Volume 226 — Federal Reporter

<p>In Error to the District^ Court of the Uiiited States for the Western District of Virginia, at'Danville; Henry C. McDowell, Judge.</p> <p>Action at law by C. S. Cook, administrator of W. M. Poteat, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Joint-Stock Companies —Existence at Common Law.</p> <p>At common law, and without any statutory authority, persons may associate themselves in joint-stock companies, with transferable shares.</p> <p>[Ed. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. § 1; Dee. Dig. ®=»1.J</p> <p>2. Joint-Stock Companies <S=»14 — I’besident as Trustee — Authority at</p> <p>Common Dawi</p> <p>The president of an unincorporated joint-stock association does not need statutory authorization to enable him to hold its real estate in trust for himself and other members.</p> <p>[IOd. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. § 35; Dee. Dig. <S==>14.] .</p> <p>3. Joint-Stock Companies <§==>19 — Suits by or Against — Parties—•Common-Law Rule.</p> <p>At common law, in the absence of statute, an unincorporated joint-stocli association cannot sue or be sued in the name of the association or its officers, but only in the names of the members composing it, however numerous.</p> <p>[Ed. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. §§ 21-27; Dee. Dig. <§=>19.]</p> <p>4. Internal Revenue <§=>9 — Joint-Stock Company — Federal Corporation Tax — “Corporation.”</p> <p>Under the New York Joint-Stock Association Law (Consol. Laws, c. 29), authorizing joint-stock companies to sue and be sued in the name of the president or treasurer, and providing that suits against a joint-stock company shall be prosecuted in the first instance against the president or treasurer, and under Const. N. Y. art. 8, § 3, providing that the term “corporation” shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships, and that all corporations shall have the right to sue, and shall be subject to be sued, in all cases as natural persons, an unincorporated joint-stock company, operating an express business, its shares being transferable, and its property being vested in trust for the association in five directors, enjoyed such privileges under the statutes of New York as to be taxable as a joint-stock association existing under the law of the state, under Corporation Tax Law Aug. 5,1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, § 6300), as amended, providing that every corporation, joint-stock company, or association organized for profit and having a capital stock represented by shares, now or hereafter organized under the laws of any state, shall be subject to a special excise tax, since under the statutes of the state the association was endowed with capacities and attributes not possessed by a partnership at common law; it being practically a “corporation” by New York law, despite the absence of the important corporate attribute of limited liability. *</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, Corporation.]</p>

<p>Tn' Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action by El vie E. Parsons against William Trowbridge, executor of Edward A. Oldfield. Judgment for plaintiff for less than prayed, and she brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Walter H. Sanborn, Judge.</p> <p>Petition by William C. Nixon and others, as receivers of the St. Louis & San Francisco Railroad Company, for an order approving their renunciation of a contract with the Peabody Coal Company. From an order of approval, the company appeals.</p>

<p>1. Courts <&wkey;818 — United States Courts — Jurisdiction—.Residence of Parties.</p> <p>A suit by the widow of an employe of the Pullman Company for wrongful death was properly dismissed as to the railway company over whose lines the Pullman Company operated, where neither plaintiff nor defendant railway company was a resident of the state wherein suit was brought.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 863; Dec. Dig. <&wkey;>318j</p> <p>2. Master and Servant &wkey;>88 — Contract oír Employment — Essentials.</p> <p>A cook on a Pullman car, whose wages were paid by the Pullman Company, and not by the railroad company hauling the car, and who was amenable to the orders of the Pullman Company only, was not an employe of the railroad company, but only of the Pullman Company.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. &wkey;88.]</p> <p>3. Master and Servant <&wkey;100 — Injuries to Servant — Pelease of Liability.</p> <p>A contract of employment between an omployé and the Pullman Company, wherein the employé released all liability for injuries occasioned. by any railroad company over tbe lines of which he might travel, is not invalid, as against public policy, under the laws of Colorado.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 166-170; Dec. Dig. &wkey;100.]</p> <p>4. Master and Servant <&wkey;86 — Injuries to Servant — Release oe Liability.</p> <p>Since the validity of a release of liability for injuries occasioned by a railroad company to an employé of the Pullman Company, as a defense, is governed by the law of the place of injury, that such a release was executed in Pennsylvania, where it was not deemed null and void, but only unenforceable as a defense to an action for injuries caused in that state, does not pa-event it from being pleaded in bar in another state in an action for wrongful death. ></p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 187; Dec. Dig. <&wkey;86.]</p> <p>5. Death &wkey;>25 — Release oe Liability — Rights oe Widow.</p> <p>In an action for wrongful death, brought under Mills’ Ann. St. Colo. 1891, § 1509, providing that whenever the death of a person shall be caused by wrongful act, neglect, or default of another, and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action in damages, being maintainable by the widow only if decedent could have brought action if death had not ensued, a release executed by him constituted a bar to her action.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 27; Dee. Dig. <S=>25.]</p> <p>6. Death" <&wkey;57 — Release oe Liability — Pleading.</p> <p>A release of all liability by decedent may, in an action for wrongful death, be shown under the general denial.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 74; Dec. Dig. &wkey;57.]</p>

Candis, Judge. Action by the United States against the Chicago-, Rock Island & Pacific Railway Company to recover certain penalties under the Hours of Service Act. From a judgment for the United States, defendant brings error. By this writ of error it is sought to reverse a judgment rendered on a directed verdict and based on sis several violations of the Hours of Service Act (34 Stat. 1415).

Dandis, J udge. Action by the Lhuied States against the Chicago & Northwestern Railway to recover penalties under the Hours of Service Act. From a judgment for the United States, defendant brings error.

<p>Petition to Revise Order of the District Court of the United States for the Western District of Oklahoma; John H. Cotteral,. Judge.</p> <p>Original petition by William V. Delahunt against the County of Oklahoma and others to revise order of the District Court directing the payment of taxes before payment of a mortgage lien.</p>

Suit in equity by the Hide-Ite Leather Company and another against the Fiber Products Company and another. Decree for defendants, and complainants appeal.

<p>At Law. .Action by Guy H. Hudson, special administrator of the esíaícof Hah or Engemoen, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Ou deceudant’s motion for a directed venid.</p> <p>Arltoni for damages for negligent delay In tho transportation of two shipments of' live stock from Montana points to Chicago, via South St. Paul. Tho iiiie:1, of railway over which tho snipnionte actually passed were Groat Northern Railway from Montana points to South St. Paul, Chicago, St. Paul, Minneapolis & Omaha Railway from South St. Paul to Elroy, and Chicago & Northwestern Railway from Elroy to Chicago. At the close of all the ter,1.1-inony counsel for defendant moved the court to direct a verdict in favor of llie defendant company, upon the following grounds: (1) That it appears from ail 1he testimony that the Omaha Railway Company, tho sole defendant, is an iuiennodiate carrier; that there is ,uo evidence of delay on its, line, delay being tho only basis of claim for damages involved in the complaint; Irak, on ihc coufc'sry, it affirmatively appears from the evidence that there was no delay ott iltc line of this defendant company. (2) Upon the ground that no no-li Ice of claim, as required by the contracts of shipment, was given by the plaintiff, or by plaintiffs intestate.</p>

<p>1. Injunction <@=»75 — Official Acts — Proceedings in United States Land Department.</p> <p>The court has no jurisdiction of a suit by an owner of unpatented mining claims to restrain the register and receiver of a land office from carrying out orders of the Interior Department to determine whether the land embraced within the boundaries of the claims is nonmineral, or whether there has been a discovery of a mineral-bearing vein'with reference to lode and placer locations, and whether the claims were made in good faith for mineral purposes or were speculative.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 143, 144, 150; Dee. Dig. <§=575.1</p> <p>2. Injunction <@=575 — Official Acts — Proceedings in United States Land Department.</p> <p>The United States Land Department is a special tribunal, with judicial functions; but, where it proceeds without jurisdiction, no injunction will be granted by the court to restrain the proceeding, since, if the proceeding be void at law, the law affords an adequate remedy.</p> <p>i lid. Note. — For other cases, see Injunction, Cent. Dig. §§ 143, lid, 150; Dee. Dig. C=>75.]</p>

<p>At Raw. Action by the Homestead Company against the Des Moines Electric Company.</p>

<p>In Admiralty. Libel by the Lapwing Towing & Wrecking Company against the steamer Pleasure Bay for salvage. Decree for libelant.</p>

<p>Bankruptcy <&wkey;114 — Receivers—Grounds for Appointment.</p> <p>The ex parte appointment of a receiver for the property of an alleged bankrupt, under Bankr. Act July 1, 1898, c. 541, § 2 (8), 30 Stat. 545 (Comp. St. 1913, § 9586), which authorizes such appointment only when “absolutely necessary for the preservation of the estate,” is erroneous, where the property is in possession of a state receiver previously appointed, and it is not shown that he is not properly caring for it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 164-166; Dec. Dig. <&wkey;114.]</p>

<p>1. Aliens <&wkey;67 — Naturalization—Jurisdiction of Courts — Residence, of Alien.</p> <p>Under Naturalization Act June 29, 1906, c. 3592, § 3, 34 Stat. 596 (Comp. St. 1913, § 4351), providing that the naturalization jurisdiction of all courts shall extend only to aliens resident within the respective judicial districts of the courts, and section 4,-providing that the -petitioner shall declare on oath before the clerk of any court authorized to naturalize aliens in the district in which the alien resides two years at least prior to his admission that it is his bona fide intention to become a citizen of the United States, the court has no jurisdiction to naturalize an alien not residing within the judicial district of the court when filing his declaration of intention.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. §§ 131-137; Dec. Dig. <&wkey;67.]</p> <p>2. ALIENS <&wkey;67 — NATURALIZATION-JURISDICTION OF COURTS-liESÍDENOE OF Ames.</p> <p>An alien, who arrived in the United States in May, 1908, and who eatnc to Memphis in -June following, and remained there for about a monUi, when he loft for Mississippi, where lie obtained employment and remained until March, 1908, when he returned to Memphis to attend a business college, and remained, there until September following, when on the completion of Ms course he returned to Mississippi, where he secured employment and remained until January, 1011, was not a resident of Memphis in January, 1008, whan Ming his declaration of intention, within Naturalization Act June 29, 1908, and the District Court of the Western District of Tennessee had no jurisdiction to naturalize him, though he stated that Memphis was his domicile and. he considered it, his home.</p> <p>fEd. Note. — For other eases, see Aliens, Cent. Dig. §§ 131-137; Dee. Dig. <t&wkey;87.]</p>

