently specific to enable the trustee and creditors to make proper investigation as to its fairness and legality without inconvenience, the proof of claim was not sufficient, as it failed to disclose the nature of the services rendered, the time consumed, or give any standard as to their value.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 517, 519, 521; Dec. Dig. <®=>330.]</p> <p><g^>For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Samuel Shoemaker, bankrupt. Upon certificate for review of an order dismissing a petition of the trustee for an order upon the bankrupt to execute papers necessary to enable Ihe trustee to obtain the surrender value of life policies.</p>

<p>1. Bankbtjttoy <@=>318, 340—Pbovable Debt—Allowance—Annuity.</p> <p>A bankrupt, for full consideration, received by him before bankruptcy, entered into an absolute promise to pay to the claimant $3 per day during the remainder of the claimant's life. Bankr. Act July 1, 1898, c. 541, § 63a, 30 Stat. 562 (Comp. St. 1913, § 0647) declares that debts of the bankrupt, which are a fixed liability and absolutely owing at the time of the filing of the petition and are founded upon a contract, absolute or implied, may he proved. Held, that the claim might lie proven against the bankrupt’s estate, and that the only uncertainty, which was the duration of the claimant’s life, might be determined as in other cases by reference to inoi’tnlity tables.</p> <p>[Ed. Note.—-For oilier cases, see Bankruptcy, Cent. Dig. §§ 481, 482, 527; Dec. Dig. <@=>318, 3Í0.]</p> <p>2. Ban kihittoy <@=>342%—Findings of Referee—Evidence,.</p> <p>Where the evidence in a proceeding to review allowance of claims was not reported, the referee’s findings of fact must stand, unless they appear erroneous on the face of the certificate.</p> <p>I Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. <@=>342%.]</p> <p><£^>For other cases see same topic & KEY-NUMBJER in all Key-Numbered Digests & Indexes</p>

In Equity. Bill by S. S. Hall against William R. Willcox. On motion for injunction pendente lite to prevent the postmaster at New York City, under orders from the Postmaster General, from detaining mail from the complainant, who was selling “Electric Belts,” which were advertised as curing or aiding many ailments and increasing and preserving the sexual powers of men.

In Bankruptcy. In the matter of the bankruptcy of Michele Vallozza and Nicola Di Giandomenico, individually and trading as the New York Clothing Company. On petition to review the referee’s order directing that Antonio Siracusa pay to the trustee the sum of $848.50, the value of goods, wares, and merchandise delivered by the bankrupts within four months preceding the filing of the petition in bankruptcy.

<p>In ihe matter of the petition of Lee Ying and Lee Quon for a writ of habeas corpus.</p>

Clemons, Judge. Action at law by the United States against James F. Findlay and others, on a bond to insure the payment of penalties alleged to have been incurred by defendant James F. Findlay, as master of the British steamship Orteric, for violation of the Passenger Act of 1882. There was a judgment for plaintiff, and defendants bring error.

Appeal_ from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree in favor of libelant. The action was brought to recover for freight and advance charges on 2,507 bags of peas from a point in Mexico to New York City.

<p>Appeals from, and Petitions to Revise Orders of, the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Petitions by R. H. Courtney, trustee in bankruptcy of John H. Shea, against John H. Shea and Irene Shea, and against James P. Whallen, individually and as executor of John H. Whallen, deceased. Prom orders (211 Fed. 365) granting insufficient relief, the trustee appeals, and also brings petitions to revise.</p> <p>On November 11, 1913, John H. Shea was adjudicated a bankrupt on his petition of that date, and later R. H. Courtney was appointed trustee of the bankrupt’s estate. Upon examination into the condition of the estate, it appeared that certain moneys had been deposited in bank, and certain other moneys invested in shares of stock in two building associations, the Avery Building Association and the Portland Building & Loan Association, in the name of the bankrupt’s wife, Irene Shea. On January 2, 1914, the trustee filed a petition in the court below, alleging that these moneys and stocks belonged to the bankrupt, and that Irene Shea claimed to be the owner of the moneys and securities. The prayer was for a rule against the bankrupt and Irene Shea, requiring them to pay to the petitioner the money and to turn over to him the shares of stock. On the same date a rule was issued against the bankrupt and his wife to show cause why the prayer of the petition should not be allowed. Response was filed by Shea and his wife, setting out many details which need not be repeated. Upon the hearing the referee adjudged the response to be insufficient and made the rule absolute.</p> <p>On January 16, 1914, the trustee also filed a petition in the court below against James P. Whallen, individually and as executor of John H. Whallen, claiming that the bankrupt had placed in the possession of the Whallens certificate 484 for 50 shares, of stock in the Avery Building Association; that Shea had paid $1,470 to the building association on account of such shares of stock; and that Shea, without receiving any consideration therefor, had, on August 31, 1912, transferred the certificate to James P. and John H. Whallen for the purpose of defrauding the creditors of the bankrupt; that John H. Whallen had since died testate, and James P. had qualified as his executor. The petition contained a prayer for a rule against James P. Whallen, individually and as such executor, requiring him to show cause why he should not pay to the trustee the sum of $1,470, and to turn over to him the certificate representing the stock. Response was filed by James P. Whallen; individually and as such executor, stating that on August 31, 1912, he with John I-I. Whallen purchased from Shea this certificate of stock and paid therefor the sum of $1,125, part in cash and part through discharge of Shea’s obligations to them for loans of money theretofore made to him; that after the date of such purchase the Whallens paid to the building association' on account of the shares $370, making the total value of the certificate $1,494; and that th® Whallens were the absolute owners of the stock. The referee, adjudging the response to be sufficient, discharged the rule, without costs.</p> <p>In the first proceeding Shea and his wife filed a petition for review, and in the second the trustee filed a like petition, in the District Court. In that court the order in the first proceeding was affirmed only to the extent of requiring respondents to pay to the trustee $234.54 out of the moneys then on deposit to the credit of Irene Shea, or under her control, in the Eirst National Bank of Louisville, but in all other respects the order was reversed and set aside; and the order in the second proceeding was affirmed. So' far as the order in the first proceeding was affirmed, it seems to have been acquiesced in by the respondents; at least they have taken no steps to have it reviewed. The trustee adopted two remedies for bringing the modified order in the first proceeding and the entire order in the second under review in this court; one was by appeal, and the other by petition to revise in matter ■of law. Each proceeding was docketed here as a separate ease, though both cases are included in one record and were argued and submitted as one cause.</p>

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

<p>Indians <S=»38—Introducing Liquor into Indian Country—Possession as Evidence.</p> <p>The mere possession by a defendant of liquor within that part of the state of Oklahoma which was formerly a part of Indian Territory is not sufficient to warrant Ms conviction l'or introducing the liquor into the state.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. C=j38.</p> <p>Introducing intoxicating liquors into Indian country, see note to Joplin Mercantile Co. v. United States, 181 C. C. A. 171.]</p> <p><£s?>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Indians @=>88—Introduction or Liquor into Indian Country—Prosecution.</p> <p>Failure to prove that the introduction was by accused is fatal to a prosecution for introducing liquor into a part of the state of Oklahoma which was formerly.part of the Indian Territory.</p> <p>[Ed. Note.—F’or other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. @=>38.</p> <p>Introducing intoxicating liquors into -Indian country, see note to Joplin Mercantile Co. v. United States, 131 C. C. A. 171.]</p> <p><©c»For other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Robert Key was convicted of crime, and he brings error.</p>

<p>Indians <S=>38—Introduction of Liquor into Indian Country—Criminal Prosecution.</p> <p>Possession by a defendant, within that part of Oklahoma which constituted Indian country at the time of the passage of Act July 23, 1892, c. 234, 27 Stat. 269, of intoxicating liquors which had been brought into the , state from#without, is not sufficient to warrant his conviction under such statute for' introducing liquors into the Indian country.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 22, 64, 66; Dec. Dig. <@^38.</p> <p>Introducing intoxicating liquors into Indian country, see note to Joplin Mercantile Co. v. United States, 131 C. C. A. 171.]</p> <p>tg^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Ill Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. \ Criminal prosecution by the United Stales against W. F. Parks. Judgment of conviction, and defendant brings error.

Ross, Judge. Suit by Edmund Burke against the Southern Pacific Railroad Company and others. Decree for defendants, and complainant appeals. Appeal from the Circuit Court of the United States for the Northern Division of the Southern District of California; Erskine M. Ross, Judge. Suit by J. I. Lamprecht and others agdinst the Southern Pacific Railroad Company and others. Decree for defendants, and complainants appeal.

<p>Patents <@=>328—Validity—Prior Use—Tile Flooring.</p> <p>The Kennedy patent, No. 1,034,121, for a tile flooring, held void for prior public use, upon evidence showing that the flooring’ was made by the patentee, sold for profit, and used in various cities, in both private and public buildings, more than two years prior to application for the patent.</p> <p><@=>Eor other caaes see same topic & KEY-NUMliER in all Kej-Numborod Digests & Indexes</p>

Appeals from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, granting an injunction pendente lite restraining defendants from infringing claims 1, 2, and 5 of the Lodge patent, No. 609,154, granted August 16, 1898, and claims 1, 2, 3, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 19, and 20, of the Marconi patent, No. 763,772, granted June 28, 1904.

<p>In Equity. Suit by the Eord Motor Company against the Union Motor Sales Company, Lucien A. Soward, J. Carl Horton, Earl Saunby, and William T. S. Yocum.</p>

<p>1. Patents <3^328--VAiniuTr and in;i: n<::-:\;i:,\t—Expansion Bolt.</p> <p>Trie Mt-Creery & McCreery patent, No. 023,809, for a one-part expansion bolt, held valid as a limited advance in the art, as showing an improved form over those of the prior art, but not infringed.</p> <p>O other casos see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Patents <®==>328—Validity and Infringement—Shield for Expansion Bolts.</p> <p>Tbe Pleister patent, No. 973,559, for a shield for expansion bolts, held, to disclose invention, and valid within narrow limits, but not infringed.</p> <p>3. Patents <@=^328—Validity and Infringement—Lead' Anchor for Expansion Bolts.</p> <p>The Cook patent, No. 685,820, for a one-piece lead anchor or shield for expansion bolts, held valid, but not infringed.</p> <p>4. Trade-Marks and Trade,-Names <®=»70—Unfair Competition—Imitating Poem of Article.</p> <p>The copying by complainant, so closely as to deceive purchasers, of shields and anchors for expansion bolts, which had been made and sold by defendants for many years, and were well known to the trade, held to constitute unfair competition.</p> <p>[Ed. Note.—Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. <®=>70J</p> <p><grs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Sanitary Street Flushing Machine Company against the City of Amsterdam to restrain alleged infringement by defendant, asa user of a street flushing or washing machine, so called, of United States letters patent granted to Leopold Otto Ottofy, assignor to American Street Flushing Machine Company, and for an accounting.</p>

<p>In Bankruptcy. In the matter of John F. Murphy, alleged bankrupt. Adjudication of bankruptcy confirmed, on petitioners, Ayer & Co., depositing with the clerk a specified sum, to be paid over to the trustee when one shall be chosen.</p>

<p>Courts ©=>376—Practice in Federal Court—State Law—Examination or • Bankrupt’s Wire,.</p> <p>Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, § 21a, as amended in 1903 (Act Feb. 5, 1903, c. 487, § 7, 32 Stat. 798 [Comp. St. 1913, § 9605]), declares_ that a court of bankruptcy may by order require a bankrupt and bis wife to appear in court or before a referee to be examined concerning tbe a.cts, conduct, or property of tbe bankrupt, but that tbe wife may be examined only touching business transacted by her or to which she is a party. Act June 29, 1906, c. 3608, 34 Stat. 618, amending Rev. St. § 858 (Comp. St. 1913, § 1464), declares that the competency of a witness to testify in any civil action shall be determined by the laws of the state or territory in which court is held. Act Pa. May 23, 1887, § 5 (P. L. 159), declares that neither husband nor wife shall be competent to testify against each other, except in proceedings for divorce. Eeld that, in a proceeding in bankruptcy in the state of Pennsylvania, the bankrupt’s wife could not be examined.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 984; Dec. Dig. ©=376.]</p> <p><§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Two actions, one .by Paul Pavick, the other by Christ Klawa and others, both against the Chicago, Milwaukee & St. Paul Railway Company. A motion has been made by the plaintiff in each of the eases for remand to the state' court from which it has in form, been removed to this court. The defendant railway company is a resident of the Eastern district of Wisconsin. Pavick, a resident of Iowa, commenced suit against it in the state court of Minnesota.

<p>Bankruptcy <@=>482—Attorneys’ Fees—Proper Services.</p> <p>The services for which an attorney’s fee is to be allowed in involuntary bankruptcy are the investigating of legal questions involved in the situation presented, the giving of necessary legal advice to the petitioning creditors and other creditors requiring it, investigating the records, and xireparing and filing the petition; but do not include conferring with other creditors to induce them to join in the petition.</p> <p>[Ed. Note.--For other cases, see Bankruptcy, Gent. Dig. §§ 87-1-876, 897; Dec. Dig. @=>482.]</p> <p><St»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes</p>

<p>In Equity. Suit by the United States of America against the Lehigh Valley Railroad Company and others for a violation of the Sherman Act (Act July 2, 1890, c. 647, 26 Stat. 209), and the Commodities Clause of the Act of June 29, 1906, c. 3591, 34 Stat. 585 (Comp. St. 1913, § 8563).</p>

<p>At Law. Action by C. F„ Horton, surviving partner of the firm of the Horton-Hinckley Lumber Company against the Tonopah & Goldfield Railroad Company.</p>

In Equity. Action by Roxa S. Johnson against William S. Johnson, with motions by Tonopah Banking Corporation and J. T. Garner, administrator with the will annexed of the estate of William S. Johnson, deceased, for orders permitting them to file complaints in intervention and a motion'by the administrator for an order making all creditors of the decedent parties defendant.

<p>1. Bankruptcy @=>100—Adjudication—Contesta-Laches.</p> <p>That the wife of a bankrupt has allowed three years to elapse since the adjudication of bankruptcy constitutes such laches as will preclude her from then contesting the allegations of insolvency in the petition upon which the adjudication was founded.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 60, 131, 141-144; Dec. Dig. @=>100.]</p> <p>2. Bankruptcy @=>357—Adjudication—Juey Question. »</p> <p>Where the bankruptcy court which has exclusive jurisdiction has custody of the res, and a distribution of the fund is the only issue before the court, the status and amount of the indebtedness need not be submitted to a jury for determination.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 541-544; Dec Dig. @=>357.]</p> <p>©KjFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Bill by Mary E. Gibbons against the Dexter Horton Trust & Savings Bank and others to set aside an adjudication in bankruptcy and for a resale of the bankrupt’s property. On motion to dismiss bill:

In Bankruptcy. In the matter of John J. Cunney and Thomas Cunney. Petition by trustee for order directing bankrupts to turn over to him money.

<p>1. Trade-Marks and Trade-Naaies <@=53—Infringement—Suit for Injunction.</p> <p>A trade-mark is not infringed by its use on the very article for which It was designed, although by another than the registered owner, and such use will not be enjoined by a court of equity for the protection of an attempted monopoly of an unpatented article through exclusive contracts for its sale.</p> <p>LEd. Note.-—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 61; Doc. Dig. <@=53J</p> <p>2. Monopolies <3=21—lligut—Suit for Infringement—Injunction.</p> <p>Complainant’s trade-mark “Coca-Cola” covers a beverage, and also the syrup by the use of which the beverago is made. Complainant, through an authorized agent, sold quantities of the syrup to defendants to be used in making the beverage, which defendants bottled and sold under complainant’s trade-mark. Later complainant established an agency of its own to make and sell the beverage in the same territory, and not only refused to make further sales of syrup to defendants, but brought suit to enjoin them from alleged infringement of its trade-mark by using it on their product made from the syrup previously purchased.. Held, that such use was not an infringement, and that, the evident purpose of the suit being only to aid complainant in monopolizing the sale of the beverage, to AVhich it had no equitable right under the facts shown, an injunction would not be granted.</p> <p>I Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. <@=21.J</p> <p>other cases see same topic & KiaY-NUMBEll in all ^ey-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by Evans Wood, master of the schooner Dora Allison, against the barge Banner.</p>

<p>At Law. Action by the Mitchell Bros. Company against Emanuel J. -Do vie, as Collector of Internal Revenue for the Fourth Collection District of Michigan.</p>

<p>At Law. Action by Anna E. Frescoln against the Puget Sound Traction, Light & Power Company, a corporation. On motion to strike an affirmative defense.</p>

In Bankruptcy. In the matter of the bankruptcy of the • Covington Lumber 'Company. On petition by the trustee for review of an order of the referee directing the delivery of property, conditionally sold to the bankrupt by the Stetson-Ross Machine Works, to the seller.