<p>1. Monopolies <&wkey;12 — Anti-Trust Act — Combinations in Restraint oe Trade.</p> <p>The Eastman Kodak Company, of New York, a corporation engaged in the manufacture and sale of photographic apparatus and suppliess including cameras, plates, films, and paper, in the. course of some 15 years acquired the ownership of the property and business of about 20 competing concerns throughout the country, whose plants were dismantled and the business discontinued or transferred to- its own plants. If corporations, they were for the most part dissolved, and their officers, or the partners, in case of firms, bound by contract not to engage in competing business for terms of from 5 to 20 years. It also by contract with the makers obtained entire control in the United States of the imported raw paper which was recognized as the only standard paper for the manufacture of photographic printing-out paper, and by refusing to sell to other manufacturers compelled several competing companies to sell or go out of business. It acquired stock houses in the larger cities, which handled chiefly its own products, and by contracts with other dealers to whom it sold fixed resale prices and required them to sell its goods exclusively. By such means it ¡secured control of from 75 to 80 per cent, of the entire interstate trade in the articles in which it dealt. Held, that such methods were intended and calculated to, and did, result in an undue and unreasonable restraint of interstate trade, and in securing to the Eastman Company a “monopoly” of a part thereof, in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (Comp. St. 191.‘>, §§ 8820, 882.1).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dee. Dig. &wkey;>12.</p> <p>IVr other definitions, see Words and. Phrases, First and Second Series, Monopoly.]</p> <p>2. Monopolies <&wkey;12 — Acts nv Restraint of Trade— Arbitrary Usk of Power Resumiho mou Da ho 13 Business.</p> <p>While the size of a corporation and the extent of its business do not alone constitute an illegal monopoly, they may properly be considered when its acquisitions of property are accomplished by methods showing an intention to monopolize and restrain interstate trade, and by an arbitrary use of power resulting from, a largo business to eliminate weaker competitors.</p> <p>lild. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. &wkey;12.]</p>

<p>1. Courts <&wkey;>366 — Federal Courts — Enforcement of Rights under State Statutes.</p> <p>In construing an Iowa statute, to determine the fights to the use of city streets granted to a telephone company thereby, the federal District Court must accept the decisions of the highest court of the state as correctly interpreting the legislative will.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 969-968; Dec. Dig. <®=^366.]</p> <p>2. Telegraphs and Telephones <&wkey;10 — Rights in City Streets — “Highways” — Statute.</p> <p>Under Code Iowa 1873, § 1324, as amended by Acts 19th Gen. Assem. c. 104, to provide that any person or company may construct a telegraph or telephone line along the public highways of the state, a telephone company was authorized to construct its lines in city streets as well as in country highways, since the word “highways” means either country roads or streets of cities and towns.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. <&wkey;10; Municipal .Corporations, Cent. Dig. § 1487.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Highway.]</p> <p>3. Constitutional Law <&wkey;134 — Obligation of Contracts — Contract of State — Franchise in Streets.</p> <p>Where a state statute granted a telephone company the right to construct its lines in city streets, on the faith of which its line was built, subsequent state legislation could not deprive the company of its franchise in the streets, as such a law would impair the obligation of a contract.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 344; Dec. Dig. &wkey;>134.]</p> <p>4. Constitutional Law <&wkey;134 — Statutes—Construction.</p> <p>Code Iowa 1897, §§ 775, 955, providing that noncharter cities and towns may authorize and regulate telephone wires, etc., and that cities under special charter may grant individuals or corporations the authority to erect, maintain, or purchase telephone systems, must be construed, with reference to the constitutional prohibition against the impairment of contracts by a state, as not depriving a telephone company of its rights in •the use of city streets for the maintenance of its lines, acquired under prior statutes, by authorizing the municipality to require a franchise •from itself as a condition precedent to the company’s maintenance of its plant.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 344; Dec. Dig. <&wkey;134.]</p> <p>5. Telegraphs and Telephones <&wkey;10 — Reservation of Power to Revoke.</p> <p>Where, in granting to telephone companies franchises in public highways and streets, the state expressly reserves power to revoke the grant, a corporation accepting such rights in the streets cannot complain if such power of revocation is exercised.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. <&wkey;10; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>6. CORPORATION'S <&wkey;617 — Dissolution—Effect on Property.</p> <p>The dissolution of a corporation, by revocation of its charter or otherwise, has no effect on its property rights, which, under the statutes of Iowa, vest in trustees for the benefit of those interested in the corporation.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 2448-2450; Dec. Dig. &wkey;617.]</p> <p>7. Telegraphs and Telephones &wkey;>10 — Reservation of Right to Alter</p> <p>Charter — Statute—1“Corporate Franchise” — 1“Franchise of Corporation.”</p> <p>Const. Iowa, art. 8, § 12, providing that the General Assembly may amend and repeal all laws for the organization or creation of corporations, or the granting of special or exclusive privileges or immunities, and that no exclusive privileges, except as provided, shall ever be granted, and Code Iowa 1897, § 1619, providing that the articles of incorporation, by-laws, rules, and regulations of corporations shall at all times be subject to legislative control, and may be altered, abridged, or set aside by law, and that every franchise obtained by a corporation may be regulated, withheld, or be subject to such conditions upon its enjoyment as the General Assembly shall deem necessary, did not authorize the state to empower a municipality to require a telephone company to secure a city franchise as a condition precedent to the right to maintain its plant in the city streets, which right was secured by the company under previous legislation, since the franchise to which the statute refers is not any property right of the corporation, such as the right to use streets, which is a “franchise of a corporation,” but is rather the “corporate franchise,” which is the right and authority derived from the state to be a corporation.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. <&wkey;10; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>For other definitions, see Words and Phrases, First and Second Series, Corporate Franchise; Franchise.]</p> <p>8. Franchises <&wkey;2 — Reservation of Power of Regulation.</p> <p>When granting a franchise, the granting Legislature or municipality may reserve, and impliedly does reserve, powers of regulation as to matters not expressly defined by the grant; but such powers do not amount to the power of confiscation or total destruction.</p> <p>[Ed. Note. — For other cases, see Franchises, Cent. Dig. § 2; Dec. Dig. <&wkey;2J</p> <p>9. Telegraphs and Telephones ¡&wkey;10 — Rights in Street — Perpetual Franchise — Fixing Rates — Public Policy.</p> <p>The grant to a telephone company of a perpetual franchise to maintain its wines in city streets, not only granting the right, but fixing the condi-1ions under which it may bo exercised and the rates to be charged for the company’s sendee, would be clearly against public policy.</p> <p>[Kd. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 0; Dec. -Dig. <&wkey;10; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>10. Telegraphs and Telephones <&wkey;10 — Perpetual Franchise to Use Streets — Reservation of Power to Regulate.</p> <p>Where the state, in granting a telephone company the right to use the streets of a city for its lines, did not specify the conditions of such use, the power to prescribe such conditions was reserved.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § (>; Dec. Dig. <&wkey;10; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>11. Municipal Corporations <&wkey;57 — Power to Make Laws.</p> <p>Being governments of enumerated powers, exercising only tlie authority delegated by the state, cities have no inherent right to make laws or regulations other than as specifically authorized by charter or general law.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 144, 148; Dec. Dig. &wkey;57.]</p> <p>12. Municipal Corporations <&wkey;680, 681 — Rights in Streets — Power op Noncharter City to Require and Grant Franchise.</p> <p>By the Iowa statutes under which noncharter cities' are organized, though very broad in empowering such cities to adopt all ordinances for the welfare of the public not inconsistent with law, the Legislature conferred no power upon such cities to grant a franchise to a telephone company to use its streets for its lines, or to require, as a condition precedent to the maintenance of -such lines, that the company secure a city franchise.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. &wkey;680, 681.]</p> <p>13. Municipal Corporations <&wkey;680, 681 — Power op Charter City to Require Franchise — Exercise op “Police Power” — Exercise op “Power op Sovereignty.”</p> <p>By the charter of the city of Keokuk, Iowa, granting it power to lay out squares or grounds, streets, alleys, etc., to alter, widen, vacate, and extend them, and to make and publish such laws and ordinances as shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals; order, comfort, and convenience of the city and its inhabitants, the city was not vested with power to require by ordinances that as a condition precedent to the right to maintain its lines in city streets a telephone company, which had been granted such right previously by the state, should secure a franchise from the city; the power to grant such a franchise being an “exercise of sovereignty,” and not an “exercise of police power.”</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1459-1466; Dec. Dig. &wkey;6S0, 681.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Police Power; Power of Sovereignty.]</p> <p>i * Telegraphs and Telephones ®=»10 — Rights in Streets — Acceptance op Franchise prom City — Estoppel.</p> <p>The city of Keokuk,- Iowa, passed an ordinance granting to the W. Telephone Company for 10 years the right to operate and use a system of telephones, prescribing the manner in which the wires and poles should be placed and other conditions, and the ordinance was accepted by the company, and the system installed. The C. Telephone Company having acquired the rights of the W. Telephone Company, the city passed an ordinance granting it a 10-year franchise, also specifying the manner in which the streets should be used; such ordinance being accepted by the C. Company. Thereafter the I. Telephone Company purchased all the property rights of the C. Company in the city, including the privileges under the ordinances. The city passed an ordinance requiring that all telephone companies, as a condition precedent to maintaining their lines in its streets, should procure a franchise from the city. The I. Company derived its right to use the streets from an occupation thereunder by virtue of a state statute, so that the attempted regulation by the city was ineffectual; but the city claimed that the acceptance of prior ordinances by the I. Company’s predecessors estopped it to deny the city’s power and to claim rights under the state law. Held, that such acceptances were inoperative as an estoppel, since, when the city assumed to grant franchises to the telephone companies, it had no such power; that being" vested in the state.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. | 0; Dec. Dig. <&wkey;10'; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>15.'Telegraphs and Telephones <&wkey;10- — Kights in Streets — Acceptance op Franchise from City — Estoppel.</p> <p>Where a city passed an ordinance requiring that all telephone companies should, as to certain territories, place'their wires under ground, and prescribing numerous other conditions, such ordinance being duly observed by a company, such acceptance of the ordinance did not estop the company from setting up the invalidity on account of a state franchise oí a subsequent ordinance requiring that, as a condition precedent to maintaining its plant in the city streets, it should procure a city franchise, since the acceptance of the ordinance, which did not purport to grant a franchise, could have effect only in relation to the regulations and conditions which it imposed.</p> <p>[Ed. Note. — For other eases, see Telegraphs and Telephones, Gent. Dig. § 6; Dec. Dig. <&wkey;10>; Municipal Corpora fions, Gent. Dig. § 1487.]</p> <p>16. Telegraphs and Telephones <&wkey;10 — Obligation op Contracts — State Contract.</p> <p>Where, under statute authorization, a telephone company constructed its lines in city streets, thus securing a perpetual franchise of occupation, which could not be revoked by the Legislature, the Legislature could not comer upon the municipality, when it adopted a commission form of government, the power to revoke such right of occupation.</p> <p>[IOd. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § C; Dec. Dig. <&wkey;10; Municipal Corporations, Cent. Dig. § 1487.]</p> <p>If. Telegraphs and Telephones <&wkey;33 — Regulation of Rates by Municipal ity — Statute.</p> <p>Under the general powers conferred upon the city of Keokuk, Iowa, authorizing enafitments for the general welfare, and Code Iowa, 1897, § 959, providing that cities under a commission form of government may regulate telephone wires, the city of Keokuk had no power to .fix the maximum rates to be charged by a telephone company occupying its streets, since the fact that the Legislature specifically conferred upon the city the power to fix rates for water, gas, light, and power service, but limited its power as to telephones to “regulate,” implied that it was not ilie legislative intention to confer on the city the rate-making power as to telephones.</p> <p>[Ild. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. <&wkey;>33.]</p> <p>18. Telegraphs and Telephones <&wkey;33 — Regulation—Rates.</p> <p>The power to fix rates to be charged by telephone companies inheres originally in the state.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 21; Dec. Dig. <&wkey;>33.J</p>