<p>Trade-Marks anp Trade-Names <®=^43—Names Subject to Ownership—Description op Article—“Tiiermogéne”—“Thermogen”—“Therme.”</p> <p>The registered trade-mark “Thermogene,” a French word meaning to produce heat, the English equivalent of which is “Theimogen,” defined as producing heat, both words compounded from the Greek word “Thermé,” heat, and the suffix “gen,” as applied to complainant’s cotton wadding, so prepared as to act as a counterirritant and to produce local heat at the point of application, and reducing swellings and inflammations, is not arbitrary or fanciful, but is a word of precise description, which cannot be registered as a trade-mark, so that defendant’s mark “Thermozine,” as applied to a dry poultice, where the cotton is accompanied by a package of wax to be applied to the cotton before using, intended to reduce inflammation by counterirritation, could not be an infringement.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§'48, 49; Dec. Dig. <®=^43.]</p> <p>•4§£s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Tuttle, Judge. In ¡he matter of the -Climax Specialty Company, bankrupt; Security Trust Company, trustee. From an order affirming the rejection of a claim by the referee, the Board of Commerce of Ann Arbor, Mich., appeals. The appellant, Board of Commerce of Ann Arbor, Mich., is a corporation of that state. Its articles of incorporation are not in evidence and its powers appear only as disclosed by the testimony of its secretary, who was the only witness called in the case.

Bourquin, Judge. Action by the Shaw & Borden Company against Hill County. There-was a judgment for plaintiff, and defendant brings error. This is an action for conversion of certain books and other property, which Hill county procured of Shaw & Borden Company, a corporation, defendant in error, for use by the county for keeping its records and carrying on the public business of the county.

B. Witmer, Judge. Bill in equity by David Spruks, receiver of the Lackawanna Dairy Company, against H. C. Shafer, trustee, and the Scranton Savings Bank., From a decree confirming a master’s report- finding for complainant, the defendant bank appeals.

<p>Naykíabbe Waters <S=>24—Obstruction by Wreck—Duty oe Owner to Work.</p> <p>Ros. March 2, 1808, No. 16, § 1, 15 Stat. 249 (Comp. St. 1913, § 8452), authorizes the Lighthouse Board, when in their judgment deemed necessary, to place a light vessel or other suitable warning over any wreck. Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (Comp. St. 1913, § 9920), requires the owner of any vessel wrecked in a navigable channel to mark it with a buoy or beacon during the day and a lantern at night until its removal. Meld, that the owner of a vessel sunk in the Hudson river fully complied with the requirements of this statute by applying for and securing the services of the Lighthouse Department to mark the place of the wreck, and could not be held responsible for the result of misplacing a buoy by the Department, which it had no authority to move, even though it paid the Department for the service.</p> <p>LEd. Note.—Dor other cases, see Navigable Waters, Cent. Dig. § 66; Dee. Dig. <3=>24.]</p> <p>CswFor other cases See same topic & KKY-NUMBKR in all Key-Numbered Uigests & Indexes</p>

<p>Contracts <g=>189—Construction- -Liability fob Injury to Property of Third Person in Performance.</p> <p>By a, contract by a dock company to transier cars of a railroad company across New York Harbor on its car floats, it was made absolutely liable for injury to property in transit until its floats should be brought to the float bridges of the railroad company, after which the cars were to be removed by the railroad company. 11 eld that, in the absence of any such provision for absolute liability on the part of the railroad company, it could only be held liable for injury to cars and property of another company on a float, occurring while removing its own cars, on the ground of negligence.</p> <p>] Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 811-845, 900-902, 905; Doc. Dig. <§=>189.]</p> <p><§=>i’or other eases soo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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

Appeal_ from the District Court of the United States for the Eastern District of Pennsylvania; Chas. B. Witmer, Judge. Suit in equity by the Mead-Morrison Manufacturing Company against the Exeter Machine Works. Decree for defendant, and complainant appeals. Reversed.

C. Van Fleet, Judge. Suit in equity by the Searchlight Horn Company against Sherman, Clay & Co. to enjoin infringement of letters patent, No. 771,441, for a horn for phonographs or similar machines granted to Peter C. Nielsen, October 4, 1904, with answer and petition by defendant to enjoin further prosecution of the suit, and for a stay. Petition denied, and stay refused, and defendant appeals.

C. Van Fleet, Judge. Suit in equity by the Searchlight Horn Company against the Pacific Phonograph Company for infringement of letters patent, No. 771,441, for a horn for phonographs or similar machines, granted to Peter C. Nielsen October 4, 1904, in which defendant petitioned to enjoin further prosecution of the suit. Petition denied, and defendant appeals:

<p>Patent! €=376—Patentability—Xhiioii Use or Sale—“On Sale.”</p> <p>An offer to sell a new device, made to a prospective purchaser after the experimental stage has been passed, the invention reduced to practice, and the apparatus manufactured in its perfected form, is a placing “on sale” within the statute, and a valid patent for the device cannot be granted on an application filed more than two years thereafter.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 92, 98; Dec. Dig. €=376.</p> <p>For other definitions, see Words and Phrases, First and Second Series,. On Sale.]</p> <p>ocher cases see same topic & KDY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Proceedings by the United States against various tugs and scows.</p>

<p>Bankruptcy <3=5136—Summary Imprisonment—Contempt.</p> <p>Bankrupt, being without means in his possession or control, may not be punished by summary imprisonment for contempt, because not paying over money to the trustee, as directed by the referee, though he may have committed one of the offenses mentioned in Bankr. Act July 1, 1898, c. 541, § 29, 30 Stat 554 (Comp. St. 1913, § 9613).</p> <p>INd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. <3=5136.]</p> <p>oilier cases see same topic & KEi-NUMBER in aii Key-Numbered Digests & Indexes</p>

Haight, Judge. Action by Blandina Schmidt, administratrix of Lucy Schmidt, deceased, against the Erie Railroad Company. There was a judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. W. Thompson, Judge.</p> <p>Action by Catherine C. Reese, administratrix, against the Philadelphia & Reading Railway Company. There was a judgment of nonsuit, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern IDistrict of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit by the United States against George A. Fooshee and another. From a decree dismissing the hill, plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.</p> <p>George Katzenmeyer was convicted of selling liquor to Indians who were wards of the government and under the charge of an Indian agent of the United States, and he brings error.</p>

Pope, Judge. Action by Fred O. Small, trustee in bankruptcy of the Premier Lead & Zinc Company, against the D. C. Wise Coal Company and another. From a judgment for plaintiff, defendants appeal.

<p>Patents ©=3.928—Validity and Infringement—Pneumatic Pump.</p> <p>The Perry patent, No. 933,200, for a pneumatic pump, claim 25, held not anticipated, valid, and infringed, and claim 27 not infringed.</p> <p><§rs>For other cases see same topic & KDY-NUMBETt in ail Key-Numbered Digests & Indexes</p>

Denison and Clarence W. Sessions, Judges. 'Suit iti equity by the Js.ckson Skirt & Novelty Company against Uottis 'Rosenbaum, Goddie Rosenbaum, and Edwin E. Rosenbaum, jointly and severally and as copartners under the name of the Henrietta Skirt Company, and the Samuel Rosenbaum & Sons Company. Decree for defendants, and complainants appeal.

<p>Pate'y t.c c —Inipkxngement- —Tacenses.</p> <p>Where an owner of patents on talking machines and records licensed dealers or distributors to dispose of machines in accordance with specified conditions as to use and price, a member of the public, and not a distributor or dealer, who paid the price tor a license to use a machine on the specified conditions could give the license to auy other member of the public for any consideration or as a gift, provided he had not violated any of the conditions, but turned over the machine, with the license label affixed thereto unaltered, so that his assignee might be advised of the conditions under which the use of the machine was licensed.</p> <p>LKd. Note.—For other cases, see Patents, Cent. Dig. §§ 315-320; Dec. Dig. <®s»213.</p> <p>Subliconses and assignments of licenses for use or sale of patents, see noto to National Phonograph Co. v. Sehlegel, 6á O. O. A. 596.]</p> <p>OieoEor other casas seo same topic & KEY-NUMBER in all Key-Numbered Digests á Indexes</p>

(A appeal from a. decree of the District Court for the Southern DIsirict of New York dismissing on motion, the new equivalent for a demurrer, the bill of complaint, which alleges the infringement of three letters patent granted to the complainants. The defendant contends that the three patents are void upon their face for lack of patentable'. novelty and invention. The earliest patent, No. 889,845, is for the art of simulating rare, precious, and other stones.

<p>In Equity. Suit by the General Bakelite Company against George J. Nikolas, trading as George J. Nikolas & Co. On final hearing.</p>

In Equity. Suit by the United States of America against the Southern Oregon Company. This is a suit on the part of the general government to have forfeited to it substantially the entire land grant made by Congress, of March 3, 1809, to the state of Oregon to aid in the construction of a military wagon road from Roseburg, in Douglas county, to Coos Bay, in Coos county.

At Baw. Action by Avasta Hughes, as administratrix, against the New York, Ontario Western Railroad. On motion by plaintiff to vacate an order vacating the judgment and granting new trial.

<p>In the matter of the application of Onnik Setrak Timourian to becofne a citizen of the United States.</p>

<p>1. Commerce @=>98—Interstate Commerce Commission—Hearings and Review.</p> <p>The power expressly conferred on the Interstate Commerce Commission by Interstate Commerce Act Feb. 4, 1887, c. 104, § 4, 24 Stat. 38, as amended by Act June 18, 1910, c. 309; § 8, 36 Stat. 547 (Comp. Si. 1913, § 8566), to authorize a railroad carrier to charge less for a longer than for a shorter distance in special cases, on application and after investigation, clearly implies that the <iuesiion shall be determined on testimony and after a hearing, and necessarily involves the exercise of judgment and discretion. If an order denying such an application, is contrary to the evidence, or not supported by any evidence, the carrier is entitled to relief in the courts, but the weight to be given to evidence is peculiarly for 1bo Commission, as a body experienced in such matters, and on a review of its orders its findings of fact will always be taken as prima facie correct and in most instances as conclusively so.</p> <p>¡Ed. Note.—For other cases, see Commerce, Cent. Dig. § 148; Dec. Dig. @=>9S.j</p> <p>2. Commerce @=»86—Interstate, Commerce Commission—Application for Order Suspending Long and Short Haul Provision—Burden of Proof.</p> <p>On an application for an order granting such authority, the operation of which would, be to create an exception to the express inhibition of the statule, the burden rests on the carrier to show that the case is a special one, and so within the power of the Commission.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent. Dig. § 140; Dee. Dig. @a>S6.]</p> <p>3. Commerce @=>88—Interstate Commerce Commission—Review of Orders.</p> <p>General allegations in a petition by a railroad company for review of orders of the interstate Commerce Commission that their effect would be to deprive petitioner of its property without due process of law held not supported by such specifications of fact or evidence as to show the invalidity of the orders.</p> <p>i£v^>Foi other cases see same topic & KÍ1Y-NUMBJSR in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Commerce, Cent. Dig. §§ 139, 141: Dee. Dig. <®=>88.]</p> <p><g^oPor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Waters and Water Courses <§=>254—Irrigation Systems—Contracts with Settlers—Construction.</p> <p>A corporation which had contracted with. Idalio for the construction of an irrigation system made contracts with settlers which recited the execution of the state contract, the commencement of construction work, and notice from the State Land Board that it might sell or contract rights to the use of water, and which provided that in consideration of the payment of a specified sum, and the covenants of the settlers, the settlers should become entitled to shares of stock in a corporation organized to operate the system, which certificate declared that the owner thereof was entitled to receive one-hundredth of a cubic foot of water per second per acre for land described, and to a proportionate interest in the system, and which fixed the irrigation season from April 1st to November 1st of each year. The settlers obligated themselves to pay at the rate of S10 per acre for water, lie Id, that the settlers’ contracts for water were comracts for the sale of a specific water right for each acre of land described and a proportionate interest in the system.</p> <p><gs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other eases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <©=>254.1</p> <p>2. Waters and Water Co urbes <©=>254—Irrigation Systems—Contracts to S utp ly Water—Gonstru cti on.</p> <p>A contract between a corporation and Idaho for the construction of an irrigation system and subsequent coniracts between the corporation and settlers to supply the settlers with water for irrigation must be read together to determine the rights of the settlers, though their contracts, in so far as t hey expressed the agreement, are controlling, provided they contravene no statute of the state or federal government.</p> <p>|Dd. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <©=>254.]</p> <p>3. Waters and Water Courses <©=>254—Irrigation Systems—Contracts for Construction—Bights and Liabilities.</p> <p>A contract between a corporation and Idaho for the construction of an irrigation system, binding the corporation to build the system, to sell shares or water rights therein, to transfer the ownership of the system to the setilers, and to supply a reservoir capacity, and a canal capacity of one-hundredth of a second foot for each acre of land sold, reciting that the corporation holds a permit for the appropriation of 1,500 second feet of the waters of a river and that It has been determined that the natural flow of the stream, supplemented by a reservoir capacity, will provide 2% acre feet of water per acre for each acre to be irrigated, and authorizing the corporation at its option to contract to sell rights, authorizes the corporation to make contracts with settlers for the sale of water to the amount of one-hundredth of a cubic foot per acre and a proportionate interest in the system.</p> <p>I Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <©=>254.]</p> <p>4. Waters and Water Courses <©=>254—Irrigation Systems—Contracts for Construction-—Bights and Liabilities.</p> <p>A stipulation, in a contract between a corporation and Idaho for the construction by the corporation of an irrigation system, (.hat no application to enter land will be approved by the state unless the applicant shall have entered into a conlract with the corporation for the purchase of sufficient shares or water rights for the irrigation of the land, such shares or water rights to bo evidenced by the stock of another corporation to be formed to ultimately take title to and operate the system, shows that the corporation, contracting to furnish water to settlers, sells water rights and not merely certificates of stock in the corporation to be formed to take title and operate the system.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig, § 311; Dec. Dig. <©=>254.]</p> <p>5. Waters and Water Courses <©=>254—Irrigation Systems—Contracts for Construction—Bights and Liabilities.</p> <p>A stipuiaiion, in a contract between a corporation and Idaho for the construction by the corporation of an irrigation system, that priority of application for water rights or priority of entry and settlement shall not confer on the settler priority in the use of water, must be read in connection with the stipulation that, to the extent of the capacity of the irrigation works and to the extent of the water rights to which the corporation is entitled, it shall sell or contract to sell water rights, and a stipulation prohibiting the sale of water rights beyond the carrying capacity of the system, and when so read it does not imply an understanding that water rights may be sold in excess of the normal capacity of the system, but applies' to seasons of abnormally low water, and forestalls any claim that might be set up by the earlier settlers that they were entitled to be supplied to the full extent of their rights to the exclusion of later settlers at any time when, due to abnormal conditions or casualty, there was insufficient water to supply all rights.</p> <p>4£zz>For otljer cases see same topic & KKY-NUMBBJi in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dee. Dig. <§=>254.]</p> <p>6. Waters and Water Courses <§=>254—Irrigation Systems—Contracts fob Construction—Rights and Liabilities.</p> <p>A provision, in ,a contract between a corporation and Idaho for the construction by the corporation of an irrigation system and for the organization of another corporation to take title to and operate the system, that each of the shares or water rights shall represent a carrying capacity sufficient to deliver water at the rate of one-hundredth of one cubic foot of water per second, and each share or water right sold or contracted to be sold shall represent a proportionate interest in the canal and irrigation works, together with all rights and franchises • therein, based on the number of shares finally sold, must be construed against the corporation preparing the contract, and when so construed is in harmony with subsequent contracts between the corporation and settlers, stipulating that the settlers shall receive one-hundredth of a cubic foot of water per acre per second during the irrigation season.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <§=>254.]</p> <p>7. Waters and Water Courses <§=>254—Irrigation Systems—Contracts for Construction—Rights and Liabilities.</p> <p>A stipulation, in a contract between a corporation and Idaho for the construction by the corporation of an irrigation system, for the transfer of the ownership and control to a new corporation, organized to- take over title to and operate the system, and for the issuance to the settlers of a share of stock therein for each acre of land for which a water right was sold, and that the capital stock thereof shall consist of 150,000 shares, intended to represent one share for each acre which may be irrigated from the system, does not give any right to sell water rights in excess of the available water supply, where other provisions of the contract declare that the corporation, to the extent of the capacity of the irrigation works and to the extent of the water rights to which it is entitled, shall sell water rights, and prohibit the sale of water rights beyond the carrying capacity of the system or in excess of the appropriation of water therefor.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dee. Dig. <§=>254.]</p> <p>8. Waters and Water Courses <§=>254—Irrigation Systems—Contracts for Construction—Rights and Liabilities.</p> <p>A stipulation, in a contract between a corporation and Idaho for the construction by the corporation of an irrigation system, that water is to be delivered for irrigation purposes in such quantities and at such times as the condition of the crops and the weather may determine, does not qualify the rights of settlers defined in subsequent contracts between the corporation and settlers, stipulating for furnishing one-hundredth of a cubic foot of water per acre per second. .</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <§=>254.]</p> <p><S=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>9. Waters and Water Courses <@=>251—Irrigation Systems—Contracts foe Construction—Bights and Liabilities.</p> <p>A contract between a. corporation and Idaho for the construction by the corporation of an irrigation system provided that the certificate of shares of stock of a new corporation, to be organized to take title and oiierate the system, should be made to indicate the interests represented in the system—a water right of one-hundredth of a cubic foot per second for each acre of land irrigated and a proportionate interest in tho system. It also recited' that the corporation held a permit for the appropriation of 1,500 second feet of the waters of a stream and that it had been determined that tho natural flow thereof, supplemented by a reservoir, would be sufficient to supply 2% acre feet per acre for each acre to be irrigated, and that each of the shares or water rights should represent a carrying capacity sufficient to deliver water at the rate of one-hundredth of one cubic loot of water per acre per second and represent a proportionate interest in the system. Held, that the contract did not contemplate a sale only of undivided interests in water, and it was not inconsistent with contracts with settlers to furnish one-hundredth of a cubic foot of water per acre per second.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Doc. Dig. <@=>254.]</p> <p>10. Waters and Water Courses <@=>254—Irrigation Systems—Contracts for Water—Bights and Liabilities.</p> <p>Though the waters of the state belong to the public, and though the private right which an individual acquires by appropriation or purchase is usufructuary only, an owner of land, in the exercise of ordinary prudence, may by appropriation or contract provide himself with an avail-aide water supply, which shall be subject to his demand at all times when he has need therefor, and a contract for a specific amount of water is not objectionable as encouraging wasteful use thereof.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Gent. Dig. § 311; Dec. Dig. <2=>254.]</p> <p>11. Waters and Water Courses <@=>254—Irrigation Systems—Contracts for Water.—Bights and Liabilities.</p> <p>A contract of sale of one-hundredth of a cubic foot of water per acre per second, fixing the irrigation season from April 1st to November 1st of each year'in accordance with a contract between Idaho and a corporation for the construction of an irrigation system and the sale of water rights, expresses the understanding of the parties touching the total amount of water the corporation must have available to comply with the contract and binds the corporation to make provision for that quantity.</p> <p>Llid. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <@=>254.]</p> <p>12. - Waters and Water Courses <@=>254—Irrigation Systems—Contracts for Water—Bights and Liabilities.</p> <p>Where contracts between a corporation constructing an irrigation system and settlers for the supplying to the settlers of water for irrigation stipulate for an inadequate supply of water, the court could not grant relief to the settlers, nor could it grant relief to the corporation, contracting to furnish more water than the settlers needed, but the terms of the contracts defined the rights and obligations of the parties.</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <@=>254.]</p> <p>13. Waters and Water Courses <@=>254—Irrigation Systems—Contracts for Water—Eights and Liabilities—Jurisdiction.of Courts.</p> <p>Where a corporation which had contracted with Idaho for the construction of an irrigation system made contracts with settlers calling for the supplying of water in excess of the capacity of the system, the court could not scale down proportionately the amount of the water rights and the consideration to be paid therefor, but would compel the corporation to rescind all contracts which could be rescinded and restrain it from collecting overdue installments on contracts until there was reasonable assurance that the water contracted for would be delivered.</p> <p><£=^>For other cases seo same topic & KHlY-NUMBEIt in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. @=^254.]</p> <p><§Es>For other cases see-same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations <3=170—Rights of Stockholders—Holding Company.</p> <p>A stockholder iji a holding company, chartered for the purpose of buying, holding, and selling stock and securities of other corporations, is not a stockholder, nor entitled to the rights of a stockholder, in another corporation, stock of which is owned by the holding company, and the leasing or sale of all of the property of a corporation controlled by the holding company through stock ownership, by the unanimous vote of the stockholders of the lessor or vendor, does not require for its validity the unanimous consent of the stockholders of the holding company.</p> <p>| Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 624-632; Doc. Dig. <@=170.]</p> <p>2. Corporations <3=377—Holding Companies—Separate Entity of Controlled Corporation.</p> <p>When one corporation owns all of the stock of another, a court of equity may, in some instances and for some purposes, ignore the existence oí the latter and treat the dominant company as if it alone were the owner and operator of the business of the controlled corporation; but the court cannot disregard forms prescribed by statute for securing corporate rights, nor give corporate lights to, nor enlarge the corporate powers of, the controlling corporation, anG where it is without authority under its charter to conduct the business of the controlled corporation, the distinction between the two corporations is a matter of substance, and not merely of form, and their independent existence must be recognized.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1531-1534; Dec. Dig. <3=377.]</p> <p>3. Corporations <3=180—Powers—Acts Requiring Unanimous Consent of Stockholders.</p> <p>The unanimous consent of all the stockholders of a corporation is not essential to the doing in good faith of any act within its charter powers.</p> <p>„ I,Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 665-673; Dec. Dig. <3=180.]</p> <p>¡Sa»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Corporations <S=>189—Rights of Stockholders—Estoppel.</p> <p>A stockholder, who after what he claimed was an illegal transaction on the part of the corporation, retained his stock for four years and received increased dividends thereon, is, .estopped to claim that because of such transaction he is entitled to require the corporation to purchase and pay for such stock.</p> <p>[Ed. Note.—Eor other cases, see Corporations, Cent. Dig. §§ 706-722; Dec. Dig. <@=»189.]</p> <p>©^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <®=»316—Claims—Priority—Taxes—Lessor.</p> <p>iiankr. Act July 1, 1898, c. 541, § 04a, BO Stat. 563 (Comp. St. 1913, § 904$), giving priority to taxes legally due and owing by the bankrupt to the United States, state, county, or municipality, does not entitle a landlord of the bankrupt, whose lease required the bankrupt to pay the taxes, to priority for his claim for such taxes. ,</p> <p>I Ed. Note.—Eoi other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <®^346.]</p> <p><5=5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by Robert H. Thorburn against Dellora R. Gates, as executrix. On motion to quash service of summons. Motion to quash the service of a summons in an action at law under section 7 of the Sherman Act. The defendant is executrix of two deceased persons, who are charged jointly with the wrongful acts which resulted in damage to the plaintiff. She is. a resident of Texas. The two decedents were Texans by residence and citizenship.

In Bankruptcy. In the matter of Harry B. Hollins & Co., bankrupts. Petition by the National Bank für Deutschland, to impress lien on proceeds of a stock exchange seat. Report of special master, determining the rights of the hank and Nicholas & Co., a creditor of the bankrupt, confirmed. íf. B. Hollins & Oo. were bankers and brokers in the city of New York.

<p>1. Courts <@=>351—Equity Rules—Discovery—Matters oe ' Inquiry—“Adversary.”</p> <p>Equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv), providing that plaintiff, within 21 days after filing the bill, and defendant, within 21 days after joinder of issue, and either party thereafter by leave or court, may file interrogatories for discovery by the opposite party of facts and documents material to the support or defense of the cause, and that the court may make all orders appropriate to enforce answers or to effect the inspection or production of documents in the possession of either party, and containing evidence material to the cause of action or defense of his “adversary,” that is, the interrogating party, merely changes the procedure in reference to obtaining discovery, and extends the right to defendant, as well as plaintiff, but does not extend the right to either beyond the matters relating to his own ground of action or defense, though if they do relate thereto, he is not deprived of right of discovery thereof because they also pertain to the case of the other party.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. <@=>351.]</p> <p>2. Courts <@=>351—Equity Rules—Discovery—Matters oe Inquiry—Material Facts. •</p> <p>Under equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv), providing for discovery “of facts and documents material to the support or defense of the cause,” it must be limited to an inquiry as to material facts, and does not extend to a disclosure of evidence, or of facts which merely tend to prove the material facts.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. <@=>351.]</p> <p><§=»For other cases see same topic & KEY-NUMBER in all Key-Nnmbered Digests & Indexes</p>

<p>1. Taxation @=>124%—Fbanciiise Tax—Liability of Receiver—Statutes.</p> <p>Under Page & A. Gen. Code Ohio, §§ 5495-5521, imposing an annual franchise tax on corporations, and requiring a report of the kind of business in which a corporation is engaged and its place of business, and imposing a penalty for neglect to make such reports, and by section 5506 thereof, providing that the taxes and penalties should be a first lien on all property of the corporation, whether employed in its business or in the hands of a receiver for the benefit of creditors, the receiver of an insolvent corporation is not required to make a report or to do any of the things which the statute requires a corporation “doing business” to do, nor is the tax imposed on him, since the taxes and penalties are payable only by a corporation “doing business.”</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 22A-226, 240-242, 260-263, 272; Dec. Dig. @=>124%.]</p> <p>2. CORPORATIONS @=>560-Rl-ICEl VEESHIP—DlJTTES AND LIABILITIES.</p> <p>Tile assets of an insolvent corporation in the hands of its receiver do not belong to it, hut to its creditors, and are in the hands of the court for distribution to creditors, and are impressed with a trust in the hands of the receiver, to be administered by a court of equity for the benefit of creditors who are, in equity, its owners.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Doc. Dig. @=>560.]</p> <p>3. Constitutional Law @=>283—Taxation @=>113—Due Process of Law— Corporation Franchise Tax—Liability of Receiver.</p> <p>Under Page & A. Gen. Code Ohio, §§ 5495-5521, imposing an annual franchise lax on corporations, such tax is not collectible against the assets of an insolvent corporation in the hands of its receiver in trust for the payment of creditors, since that would take from the creditors what belongs to them, in violation of due process of law.</p> <p>lEd. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 891, 892, 904-906; Dec. Dig. @=>283; Taxation, Cent. Dig. § 207; Dec. Dig. @=>113.]</p> <p>4. Taxation "@=>113—Franchise Tax—Constitutional Provisions.</p> <p>Under Page & A. Gen. Code Ohio, §§ 5495-5521, imposing an annual franchise tax on corporations, such tax is not collectible against the receiver of an insolvent corporation holding its assets for the benefit of creditors, when its franchise to be a corporation and to conduct its authorized business as such are of no value to the receiver or to creditors, since its collection would violate Bill of Rights, § 19, declaring that private property shall be held inviolate, but subservient to the public welfare, as being confiscatory and oppressive.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. § 207; Dec. Dig. ■ @=>113.]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Taxation <§=>124%—Franchise Tax—Enforcement—Estoppel.</p> <p>Under Page & A. Gen. Code Ohio, §§ 5495-5521, imposing an annual franchise tax on corporations, section 5509 of which provides that a corporation’s failure to make a return as to its business or to pay such tax for 90 days after the time allowed therefor sh¿U be certified to the Secretary of State, who shall thereupon cancel its articles of incorporation and notify the corporation of his action, the failure of the Secretary of State to cancel the articles of incorporation of a corporation in default so as to prevent the corporation from ceasing to exist as such estopped the state from proceeding to require the receiver of such corporation, during its insolvency, to pay the tax accumulated during his possession.</p> <p>•[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 224-226, 240-242, 260-263, 272; Dec. Dig. <§=>124%.]</p> <p>®=>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit by the C. F. Harms Company, owner of scow Castor, against Upper Hudson Stone Company, charterer, Henry Crew and others, owners of the steam tug H. B. Moore, Jr., and John J. Guinan, impleaded.

<p>1. Bankruptcy <S=»303—Voidable Preference—Knowledge of Insolvency by Creditor.</p> <p>Where notes paid by a bankrupt within four months prior to his bankruptcy were then more than a year overdue, during which time he had claimed his inability to pay oh the ground of poor business, slow collections, and that he was “broke,” and paid at last only on insistent demands, lmt during all such time continued his business, which was that of a retail dealer in meats, and of considerable volume, as usual, more than the mere fact that he was then insolvent is necessary to charge the creditors with having reasonable cause to believe Mm insolvent, and that the payments constituted preferences.</p> <p>LKd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dee. Dig. <S=»303.]</p> <p>2. Bankruptcy <3=»166—Voidable Preference—Knowledge of Insolvency by Creditor.</p> <p>Something more than suspicion is necessary to put a creditor on inquiry as to the solvency of his debtor, and to charge him with reasonable cause io believe that a payment to him will effect a preference over other creditors.</p> <p>[Ed. Not e.—For other cases, sec Bankruptcy, Cent. Dig. §§ 250-258, 255-258; Dec. Dig. <®=»166.J</p> <p>«gr^oFer other cases seo same topic & KEY-N UMBER in all Key-Nmnbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of Thomas J. Atkins, bankrupt. There was an order of the referee making allowances to attorneys, and the First National Bank petitions for a review.</p>

<p>In Admiralty. .Suit by Elfrida Furu and Hjordis Furu, an infant, by her guardian ad litem, Elfrida Furu, against the gas schooner Alaska; Neis Hansen, claimant. On exceptions to amend libel.</p>

In Bankruptcy." In the matter of John Agnew and Maude A. Sherman, individually and as composing the firm of Agnew & Co., bankrupts. On objections to application of discharge. Specifications of objection in part adjudged insufficient, and in part adjudged sufficient, and the latter specifications referred to a special master.