<p>1. Acknowledgment <&wkey;29 — Corporate Deed — Recoeding—STATUTORY Provisions — '“Sufficient in Law.”</p> <p>Revisal N. C. 1905, § 1005, providing that the forms of probate for deeds and other conveyances executed by a corporation, therein set forth, shall be deemed sufficient, but shall not exclude “other forms of probate which would be deemed suflicient in law,” can only refer to forms of probate deemed sufficient by the common law, under which a certificate, showing that the officer whose duty it was to affix the seal acknowledged that he did so, is sufficient.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 151-159; Dec. Dig. <&wkey;29J</p> <p>2. Deeds <&wkey;83 — Recording—Authority of Register.</p> <p>In North Carolina, the only authority which the register has for registering a deed is the certificate and order of the probating officer.</p> <p>[Ed. Noté. — For other cases, see Deeds, Cent. Dig. §§ 218-221; Doc. Dig. &wkey;>83.]</p> <p>3. ACKNOWLEDGMENT <&wkey;>29 — RECORDING—PROOF-CLERK’S CERTIFICATE.</p> <p>Revisal N. 0. 1905, § 999, provides that, whenever the proof or acknowledgment of the execution of any instrument required or permitted to be registered is had before any other officer than the clerk or deputy clerk of the superior court:, such clerk or deputy clerk shall, before it is registered, examine the certificates of proof or acknowledgment, and if it shall appear that the instrument has been duly proved or acknowledged, and that the certificate or certificates to that effect are in due form, he shall so adjudge and order the instrument registered, together with the certificates. A corporate deed of trust was executed by the trustee, as well as tile corporation, and bore a notary’s certificate of proof of the trustee’s execution, and a certificate of the clerk that the instrument had been duly proved, ‘‘as appears from the foregoing seals and certificates, which are adjudged to be in due form and according to law,” hut no certificate as to the proof of execution by the corporation was attached. Held, that the clerk’s certificate was invalid, and did not entitle the deed to registration, as it was substantially in the form prescribed by section 999, and it was manifest that the clerk was simply passing upon the sufficiency of the notary’s certificate.</p> <p>[Ed. Note.' — For other cases, see Acknowledgment, Cent. Dig. §§ 151-159; Dec. Dig. <&wkey;29J</p> <p>4. MORTGAGES <&wkey;66 — DEEDS OF TRUST — NECESSITY OF EXECUTION BY TRUSTEE.</p> <p>It was not essential to the validity of a deed of trust that it'should be executed by the trustee, as the acceptance of the trust would be presumed, or, if not accepted, another trustee appointed.</p> <p>[Ed. Note.- — For other cases, see Mortgages, Cent. Dig. § 145; Dec. Dig. &wkey;>5(>.]</p> <p>5. Acknowledgment <&wkey;>29 — Recording Deed — PitooF—Clerk’s Certificate.</p> <p>The statutes of North Carolina require, as the method of authentication and warrant to tlie register to record a deed, that a certificate'complying substanlialiy with the terms of the statute shall be attached to or indorsed upon the deed, even though probate is had before the clerk of the superior court, and where no sufficient certificate was attached to or indorsed upon an instrument, it could not be shown by parol that proper proof was made before the clerk.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 151-159 ; Dec. Dig. &wkey;29.]</p> <p>6. Mortgages <&wkey;171 — Vendor and Purchaser &wkey;>231 — Unwarranted Recording.</p> <p>Where the execution of a corporate deed of trust was not proved as the statute required, its registration was without warrant or authority of law, and as against creditors and purchasers for value it was not registered until subsequently probated in proper form and again registered.</p> <p>[13d. Note.' — For other cases, see Mortgages, Cent. Dig. §§ 392, 394-109; Dee. Dig. <&wkey;171; Vendor and Purchaser, Cent. Dig. §§ 487, 513-530; Dec. Dig. <&wkey;231.]</p> <p>7. Mortgages <&wkey;171 — 'Vendor and Purchaser <&wkey;>231 — Recording of Deeds —Statutory Provisions.</p> <p>The probate and registration of deeds and mortgages is entirely statutory, and creditors and purchasers are entitled to rely upon at least a substantial compliance with the statute.</p> <p>[13(1. Note.' — For other cases, see Mortgages, Cent. Dig. §§ 392, 394-109; Dec. Dig. <&wkey;171; Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Doc. Dig. <&wkey;>231.]</p> <p>8. Mortgages <&wkey;171 — Effect of Recording — Rights of Creditors.</p> <p>Under Revisal N. O. 1905, § 982, providing that no deed of trust or mortgage shall be valid as against creditors or purchasers for a valuable consideration, but from the registration thereof, a deed or mortgage is valid as against general creditors from its registration, unless they have secured a specific lien on the property.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 392, 394-409; Dec. Dig. &wkey;>171.]</p> <p>9. Bankruptcy i&wkey;181 — Liens—Bights op Trustee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 67d, 30 Stat. 504 (Comp. St. 1913, § 9651), provides that liens given or accepted in good faith, and not in contemplation of or in fraud upon that act, and for a present consideration, which have been recorded according to law, if record thereof was necessary to impart notice, shall not to the extent of such present consideration, be affected by that act. A corporation executed a deed of trust to secure a number of bonds, and such deed of trust was registered, but was not probated in such form as to entitle it to registration. The bonds were delivered to various parties more than four months before bankruptcy. There was no suggestion that the bonds or deed of trust were executed with any fraudulent purpose, or that the deed was withheld from registration for any such purpose. Within four months before bankruptcy the deed of trust was properly probated and again registered. B eld that, in so far as the delivery of the bonds were based upon a present consideration, the deed of trust was, as against the trustee in bankruptcy, a valid lien at the date upon which his title accrued.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 271, 273, 274; Dec. Dig. &wkey;181J</p> <p>10. Bankruptcy <&wkey;>181 — Liens—Bights op Trustee.</p> <p>A bank held notes for $1,500 upon which a corporation was liable, secured by accounts deposited as collateral. For the purpose of enlarging its business, the corporation issued bonds and executed a deed of trust to secure them. The bank agreed to and did loan the corporation $5,000 on its note secured by a deposit of 10 of such bonds; it being also agreed that from the amount of the loan the old notes would be paid. The old notes were paid, and the balance of the loan was drawn out by the corporation in the ordinary course of business. All parties regarded the corporation as' solvent, and had no thought of securing a preference or other advantage over creditors, and supposed that the deed of trust had been probated and registered, though it was not in fact properly registered until within four months before bankruptcy. Held that, within Bankr. Act, § 67d, the bank paid a present consideration for the note and bonds to the extent of $5,000, the full value of the bonds.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 271, 273, 274; Dec. Dig. &wkey;181J</p> <p>11. Bankruptcy <&wkey;181 — Liens—Bights op Trustee.</p> <p>Within Bankr. Act, § 67d, corporate bonds, secured by a deed of trust delivered to creditors of the corporation as additional security for preexisting debts, were not delivered upon a present consideration.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 259, 200, 271, 273, 274; Dec. Dig. &wkey;181.]</p>

<p>1. Bemoval or Causes <@=^2 — Statutory Provisions — Intent and History oe Legislation.</p> <p>Though the law of removal of causes from state to federal courts is statutory, the statutes regulating removal expressly cover only a few of the cases arising in actual practice, and the court must often disregard express words, and find the proper rule from the intent and history of the .legislation on the subject.</p> <p>[Ed. Note. — Eor other cases, see Bemoval of Causes, Cent. Dig. §§ 2, 3; Dec. Dig. <&wkey;>2.]</p> <p>2. Bemoval of Causes &wkey;>14 — Statutory Provisions — Proper District.</p> <p>Under Judicial Code (Act March 3, 1911, e. 231) § 28, 36 Stat. 1091 (Comp. St. 1913, § 1010), providing for the removal of causes from state to federal courts, and declaring that they may be removed to the United States District Court for the proper district where jurisdiction depends on diversity of citizenship, and section 29 (sectiou 1011), declaring that a party entitled to removal may file a petition for removal to the District Court to he held in the district where the suit is pending, an action by a citizen of Montana against corporations organized in and citizens of Wisconsin, brought 'in a state court of Minnesota, is not removable on motion of the corporations to the United States District Court sitting in Wisconsin, where jurisdiction depends on diversity of citizenship.</p> <p>[Ed. Note. — Eor other cases, see Bemoval of Causes, Cent. Dig. § 35; Dec. Dig. <&wkey;14.]</p>

<p>In Bankruptcy. In (he matter of George A. Stafford, bankrupt. On motion to confirm report of special master.</p>

At Law. Action by Samuel T. Hubbard and others against John Z. Lowe, Jr., as Collector of Internal Revenue. On general demurrer to the complaint. Judgment for plaintiffs. Action at law to recover a tax alleged to have been illegally assessed against and collected from plaintiffs. Heard on general demurrer to the complaint. Tbe tax in question was imposed under “United States Cotton Futures Act,” approved August 18, 1914 (38 Stat. 693, c. 256).

<p>Aiiem <&wkey;32 — Chinese Peksons — Deportation—Procedure.</p> <p>Under Immigration Act Feb. 20, 1907, c. 113-1, § 43, 34 Stat. 911 (Comp. St. 1913, § 4289), providing that it shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent, proceedings for the deportation of Chinese persons on the ground that, within three years past, they had entered the United States in violation of the Chinese Exclusion Acts, may be had in accordance with Immigration Act, § 21 (Comp. St. 1913, § 4270), authorizing hearings before inspectors of the Department of Labor, and orders of deportation by the Acting Secretary thereof, any time within three years after the immigrant’s last arrival, notwithstanding the Chinese Exclusion Act provides for arrest of Chinese persons upon warrants issued by any justice, judge, or commissioner of the United States court, for the immigration Act is applicable to Chinese persons, and the simpler procedure therein prescribed may be followed.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. (&wkey;>32j</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Application by George Dow for naturalization was denied (211 Fed. 486), and on rehearing was again denied (213 Fed. 355), and applicant appeals.</p>