<p>Petition by the United -States against John Nopoulos to set aside the order admitting him to citizenship.</p>

<p>1. Collision <@=>96—Vessel Coming from Slip and Crossing Vessel—Mutual Bights and Duties.</p> <p>A boat coming out of a slip, blowing a slip wliistle, must not only give a proper warning by tbe slip whistle to everything which is not visible to the lookout of the boat, but must also so conduct itself that it can avoid running down any boat which may be in a position to be misled, or not able to protect itself, at the warning of the slip whistle; also, if in coming out it encounters a boat coming from the right, so as to make the starboard hand rule applicable, it must accept the burden imposed by such rule, and avoid injury to the crossing vessel. On the other hand, the same rule imposes the burden on a vessel coming from the left and near the pier heads of keeping out of the way of any vessel coming out which gives a slip whistle and is properly navigated.</p> <p>[Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. <§=>96.]</p> <p>2. Collision <©=>96—Vessel Deaving Slip—Starboard Hand Bule.</p> <p>The steam vessel Beickert, coming out of a slip after giving the proper slip whistle, came into collision with the tug McGuirl, which was coming up from the left against an ebb tide and within 75 feet of the ends of the piers. On seeing the Beichert, or hearing her whistle, the McGuirl gave a two-whistle signal, and kept on until the Beichert gave alarm signals, and reversed when it was too late to avoid collision. Held, that the McGuirl was the burdened vessel, and was in fault for giving the signal she did, and for the collision.</p> <p>LEd. Note.—For other cases, see Collision, Cent. Dig. §§ 203-205; Dec. Dig. «=>96.]</p> <p><@^>Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of the bankruptcy of Isaac Silberstein. On motion to confirm a report of the master, overruling objections to a composition by the W. L,. Douglas Shoe Company, and recommending confirmation.

In Admiralty. On petition by Louis J. Schussler, owner of the scow Imp, for limitation of liability, the City of New York was impleaded. On determination of liability for injury to the vessels Governor Hill and Clearfield. The Governor Hill and her master, McDermott, and the Clearfield, each filed a libel against the city of New York and against the barge Imp. The Imp limited its liability and has brought in the city.

<p>Iii Admiralty. Suit by Sidoro Vaccarino against the steamer Themistocles.</p>

<p>Habeas corpus by the United States, on the relation of Tonkin S. Davis,' against Colonel L. W. T. Waller, United States Marine Corps. Hearing on return to writ, replication and proofs.</p>

<p>At I,aw. Action by the Northern Pacific Railway Company against J. P. Finch and another. On motion for new trial after verdict for defendant.</p>

<p>Maritime Liens €=>11, 12—Repairs and Supplies—Vessel under Charter.</p> <p>Repairs'and supplies furnished by libelant to a vessel heM of a kind which might properly be and which were furnished on the credit of the vessel, and for which libelant was entitled to a lien, although the vessel was being operated by a charterer.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 15, 16; Dec. Dig. <S=3ll, 12.1</p> <p>^£=»X>'or other cases see same topic & KEY-NUMBJüE in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <®=»400—Exemption—Declaration of Homestead.</p> <p>A bankrupt, to whom personalty claimed as exempt from the operation of the Bankruptcy Law has been set apart, may thereafter execute and file for record a declaration of homestead, as required by state law, and have the same set apart to her as exempt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Di¿. §§ 670-675; Dec. Dig. <S=»400.J</p> <p><g^»I>'or other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

In Bankruptcy. Proceedings against the Berlin Dye Works & Laundry Company. On claim of C. K. Douglas against the bankrupt for the amount of a judgment recovered by him.

<p>In Admiralty. Suit by Clinton Moffett against the steamship Coroza!.</p>

<p>Uk-Ckti States <®=^>67—Action oh Bond of Contractor sor Public Work— [H'lEUVUHTIOH.</p> <p>The provisos in Act Aug. 13, 1894, c. 280, 28 Stat. 278, as amended by Act Fob1. 24, J905, e. 778, 83 Stat. 8.11 (Comp. St. 1913, § 0923), limiting the time within which suit may be brought on the bond oí a contractor for public work, and requiring notice of such suit to lie given to all known creditors, apply only to suits brought by creditors as therein authorized, and do not limit nor affect the right of creditors to intervene in a suit brought by the United Statins.</p> <p>[Ed. Note.—For other eases, see United States, Gent. Dig. § 50; Dee. Dig. <^>67.J</p> <p>other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>1. Banksottcy <@=>166—Pkeeebknoks—Insolvency—Notice.</p> <p>Mere suspicion that a debtor was insolvent is not sufficient to charge creditors with notice of insolvency and make the debtor’s payments a preference; but there must be evidence of facts sufficient to put a prudent person on inquiry, which, if pursued would show insolvency.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 250-253, 255 -258; Dec. Dig. <@=>100.]</p> <p>2. Appeal and Ebbob <@=>1009—Review—Finding of Chanoellob.</p> <p>When the chancellor has considered conflicting evidence, and made his findings and decrees thereon, they are presumptively correct, and unless an obvious error of law or some serious mistake in the consideration of the otidence appears the findings must stand.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Doe. Dig. <@=>1009.]</p> <p>other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Mechanics’ Liens <@=>5—Statute Creating-—Construction.</p> <p>Mechanics’ liens, although unknown to the common law, are not for that reason to be strictly construed, but liberally, to carry out the intention of the Legislature to protect workmen, contractors, and materialmen.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 3, 5; Dec. Dig. <@=>5.]</p> <p>2. Courts <@=>366—Federal Courts—State Degisions.</p> <p>In construing a state statute, the federal courts will follow the construction placed thereon by the highest court of the state.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Dec. 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 C. C. A. 478; Union & Planters1 Bank of Memphis v. City of Memphis, 49 C. 0. A. 468; Converse v. Stewart, 118 C. C. A. 215.]</p> <p>8. Mechanics’ Liens <@=>184—Property Subject—Interest or Lessee— Statute.</p> <p>Under Rev. Laws Okl. 1910, § 3862, providing that, if the title to land is not in the person, with whom a contract for the erection of a building thereon is made, but it is leased and unimproved, a lien shall be allowed on the buildings and improvements separately from the real estate, where unimproved land was leased, the lessee building thereon, the lessor’s fee in the premises was not subject to the liens arising under the building contract, since the language of the statute clearly showed that a mechanic’s lien, when the realty was leased and unimproved, should be allowed only on the buildings.</p> <p>LJEd. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 323; Dec. Dig. <@=>184.]</p> <p>4. Mechanics’ Liens' <@=>198—Priorities—Lessor’s Lien under Lease.</p> <p>Whore land was leased, the instrument giving the lessor a first lien on a building to be erected to secure unpaid rents, etc., and the contractors for such building had notice that the party with whom they dealt was merely lessee, and not owner of the land, the lien of the lessor on the building under the lease was superior to the contractors’ lien, since, when they contracted to erect the bnilding, they had notice of the lease, and so were chargeable with knowledge of all facts that they might have ascertained by the exercise of reasonable diligence, as by inquiry of the lessor.</p> <p>[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 348-855; Dec. Dig. <@=>198.]</p> <p>5. Mechanics’ Liens <@=>216—'Estoppel to Claim—Execution OB’ Bond.</p> <p>Where contractors for a building to be erected on leased land by the lessee gave bond to .the lesso-r, lessee, and their mortgagee conditioned that they would pay off and discharge any claims against the building and the real estate, and save the parties to whom the bond was given harmless from any claims for material and labor, such contractors were not estopped thereby from claiming a lien on the leasehold and building, since the mere execution of the bond did not waive their potential lien, but only in effect agreed that Lefore payment could be claimed by them the building should be free of liens.</p> <p>(gcsFor other cases see same topic & KEY-NUMBER in all-Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Mechanics’ Liens, Cent. Dig. §§ 400-402; Dee. Dig. <@=21G.]</p> <p>6. Mortgages <@=151—Priority over. Landlord’s Lien.</p> <p>Where land was leased, the lease providing that the lessor should have a lien upon the building to be erected by the lessee for rents and certain disbursements, of which lease the trust company to which the lessee mortgaged the building to secure funds for its completion had actual notice, the lien of the lessor on the buildings under the lease was entitled to priority over the mortgage debt of the trust company.</p> <p>[Ed. Note.—Eor other cases, see Mortgages, Cent. Dig. §§ 307, 300-311, 314-329, 332-336; Dec. Dig. <@=151J</p> <p>7. Mortgages <@=151—Priority—Mechanics’ Liens.</p> <p>Where a trust company', loaning money on mortgage for the completion of a building on leased land, knew that a large amount of work had been done thereon before its mortgage was taken, its mortgage debt was subject to lien claims for the previously performed work.</p> <p>[Ed. Note.—Eor other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314r-329, 332-336; Dec. Dig. <@=151.]</p> <p>8. Mortgages <@=151—Priority—Lien eor’Rent.</p> <p>Where a lease, providing for the erection of a building by the lessee, gave tbe lessor a lien on the lessee’s rents from the building for rent due the lessor, such lessor, upon foreclosure of a mortgage against the building, was entitled to rents in the hands of a receiver.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. <@=151.]</p> <p>9. Mortgages <@=146—Mortgage Liens—Property Subject—Rents.</p> <p>A mortgage given on a building erected on leased ground, without providing for a lien on the rents in case of default, gives the mortgagee no lien on the rents produced as against the lessor, who under the lease had a lien on the building and the rent thereof during the term.</p> <p>[Ed. Note.—For other eases, see Mortgages, Cent. Dig. §§ 307, 309-311, 314-329, 332-336; Dec. Dig. <@=146.]</p> <p>fg—,EY>r other eases see same topic & KEY-NUMBER in al! Key-Numbered Digests & Indexes.</p>

<p>1. Bankkuptcy <®=>896—Exemption—State Law.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 6, 80 Stat. 548 (Comp. St. 1913, § 9590), providing that the act shall not affect the allowance to bankrupts of the exemptions to them prescribed by state laws in force at the time of the filing of the petition in the state where they have their doinicile, and section 47a (Comp. St. 1913, § 9631), providing that trustees in bankruptcy shall set apart the bankrupt’s exemptions, the right of a bankrupt to a homestead exemption was to be determined by local state law.</p> <p><®ss>i*'c)r other cases see same topic & KD Y“NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. <@=>396.]</p> <p>2. Wills <@=>634—Estate Devised—Fee Simple in Remainder—Character as Vested.</p> <p>Where a bankrupt’s father willed a farm to testator’s wife for life, then to the bankrupt at her death, upon paying the other children $500, the bankrupt took a present vested fee title, subject to the life tenant’s rights in the farm.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. <@=>634.]</p> <p>8. Bankruptcy <@=>396—Exemption—Title to Support—Statute—“Owner."</p> <p>Under Const. Kan. art. 15, § 9, and Gen. St. Kan. 1909, § 3646, both providing that a homestead of 160 acres of farming land, occupied as a residence by the family of the owner, shall be exempted from sale under any . process of law, where a bankrupt was the owner in remainder of the fee in such a farm, whereon his family resided, his mother being life tenant, and nonresident, he was entitled to such farm as an exemption; the title being sufficient to constitute the bankrupt “owner” of the land, within the meaning of the Constitution and statute.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dee. Dig. <@=>396.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Owner.]</p> <p>4. Bankruptcy <@=>396—Exemption—Title to Support—Statute—“Owner.”</p> <p>Under Const. Kan. art. 15, § 9, and Gen. St. Kan. 1909, § 3646; where a bankrupt, owner in remainder of the fee in the farm on which his family resided, paid his mother, the life tenant, $125 annually for the farm, paid the taxes, and kept up the improvements, he was a tenant of his mother, owner of the life estate, from year to year, and entitled to an exemption in the farm as a homestead; his title as tenant being sufficient to con-1 stitute him “owner,” within the Constitution and statute.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. <@=>396.]</p> <p>5. Bankruptcy <@=>396—Exemption—Title to Support—Statute.</p> <p>Under Const. Kan. art. 15, § 9, and Gen. St. Kan. 1909, § 3646, both providing that a homestead of 160 acres of farming land, occupied as a residence by the family of the owner, shall be exempted from sale under any process of law, the bankrupt, owner of the fee in remainder in such a farm, being a tenant from year to year of the life tenant, was not precluded from his right to- the exemption because the life tenant had the present right of immediate occupancy, since a right of occupancy given by a leasehold from year to year is sufficient to support the exemption.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668; Dec. Dig. <@=>396.]</p> <p>6. Bankruptcy <@=>396—Exemption—Homestead—Time of Occupancy— Statute. * •</p> <p>Under Const. Kan., art. 15, § 9, and Gen. St. Kan. 1909, § 3646, both providing that a homestead of 160 acres of farming land, occupied as a residence by the family of the owner, shall be exempted from sale under any process of law, no specified time is necessary for the occupancy of such a farm by the owner’s family to entitle him to his exemption therein on bankruptcy.</p> <p>[Ed. Note.—For other cases,- see Bankruptcy, Cent. Dig. §§ 659-66S; Dee. Dig. <@=>396.]</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Habeas corpus by Siu Talc Sam against Brown McDonald, as Immigrant Inspector. Relator was discharged_ from custody, and respondent appeals.</p>

Petition to Review an Order of the District Court of the United States for the District of Oregon; Robert S. Bean, Judge. In the matter of M. Barde and another, individually and as partners as Barde & Levitt, bankrupts. On review of a judgment or order setting aside exempt property.

This caitse comes here on writ of error to review a judgment of the United Slates District Court for the Southern District of New York, entered on January 15, 1915, in favor of the defendant, and adjudging that he recover costs in the sum of $69.35. .

<p>Petition to Revise Order of the District Court of the United States for the District of South .Dakota; James D. Elliott, Judge.</p> <p>In the matter of the bankruptcy of the Gilt Edge Consolidated Mines Company. Petition by Robert N. Ogden and another to- revise an ■ order in bankruptcy of the District Court denying Rave to intervene.</p> <p>Tliis is a petition to revise an order of the District Court, made in a proceeding- in bankruptcy, which finally resulted in the adjudication of the respondent, Gilt Edge Consolidated Mines Company, a corporation, a bankrupt in an involuntary proceeding. The facts alleged in the petition are that on August 5, 1914, the respondents, Claudon, Achard, and Holinger, claiming to be creditors of the Mines Company, filed a petition in involuntary bankruptcy against it. The acts of bankruptcy alleged were that “the Mines Company is insolvent, and that within four months next preceding the date of this petition the said Gilt Edge Consolidated Mines Company committed an act of bankruptcy in that it did heretofore, to wit, on the 7th day of April, 1914, suffer and permit a judgment to be entered against it in the circuit court of the county of Lawrence, in the slate of South Dakota, in the Eighth judicial district, in favor of Moses E. Clapp, William D. Lawry, and John L. Turner, for the sum of $12,000, and failed and neglected to pay the same; that on the 7th day of April, 1914, an execution was issued on said judgment against the said Gilt Edge Consolidated Mines Company for said sum of $12,000, and that the sheriff of said Lawrence county, in the state of South Dakota, to whom said execution was directed, levied the same upon the property of said Gilt Edge Consolidated Mines Company, situated in the comity of Lawrence, state of South Dakota (the lands levied on are described); that on the 11th day of May, 1914, all of the aforesaid property was sold by said sheriff under said execution to R. M. Ogden, as trustee for the said Moses E. Clapp, William D. Lawry, and John L. Turner, for the sum of $12,309.62, and that no redemption has been made from said sale by said Gilt Edge Consolidated Mines Company or by any person in its behalf; that on the 17th day of June, .1,914, Ihe said Gilt Edge Consolidated Mines Company suffered and permitted a judgment to be entered against it ill the circuit court of Lawrence county, state of South Dakota, in favor of, one Seth W. Ford, for the sum of $2,475.94, which said judgment remains unpaid and unsatisfied; that the said Gilt Edge Consolidated Mines Company owes debts to the amount of $70,000 or thereabouts, which it is unable to paythat the petitioners, being stockholders of the corporation, one owning 50,000 shares and the other .10,000 shares, filed their petition in the District Court on August 22, 1914, asking leave to intervene in the bankruptcy proceedings and to file an answer denying the insolvency of the corporation.</p> <p>With this petition they filed a proposed answer on behalf of the corporation, in which they allege and charge: “Upon information and belief that the officers and directors of said company have refused and refuse to file an answer of said petition or to make any defense thereto; that your interveners first became aware on August 15, 3914, that a petition in bankruptcy was filed herein, the same being made returnable on August 18, 1914; that they immediately telegraphed E. A. Beaman at Providence, R. I., the president of said company, and L. A. Hippaeh, at Chicago, 111., vice president thereof, both of them being also directors of said company, as follows: ‘As stockholders of Gilt Edge Com-' pany we request you to contest bankruptcy proceeding. Please wire us your intentions at our expense.’ To vhich telegram .they received on August 17, 1914, the following reply from E. A. Beaman dated at Providence, R. I., on August 17, 1914: ‘Will immediately consult directors in Chicago and inform you of their decision.’ Upon information and belief that the return day of the subpoena in bankruptcy is August 18th, and the time for answer will expire on Sunday, August 23d, or upon the following Monday, the 24th; that your interveners have had no further word from the said Beaman, or from any of the directors or officers of the said company. Upon information and belief that the said officers and directors of said company are or claim to be by far the largest creditors thereof, claiming to own all of-the obligations outstanding against it, with the exception of about $15,000, and that they are not therefore disinterested representatives of said company and its stockholders. Upon information and belief that it is the desire of said officers and directors of said company to depress the value of the property of .said company and to discredit the same, in order- that they may themselves purchase said property for a small fraction of its actual value and for a small fraction of the value which they themselves believe the said properties to possess, thereby obtaining complete ownership and control thereof, and divesting these interveners and stockholders of said company similarly situated of their interest in said property without paying them anything therefor, and depriving them- of all rights of redemption given them and said company by the state statute. Your interveners further allege upon information and belief that there is in the treasury of said company a large amount of treasury stock, which was placed in the treasury in order that it might be sold, and the proceeds thereof devoted to the payment of the debts of said company, and for the development of said property, but that the directors and officers of said company have made no effort, or insufficient efforts, for the sale thereof. Upon the contrary, these interveners allege upon information and belief that the officers and directors and other stockholders of said company, who have made or claim to have made advances to the company for which they allege the company is now indebted to them, agreed to accept in payment of such advances the treasury stock of the company, but that they have wrongfully omitted or refused so- to do for the purpose of creating a large indebtedness against said company, which indebtedness forms the basis of the present bankruptcy proceeding; that said officers and directors have willfully neglected and still willfully neglect to levy any assessment upon the capital stock of said company for the purpose of meeting the just obligations thereof; that all of said acts and omissions on the parts of the officers and directors of said company, including the present proceeding in bankruptcy, have been for the purpose and with the intent on their part of depreciating the value of the properties of said company, in order that they may purchase the same for themselves and for th.ose interested with them at less than their real value, and without affording the company or its stockholders the period of redemption provided by the state laws of South Dakota.”</p> <p>After the signatures to the answer by the petitioners herein the following certificate appears: “Subscribed and sworn to before me this 22d day of August, 1914. Geo. D. Ore, Notary Public. [Notarial Seal.]”</p> <p>The motion for leave to intervene was denied by the court, and the answer stricken from the files of the court, upon the ground that it had been filed without leave.</p> <p>One Seth W. Ford, a judgment creditor of the Mining Company, also aslced leave to intervene and file an answer denying the insolvency of the Mining Company, which was denied; but, as Mr. Ford is not a party to this proceeding, the action of the court denying him leave to intervene is not before us.</p>

Van Fleet, judge. ¡Suits by the Spring Valley Water Company against the City and Comity of San Francisco and another. From orders directing depositories to pay taxes levied thereon, plaintiff appeals. In June, 1908, the appellant, as complainant, instituted a suit in the court below against the city and county of San Francisco and the board of supervisors thereof, to enjoin the enforcement, during the years 1908-09, of certain water rates fixed by the board.

<p>1. Railroads <@=>206—Receivers—Appointment—-Vacation.</p> <p>An order appointing the receivers of a railroad company to he receivers in a foreclosure suit under a mortgage given by such company does not vacate the original- appointment of the receivers.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 676-682;- Dec. Dig. @=>206.]</p> <p>2. Railroads @=>208—Leases—Termination.</p> <p>Where the receivers of a leased railroad do not pay the stipulated rent therefor, the lessor may ask the court that they return the property leased.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 685-691; Dec. Dig. @=>208.]</p> <p>3. Street Railroads - @=>49—Leases—Termination op Lease—Return op Property—Depreciation.</p> <p>Where a lease of railroad property was terminated and the property returned to the lessor, it was error for a special master to detemine the value of motors and cars by fixing their cost price and deducting 5 per cent, for 10 years from such price, wheré the average age of such motors was 6 and not 10 years, and the deduction for depreciation should have been made each year on the depreciated value, and not on the original price.</p> <p>[Ed. Note.—For other cases, see Street Railroads, Cent. Dig. §§ 125, 126; Dec. Dig. @=>49.]</p> <p>cg^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This cause comes here on writ of error to review a judgment entered upon the verdict of a jury in favor of the plaintiffs below for the sum of 832,627.50. The Watkins Salt Company is a corporation created, organized, and existing under the laws of the state of Delaware, but is engaged in. business in, the state of New York, and has its principal office and place of business at Watkins. in the county of Schuyler and state of New York.

Oil application for a writ of prohibition on the part of the petitioner prohibiting Judge Mayer from entering orders withdrawing claims and permitting suits to be brought in England.

Petition for Revision of Proceedings of the District Court of- the United States for the First Division of the Northern District of California, in Bankruptcy; M. T. Dooling, Judge. In the matter of the Pacific Motor Car Company, bankrupt. Petition by Teresa Bell against Charles B. Blessing, as trustee in bankruptcy of the Pacific Motor Car Company, to vacate the adjudication of bankruptcy.

<p>Appeal from the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by the Deisy Brewing Company against the Atchison, Topeka & Santa Fe Railway Company. From a decree sustaining defendant’s motion to dismiss the complaint, plaintiff appeals.</p> <p>This Is an appeal from a decree sustaining a motion to dismiss the complaint of the plaintiff, a brewing company, manufacturer of a certain beverage which it calls “Temp Brew.” The complaint alleges that plaintiff tendered to the defendant railway company a car load of this brew for shipment over Its line of railway from Kansas City, Mo., to points in that part of the state of Oklahoma which was formerly ¡he Indian Territory, and also to the Indian country, and in the old Osage Nation; that it tendered the lawful charge therefor, but that the defendant refused and still refuses to receive and ship any of this brew over its line of railway from Kansas City to any points in the former Indian Territory or Indian country. It is further alleged that “Temp Brew” is a drink manufactured and sold extensively by the plaintiff in various parts of the United States; that a copyright for the exclusive use of the words “Temp Brew,” designating it, has been granted by the United ¡States government; that the plaintiff has complied with the Food and Drug Act of June 80, 1900, and all the rules and regulations promulgated thereunder by the proper officers; that it contains .80 of 1 per cent, alcohol; that although, in part, it passes through a malting process when being maimfactured, yet it contains no malt, and is not a malt liquor or beer; that it is unfermented, and is not detrimental to the health; that it is incapable of producing intoxication when taken by any human being, infant, adult, white, or Indian; that the defendant refuses to carry it from points without the state of Oklahoma, as well as from points within the state of Oklahoma, into the former Indian Territory, Indian country, Indian reservations, and allotments to the Indians, the alienation of which is restricted, claiming that to carry it to those places would be in violation of the acts of Congress and the laws and regulations of the United States. The prayer of the petition is for a mandatory injunction.</p> <p>The motion to dismiss is based upon the ground that the brew is within the provisions of the acts of Congress prohibiting the introduction of liquors into the former Indian Territory and Indian country.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by the United States of America against William J. Cook and another. From a judgment of dismissal, plaintiff appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge</p> <p>Action by Paul A. Ewert against S. C. Fullerton. Judgment for defendant, and plaintiff brings error.</p>

This cause comes here on appeal from a judgment of the District Court, Southern District of New York, in favor of various creditors of Edward G. Marshall, contractor with the United States, against the Illinois Surety Company on a bond given by said contractor pursuant to the Act of February 24, 1905, chapter 778, 33 Stat. 811 (Comp. St. 1913, § 6923). The action was commenced at law by the United Stales against the contractor and the surety company on his bond.

Gaithe against Leo Greenbaum to set aside an alleged fraudulent preference of $1,200, being a payment made by the bankrupt on or about February 4, 1911. Tf(e bankrupt filed a petition in bankruptcy February 16, 1911.

<p>Appeal from the District Court of the United States for the Northern District of Illinois; Christian C. Kohlsaat, Judge.</p> <p>Suit in equity by Matthew Howard Reed against the Cropp Concrete Machinery Company and Andrew J. Cropp. Decree for defendants, and complainant appeals.</p> <p>Appellant, Reed, the grantee of letters patent 939,629, issued November 9, 1909, covering an improvement in concrete mixers, filed his bill against defendants, charging joint infringement. Upon final hearing, the determination by the court below that the. patent is void for want of patentable novelty, resulted in a decree dismissing the bill, from which this appeal is taken.</p>

<p>1. Equity <©^s3G2—Errob as to Chabacter ob Fobm—Remedy.</p> <p>Equity Rule 22 (198 Fed. xxiv, 115 O. O. A. xxiv) provides that, if it appear at any time that a suit commenced in equity should have been brought on the law side of the court, it shall be forthwith transferred to the law side, and bo there proceeded with. Rule 23 (198 Fed. xxiv, 115 O. C. A. xxiv) provides that, if in a suit in equity a matter ordinarily determinable at law arises, it shall be determined in that suit according to the principles applicable, without sending the case or question to the law side. Rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi) abolishes demurrers and pleas and substitutes therefor a motion to dismiss. Held, that rule 22 implies that a bill shall not be dismissed because of the existence of an adequate remedy at law, and is not abrogated by Rule 29, and hence an objection to a maintenance of the bill because of the existence of such a remedy at law must be asserted under Rule 22 or 23, and not under Rule 29.</p> <p><@^For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 758-761; Dec. Dig. @=>362.]</p> <p>2. Equity @=>43—Effect of Remedy at Law.</p> <p>The existence of an adequate remedy at law is in itself an answer to a bill in equity.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 121-140, 164r-166; Dec. Dig. @=>43.]</p> <p>3. Equity @=>46—Remedy at Law—Adequacy.</p> <p>To defeat a suit in equity the remedy afforded at law must be full, adequate, and complete, and the mere right to bring an action at law wili not of itself suffice.</p> <p>[Ed. Note.—For other caáes, see Equity, Cent. Dig. §§ 151, 152, 157, 159-163; Dec. Dig. @=>46.]</p> <p>4. Equity @=>39—Retention of Jurisdiction—Legal Relief.</p> <p>Where plaintiff has a right to an equitable remedy and has filed his bill under which equity has taken jurisdiction, a court of equity will proceed to a final and full determination of all his rights, though this may involve findings which of themselves could have been made in an action at law.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 104-114; Dec. Dig. @=>39.]</p> <p>5. Injunction @=>I—Jurisdiction of Equity.</p> <p>Among the equitable remedies which a litigant is entitled to have applied is the right to an injunction.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 1; Dec. Dig. @=>1.]</p> <p>6. Patents @=>280—Suits in Equity—Jurisdiction.</p> <p>Under the statute authorizing the court to grant injunctions in patent cases according to the course and principles of courts of equity, and upon a finding of infringement in any such case to allow plaintiff damages in addition to profits to be accounted for by defendant, it is the prayer for an injunction which gives jurisdiction to the court in equity.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 439; Dec. Dig. @=>280.]</p> <p>7. Patents @=>280—Suits in Equity—Jurisdiction.</p> <p>A bill in equity cannot be entertained in a patent case where plaintiff seeks only compensation, and equitable jurisdiction cannot be assumed by treating tbe infringer as a trustee in receipt of profits for which he is liable to account.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 439; Dec. Dig. @=>280.]</p> <p>8. Patents @=>280—Suits in Equity—Jurisdiction.</p> <p>Where a bill in equity for infringement of a patent was filed during tbe life of the patent and contained a prayer for injunctions both preliminary and final and contained averments which pointed in the direction of an accounting of a character calling for a tribunal fitted and equipped to conduct it, it would not be dismissed for lack of jurisdiction.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 439; Dec. Dig. @=>280.]</p> <p>9. Trial @=>11—Transfer, of Causes—Error as to Character or Form.</p> <p>Under Equity Rule 22, the question whether a case is to be decided at law or in equity is to be determined when the question can be decided in tlio full light of all the information obtainable, and is to be determined on tile merits with no more regard to mere form of procedure than is required.</p> <p>@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>¡ Ed. Note.—For other cases, see Trial, Oent. Dig. §§ 28-30; Dec. Dig.</p> <p>10. Tiual <G=il—Tuansfeb or Causes—Time.</p> <p>Tile right of a defendant sued in equity to insist upon the case being tried at law if there is no real ground for equity retaining jurisdiction can be accorded to him at any stage.</p> <p>[Ed. Note.—For other cases, ice Trial, Cent. Dig. §§ 28-80; Dec. Dig."</p> <p>oilier cayes seo same topic & KEY-NUMBJfltt, in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by William M. Decker against De Wane B. Smith. Exceptions to master’s report fixing damages for infringement of a patent, and motion by defendant to strike from the files exceptions filed by complainant, as filed too late.

<p>In Equity. Suit by the American Graphophone Company and another against the Boston Store of Chicago.</p>

<p>In Equity. Suit by the Philadelphia Rubber Works Company against the United States Rubber Reclaiming Works. On final hearing.</p>

Proceeding by the United States against Chin Hing for his deportation under the Chinese Exclusion Act. From an order of the commissioner, directing deportation, Chin Hing appeals.

<p>Bankruptcy <@=>223—Composition—Compensation op Referee.</p> <p>Under Bankr. Act July 1,1898, c. 541, § 40, 30 Stat. 550 (Comp. St. 1913, § 9824), fixing tlie compensation of the referee in case of a composition at one-half of 1 per cent, of the amount to be paid creditors upon confirmation, where there was a composition, but instead of depositing in court the cash required by the act for costs, fees, etc., the bankrupt corporation filed a petition, which was placed on record, requesting that it be relieved from filing the amount required, it agreeing to pay costs, expenses, fees of petitioners’ counsel and defendant’s counsel, and all other costs as if the monej^were actually in court, stipulating that such costs might be charged as if the money were actually in bank and being distributed by the court itself, an order of the referee fixing his own compensation at one-half of 1 per cent, of the amount to be paid creditors was proper, both as a matter of statutory right and under the stipulation placed on record by the bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 888-894;, Dec. Dig. <@=>223.]</p> <p><@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of John W. Pechin, bankrupt. Rule to amend specifications of objections to bankrupt’s discharge made absolute.</p>