<p>Appeal from the District Court of the United States for the District of New jersey; Thos. G. Haight, Judge.</p> <p>Howard H. Williams and Albert C. Wall, receivers of the Standard Plunger Elevator Company, and others, obtained a decree authorizing them to sell at private sale all the assets and rights of the corporation, and W. E. D. Stokes and others appeal.</p> <p>Tiiis is an appeal from a decree of the District Court of the United States for the District of New Jersey, authorizing the receivers of tlie Standard X'lunger Elevator Company to accept an offer to purchase, at private sale, all the assets and rights of that corporation, including its choses in action, and ordering the sale of the same in pursuance with the terms of the offer. The appeal was taken by certain minority stockholders to protect rights which they conceived had been prejudiced by the decree and the sale made thereunder. •</p> <p>An irrepressible conflict between certain stockholders and officials had been waged for many years within the corporation and in the courts, culminating in the appointment of receivers.</p> <p>On July 16, 1914, the receivers presented to the court a petition, showing that they had received from a committee representing creditors of the corporation an offer to purchase all of its property, excepting accounts and bills receivable and cash'on hand, and praying authority to accept the same. The amount of the bid was $250,000, and included the cancellation of damages to be assessed on two interlocutory decrees entered against the corporation in certain cases, which aggregated approximately $161,000. The purchase price of the offer, when thus estimated, was about $411,000. Bills receivable, certain percentages retained on contracts, and cash on hand, aggregated about $144,000. These various sums, if in the hands of the receivers for distribution, made an approximate total of $550,000. The claims allowed amounted to about $411,000. The offer, however, provided that any excess of the purchase price, after paying all creditors and costs of administration, should be returned to the purchasers. The amount bid, therefore, was equal to the debts of the corporation and was sufficient to satisfy all creditors, but left nothing for distribution to stockholders. The tangible property of the .corporation was appraised at $286,000, and its patents at $100,000.</p> <p>Upon the presentation of the receivers’ petition, an order was made, directing the creditors and stockholders to show cause, on July 27, 1914, why the bid of the creditors’ committee should not be accepted and the sale ordered. A copy of the order and a summary of the offer were mailed to each creditor and stockholder of record. Upon the return of the order, Mr. Craig, counsel for the minority stockholders and the appellants in this appeal, asked for a continuance until July 29th, in order to present to the court, in the form of affidavits, certain information which he contended would induce the court to reject the bid. The continuance was allowed, but with the object of losing nothing thereby, the bid was accepted provisionally; that is, by a nisi order, the court authorized the acceptance of the bid, unless, on or before July 80th, a better bid was received, or a creditor or stockholder should at that time show to the court that it would be inadvisable and not for the best interest of the trust to accept the offer and sell in the manner prayed by the receivers. On July 30th Mr. Graig presented to the court several affidavits in opposition to the petition of the receivers.</p> <p>The objection of the appellants to the acceptance of the offer and the order of sale, as then presented and repeated in this appeal, arose out of a grievance against certain stockholders and directors of the corporation, principally Woodin and Hoyt, who were charged, first, with fraudulent conduct, whereby the value of the corporation’s stock was destroyed, and second, with effecting a combination with the Otis Elevator Company in violation of the Anti-Trust Law, and was addressed to the point that the bid, which included the sale of the corporation’s choses in action to those who were interested in not suing upon them, precluded the institution of actions to recover damages for .such fraudulent and unlawful conduct.</p> <p>“On the assumption that the terms of the offer might have this result,” the District Judge said, “I submitted the copies of the affidavits to Mr. Wall, one of the receivers, with directions' to examine the same and to report to the court on August 3d as to his conclusions, to which time the whole matter was continued. I have also examined all of the affidavits with the exception of a short affidavit by Mr. Stokes, a short affidavit by Mr. Olegg, and a copy of an affidavit by Mr. Graig. The contents of these latter affidavits were stated to me by Mr. Graig.</p> <p>“The receivers recommend and urge the acceptance of the offer. It appears that the acceptance of the offer will pay all of the creditors in full. The bid specifically provides, that if the amounts deposited by the bidders shall be more than sufficient to pay in full all claims proven and allowed, that the surplus remaining shall be returned to the Creditors’ Committee. The stock issued and outstanding is as follows: First preferred §311,000; second preferred §321,000; common §1,200,000. Mr. Craig’s clients hold no first preferred stock; they hold, as he states, about one-quarter of the second preferred stock and a minority interest in the common stock.</p> <p>“There is another claim now in judgment against the company and Mr. Woodin and Mr. Hoyt, jointly, lid favor of Mr. .Tones for $54,000. There is also a claim of Mr. Stokes for $15,000, which Is In dispute. If the former is a claim against the company, and the latter is allowed for the full amount, there will be sufficient on hand, if the bid is accepted, to pay them. If the former claim has not already been proven before the receivers, the time within which claims can be proved will be extended to permit it to be filed and proven, if counsel wishes to do so. As represented to me, however, it seems to be a claim primarily against Mr. Moyt and Mr. Woodin.</p> <p>“The affidavits presented by Mr. Craig do not, in my judgment, present a situation which would warrant mo in refusing to authorize the receivers to accept the bid, which appears to be an excellent one, with the possible exception that it may preclude the receivers from recovering anything from certain of the directors and the Otis Elevator Company on the claims above mentioned. I am by no means sure that it does preclude them from doing so; but. (wen assuming that it does, the evidence, to warrant the belief that any such suit could be prosecuted with effect, Is so very meager that I do not feel justified in directing the receivers to reject the hid. The affidavits show a series of transactions which, although indicating that there has been an understanding between the defendant company and the Otis Elevator Company extending over a period of years to control prices, they fail to indicate that thereby the defendant company received loss for its products than it would have received had it bid without such understanding. The evidence is that on several occasions, after each had put in bids, when another competitor entered the field, that they both reduced their bids. This may be very harmful to others, but I cannot see that it shows anything of which the stockholders can complain. If the directors saw fit, by a combination with the Otis Elevator Company, to secure greater sums than could have been secured had they not entered into such agreements, it surely is not a matter of complaint on the part of the stockholders of the defendant company. One instance where the company withdrew a bid, evidently at the direction of the Otis Elevator Company, is pointed to. This happened in 1008 when, admit-fcedlj, the two companies were negotiating for consolidation, or rather for tilo sale of the defendant company to the Otis Company. This latter project was subsequently abandoned when it was found that it would violate the provisions of the- Anti-Trust Law.</p> <p>“From these facts I am asked to draw the conclusion that the dealings between the two companies was a scheme on the part of the Otis Elevator Company, and Woodin and Hoyt as directors of the defendant company, to turn over the defendant company to the Otis Elevator Company by means of wrecking the former company, thus accomplishing, in an indirect way, what they attempted to accomplish by means of a direct transfer and agreement. If this were so, it has taken Woodin and Hoyt eight years to accomplish this re- . suit. I cannot conceive that if such had been their intention from the beginning, that it would have taken that length of time. However that may be, the evidence is, at the most, merely suspicion, and I do not think that is sufficient to warrant me in rejecting a bid which the receivers, who are familiar with the whole situation, urgently recommend that I accept. I appreciate the position in which Mr. Craig and his clients are placed — that the burden is artificially cast on them of proving that a cause of action exists, whereas it is incumbent upon the receivers to investigate and find out whether a cause of action does exist. But nearly four months ago, when Mr. Wall was appointed receiver, the same facts wore set forth by Mr. Craig, and he was instructed to place them before Mr. Wall. There may have been good reasons why he has not done so, but this, I do not think, would be a sufficient ground for refusing to accept a bid of this kind, at this time, when it would probably be difficult to secure another bid of equal amount, especially when I am not entirely clear tliat this cause of action, if one exists, could not be hereafter prosecuted by the receivers.</p> <p>“I will therefore confirm the bid, unless Mr. Craig is willing to give the receivers a bond, with surety to he approved by them, in the sum of $400,000, conditioned that if the proceeds of another sale, when added to the amount realized from- any litigation to be instituted against Messrs. Woodin and Hoyt, and the Otis Elevator Company, and .such others as may be proper parties to such a suit, do not exceed the total amount of the present bid, plus interest on the present bid and phis the costs of all further proceedings, the obligors will pay any deficiency.”</p> <p>Eor the reasons given by the District Judge, a decree, bearing date August 4, 1914, was entered, authorizing the acceptance of the bid and ordering the sale.</p>

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Albert Eisher was convicted of driving cattle from an Indian reservation, and he brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of-South Carolina, at Greenville; Henry A. M. Smith, Judge.</p> <p>Bill by H. P. Dunlap against the Twin City Power Company, From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>Action by Hubert McKenna, by Mary B. McKenna, guardian, against the National Rife Insurance Company of the United Stales of America. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, Judge.</p> <p>Action by the Pennsylvania Steel Company against the Washington & Berkeley Bridge Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by the General Electric Company against the Manhattan City & Intcnirban Railway Company and others. There was a judgment ior plaintiff, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity by William J. Anicker against David Gunsburg and the Southwestern Petroleum Company. From a judgment dismissing the bill, plaintiff appeals.</p>

<p>1. Limitation or Actions &wkey;Ml — Parties—United States.</p> <p>Generally the statute of limitations does not run against the United States.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. <&wkey;ll.]</p> <p>2. Public Lands <&wkey;120 — Patents—Fraud—Action fob Damages — Limitations.</p> <p>Act March 3, 1891, c. 561, § 8, 26 Stat. 1099, and Act March 3, 1891, e. 559, 26 Stat. 1093 (Comp. St. 1913, § 5114), providing that suits by the United States to annul any patent theretofore issued shall be brought within five years from the passage of the act, and that suits to annul patents thereafter issued shall be brought within six. years after the issuance of such patents, was strictly a statute of limitations, and did not create the right to maintain an action to set aside the patent.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. &wkey;>120.)</p> <p>3. Public Lands <&wkey;120 — Patents—Fraud—Effect.</p> <p>Patents procured from the United States by fraud are not void but voidable, and the government may elect to rescind the patent, or to ratify it and sue for damages.</p> <p>[Ed. Note. — -For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p> <p>4. Public Lands <&wkey;120 — Patents—Fraud—Bona Fide Purchaser.</p> <p>No action lies by the United States against bona fide purchasers from a patentee for value without notice of fraud, which right of the purchaser exists independent of any statutory provision in his behalf.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.</p> <p>Bona fide purchasers of public lands, see notes to United States v. Detroit Timber & Lumber Co., 67 C. C. A. 13; McClure v. United States, 111 C. C.-A. 4.]</p> <p>5. Attorney General <&wkey;7 — Patents—Fraud—Ratieication and Recovery or Damages — Election by Attorney General.</p> <p>The government’s right to elect to rescind a patent procured by fraud, or to ratify it and sue for damages, may be exorcised by the Attorney General through the United States district attorney.</p> <p>[ Ed. Note. — For other cases, see Attorney General, Gent. Dig. §§ 8-10; Dec. Dig. &wkey;7.]</p>

<p>Ill Error to the District Court o£ the United Slates for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.</p> <p>Denny Shecil was convicted of selling liquor to a tribal Indian, and lie brings error.</p>

McDowell, Judge. In the matter of the discharge of W. F. Poff, bankrupt. On objections by Adams, Payne & Gleaves, Incorporated, and others, to a discharge of the bankrupt. From an order confirming the report of the master sustaining the objections, the bankrupt appeals.

<p>Indians <®=»5 — Restriction on Alienation — -Suit to Set Aside Conveyance —Statutes.</p> <p>Act July 1, 1898, c. 542, 30 Stat. 567, ratifying the agreement between the Dawes Commission and the Seminole Nation of Indians, provided that all contracts for the disposition of any part of any allotment, made prior to the date of the patent, should be void, and Act April 26, 1906, c. 1876, 34 Stat. 137, 144, 145, provided by section 19 that no full-blood Indian of the Creek or Seminole tribes could alienate lands allotted to him within 25 years after its passage, and that the quantum of Indian blood possessed by any member should be determined by the rolls of citizens approved by the Secretary of the Interior, and by section 22 that adult heirs of any deceased Indian whose selection had been made, or to whom a deed or patent had been issued, might convey such lands. A Creek Indian woman oí the full blood married a Creek of the half blood and became a member of the Seminole Nation by adoption and was so enrolled, and her son, enrolled as a Seminole of the half blood, died leaving her his sole heir to his allotment. On May 8, 1906, before any patent had issued, and without the secretary’s approval, she conveyed her own and her son’s allotment. Held, in the government’s action to set aside the conveyance, that her enrollment was not an adjudication as to whether she was a, white woman or an Indian, so that the grantee was entitled to the trial of such issue.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. <S=»5j</p>