<p>Aliens <§=s>82—Deportation—Evidence.</p> <p>In deportation proceedings against a Chinese person on the ground that lie was a Chinese subject, evidence hdld sufficient to sustain the burden oí proof resting on him to show that he was native-born.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <S=»82.|</p> <p>ite»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Copyrights @=65—Copyright Laws—Scope.</p> <p>Copyrights of dramatizations cover plioto-play presentations of the same subject.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 62; Dec. Dig. •@=>65.]</p> <p>2. Commerce @=>15—Monopolies <@=>12—Interstate Commerce—Subjects op.</p> <p>Photo-play films, shipped from one state to another, are subjects of interstate commerce, and fall within the scope of Anti-Trust Act July 2, 1890,"c. 647, 26 Stat. 209, prohibiting unreasonable and undue restraint of trade and commerce.</p> <p>[Ed. Note.—For other cases, see Commerce, Cent Dig. §§ 17, 34, 35; Dec. Dig. <®=15; Monopolies, Dec. Dig. @=>12.]</p> <p>3. Monopolies @=>1—Patent Laws—Anti-Trust Act.</p> <p>The patent laws, which preserve to a patentee the exclusive right for a limited time of making and vending the patented article, are not repealed by Anti-Trust Act July 2, 1890, and the patentee by virtue of his patent may Impose reasonable conditions of bailment or sale.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 1; Dec. Dig. @=>1.]</p> <p>4. Monopolies @=529—Anti-Trust Act—“Conspiracy.”</p> <p>Under Anti-Trust Act July 2, 1S90, which denounced unreasonable competition and conspiracies, a “conspiracy” may have as an element the seeking of an unlawful end or the employment of unlawful means, and the good motives of the conspirators are no defense.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. @=»29.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]</p> <p>5. Monopolies @=>12—Rights op Patentees.</p> <p>The owner of a patented device may acquire any other patents for improvements, or several owners may pool their ownerships for their joint protection; but such patents cannot be acquired or combined for the purpose of unlawful restraining of trade.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. @=>12.]</p> <p>@ssRor other cases see samp topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>0. M'inopodies <®=o!2—What Constitute—Defenses.</p> <p>Motion picture producers and importers, some oí whom had patents upon articles, such as the positive films, cameras, and projecting machines, formed a combination to regulate the trade. They created a board to censor films, and established exchanges, refusing to sell films to operators oí theaters who did not belong to their exchanges, and who did not pay royalties on their machines to the combination, regardless oí when or from whom they were purchased. The restrictions were attempted to be justified as a protection of the patent rights of the parties to the combination. Held, that such combination was invalid, as a violation of Anti-Trust Act July 2, 1890.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <@^312.]</p> <p>©sai’or otliler cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1., Courts @=>329—Federal Courts—Jurisdiction—Amount in Controversy-—Pleadings.</p> <p>An allegation in a bill in a suit in a federal court that the amount involved is greater than $2,000 is- not in accordance with Judicial Code (Act March 3, 1911, c. 231) § 24, 36 Stat. 1091 (Comp. St. 1913, § 991), declaring that the matter in controversy must exceed, exclusive of interest and costs, the sum or value of $3,000, and the court may not entertain jurisdiction unless the requirement of the Code is met, and it cannot treat the allegation as an inadvertence, where the facts shown do not. show that the jurisdictional amount is really involved.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 897; Dec. Dig. @=>329.3</p> <p>2. Courts @=>328—Federal Courts—Jurisdiction—Amount in Controversy.</p> <p>To authorize damages to be aggregated to make up the amount requisite to jurisdiction of a federal court, the persons joining in the suit must have a common and undivided interest in the amount involved; and, though one may maintain a representative suit for the benefit of himself and other persons similarly situated, he may not have their damages aggregated, where the property involved is separately owned.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. @=>328.]</p> <p>3. Injunction @=>85—“Jurisdiction”—Restraining Enforcement of Unconstitutional Statute.</p> <p>A federal court of equity may entertain jurisdiction of a suit to enjoin the enforcement of an alleged invalid statute, for the absence of lawful power to impose the restrictions of the statute may result in irreparable loss to the party complaining; for “jurisdiction” is the power to consider and decide one way or the other as the law may require, and jurisdiction may not be declined merely because it is not foreseen with certainty that the outcome will help plaintiff.</p> <p>@=>For other oases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p> <p>LEd. Note.—For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. <@=85.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]</p> <p>4. Cow\ Y:.*ixonal X^AW <3=48—Statutes—Validity.</p> <p>The court may not adjudge a statute unconstitutional, unless it is plainly and palpably so, and where there may exist a state of facts justifying a classification or restriction complained of, the court, in determining the validity of the legislation, will assume that the facts existed.</p> <p>I,ltd. Note.—For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <@=48.]</p> <p>5. OONfiTITllTIONAL X.AW <S=241- -EQUAL PROTECTION OF THE LAWS—STATUTES —Valí n i ty—“Common Carr ieb.”</p> <p>Act Tenn. April 8, 1915, defining as a common carrier any person or corporation operating for hire any public conveyance propelled by steam, gasoline, electricity, or other power for purposes of transportation similar to that ordinarily afforded by street railways, and not operated on, fixed tracks, by indiscriminately accepting and discharging passengers along the way, and declaring the business of such a common carrier to be a privilege, and forbidding any such carrier to occupy any street or public place in a city or town without first obtaining a permit, by ordinance giving the right of such occupancy, and embodying the routes, terms, and conditions as the city or town may impose, and requiring the carrier to furnish a bond, with sureties, conditioned to pay any adjudged damages as compensation for loss of life or injury to person or property negligently inflicted, defines a new class of "common carriers,” and the act is not invalid when applied to the operation of jitneys, as denying the equal protection of the laws, because there is a substantial distinction between a street railway and a jitney, and between a jitney and a taxicab.</p> <p>i'íld. Note.—For other cases, see Constitutional Law, Gent. Dig. §§ 700, 701; Dec. Dig. <3=241.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Common Carrier.]</p> <p>C. Constitutional I<aw <@=211—Equal Protection of the Laws.</p> <p>The equal protection clause of the fourteenth amendment does not take from the state the right, to classify subjects of legislation, and it is only when tiie classification is arbitrary and unreasonable that the court can declare it beyond legislative authority; and a classification, to be obnoxious, must be clearly and actually arbitrary and unreasonable, and not merely possibly so.</p> <p>ROd. Note.—For other cases, see Constitutional Law, Cent. Dig. § 678; Dec. Dig. <3=211.1</p> <p>7. Constitutional Law ©=297—Due Process of Law.</p> <p>An operator of an automobile as a common carrier on the streets of a city pursuant to a license is deprived of his property without due process of law, where he is unable to furnish a bond required by statute, unless the exaction of the bond can be justified as a proper exercise of the police power.</p> <p>[Ed. Nove.—For other c-ascs, see Constitutional Law, Cent. Dig. §§ 832-831: Dee. Dig. ©=297.]</p> <p>8. Carriers <3=2—Regulation—■Use of Streets—‘‘Police Power.”</p> <p>Act Tenn. April 3, 1915, defining as a common, carrier any person or corporation operating for hire any public conveyance propelled by steam, gasoline, electricity, or other power similar to that ordinarily afforded by srreet railways, but not operated on fixed tracks, and requiring such carrier to obtain a permit and to give a bond conditioned that it will pay any finally adjudged damages for loss of life or injury to person or property inflicted through its negligence, is a valid exercise of the “police power,” which embraces regulations designed to promote public convenience or the general prosperity or welfare, or promote public safety or public health.</p> <p><3=For other caaes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dee. Dig. <@=>2.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Police Power.]</p> <p>9. Constitutional Daw <@=>81—Police Power.</p> <p>The court, to sustain a statute under the police power of the state, must see that its operation tends in some degree to prevent some offense or evil, or to preserve public health, morals, safety, and welfare; and where a statute discloses no such purpose, and has no real and substantial relation to those objects, or is a palpable invasion of rights secured by the Constitution, the court must adjudge it invalid.</p> <p>[Ed. Note.—For other eases, see Constitutional Law, Cent. Dig. § 148; Dee. Dig. <@=>81.]</p> <p>10. Carriers <@=>1—Regulations—Use of Streets.</p> <p>One engaging in the business of common carrier by automobile operated on the streets of a city, and obtaining a license .to use the public streets in the prosecution of his business, is subject to the police power, and he holds his property and exercises his rights subject to such other and different burdens as the Legislature may reasonably impose for the safety and convenience or welfare of the public.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 2; Dec.'Dig. <S=>1.]</p> <p>(§=»For other cases see same topic 6 KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Ihwans @=»15—Allotments—Restbaint on Alienation—Removal by Statute.</p> <p>Act -lime 21, 1906, c. 3501, 31 Stat. 382, providing that the members ol! the Stocktppdge and Munsee Tribe of Indians, who have not heretofore received patents for lands in their own right, shall, under the direction of the Secretary of the Interior, be given allotments oC land and indents therefor in fee simple, and declaring it obligatory on a member wlu> has made a selection of land in the reservation to accept it as an allotment, at once, makes one who has already made his selection, pursuant to the provisions of the Stoekbridge and Munsee Treaty of February 5, 1856 (11 Stat. 663), for allotment, owner of such land in fee simple, discharged of any power of restraint on alienation in the President or the Secretary of the Interior, and makes the issuance of a patent only a ministerial duty, so that such allottee’s deed of his land, before issuance of Patent, conveys the fee to the grantee, to whose benefit the subsequently issued patent inures.</p> <p>I Ed. Note.—For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dee. Dig. @=>15.J</p> <p><S=»For other cases see same topic & KEY-N UMBER in all Key-Numbered Digests & Indexes</p>

At Law. Actions by Ellsworth C. Irvine, as receiver of the Columbus, Hocking Valley & Sandusky Railroad Company, against Fisher A. Baker and another, and against John W. Simpson and another. Motions of plaintiff and of defendants to direct verdict. Verdict directed for plaintiff in each case.

<p>Libel for Misbranding and Adulteration under Food and Drugs Act.</p> <p>Libei by the United States against Sixty Barrels of Wine, charging misbranding of wine, claimed by the Fngles & Krudwig Wine Company.</p>

<p>In Equity. Suit by the United States against the Exploration Company, Limited, and another.</p>

<p>1. Removal of Causes <@=>27—Citizenship of Corporations—ConsolibaTION.</p> <p>Where a railroad extended through three states, the section in each state being owned by a corporation of such state, and such corporations consolidated under charters from all three states, the- consolidated corporation was a citizen of any one state for purposes of federal jurisdiction of a suit against the company by a citizen of such state.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 6A-68; Dec. Dig. <@=>27.]</p> <p>2. Railroads <@=>259—Joinder of Defendants—Joint Tort-Feasors.</p> <p>Where plaintiff’s intestate was killed by the train of one railroad company operating on a track which it leased from another, plaintiff had the legal right to join lessor and lessee as defendants as joint tort-feasors.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 802-S16; Dec. Dig. <@=>259.]</p> <p>(g^For oth.er cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of F. J. Hacker & Co., a partnership, and F. J. Hacker and S. J. Hacker, individual members thereof, bankrupts.

<p>Bankeuptoy <@=>207—Distbibtjtiqn of Assets—Liens.</p> <p>A creditor of the bankrupt, who was also the trustee, claimed a Hen upon certain real estate belonging to the bankrupt. ' Such property, together with other property, real and personal, was sold In bulk by the referee's orders, after the submission of the claim of lien, but before the referee's decision. The claimant was present at the creditors’ meeting and consented to the sale, which was made free and clear of all liens. Subsequently the referee decided that claimant had a valid Hen, and that such lien followed the proceeds of the sale. Held, that the lien could not be established against the proceeds, since it was impossible to determine the amount received from the specific real estate subject to the lien. '</p> <p>I I0d. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380; Dec. Dig. <@=>267.1</p> <p><5^s>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <@=396—Exemptions—Statutory Provisions.</p> <p>A bankrupt’s right to exemption must be deduced from the state law, but must be asserted in the maimer prescribed by Bankr. Act July 1, 1898, c. 541, 30 Stat. 544.</p> <p>[Ed. • Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 659-668: Dec. Dig. <S=396.]</p> <p>2. Bankruptcy <@=395—Exemptions—Statutory Provisions—Construction.</p> <p>The bankruptcy court should administer the exemption law liberally, and should not attempt to defeat an exemption by application of technical rules.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 658; Dec. Dig. <@=395.]</p> <p>3. Bankruptcy <@=400—Exemptions—Statutory Provisions—Construction.</p> <p>A bankrupt filed his schedules, setting forth a claim for an exemption of $300 in cash under a state statute providing that property to the value of $300 should be exempt. The value of the drug business of the bankrupt was not set out in his schedules. After the filing of the schedules, the business and stock were sold as a going concern for cash and notes. Sub sequently the bankrupt filed a petition to amend his schedules by adding the cash and notes as the value of the business, and the petition was allowed. Four days later the bankrupt filed a petition for leave to amend his original claim of exemption, asking that $300 in cash be set apart out of the proceeds of the sale. The state law provided that property to the value of $300 should be exempt, and that the person entitled to an exemption could elect to retain the same out of any bank notes, moneys, stocks, or other indebtedness. Held, that the bankrupt was entitled to his exemption of $300 in cash, in view of Bankr. Act, § 7 (Comp. St. 1913, § 9591), which does not require that the bankrupt shall enumerate articles claimed as exempt, and section 47 (section 9631), requiring the trustee to set apart an exemption claimed.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 670-675; Dec. Dig. <@=400.]</p> <p>(®=5For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Bah kbuptoy @=399—Exemptions—Estoppel.</p> <p>That a petitioning creditor, who discounted the notes of the purchaser of the business and stock of a bankrupt as a going concern, would fail to receive a dividend if an exemption was allowed to the bankrupt, did not justify disallowance of the claim of the bankrupt, who did not lead the petitioning creditor into discounting the notes under the belief that the exemption would not be claimed; the creditor having notice that the exemption was claimed and that the claim was not withdrawn, and in the absence of any fact to the contrary it being assumed that the purchaser will pay tiie notes at maturity, so that the creditor will receive back the cash advanced on the notes.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ C57, 669; Dec. Dig. <5=399.]</p> <p>5. Bankruptcy @=245—Trustee in Bankruptcy.</p> <p>Though the Bankruptcy Act imposes on the trustee in bankruptcy the duty of conserving the estate, collecting outstanding claims, and resisting payment of doubtful claims, he occupies a fiduciary capacity, and is to some extent a stakeholder, and he has a duty to perform to the bankrupt as well as to the creditors.</p> <p>[Ed. Note.—For other1 cases, see Bankruptcy, Dec. Dig. @=245.]</p> <p>other casos see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ■</p>

<p>In Equity. Injunction by the Cushman & Denison Manufacturing Company against Henry A. Grammes and others. Sur interlocutory report of master certifying questions. Cause recommitted to master, with instructions.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of J. F. Pierson, Jr., & Co. Omnibus customers’ reclamation proceeding.</p>

<p>At ¿aw. Assumpsit by William B. Shaffer against the _ Federal Cement Company. On rule for judgment for want of sufficient affidavit of defense.</p>

<p>In Equity. Bill by Arthur L. Hudgens and others against' William S. Baugh.</p>