<p>1. Navigable Waters <@=543 — Dredging—Improvements—Actions.</p> <p>In an action for the destruction of a bulkhead constructed in a navigable stream, which was being dredged by defendants, evidence held to warrant a finding of their negligence.</p> <p>fi'id. Note. — Eor other cases, see Navigable Waters, Cent. Dig. §§ 104, 230-12(53; Dec. Dig. <©=o43.]</p> <p>2. Navigable Waters <&~'>43 — Injury to Bulkhead — Punittve Damages— Right to Award.</p> <p>Where defendants, after being warned that they were undermining piaiulifE’s bulkhead, continued their course, they were guilty of wanton-iiosk. which authorized recovery of punitive damages.</p> <p>[Ed. Nolo. — For other cases, see Navigable Waters, Cent. Dig. §§ 101, 230-203; Dec. Dig. <S=o43.j</p> <p>S. Navigable Waters <@^43 — Actions—Rights.'</p> <p>The United States, as preparatory to dredging a navigable stream, authorized plaintiff, the owner of adjacent land, to construct a bulkhead therein, behind which material was to be dumped. The dredging operations resulted in the destruction of the bulkhead. The bulkhead ivas en land owned by the government. Held, that plaintiff’s right to the bulkhead could only be drawn in question by the United States, and, as it was made under contract "with the government, plaintiff could recover against the contractors for its destruction.</p> <p>(Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 104, 23(5 -2(55; Dec. Dig. <S=o43.]</p> <p>4. Action ©r-=>2 — Cause oe Action — Destruction oe Property.</p> <p>Where property is destroyed, no privity of contract is necessary to support an action by the one injured.</p> <p>LEd. Note. — For other cases, see Action, Cent. Dig. §§ 10-16; Dec. Dig</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa;' Smith McPherson, Judge.</p> <p>Action by William S. Richard's against James Harrison and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Petition for mandamus by James Harrison and Hettie W. Harrison against Plon. Smith McPherson, as Judge of the District Court of the United States for' the Southern District of Iowa.</p>

<p>1. Corporations <@=>472 — Contracts por Purchase — Breach by Buyer— Remedy oe Seller.</p> <p>Where one, contracting to purchase stocks and bonds of a corporation, failed to pay a part of the contract price, the other party to the contract could either retain the stocks and bonds, and sue for damages for the failure, or could deliver them to the buyer, or into court on his refusal to receive them, and then recover the contract price.</p> <p>I Ed. Note. — Eor other cases, see Corporations, Cent. Eig. §§ 1837, 1839, 1841; Dec. Dig. <@=472.]</p> <p>2. Corporations <@=472 — Purchase oe Bonds and Stocks — Breach—Measure oe Damages.</p> <p>The measure of damages for the failure of one contracting for the purchase of the bonds and stocks of a corporation to pay a part of the price is the unpaid contract price, where the adverse party places the stocks and bonds in the registry of the court, which directs the clerk to deliver the same to the buyer.</p> <p>[Ed. Note. — Eor other eases, see Corporations, Cent. Dig. §§ 1S37, 1839, 1841; Dec. Dig. <@=472.]</p> <p>Beed, District Judge, dissenting.</p>

Otis Humphrey, Judge. In the matter of Charles M. Scott, bankrupt. Petition by widow of bankrupt for the allowance of a widow’s award granted, and R. B. Ruh, trustee, appeals.

<p>Appeal from the District Court of the United States for the District of Indiana; Albert B. Anderson, Judge.</p> <p>On petition for rehearing.</p>

In Equity. Suits by the Columbia Machine & Stopper Corporation, one against the. Adriance Machine Works, Incorporated, and Benjamin Adriance, and the other against the Rubsam & Hormann Brewing Company. On final hearing. Decrees for complainant.

<p>Iii Equity. Suit by Rudolph Conrader and the Jarecki Manufacturing Company against the Judson Governor Company. On final hearing. Decree for complainants in part.</p>

<p>In Equity. Suit by E. W. Burpee against M. Robert Guggenheim and others. Decree for plaintiff.</p> <p>Phi ini iff seeks tc quiet title to certain manufactured machines, patents, application for patent, drawings, patterns, and specifications, in which the defendants, Guggraiheim-IjevrJsohn-Sheflield Syndicate and II. J. Ramsey, t,e< «sí-ion; to the interests of Frederick Lewisohn and M. Robert Guggenheim, ciaim and assert an ownership and proprietary interest. It appears from the stipulations of the parties and the testimony that the defendant Syndicate owned letters patent No. 660,218, issued to John H. Hanks, for a conical, painiiine, single service, sanitary paper bottle, and engaged the services of plaintiff, a skilled inventor, to invent, design, and construct a complete line of machinery for the manufacture of such paper bottles in quart, pint, and half-pint sizes. The contract contains the following provisions:</p> <p>•‘I. The party of the second part [plaintiff] does hereby covenant and agree to and with the party of the first part [Syndicate] to proceed forthwith to endeavor to invent and construct a complete line of machines for the manufacture of the John H. Hanks patent conical paraffine single service paper milk bottles in quart, pint, and half-pint sizes, complete and ready for 'use, and to invent and construct machines of such effect as to enable the lines of machines to be constructed by him to produce 50,000 paper bottles, quarts, pints, and half-pints, ready for use, per day of 10 hours’ work, at a manufacturer's cost of $3.50 per thousand for quarts, the estimated cost being based upon material of the weight and character and of the estimated value and at a labor cost as follows: [Estimated cost follows.]</p> <p>“II. The party of the second part agrees to furnish all the necessary skilled and common labor, all the necessary tools, machinery, and equipment, and material necessary to enable him to* construct .such, machinery as he may invent for the purposes aforesaid, the skilled labor to be furnished as follows: [Cost of labor follows.]</p> <p>“HI. The party of the first part, in consideration of the services so to be rendered as aforesaid, covenants and agrees to pay to the party of the second part monthly, and upon statements of the actual cost of labor and material to be furnished it as aforesaid by said party of the second part, up to the sum of $10,000 within which sum it is believed by the party of the second part a complete set of machinery for the making of said bottles can be invented and manufactured. In the event that the party of the second part shall successfully invent and manufacture the necessary machinery to produce said paper bottles, then the party of the first part agrees to purchase from Burpee & Letson, .Limited, of Bellingham, Wash., 15 complete sets or lines of machinery, exclusive of the first set, for the manufacture of bottles, within a period of two years from and after the date when the first set to be manufactured under this agreement shall be put in successful operation, and vo pay the party of the second part, as compensation for his services in the invention and construction of such lines of machinery, a royalty of $2,250 on each of said 15 sets of machinery so to be invented, manufactured, and delivered to it, or in the aggregate the sum of $33,750, it being understood that the right to use the invention to be made by the second party shall in the meantime remain in him.</p> <p>“IV. The party of the second part agrees, as he completes the necessary machinery for the manufacture of said bottles from time to time, to apply for letters patent therefor to the Patent Office of the government of the United States, and if possible to procure the said machines so designed by hi?-" to be patented in his own name, the expense to be a part of the cost of construction. Second party further agrees, if so directed by the party of the first part, and at the expense of the party of the first part, to apply for patents on' his inventions for the manufacture of said bottles in Canada or elsewhere, it being understood that all expense appertaining thereto shall be paid by the first party.</p> <p>“V. The party of the second part further covenants and agrees that no machinery shall be manufactured or sold, under the inventions to be made by him under this agreement, save and except to the party of the first part: Provided, always, it shall keep and observe its covenants in this agreement contained. And when the Syndicate, party of the first part, shall have paid to the party of the second part a royalty of $33,750, then the party of the second part shall, on demand of the party of the first part, its executors, administrators, or assigns, convey to the first party, or its nominee, all letters patent for any and all machinery by him invented for the manufacture of said bottles, and shall also deliver up to the said Syndicate all his drawings, patterns, and specifications for the invention and use of such machinery, as well as any letters patent that may be taken out elsewhere, as hereinbefore provided, by the party of the second part.</p> <p>“VI. It is mutually understood and agreed that the second party shall have one year from the date of this agreement in which to invent, manufacture, construct, and have ready for operation, the necessary machinery for the manufacture of said bottles; and if he is unable to invent and produce such machinery within the period of one year, this contract shall be deemed ended, in which event party of the second part shall not have or assert against the party of the first part any claims of any character whatsoever for any services he may have rendered, or time or money expended, in the effort to invent and construct such machinery.</p> <p>“VII. It is further mutually understood and agreed that, if the party of the second part shall have incurred costs and expenses in the invention and development of machinery necessary to manufacture said bottles in excess of $10,000, he shall be at liberty to exceed that amount, but only at his own proper cost and expense, and for any amount in excess of $10,000 expended by party of the second part the party of the first part shall not be liable.</p> <p>“VIII. The party of the second part shall use his utmost endeavors, in the invention and manufacture of machinery for the purposes aforesaid, to avoid any conflicts with existing patents devised for the manufacture of paper bottles; and, should any of his inventions be found to conflict with any patented device, second party will use his utmost endeavors to avoid any such conflict, and to' produce a line of machinery that may be operated by first party without involving it in litigation with holders of other patents.”</p> <p>Simultaneously with the execution of this agreement'a contract was entered into for the manufacture of certain lines of machinery by the plaintiff for the defendants, conditioned upon the success of the plaintiff in inventing the desired machines. After the execution of the above contract it was ascertained that the demonstrations could not be made for $10,000, and it was agreed that the amount to be furnished by the Syndicate for labor and material should be increased to $15,000. It was also agreed that an additional room or building was necessary to plaintiff’s plant, in which to place the bottle machinery, and for such purpose an additional room was rented in which to carry on experimental work. Plaintiff expended in the work of inventing the machinery, pursuant to the contract, $15,051.53 paid by the Syndicate, and the further sum of $8,500, which he contributed from his own fund, and the further sum of $1,359.02 on “factory account.” Plaintiff failed to invent the machinery within the year capable of producing 50,000 quart, pint, and half-pint bottles ready for use per day of 10 hours, at a manufacturer’s cost of $3.50 per 1,000, but did construct a machine that would produce 39,000 per day of 10 hours at a cost of approximately $5 per 1,000. On the 20th of February, 3912, and after tlie failure to come within the specifications of the contract first named, the parties entered into a supplemental agreement In which it, is stipulated (paragraph II):</p> <p>"The second parties [plaintiff] will proceed with the manufacture of machines for the production of pint and half-pint bottles and complete the sanie by, approximately, July 1, 1912. '</p> <p>' ”111. Second parties agree that the machine for the manufacture of quart bottles heretofore constructed, and those to be constructed for the manufacture of pint and half-pint bottles, when completed, shall produce bottles alike rule of 4,000 per hour, with a percentage of defective or spoiled bottles not, exceeding 3 per cent., and that the labor cost In the production of bottles by the said line of machines shall not exceed 60 cents per thousand bottles, based upon 10 cents per hour for all factory hands, except the foreman, whoso wages are estimated at 50 cents per hour.</p> <p>"IV. That when the said line of machinery shows said results the same cliull he accepted by the party of the first part, and the party of the first part shall thereupon forthwith pay to the parties of the second part the sum of i[! 10,000 and in addition thereto the inventor’s royalty of §2,250.</p> <p>“Y. The party of the first part agrees to arrange with the Union Savings & Trust Company of Seattle, Washington, for the guaranty of said Trust Company of the payment of said sum of §10,000 and the said royalty of §2,230, which guaranty shall be required to be furnished the second parties before they shall bo required to commence the work of constructing the additional machines; that the payment of said §10,000 and royalty shall be in full for the ■ first complete line of machines, and no percentage of the cost of construction shall be allowed second parties.</p> <p>"VI. The party of the first part, on receiving a second set of bottle machinery to be ordered later from the parties of the second part, shall pay for the same in accordance with the terms of the original contracts, and shall also at the time they are received pay the second parties in cash an additional sum of §8,500 to cover moneys expended by second parties in inventing and constructing the machines for producing quart bottles in excess of the moneys paid tholu by the first party.</p> <p>“VII. This supplemental agreement shall not be construed to modify or change any of the terms or conditions of those certain agreements entered into between the parties hereto under date of July 22, 1910, except that in completing the first line of machines the said second parties are to receive the gross sum of §10,000 and royalty, and are to waive the profits of 15 per cent, on the machinery herein provided for and specified in paragraph IV of tlie original contract.”</p> <p>The machines designed and constructed by the plaintiff consist of: 'First, a cutting or stamping machine; second, a body-forming machine; third, a top-cutting, inserting, and printing machine; fourth, a bottom-cutting, inserting, and printing machine; and, fifth, a waxing or paraffining machine. Plaintiff also devised and prepared plans, patterns, drawings, and specifications for such machines. Plaintiff applied for and secured patent No. 1,075,-329, issued to him October 14, 1913, being for paper receptacle making apparatus; patent No. 1,075,516, issued October 14, 1913, to plaintiff, for conveyors ; patent No. 1,084,785, issued January 20, 1914 to plaintiff, l'or cutting and dicing devices; patent No. 1,084,784, issued January 20, 1914, to plaintiff, for cutting and dicing devices; patent No. 1,090,839, issued to plaintiff June 9, 1914, for receptacle forming machine; patent No. 1,099,840, issued to plaintiff June 9, 1914, for coating machine.</p> <p>On the 19th of September, 1912, execution was issued out of the superior court of the state of Washington for King county, upon a judgment entered against M. Robert Guggenheim, and delivered to the sheriff, who levied upon all the right, title, share, and interest of said M. Robert Guggenheim in the Guggenlieim-Lewisohn-Sheifield Syndicate, and in and to the property rights belonging to the Syndicate, together with all the stock, being 2,500 shares, belonging to M. Robert Guggenheim, of the Washington Sanitary Bottle Company, and after notice of sale at public auction this interest was sold to II. J. Ramsey, and bill of sale issued and was recorded in the auditor’s office of King county, Wash.</p> <p>Tlie defendant Syndicate failed to secure the guaranty of the Union Sayings & Trust Company of Seattle, or any one else, for the payment of $10,000' and the royalty of $2,250, or at all. The defendant Syndicate, through Mr. Sheffield, agreed with the plaintiff that the guaranty would he posted within 10 days after a conversation had between Sheffield and the plaintiff several days after the execution of the contract, which was on the 20th day of February, 1912. The plaintiff thereupon entered upon the execution of the contract, but on failure to post the guaranty ceased operations, and upon the continued failure of defendant Syndicate to comply with the terms of this contract declared the contracts, with their respective modifications, terminated because of the alleged breaches by the defendant Syndicate, and such election was made prior to the institution of this action.</p>