<p>1. Customs Duties <@=22—Prohibition of Importation—Statutes—“Film or Other Pictorial Representation of a Prize Fight.”</p> <p>Negatives of a prize fight in a foreign country are within Act July 31, 1912, c. 263, 37 Stat. 240 (Comp. St. 1913, § 10416), making it unlawful for any person to bring into the United States from abroad any film or other pictorial representation of any prize fight.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 18; Dec. Dig. <@=22.]</p> <p>2. Customs Duties <@=22—Prohibition of Importation—Films of PrizeFights—Public Exhibition.</p> <p>One seeking to bring into the country negatives of a prize fight in a foreign country, for exhibition before clubs, societies, associations, and athletic clubs and their guests for gain, seeks to import the same in violation of Act July 31, 1912 (Comp. St. 1913, § 10416), prohibiting the importation of any film of any prize fight designed to be used, or which may be used, for purposes of public exhibition; there being no limitation as to the number of the guests of the clubs, societies, and associations, and the exhibition being public.</p> <p>[Ed. Note.—For other cases, see Customs Duties, Cent. Dig. § 18; Dec. Dig. <§=22.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Railroads <3=348—Injuries to Person on Track—Negligence—Evidence.</p> <p>Where, in an action for tlie death of a pedestrian struck by ears blocking a street, there was evidence of unnecessary blocking of the street for an unreasonable time, of the habit of travelers in passing around cars blocking the street, of the absence of any objection by the railroad company to the use of its right of way to get around the blocked portion of the street, and the testimony was conflicting on the issue of signals by the engineer on moving the train at the time of the accident, a verdict of negligence of the company in operating its train will not be disturbed.</p> <p>[Ed. Note.—Eor other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dee. Dig. <§=34S.J</p> <p>2. Railroads <§=350—Injuries to Traveler on Track—Contributory Negligence—Question for Jury.</p> <p>Whether a pedestrian, killed by cars at a street crossing while he attempted to cross the track, was guilty of contributory negligence, held under the evidence for tho jury.</p> <p>[Ed. Note.—Por other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. <2=350.1</p> <p><gs»For oll\er cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Conspiracy §=>43—Criminal Offenses—Indictment—Requisites.</p> <p>An indictment charging a conspil'acy under Fen. Code (Act March 4. 1909, c. 321) § 37, 35 Stat. 1092 (Comp. St. 1913, § 10201), for a violation of Chinese Exclusion Act May 6, 1882, c. 126, § 11, 22 Stat. 58, as amended by Act July 5, 1884i, c. 220, 23 Stat. 117 (Comp. St. 1913, § 4298), which alleges that defendants conspired and agreed together and together with divers “other persons to the grand jurors unknown,” is good as against an objection that the conspiracy could not be entered into unless it included persons who were excluded by the act.</p> <p>Í Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dee. Dig. §=13.]</p> <p>2. Conspiracy §=13—Criminal Offenses—Indictment—Requisites.</p> <p>An indictment charging a general conspiracy to bring into the country Chinese aliens not lawfully entitled to enter the United States need not set forth the names of the persons who were brought into the United States.</p> <p>! Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. §=43.]</p> <p>3. Conspiracy §=43—Criminal Conspiracy—Indictment—Sufficiency.</p> <p>An indictment charging a conspiracy to violate a law of the United States need not set out the means by which the conspiracy is to be carried out, nor that the means were a part of the agreement or confederation, nor what part each conspirator should play, nor the character of the acts to be performed to effectuate the purpose, for it is the conspiracy to do the unlawful act that is the gravamen of the offense.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. §=4S.]</p> <p>4. Conspiracy §=43—Criminal Conspiracy—Indictment—Requisites.</p> <p>An indictment charging a conspiracy under Fen. Code, § 37, for a violation of Chinese Exclusion Act 1882, § 11, as amended by Act July 5, 3884, need not charge a violation of the Exclusion Act with the same particularity necessary to-'charge a crime under the act, and an indictment alleging that defendants conspired and agreed together, and together with divers other persons to the grand jurors unknown, to violate the act, and then charging overt acts committed in furtherance of the conspiracy, is sufficient.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. §=43.]</p> <p><§salTor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Copyrights <@=>79—Infringement—Actions—Jurisdiction.</p> <p>An action for infringement of a copyright, under Act March 4, 1909, c. 320, 35 Stat. 1084, may, under section 35 thereof (Comp. St. 1913, § 9556) be maintained in the District Court of the district where there is infringement by the principal or his agent.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 67; Dec. Dig. <§=>79J</p> <p>2. Copyrights <@=>79—Actions for Infringement—Service of Process.</p> <p>In an action for infringement of copyright, under Act March 4, 1909, brought in the District Court of the district where there is infringement by the principal or his agent, service of summons on the agent is sufficient; but service of summons on defendant in another district in the same state must be set aside.</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 67; Dec. Dig. <S=>79.]</p> <p><@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

This cause comes here on writ of error to review a judgment upon a verdict for defendant in the District Court of the United States for the Southern District of New York.

<p>1. Quieting Terra <§^»10—Questioning Title of Common Geantob.</p> <p>Where both plaintiff and defendant in a suit to quiet title deraigned fcit’e from a common grantor, neither party could question such grantor’s title.</p> <p>fCd. Note.—For other cases, see Quieting Title, Cent. Dig. §§ 36-42; Doe. Dig. <5=»10.]</p> <p>2. Public Lands ®=»J14—Grant to Bailboad—Vesting of Title.</p> <p>Where Congress granted public lands to a railroad in prsesenti, and such road conveyed the lands before execution of its'' patent, upon execution the patent related back to the date of the grant, and the railroad’s conveyance gave title to the grantee.</p> <p>[Rd. Note.—For other cases, see Public Lands, Cent. Dig. §§ 314-322; Dec. Dig. <8=»114.</p> <p>Grants of railroad rights of way in public lands, see note to Taggart v. Gieat Northern By. Oo., 1.29 O. C. A. 362.]</p> <p>3. Estoppel —Title by [Wloppel.</p> <p>Under Eev. Codes Dak. 1877 (Civ. Code) § 633, providing that where a person purports by proper Instrument to grant property in fee simple, raid subsequently acquires any title or claim thereto, the same passes by operation of law to the grantee or his successor, where a railroad was granted public lands by Congress, and, previous to the issuance to it of Uie patent thereto, conveyed away such lands, upon issuance of the patent the road’s title thereunder passed by operation, of law to its grantee.</p> <p>oilier canos se© same topic & KKr-NUMBBR in all Key-Numbered Digests & Indexes</p> <p>• [Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 84; Dec. Dig. @=35.]</p> <p>4. Judgment @=490—Collateral Attack—Order of Service.</p> <p>Where the Pennsylvania grantee of the mortgagor of lands in the territory of Dakota was sued to foreclose his equity, a decree of foreclosure being entered, in the mortgagee’s subsequent suit against him to quiet title to the lands, he could not collaterally attack the decree by claiming that the order of the Dakota court permitting service against him by publication as a nonresident was invalid, as based on an affidavit insufficient under tbe statute of the territory in force in 1880, providing that, where the person on whom sendee of summons is to be made cannot after due diligence be found within the territory, and that fact appears^ by affidavit to the satisfaction of the court, it may order service by publication, since any error in the court’s action could only be corrected by appeal.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 926-928; Dec. Dig. @=490.]</p> <p>5. Mortgages @=427—Foreclosure—Failure to Join Mortgagors as Grantees.</p> <p>In suit to foreclose a mortgage, plaintiff’s failure to join as parties defendant subsequent grantees of the mortgager did not deprive the court of jurisdiction.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1269, 1272-1287; Dec. Dig. @=427.]</p> <p>6. Mortgages @=497—Forclosure—Failure to Join Mortgagor’s Grantee. —Effect.</p> <p>Where, in suit to foreclose a mortgage, the plaintiff fails to join as-party defendant the mortgagor's grantee, a decree of foreclosure will not extinguish such grantee’s right of redemption.</p> <p>[Ed. Note.—Eor other eases, see Mortgages, Cent. Dig. §§ 1469, 1471-1473; Dec. Dig. @=497.]</p> <p>7. Mortgages @=497—Foreclosure—Conclusiveness—Finding—Collat-eral Attack.</p> <p>In a mortgagee’s suit to quiet title derived from a decree of foreclosure, a finding in such decree that the indebtedness secured by the mortgage was due to the plaintiff could not be attacked.</p> <p>[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1469, 1471-1473; Dec. Dig. @=497.]</p> <p><g=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>X. Attorney and Client <@=171—Attorney’s Lien-—Origin.</p> <p>An attorney’s general or retaining lien upon the papers of his client has its origin in the inherent power of courts over the relations of attorney and client, and has been long recognized and protected.</p> <p>LEd. Note.—For other cases, see Attorney and Client, Cent. Dig. § 883; Dec. Dig. <0=171. j</p> <p>2. Attorney and Client <0=171—Attorney’s Lien—New York Law.</p> <p>The retaining lien of an attorney upon Ms client’s papers in his possession to secure his charges is recognized in New York.</p> <p>Note.—For other cases, see Attorney and Client, Cent. Dig. § 883; Dec. Dig. <0=173.]</p> <p>3. Attorney and Client <0=171—Attorney’s Lien—Papers and Judgment.</p> <p>The retaining lien of an attorney upon the papers of his client in his possession to secure Ms charge, and his lien on a judgment recovered by Mm, are different in their nature, and rules applicable to the one axe not necessarily applicable to the other; the lien on a judgment not being recognized at common law unless declared by statute, while that on papers is, since the common law only recognizes liens when acquired by possession.</p> <p>[ild. Note.—For other cases, see Attorney and Client, Cent. Dig. § 388; Dec. Dig. <£=171. ]</p> <p>4. Attorney and Client <0=171—Attorney’s Lien—Lien on Judgment— Equity.</p> <p>Apart from statute, courts of equity recognized an attorney’s lien on the judgment secured by him, as courts of common law did not, since possession is not essential to an equitable lien.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 383; Dec. Dig. <3=171.]</p> <p>5. Attorney and Client @=3-81—Attorney’s Lien-Lien on JUDGMENT-EXTENT.</p> <p>An attorney’s special or charging lien on a judgment recovered by Mm for his client never exceeds costs and fees due him in the particular suit.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. |§ 394— 398; Dec. Dig. <0=181.]</p> <p>6. Attorney and Client <§=181—Attorney’s Lien—Lien on Papers—-ExTENT.</p> <p>An attorney’s general or retaining lien on his client’s papers in Ms possession is not limited to services rendered in the particular suit in which the papers were received, but includes any general balance due for services.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 391-398; Dec. Dig. @=1S1.]</p> <p>7. Attorney and Client @=171—Attorney's Lien—Lien on Judgment— JKntqbcement.</p> <p>An attorney may actively enforce Ms special lien on a judgment recovered by him.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 383; Dee. Dig. <8=3.71.]</p> <p>*S=I?or oilier cases see same topic & KKY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>8. Attorney and Client <@=171—Attorney’s Lien—Lien on Papers—Enforcement.</p> <p>An attorney’s general lien on his client’s papers in his possession is merely passive and retaining, and may not he actively enforced.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. § 383; Dec. Dig. <@=171.]</p> <p>9. Attorney and Client <@=182—Attorney’s Lien—Lien on Papers.</p> <p>A company obtained insurance against loss in personal injury actions by its employés, the insured agreeing to place in the control of the insurer any action brought against it, and empowering the insurer to designate attorneys to appear on the insured’s behalf in such actions without interference from it. Upon injury to an employé of the insured, who sued, the defense was taken over by the insurer, which placed its attorneys in charge thereof, and later, during the pendency of the action, the insurer was dissolved by a state court, and its affairs taken over by the state insurance commissioner. The insurer’s attorneys agreed with the insured that they should continue to defend the pending suit, but at the expense of the insurance commissioner, upon the insured’s desiring to substitute its own personal attorney for those of the insurer. Held, that such attorneys could not assert a lien upon the insured’s papers relating to the suit in their possession for disbursements and services, since tbe attorneys’ client was the insurance company, not the insured.</p> <p>[Ed. Note.—For other eases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dec. Dig. <@=182.]</p> <p>10. Attorney and Client <@=182—Attorney’s Lien—Lien on Papers— Power oe Court.,</p> <p>A court has power to order an attorney to deliver up a client’s papers, upon the client’s giving security in a sum sufficient to answer the attorney’s demands.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dec. Dig. <@=182.]</p> <p>*1. Attorney and Client <@=75—Client’s Right to Change Attorney.</p> <p>A client has a right to change his attorney at any stage of a suit, and without assigning a reason; and the court may grant an order of substitution, imposing upon the client such terms as the circumstances justify to protect a discarded attorney, who appeal’s free from blame.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 110-119; Dec. Dig. <@=75.]</p> <p>12. Attorney and Client <@=75—Client’s Papers—Power oe Court to Order Surrender.</p> <p>Where,a client, pending suit, seeks an order substituting a new attorney of record, the power of the court to order the discarded attorney to surrender the client’s papers, upon security being given to cover his legitimate charges, rests upon tbe relationship of client and attorney, and tbe mere fact of possession of the client’s papers by the attorney does-not gives the court jurisdiction to make such an order.</p> <p>[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 11Ó-119; Dec. .Dig- <§=»75.]</p> <p>13. Attorney and Client <@=63—Relationship—Establishment—Lien.</p> <p>Where attorneys were originally retained by an indemnity company, and on its behalf undertook the defense in a personal injury suit against an employer, but upon dissolution of such indemnity company by a state court they agreed with the defendant employer.to continue to conduct the defense, although at the expense of the state insurance commissioner, the relationship of attorney and client was established between them and the defendant; but, as they had no lien on defendant’s papers up to tlmt time, none was thereafter created, as the expenses were to be borne by the insurance commissioner.</p> <p><®s»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[ltd. Note.—Por other cases, see Attorney and Client, Cent. Dig. §§ 85, 87; I )ec. Dig. <©=»68.]</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p> (Syldabus hy the Court.) </p> <p>1. Railroads' <@=>209—Mortgages—Income—Priority.</p> <p>, Where the mortgaged property of a railroad company is placed in the hands of a receiver before the commencement of a suit to foreclose the mortgage and a subsequent suit for that purpose is commenced, the proceedings do not impound the income for the benefit of the mortgage bondholders, until either a demand has been made of the receivers to surrender the income and the administration of the property which has been refused, or an intervention has been made in the earlier suit, or an application for an order to impound the income for the benefit of the bondholders has been made to the court, or the receivership has been extended to the later suit, or receivers have been appointed therein.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 692-695; Dec. Dig. <@=>209.]</p> <p>2. Railroads <@=>173, 197—Mortgages—Foreclosure.</p> <p>A mortgagee of the property and income of an operating railroad company impliedly agrees that the current expenses of the ordinary operation of the railroad for wages, supplies, materials, and like necessities of operation, for six months before the impounding of the income for its benefit, may. be first paid out of the gross income of operation before that net income arises which the mortgagee’s lien holds fast.</p> <p>A court of equity, administering railroad property in a foreclosure suit, may prefer claims for such current expenses to the claims of bondholders in payment out of the surplus income of the railroad property to the claims of mortgage bondholders secured by a prior mortgage.</p> <p>If the current income of the property has been diverted from the payment of claims for such current expenses to claims not of this preferential class, leaving claims for such current expenses unpaid, the court may, from the proceeds of the corpus of the mortgaged property, restore and apply to the payment of the unpaid claims for such current expenses the amount so diverted.</p> <p>But if there has been no diversion there can be no restoration, and the amount’ that may be so restored and applied may not exceed the amount so diverted.</p> <p>[Ed'. Note.—For other cases, see Railroads, Gent. Dig. §§ 581-587, 662; Dec. Dig. <@=>173, 197.]</p> <p>3. Receivers <@=>158—Railroads—Priority oe Claims—Balances.</p> <p>Conceding, but not admitting, that it is the duty of a railroad company, connecting with a mortgagor railroad company, to receive and transport freight billed over its line by the mortgagor company, that fact does not render its claims for balances of repairs of cars, loss and damage claims, or overcharges arising from the discharge of that duty, entitled to preference in payment out of the income or out of the corpus of the mortgagor’s property over the claims of bondholders secured by a prior mortgage.</p> <p><a=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Kd. Note.—For other cases, see Receivers, Cent. Dig. §§ 301-306; Dec. Dig. <@=158.]</p> <p>4. Rucf ivkbs <§=158—Railroads-—Priority of Claims—“Traffic Balances.”</p> <p>“Traffic balances” are the balances of moneys collected in payment for the transportation of passengers and freight. -Claims for balances for car repairs, loss and damage, and overcharges are not traffic balances.</p> <p>¡ Kd. Note.—For other cases, see Receivers, Cent. Dig. §§ 301-306; Dec. Dig. <§=158.]</p> <p>5. RfiCfivkrs <§=47—Orders—Construction.</p> <p>An order made in the appointment of receivers, or in the consolidation oí causes, which authorizes, but does not direct or order, receivers to pay certain classes of claims, does not adjudge that claims within those classes, which the receivers did not pay under the order, are entitled to preference in payment, either out of the income or out of the corpus of the property, over the claims of bondholders secured by a prior mortgage.</p> <p>[I3d. Note.—For other cases, see Receivers, Cent. Dig. § 72; Dec. Dig. <S=47J</p> <p>6. Receivers <@=158 — Railroads — Right of Mortgagee—'Priority of Ot AIMS.</p> <p>The claims of bondholders, secured by the lien of a recorded mortgage on the property, the after-acquired property, and the income of a railroad company, to payment out of the proceeds of the mortgaged property, are, in the absence of special circumstances, such as a surplus, or a diversion of income, prior in right and superior in equity to the claims of subsequent creditors of the mortgagor company for unpaid current expenses, although, when the mortgage was made and recorded, the railroad was not built, and the mortgage disclosed the fact that it was made to raise the money to build it.</p> <p>[Kd. Noto.—For other cases, see Receivers, Cent. Dig. §§ 301-306; Dec. Dig. <®=158J</p> <p>©=Fur other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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, which dismissed the complaint upon the ground that the plaintiff could not proceed at law.