<p>1.MASTER AND SERVANT <@=^13-INTERSTATE, COMMERCE-HOURS OF EMPLOYMENT Act — Construction.</p> <p>Tbe purpose of Hours of Employment Act March 4,1907, c. 2939, 34 Stat. 1415 (Comp. St. 1913, §§ S677-8680), is to limit the time of service of employes, and in cases of emergency to give some latitude in the enforcement of the act, and to place some limit on the time in which additional service may be rendered in case of emergency, and it is not within the spirit of the act that employés should be the sole judges of when an emergency exists to warrant extra service.</p> <p>[Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;13.]</p> <p>2. Master and Servant &wkey;>13 — Interstate Commerce — Hours of Service Act — Construction.</p> <p>The purpose of the order of the Interstate Commerce Commission requiring reports within 30' days after the end of each month of all instances where employés subject to the law regulating the hours of their employment have been on duty for a longer period than provided therein is to secure information on the subject, and it imposes an obligation on a railroad company to make a report where the extra hours of service of employés did not exceed 4 hours a day for 3 days in one week.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. &wkey;>13.]</p> <p>3. Master and Servant <&wkey;13 — Interstate Commerce — House of Labor — ■ Statutory Provisions — “Towers, Offices, Places, and Stations”— “Emergency Work.”</p> <p>The act referred to, declaring that no telegraph operator or train •Uspateher shall be permitted to remain on duty for more than 9 hours in any R-l-hour period in all towers, offices, places, and stations continuously operated night and day, nor for more than Id hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, and that the provision shall not apply to the crews of wrecking or relief trains, does not apply to emergency work required of operators in attendance at a wreck out on the line of the road, for the words “towers, offices, places, and stations” refer to telegraph offices generally and operators engaged in wrecking or relief service, though technically not members of the crews of wrecking or relief trains, are engaged in emergency work.</p> <p>[Fid. Note. — For .other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <©=313.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Emergency Work.]</p> <p>4. Muiter and Servant <&wkey;17 — Regulation of Employment — Hours op Service Act — Penalties.</p> <p>A railroad company, permitting telegraph operators to work a greater number of hours than proscribed by the said act and failing to make a report of the extra hours of service rendered, is liable to but one penalty for each employé, and not a further sum per day for each of the. days the reports have been in default, where it denied liability, the omission having been made in good faith, and under the belief that it was not required to make che same.</p> <p>fKd. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. <&wkey;17J</p>

<p>At Law. Action by Etta Gogol against the Baltimore & Ohio Railroad Company.</p>

<p>In Bankruptcy. In the matter of Lenoir-Cross & Co., alleged bankrupt.</p>

In Equity. Suit by the United States against the Reading Company and others. On final hearing. Decree for the United States in part, and in part for the defendants.

<p>1. Waters and Water Courses <&wkey;UiS — Construction of Waterway — CONTRACTS.</p> <p>Laws Wash. 1893, p. 244, § 5, authorizing the construction o£ a waterway by private contract, and providing that the con ¡rad,or should have a certain time within which to prepare plans and specifications alter notice, it was incumbent upon the contractor, when notified by the I,aml Commissioner that a certain material was repaired for the construction of bulkheads, to prepare plans and specifications therefor.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §<( 1 189-188; Dec. Dig. &wkey;lo8J</p> <p>2. CoNsrrruTioHAL Law <&wkey;>121 — Obligation on Contracts — State Construction Contracts — to.\ ov Contract.”</p> <p>Laws Wash. 1913, p. 195, vacating a portion of a waterway, and vesting title thereto in a municipality, is not unconstitutional as constituting an impairment of contract with one having a contract to construct such waterway, in violation, of Const. U. S. art. 1, § 10, or of the fourteenth amendment to the federal Constitution, since such act deals only with the subject-matter of the contract, and not with the obligations of the stale under such contract; the “obligation of a contract” being the duty oí performance.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 285, 301 311, 312-348; Dec. Dig. &wkey;121.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Obligation of Contract.]</p>

At Law. Actions by D. E. Loewe and others against the Union Savings Bank of Danbury and against the Savings Bank of Danbury. Defendants move for hearings in damages, and that the United Hatters of North .America be given notice of the pendency of the actions.

<p>In Equity. Suit by C. H. Greison against R. M. J. Winey.</p>

<p>1. BANKRUPTCY &wkey;226-“REFEREE IN BANKRUPTCY”-FINDINGS — CONCLU-¡ÍJVENESS.</p> <p>The referee in bankruptcy is a judicial officer, and liis findings on all matters witliin liis jurisdiction liave tlie same effect as if rendered by any court of general jurisdiction.</p> <p>[Ed. Note. — For otlier cases, see.Bankruptcy, Dec. Dig. <&wkey;226.</p> <p>For otlier definitions, see Words and Phrases, First Series, Referee in Bankruptcy.]</p> <p>2. Bankruptcy <&wkey;311 — Referee—Jurisdiction—Order.</p> <p>A referee in bankruptcy, having specific power to determine all questions arising on claims filed and objections thereto, has power, after acquiring jurisdiction, to order that objections to a claim be sustained, and the claim disallowed, unless the claimant surrender, pursuant to the Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 (Comp. St. 1913, § 9641), a preference received.</p> <p>¡rid. Note. — For other cases, see Bankruptcy, ^Cent. Dig. §§ 516, 528; Dec. Dig. <&wkey;>841.]</p> <p>3. Bankruptcy <&wkey;287- — Voidable Preference — Action to Recover Property.</p> <p>An action by a trustee in bankruptcy to recover property received by defendant as a voidable preference under Bankr. Act July 1, 1898, c. 541, § 001), 30 Stat. 562 (Comp. St. 1913, § 9644), is not a part of the bankruptcy proceedings, but is a controversy between- the trustee and a third party.</p> <p>I rid. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 444-447; Doc. Dig. <&wkey;287.]</p> <p>4. Bankruptcy <&wkey;341 — Findings of Referee — Rios Judicata.</p> <p>A finding of the referee in bankruptcy that a company, voluntarily entering its appearance and. filing a claim, had received a voidable preference, was conclusive in a subsequent action brought by the trustee in bankruptcy against the claimant to recover the property received as such preference.</p> <p>[Eil. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 516, 528; Dec. Dig. &wkey;341J</p> <p>5. Bankruptcy <&wkey;311 — Res Judicata — Findings of Referee.</p> <p>Only such findings of a referee in bankruptcy on an adjudication as to whether a claimant has received a voidable preference are conclusive in a subsequent action by the trustee in bankruptcy to recover property as a, vei liable preference, as were necessary to the referee’s adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. |§ 516, 528; Dec. Dig. <&wkey;>341.]</p> <p>6. Bankruptcy <&wkey;303 — Order of Refebee-^-Collateral Proceeding — Presumption.</p> <p>In an action brought by a trustee in bankruptcy to recover property which the referee in bankruptcy, in passing on a claim filed by defendant, has determined to constitute a voidable preference, it will be presumed, regardless of whether the referee made any findings of facts, that facts were presented sufficient to justify his order disallowing the claim, unless the claimant surrender the preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. <&wkey;303.]</p> <p>7. Bankruptcy <&wkey;226 — Order op Keferee — Notice.</p> <p>That such order of the referee failed to recite notice as provided in General Order XXIII (89 Fed. xi, 32 C. C. A. xxvi), providing that in all orders made by a referee it shall be recited, according as the fact may be, that notice was given, etc., did not render the referee’s adjudication void, especially not as to a claimant not entitled to notice in order to confer jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. <&wkey;226.]</p> <p>8. Bankruptcy <&wkey;284 — Voidable Preference — Recovery oe Property— Demand.</p> <p>Demand and refusal are not conditions precedent to the right of a trustee in bankruptcy to recover property received as a voidable preference under Bankr. Act, § 60b.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. i&wkey;284.]</p>