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Suit by Merritt Greene, trustee in bankruptcy of Size & Carpenter, against John A. Sieg. From a decree in favor of plaintiff, defendant appeals.</p> <p>For many years prior to 1903, John A. Sieg and William A. Size manufactured and sold brick at Marshalltown, Iowa, as co-partners in the name of Sieg & Size. Each of them owned an undivided half interest in a tract of land adjoining the town, ten acres of which was within the corporate limits, but had not been platted as town lots. The manufacturing plant was on the tract, frota which material for making brick was obtained. There were also two residences, one of which was occupied by Size and Ms family as their home; and Sieg, who was a bachelor, lived with them, although he .was away much of the time. They farmed the land, except some two acres occupied by the brick plant. Formerly the plant was in the northeast part of the tract, but was later moved south, near a railroad which crosses it.</p> <p>In the latter part of 1902, Sieg withdrew from the firm and made an agreement with Charles E. Caipenter, who was the son-in-law of William A. Size, by wMch he agreed to sell and Carpenter agreed to buy Sieg’s undivided half interest in all of the tools, machinery and appliances on and used with the yard in the manufacture of brick for the sum of $4,000, to be paid in stipulated installments; and also leased to Carpenter his undivided half interest in the brickyard and the house on the tract not occupied by the family of William A. Size for a term expiring January 1, 1908, at a yearly rental of $300, and also gave to Carpenter an option to buy the premises leased, and the right to extend the lease for five years after January 1, 1908, at the same rental. Carpenter did not keep his contract to purchase, nor pay the rentals under the lease. There Is no evidence to show an extension of the lease. Soon after the making of the contract and lease the copartnership of Size & Carpenter was formed for the purpose of continuing the manufacture and sale of: brick, which the new firm proceeded to carry on. The record here leads to the conclusion that the new firm was composed of George S. Size, a son of William A., and Charles E. Carpenter, though the District Court on petition of creditors in bankruptcy adjudged that the firm was composed of William A. and George S. Size and Carpenter; however, that is immaterial in this proceeding.</p> <p>About August 1, 3911, creditors filed their petition against the firm of Size & Carpenter and obtained an adjudication that the firm and its individual members, including William A. Size, were bankrupts as charged, and the appellee was duly appointed trustee of their estates.</p> <p>On July 35, 1910, William A. Size and wife conveyed by warranty deed all of their undivided half interest in the tract of land to John A. Sieg, in consideration of his surrendering to the wife of Size the notes of William A. Size payable to Sieg, which with interest then amounted to something over $5,000. Sieg did not place this deed of record until June 29, 3911. On that day Carpenter turned over to Sieg and he took possession of the brickyard. The new fine ceased operations at that lime.</p> <p>In the summer of 1910, the firm of Size & Carpenter was without funds to continue the brick business. They were then insolvent and applied to Sieg for assistance to continue operation of the plant, and on July 22, 1910, he let the firm have $1,000 (by check), and a little later $2,000 more. He knew the firm was in a failing condition and was not willing to put up the money as a simple loan. So when he turned over the check he had an agreement with the firm by which he was to furnish the $3,000 for the manufacture of 600,000 brick which the firm was to make for him at that price ($5.00 per 1.000), and he was to take them on the yard as soon as they were burned. Size & Carpenter had no funds to meet the necessary expenses in the manufacturo and Sieg knew it and for that reason he made the advancement under the agreement that'the brick were to be his. The brick were manufactured as agreed, but Sieg got only about 550,000, some 200,000 of which were still green in the kilns when he took possession on June 29, 1911, and which were later burned at his additional expense. He got all of them within four months prior to the day bankruptcy petition was filed.</p> <p>Sieg’s money paid the laborers on the yard. They understood the brick were being made for him. He testified that the machinery and all the property at the plant had been Ms since 1908, when lie bought out the half interest of W. A. Size in the brick plant. Carpenter had never kept up his payments, either under the lease or contract to purchase Sieg’s half of the plant.</p> <p>This suit, brought by the trustee against Sieg, was double in purpose, that is, to recover (1) the undivided half interest of William A. Size in tiie land which he convoyed to Sieg by deed of date July 15, 1910, and (2) the value of the brick received by Sieg from the bankrupts; and the bill charged that both transfers were voidable preferences and also fraudulent (Bankruptcy Act July 1, 1898, e. 541, §§ 60 and 67, 30 Stat. 562, 504 [Comp. St. 1913, §§ 9614, 9051]).</p> <p>The trial court granted all that was asked. It entered a decree (1) canceling the deed from Size and wife to Sieg, (2) ordering that Sieg account to the trustee for rents after July 22, 1910 (date deed was acknowledged), and (3) that the trustee recover of Sieg $2,500, the reasonable value of 500,000 brick turned over to him. by the bankrupts, and that Sieg pay the costs.</p>

<p> (Syllabus by the Court.) </p> <p>1. Rah,roads «=>171—Receivers—Allowance of Claims—Priority.</p> <p>The claim of a creditor for payment out of the corpus of railroad property for necessary supplies furnished to a railroad company and used in the operation of the railroad is inferior iu equity to the claims of bondholders under a prior mortgage, and is not entitled to preference in payment, over them, in the absence of the diversion to the payment of unpreferred claims of current income from the payment of current expenses for wages, materials, supplies, and such necessities of operation.</p> <p>(Ed. Note.—For other cases, see Railroads, Cent. Dig. §| 554-576; Dec. Dig. «=>171.]</p> <p>2. Railroads «=>171—Receivers—Allowance of Claims—Priority.</p> <p>The expectation of a claimant, when he sells supplies or loans money to a mortgagor railroad company necessary for its operation, that he. will I)o paid out of the current income of the company, is not sufficient to tnho a. claim, otherwise not preferential, out of its class, and transfer it to the class entitled in equity to preference in payment over the claims of bondholders secured by a prior mortgage.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 554-576; Dec. Dig. <>-»T71.]</p> <p>Gc»For ether cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Post Office <&=48—Misuse of Matl—Scheme to Defraud—-Indictment.</p> <p>An indictment under Penal Codo (Act March 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 1913, § 10385), alleging the devising ol a scheme to defraud, and the placing of a letter in the post office to execute the scheme, and describing the scheme as one by which defendants would “pmend” certain things, is sufficient.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 67-80; Dee. Dig. (®=48.</p> <p>Nonmailable matter, see notes to Timmons v. United States, 30 C. C. A. 79; McCarthy v. United States, 110 C. C. A. 548.]</p> <p>2. Indictment and Information <2=101—Persons to Grand Jury Unknown —Several Counts.</p> <p>An indictment for use of the mails to effectuate a scheme to defraud, coniaining several counts, each charging the scheme was to defraud a person named, different in each count, and various others to the grand jurors unknown, is not bad, at least as against a motion in arrest, on the ground that the allegation in each count, that the grand jury did not know the other persons, was falso, as the indictment is to bo taken as a whole, and, so considered, it appears that all such persons known to the grand jury were named.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 272-277; Dec. Dig. <S=I01,]</p> <p>8. Oeivíinal Law <2=1186—Appeal—Reversal—Plea in Abatement and Matters of Fact.</p> <p>Any error in determining the question of fact involved in a plea in abatement, whether an indictment was procured by use of certain papers, obtained by an illegal seizure, cannot avail; Rev. St. § 1011, as amended by Act Feb. 18, 1875, c. 80, § 1, 18 Stat. 318 (Comp. St. 1913, § 1672), prohibiting reversal in the Supreme Court or in a Circuit Court for error in ruling a plea of abatement, other than to tho jurisdiction, or for any error in fact; and Act March 3, 189], c. 517, §11, 26 Stat. 829 (Comp. St. 1913, § 1651), extending to the Circuit Courts of Appeals all provisions of law in force regulating the methods and systems of review.</p> <p>¡I-M. Note.—For other cases, seé Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. <2=1186.J</p> <p>4. Criminal Law <2=878—Acquittal on One Count—Effect—Misuse of Mail.</p> <p>.The gist of the offense under Penal Code, § 215, being the use of the post office in thé execution of a scheme to defraud, and not the scheme itself, acquittal on one count, because of failure to prove the deposit of a bitter as charged therein, does not operate as an acquittal on all the counts.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. <2=878.] ,</p> <p>5. Criminal Law <§=¿1213—Cruel and Unusual Punishments—Persons Entitled to Raise Question.</p> <p>One convicted of use oí tho post office to effectuate a scheme to defraud, not having been punished to the extent provided for one offense, cannot complain that the statute would be unconstitutional, as imposing a cruel and unusual punishment, if under it the depositing of each letter is an offense.</p> <p>other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3304-3309; Dec. Dig. <@=>1213.] -</p> <p>©=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Homicide @=>190—Evidence—Uncommunicated Threats.</p> <p>Evidence of uncommunicated threats of deceased against defendant’s father, in whose defense he claims to have acted, is admissible as bearing on the probability of who was the aggressor; the evidence as to who fired the first shot, or made the first assault, being in conflict.</p> <p>[Ed. Note.—Por other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. <@=>190.]</p> <p>2. Homicide <@=>300—Sele-Deeense—Point of View of Jury—Instructions.</p> <p>Defendant in homicide, claiming self-defense or defense of his father, is entitled to an instruction that in considering his guilt the jury should place themselves as nearly as possible in his situation at the time, and then consider and decide; from that station, whether or not the testimony established beyond a reasonable doubt that he did not believe, or did not have reasonable ground to believe, that deceased was about to kill or inflict great bodily injury on one of them; and it is not enough to instruct merely to acquit if Hie jury have reasonable doubt as to defendant having had a reasonable ground to apprehend design of deceased to so do</p> <p><gmoFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>FKd. Note.—For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Doc. Dig. <J=>300.]</p> <p>3. HoAf.oiDE <3=3174—Evidence—Fijght.</p> <p>The killing being admitted and established, and the only question being whether it was justified, evidence of his flight is irrelevant.</p> <p>1 Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <3=3174.]</p> <p>4. OnruiWAii Daw <3=>351—Evidence—Fuight.</p> <p>It is only a flight to avoid arrest on a charge of a crime that is evidence of the identity of the person charged with being the perpetrator, when that question is in doubt, and not flight shown, to be for another purpose.</p> <p>[Ed. Note.—For other cuses, see Criminal I jaw, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. <£=3351.]</p> <p><§roFor other cases see same topic & KDY-NUMBlilK in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by the United States against Walter Ferguson and another. From a judgment of dismissal, the United States appeals.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Page Morris, Judge.</p> <p>Action by Albert Peirce against Frederic A. Delano and others, as receivers of the Wabash Railroad Company. There was a judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; John A. JRiner, Judge.</p> <p>Suit by the Atchison, Topeka & Santa Fé Railway Company against the Board of County Commissioners of the County of Douglas, Colo., and others, to restrain the collection of taxes. From a denial of a temporary injunction, plaintiff appeals.</p>

<p>In Error to the District Court of the United States for tire District of South Dakota; James D. Elliott, Judge.</p> <p>Ed Estes was convicted of introducing spirituous liquors into Indian country, and he brings error.</p>

Adams, Judge. Action by Thomas D. Chadbourne, Jr., and others, against the Equitable Trust Company of New York and others. Order denying motion to grant plaintiffs’ allowed claim a preference denied, and plaintiffs appeal.

<p>1. Patents C=>165—Construction of Claws.</p> <p>An element which expressly characterizes and limits one claim of a patent, and by which alone it substantially differs from another claim, will not be read into the latter, when not necessary to make it operative.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. § 241; Dec. Dig. ©A¡65.'j</p> <p>2. Patents ©=»328—Validity and Infringement—Change-Speed Gearing.</p> <p>The Austin patent, No. 1,091,638, for change-speed gearing for automobiles, was not anticipated, and discloses invention, the device being the first practically operative two-speed axle drive gearing; also field infringed as to claims 9 to 12, inclusive.</p> <p>3. Patents <3=»2C— Invention—New Combination of Old Elements.</p> <p>If the selection of elements from existing machines into a complete combination has, for the first time, produced from a practical and commercial aspect, a. new result, invention may well be predicated thereon.</p> <p>[Ed. Note.-—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <3=»20.</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to1 National Tube Co. v. Aiken, 91 C. O. A. 123.J</p> <p>4. Patents @=>1G8— -Construction of Claims—Amendment of Application.</p> <p>That the claims of a patent as granted were introduced by a voluntary amendment, and are broader than those in tlie original application, does not deprive the patentee of the right to have them construed as broadly as their language implies, nor of the right to hold as an infringer one who, with knowledge of the original claims, built a structure which avoided them, but which is within the broader claims.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. <S=»168.]</p> <p>see same tupio & KEY-NUAlBjBIt in all Key-Numbered Digests & Indexes <ísel*’or odu;,’</p>

<p>Tu Equity. Suit by the Brown & Sharpe Manufacturing Company against the E. S. Starrett Company. On final hearing.</p>

<p>In Kquity. Suit by the Brown & Sharpe Manufacturing Company against í ,. S. Starrett Company. On final hearing.</p>

In Bankruptcy. In the matter of Ruth Iieyman, individually and trading as the Heyman Company, bankrupt. On motion for reargu» meni of rule for attachment.

<p>Conspiracy ©j» —Indictment—Kuitioienoy.</p> <p>Under Revenue Act Doc. 17, 1914, c. 1, 38 Stat. 785, § 1, requiring all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium to register and pay an annual tax, and making it unlawful for any poison, so required to register, to do any such act with opium without having registered and paid the tax; section 2, making it unlawful for any person to sell, barter, exchange, or give away tlie drug, except on an order, in a prescribed form, of the person receiving it, wiili an exception in favor of the dispensing of the drug to a patient by a physician registered under the act, and by a dealer to a consumer on the prescription of a physician so registered; and section 8, declaring it unlawful for any “person” not registered under the act, and who has not paid said tax, to have in his possession any of said drug, and declaring such possession presumptive evidence of a violation of said sections 8 and 1, with an exception in favor of possession of any of the drug which has been prescribed in good faith by a physician so registered —an indictment charging defendant with conspiring with M. to have a dram of opium in the possession and under the control of M., and as the overt act charging that defendant issued to M. a prescription therefor, in bn il faith, knowing it was not given for medical purposes, but for supplying one addicted to the use of opium, is insufficient; the unlawful thing charged consisting in having the drug in the possession and under the control of M., the word “person,” in section 8, referring only to those required by the act to register and pay the tax, and it not being alleged M. had the drug in his possession for any of the purposes for which he would have to register and pay the tax.</p> <p>©E»For other caaes seo same topic & KEY-NCJMBEll in all Key-Numbored Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84r-99; Dec. Dig. <®=>43.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Person.]</p> <p>^g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Louis R. Hunter against the Baker Motor Vehicle Company and another to recover ujDon a bond.</p> <p>This action was brought to recover upon a bond given by the defendants to the plaintiff, the amount of recovery to be determined by facts entirely outside anything stated in such bond as to amount, except as certain language of such bond confines the liability to a certain matter. The amount claimed is $8,329.75 and interest from January 4, 1908. It was tried before the court, a jury trial having been duly waived.</p>

<p>Upon informations against Oscar J. Weeks and others charging the misbranding of food. Defendants moved to quash.</p>

<p>In Bankruptcy. In the matter of Isadore Grossman, bankrupt. On ' petition to review the action of the referee in excluding from consideration votes cast by a commissioner of deeds acting under a power of attorney acknowledged before himself.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p>

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

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

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

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

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry G. Connor, Judge.</p>

Action at law by Charles A. Strout, trustee, against the United Shoe Machinery Company and others. Judgment for defendants (224 Fed. 1016), and plaintiff brings error.

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