<p>1. Bankruptcy <&wkey;184 — Creditor's Right Against Trustee — Statutes.</p> <p>Under Code Iowa, § 2906, providing that no chattel mortgage shall be valid against creditors, unless in writing and recorded, and Bankr. Act July 1, 1898, c. 541, § 47a, 80 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), vesting the trustee with all rights, remedies, and powers of a creditor holding a lien on a bankrupt’s property by leg'al or equitable proceedings, where a vendor of personalty to a bankrupt claimed a preference on the ground that he had a lien for part of the price under an unrecorded mortgage, such claim was invalid as against the trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. &wkey;>184J</p> <p>2. Sai.es <S&wkey;303 — Lien—Bill ok Sale — Construction.</p> <p>Where a bill of sale conveyed certain chattels, “subject, however, to a certain promissory note for $3,500, * * * which said grantee assumes and agrees to pay,” the instrument further providing that the property was free of all “liens and incumbrances,” except as stated, which bill of sale was duly recorded, its language was not sufficient to create a lien in behalf of the vendor on the goods sold for the amount of the note.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 859; Dec. Dig. &wkey;>303.]</p> <p>3. Sales &wkey;j303 — .Lien—Validity oe Agreement.</p> <p>Wheré the vendor of chattels sold them, by bill of sale, which described the goods and, stated it was given subject to a note assumed.by the vendee, and that the property was free of all other “liens and incumbrances,” the vendee orally agreeing, as part of the consideration for the goods, to pay the note, and that the vendor should have a lien upon the goods to enforce such obligation, as between the parties the vendor had an enforceable lien on the goods to secure the amount of the note.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 859; Dec. Dig.</p> <p>■ <&wkey;>303.]</p> <p>4. Chattel Mortgages <&wkey;150 — Record—Sueeiciency.</p> <p>To postpone an attaching creditor or a purchaser to a lien on chattels, the record of it must be such as to indicate to a reasonably prudent man facts which he can ascertain showing a lien; and unless the record indicates a lien, the creditor or purchaser is not bound by what it might disclose.</p> <p>[Ed. Note.. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-r 252; Dec. Dig. <&wkey;150.]</p> <p>5. Chattel Mortgages <&wkey;141 — Lien.—Priorities.</p> <p>Where goods were sold, the vendee agreeing orally that the vendor should have a lien to secure part of the price, a subsequent chattel mortgagee of the vendee agreeing that its own lien should be junior, the vendor’s lien was superior to the mortgage.</p> <p>[Ed. Note — For other cases, see Chattel Mortgages, Cent. Dig. §§ 239, 244; Dec. Dig. <&wkey;141.]</p>

<p>i. TtkifovM, or Oauívoií <5m>48 — CSkoundb—Ht5pa.babt.is Oontbovtstisy.</p> <p>'Him ooismkiini hi an action for malic¡ocies prosecution alleged that the dciVudaius, the doles id ant corporation through its (Inly accredited olii-sir,¡nul servants, and its codefendants, wrongfully, etc., and in li..tl¡cu:?'ce of a confederation and scheme wrongfully and unlawfully ¡’.¡remo ;m>, arm fed and imprisoned plaintiff, and kept him imprisoned in furtherance of such scheme and confederation until a date specified. Held, that, the complaint being the only pleading on file when the cause was removed, it was not removable on the ground that a separable controversy existed between plaintiff and one of the defendants, as plaintiff had elected to sue the defendants, jointly, and on the face of the complaint there was no separable controversy.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 93, 94; Dec. Dig. <@=>48.3</p> <p>2. Removal of Causes @=>107 — Motion to Remand — Effect of Motion.</p> <p>A motion to remand, in the absence of denials, is in the nature of a demurrer to the petition for removal, and confesses the truth of the allegations of the petition; and hence, if the petition states a cause for removal, the motion to remand must be denied.</p> <p>[Ed. Note. — 'For other cases, see Removal of Causes, Cent. Dig. §§ 178, 225-232, 234; Dec. Dig. @=>107.]</p> <p>3. Removal of Causes @=86 — Petition for Removal — Sufficiency to Require Removal.</p> <p>A petition for removal, filed by one defendant, which charged that no grounds of action existed against his codefendants, and that they were fraudulently joined to deprive petitioner of his right to remove, showed a right of removal on its face, where the requisite jurisdictional facts were stated, and, such allegations being uncontroverted, the case was removable.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 132, 166-179; Dec. Dig. @=>86.]</p> <p>4. Removal of Causes @=>91 — Motions to Remand — Trial of Issue.</p> <p>Where such allegations are controverted, the issue must be tried in the federal court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 202; Dec. Dig. @=>91.]</p> <p>5. Removal of Causes @=12 — Jurisdiction of District Court — District in Wmoh Suit Should be Brought.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 28, 36 Stafc 1094 (Comp. St 1913, § 3010), authorizes the removal to United States District Courts of suits of which such courts are given original jurisdiction. Section 51 (section 1033) provides that, except as otherwise provided, no civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, and that, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either plaintiff or defendant. Held, that the provision that suit shall not be brought against a person in a district other than that whereof he is an inhabitant does not apply to aliens, and suits against them may be brought in any district in which valid service can be made, and a suit, having been brought in a state court, was removable to the United States District Court for that district.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 32, 33; Dec. Dig. @=>12.]</p>

William Rockefeller, Edward D. Robbins, and others were indicted February 26, 1915, for conspiring to monopolize commerce. United States v. Elton et al. (D. C.) 222 Eed. 428; United States v. Skinner et al. (D. C.) 218 Eed. 870. Robbins entered a plea of not guilty, which he was thereafter permitted to' withdraw, and interpose four pleas in bar. To two of these pleas demurrers were sustained, and as to two others, where replications were filed, demurrers were overruled.

<p>Y. Shipping <@==200 — General Average — Right oe Ship to Cargo Contribution — Evidence.</p> <p>Tke stranding of a grain steamer inside the breakwater as she was turning to enter the Buffalo river held, on the evidence, not due to the negligence or incompetence of her master, hut to the action of the crosscurrents, the force of which could not always be accurately estimated, and the vessel held entitled to a general average contribution from the cargo to the expense of lightering a part of the same.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 631-634; Dec. Dig. @=3200.]</p> <p>2. Shipping <@=3189 — General Average — Suit to Recover Cargo Contribution.</p> <p>That the protest on which the claim of a stranded vessel to a general average contribution from the cargo to the expense of lighterage is based did not state all of the particulars of the stranding does not lessen the force of the master’s sworn testimony.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 601, 603; Dec. Dig. @=3189.]</p> <p>3. Shipping <@=»189 — General Average — Liability oe Cargo.</p> <p>The recovery of a general average contribution rests on equitable grounds, and a vessel is barred from such recovery only for her fault, and not for an error of judgment on the part of her navigator.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 601, 603; Dec. Dig. <@=»189.]</p>

At- Law. Action by S. W. Levy against the Caledonian Insurance Company and others. On petition for new trial and motion to vacate the judgment and set aside the submission.

<p>1. Admiralty <@=>35 — Abatement oh Suspension op Suit — Pendency op G A3NTSHMENT PliOCEEDI NG S.</p> <p>A defendant is entitled to bring to the attention of the court the fact that tho debt sued for has, prior to the institution of the suit, been garnished in another court, and that the garnishment proceedings are still pending; and while the effect of such fact is not settled by uniform decision, the better practice in admiralty is to suspend the suit until the garnishment proceeding is terminated.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 322-1526; Dec. Dig. <@=>35.]</p> <p>2. ADJO'BALTY <@=>13 — -JUEISDIOTION-MARITIME CONTRACTS.</p> <p>Libelant, having a contract with a shipper to furnish vessels for three years to carry cargoes of chrome ore from Scotland to Atlantic ports in the United States at a stipulated rate of freight per ton, procured a charter of respondent’s vessel to the shipper to carry one of such cargoes, on an agreement by respondent to pay libelant a stated sum per ton from the freight money when received. Held,, that the latter contract which was in effect one for payment of a commission for obtaining a charter, was not maritime, and that a suit thereon was not within the admiralty jurisdiction.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 164-176; Dec. ■ Dig. <§=>13.]</p>

In Admiralty. Suit for collision by the Empire Engineering Corporation, owner of the steel dredge Pocantico, against the steamer Wis-sahickon-, the Erie & Western Transportation Company, claimant, with the Reid Wrecking Company impleaded.

<p>At Law, Action by the California Adjustment Company against the Southern Pacific Company.</p>

<p>1. Pleading @=>323 — Bill or Particulars — Waiver—“As Heretofore.”</p> <p>Rev. St. § 914 .(Comp. St. 1913, § 1537), requires the federal court in civil causes to conform as near as may be to the practice in tbe state courts of record. Act N. J. April 14, 1903 (PI. p. 567) § 102 (3 Comp-. St. N. J. 1910, p-. 4082), authorizing demand of a bill of particulars in actions of contract, provided defendant demanded it before filing Ms plea was repealed by Act N. J. March 28, 1912 (P. L. p. 383) § 34, under which the Supreme Court promulgated rule 32, providing that bills of particulars might be ordered “as heretofore.” Defendant, after answering, and after the- cause was at issue and noticed for trial, moved for a bill of particulars setting forth plaintiff’s claim in detail. Held,, that the words “as heretofore” were not restricted to the practice under the act of 1903 or the earlier state statutes regulating^ the right to demand, but refer broadly to the power of the court to order in the premises, so that the defendant’s right to the bill of particulars was not waived.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 976-979; Dec. Dig. @=>323.</p> <p>For other definitions, see Words and Phrases, First and Second Series, As Heretofore.]</p> <p>2. Pleading @=>327 — “Bill of Particulars” — Application.</p> <p>In the absence of statute providing otherwise, a hill of particulars applies only to the pleadings, and is designed to aid the defendant in interposing the proper answer and in preparing for trial, by giving him detailed information regarding the cause of action stated in the complaint. It is not evidence per se, and to attempt to so use it is forbidden by Rev. St. § 861 (Comp. St. 1913, § 1468), requiring proof by oral testimony. '</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 993, 994; Dec. Dig. @=>327.</p> <p>For other defmitions, see Words and Phrases, First- and Second Series, Bill of Particulars.]</p> <p>3. Courts @=>351 — Discovert—Interrogatories—Federal Courts.</p> <p>Interrogatories calling for detailed information regarding the cause of action stated in the complaint are not available in the federal courts.</p> <p>[Ed. Note. — For other cases, see -Courts, Cent. Dig. § 924;- Dec. Dig. @=>351.]</p> <p>4. Pleading @=>323 — Bill of Particulars — Laches.</p> <p>Delay in filing a motion for a bill of particulars setting forth the plaintiff’s claim in detail until the first motion day after the cause had reached issue was not such laches as would defeat the motion.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 976-979; Dee. Dig. @=>323.]</p>

<p>Seamen <®=»26 — Libel foe Wages — Evidence.</p> <p>Circumstantial evidence on a libel for wages held to show that the charter party, made to libelant, was abandoned by the parties, and that his services were rendered under a verbal understanding, at an agreed wage.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 131-156; Dee. • Dig. <@=»26J</p>

<p>1. CARRIERS <2^100 — DEMURRAGE CHARGES — SWITCH TRACKS.</p> <p>Tho contract between plaintiff railroad and defendant, providing that a switch, tract shall belong to the railroad, and that it shall be used only for receiving and delivering shipments made to or by defendant, and b.v plaintiff for any purpose not unreasonably interfering with defendants shipments, defendant could not use it as a storage track for its own cars without being subject to demurrage charges. '</p> <p>|Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 427-439; Dee. Dig. <@^100.J ,</p> <p>2. Cars !ers C=>100 — Demurrage Charges — Private Oars “In Railroad Service.”</p> <p>Within a freight tariff provision making subject to demurrage charges private cars on private tracks of the owners of the cars, even when engaged in transportation of commodities produced by their owners, if they arc then “in railroad service,” such cars of defendant on a switch track, which under its contract with plaintiff railroad is to be considered as that of tile railroad, are “in railroad service,” and subject to such charges: they not only standing to interfere with the use of the track by the railroad allowed by the contract, but the railroad’s obligation with respect to them not having ceased, in that it was obliged to haul them to the initial point, and pay wheelage thereon to defendant.</p> <p>¡Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 427-433; Dec. Dig. <j=s»100.]</p>

<p>1. COURTS <J=»348 — PROCEDURE IN FEDERAL COURTS — CONTRIBUTORY Negm-gevce — Burden oe Prooe.</p> <p>In tlie federal courts the burden of proof of contribuí;oi-y negligence is on the defendant.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 922; Dec. Dig. <G=3i8.1</p> <p>2. Courts <S=s347 — Pleading in Federal Courts — Contributory Negligence.</p> <p>A defendant, sued for personal injuries in the federal courts, need not plead contributory negligence, but may avail himself of it, whether brought out by plaintiff’s evidence or by his own.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <3=^317.1</p> <p>3. Pleading <3=5318 — Bill on Particulars — Contributory Negligence.</p> <p>In an action for personal injuries, where defendant pleaded contributory negligence, plaintiff’s motion for bill of particulars as to such negligence must be denied, since, by setting forth any special negligent act as his specific particular of negligence, defendant would be precluded from availing- bimself of other acts which plaintiff’s witnesses might for the first time make known, unless he could persuade the trial judge to disregard the bill of particulars, while It would be unjust to deprive a defendant of a meritorious defense merely because he could not have learned of it until trial.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 963-969, 971; Dec. Dig. <3=5318.]</p>

<p>BANKRUPTCY <g=»399 — Exemptions--Waiver.</p> <p>Though, under the state law, where a debtor made a deed of trust for the benefit of his creditors without claiming in the deed an exemption to which he was entitled under the state law, he lost his right to such exemption, a subsequent adjudication in bankruptcy struck down the deed of trust, and the bankrupt might claim his exemption as if the deed had never been made, since the bankruptcy court deals with the estate, as though such a deed has never been made, except so far as things which cannot be undone have been done thereunder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 65T, 669; Dec. Dig. <@x^>399.]</p>

In Admiralty. Suit for collision by the Susquehanna Coal Company,, owner of the barge Wayne, against the steamship Belfast, the Eastern Steamship Corporation, claimant, with cross-suit against the owner of the Wayne.

Suits in admiralty for collision by W. Irving Pearce, owner of the schooner Malcolm Baxter, Jr., against the steamship1 Vera, with the steamship Melrose impleaded; by the Dampskibs Actieselskabct International, owner of the Vera, against W. Irving Pearce and others and against the Melrose; and by the New England Coal & Coke Company, owner of the Melrose, against the Vera.

<p>1. Appeal and Error <S=>991 — Questions of Fact — Jurisdictional Questions.</p> <p>When the jurisdiction of the court depends on questions of fact, which are submitted to the jury under proper instructions, their determination is conclusive and cannot be reviewed by an appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error; Cent. Dig. §§ 3S9G-3S99, 3912, 3913; Dee. Dig. <®=>991.]</p> <p>2. Parties <®=>51 — Splitting Cause • op Action — Amendment Bringing in New Parties.</p> <p>A contract with a New Jersey city for the construction and laying of a water main several miles long fixed the price per foot and also provided for extra work which might be necessary. Before the work was finished, the contractors assigned their claims for extra work. The work was completed and accepted, the estimates for both classes approved and that for the original work paid, but the city refused to pay the claim for extra work and the assignee brought suit thereon. The city set up that oil a remeasurement there was still a balance due tile contractors for the original work, and that the suit was therefore on a split cause of action a mi could not be maintained. The statutes of New Jersey, P. L. 1800, p. 88, and P. L. 1908, p. 537, as construed by the courts, permit an assignee of an entire claim arising on contract to sue thereon in his own name, but not an assignee of part of a claim. P. L. 1912, p. 377, provides that “if a part interest in a contract obligation be assigned the assignor (retaining the remaining interest) and the assignee may be joined as parties.” Held, that the court correctly permitted the contractors to be joined as plaintiffs, and that with such amendment the action was maintainable.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 77-32; Dec. Dig. <S=»51.]</p> <p>8, Municipal Corporations <8=k>360 — Contract sob Laying Water Main — ■ Con utb potion — Extra W o bk.</p> <p>A contract with a city for the construction and laying of a wooden water main, several miles long, fixed the price per foot, and also provided for such extra work in laying as might be found necessary, but that “no claim for extra work shall be allowed unless previously ordered by the engineer in writing.” All extra work done was ordered by the engineer either in writing or orally, with the approval of the city board of water commissioners, before it was commenced, and when ordered orally written orders were given before claims therefor were presented and allowed. Held, that such practice was in compliance with the provision of the contract which, considering the unknown character of the ground, could not he construed to require written orders in advance of the work in all cases, but only before claims therefor were allowed; its purpose being to protect the city against claims for unauthorized work.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 892, 882Ya ; Dec. Dig. <g==>8()0.]</p> <p>4. Municipal Corporations <®=»3(5o — Contracts—Waiver oi? Provisions.</p> <p>Much contract contained a further provision that “the claims for such extra work shall be presented on or before the 15th of the month following its execution; otherwise such claims for extras during that mouth shall be forfeited.” The contract was executed by the board of water commissioners of the city which was authorized by statute to make such contracts when money for the improvement had been appropriated by the common council, as had been done in this case. Alter the work liad been begun, it was found that some of the extra work required, as the construction of supports for the pipe through a marsh, not contemplated by the contract, would necessarily be continuous for a considerable time, making it impracticable, if not impossible, to make monthly estimates, and the engineer under authority from the board, wrote a letter to the contractors waiving such requirement for monthly settlements and no claim for extra work was presented until the work was completed and accepted. Held, that the waiver, having been executed in good faith and for adequate reasons, was binding on the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 893; Dec. Dig. <g=s305.]</p> <p>5, Municipal Corporations <S o'! A — Contracts—Modification.</p> <p>A municipal corporation having the power to make a contract may deal with tiie contract in the same maimer as if it were a natural person, and may, in the absence of statutory limitation, modify or cancel it in the same manner as it might originally contract; and in general its power to modify a public improvement contract is vested in the same; officer or body authorized to make the contract.</p> <p>I Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig.* §§ 692- COd ; Dec. Dig. <®=s252.j</p> <p>6. Damages <©=385 — Liquidated Damages — Public Improvement Contract.</p> <p>In an action against a city to recover a balance clue on a contract for a public improvement which, provided that the contractors should pay a stipulated sum per day as liquidated damages for delay in completion beyond a fixed date, it was not error to refuse an instruction that the city was entitled as matter of law to a set-off, because of the failure to complete the work by such date, where there was evidence that the delay was caused by the city and was not due to any default of the contractors.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 179-181, 183-187; Dec. Dig. <@=>85.]</p> <p>7. Municipal Corporations <@=>352 — Contract por Water Main — Construction op Provisions.</p> <p>A contract with a city for the construction of a water main, which must necessarily cross the lines of several railroads, provided that the contractors should co-operate with the railroad companies in order that the main should cross their rights of way without injury to their property, but that permission to make such crossings should be obtained by the city. To secure such right from one company, the city paid it a sum estimated to be necessary to construct a culvert to protect its roadbed, and the company employed and paid the contractors for the water main for constructing the culvert. Held, that the contract did not require the contractors to credit the amount so paid the railroad company as a payment on their contract with the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 883 ; Dec. Dig. <@=>352.]</p> <p>8. Municipal Corporations <@=>353 — Assignment—Money Due on Contract —Claim for “Extra Wore.”</p> <p>A contract with a city for construction of a water main required the contractors to furnish both labor and materials, and also provided for payment for “extra work” which might be agreed upon. The contractors assigned their claim against the city for all extra work done under the contract. Held, that the phrase “extra work,” as used in both the contract and assignment, included the materials as well as the labor furnished therefor.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, .Cent. Dig. § 885; Dec. Dig. <@=>353.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Extra Work.]</p> <p>9. Municipal Corporations <@=>353 — Assignment—Money Due on Contract —Validity. ,</p> <p>A provision in a contract with a city for construction of a water main, that the contractors should not assign, transfer or sublet “any part of the work herein specified” without the consent of the city, does not invalidate an assignment by the contractors of their claim against the city for work done by them under the contract.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 885; Dec. Dig; <@=>353.]</p> <p>TO. Municipal Corporations <@=>1021, 1022 — Actions Against — Conditions Precedent — Presentation of Claim.</p> <p>P. L. N. J. 1904, p. 259, relating to cities, provides that “no warrant for the payment of money shall be delivered by any officer * * * until the bill or claim intended to be paid thereby shall have been presented to the mayor for his approval.” Held, that the object of such provision is to protect the city against improper expenditures by its officers or boards by requiring the mayor’s approval before money is disbursed, and that whore a claim is refused payment by sncli officer or board the claimant is not required to present it to the mayor before bringing suit thereon.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2103; Dee. Dig. @=»1021, 1022.]</p>

McCall, Judge. Action by John R. Egger against Earl A. Harris. Judgment for-plaintiff, and defendant brings error. Egger recovered a verdict and judgment against Harris for alleged fraud and deceit touching the purchase and sale of certain shares of stock, and Harris brings error. Egger owned 24 shares, of the par value of $2,400, in a Tennessee corporation, the Woods-Harris Iron & Supply Company, the name of which was changed to Harris Iron & Supply Company.

Appeals from the District Court of the United Slates for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. In, the matter of the Washington Steel & Bolt Company, bankrupt. To review the final judgment, Edward H. Chavelle, trustee in bankruptcy, appeals, and the Washington Trust Company appeals and petitions for review.

<p>Appeal from the District Court of the "United States for the Northern District of West Virginia, at M'artinsburg; Alston G. Dayton, Judge.</p> <p>Action by Samuel K. Smith, curator of the- estate of Elise D. Price, deceased, against the Davis Trust Company, of Elkins, W. Va. Judgment for plaintiff, and defendant appeals.</p>

<p>■1. Bankruptcy <&wkey;60 — Act of Bankruptcy — Appointment of Receiver.</p> <p>The appointment of a receiver for a corporation by a state court, under a statute authorizing such appointment where the defendant “is in imminent danger of insolvency,” on a petition which showed that, while the corporation, by reason of general business conditions, was unable to meet its obligations, its assets at a fair valuation were worth nearly double the amount of its indebtedness, does not constitute an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3a (4), as amended by Act Feb. 5, 1903, c. 48T, § 2, 32 Stat. 797 (Comp, St. 1913, § 9587).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. <&wkey;>60.]</p> <p>2. Bankruptcy <&wkey;60 — Acts of Bankruptcy — Appointment of 'Receiver — ■ “Insolvent.”</p> <p>To render the appointment of a receiver for a corporation an act of banknrptcy, within Bankr. Act July 3, 1898, § 3a. (4), as amended by Act Feb. 5, 1903, § 2, it must be shown that the corporation was “insolvent,” as defined in section 1 (15) (Comp. St. 1913, § 9585), in that its property at a fair valuation was not sufficient to pay its debts, and that the appointment was made because of such insolvency.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. <S=>C0.</p> <p>For other definitions, see Words and Bhrases, First and Second Series, Insolvent.]</p>

Meek, Judge. George B. Latham and Frank Flood were convicted for devising a fraudulent scheme for obtaining money, etc., by means of the post office, and they bring error.

M. Bourquin, Judge. Action by David Clement, as administrator of the estate of David Clement, Jr., deceased, against the Chicago, Milwaukee & St. Paul Railway Company and others. There was a judgment for plaintiff, and defendants bring error.

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; Maurice T. Dooling, Judge. In the matter of the bankruptcy of the Lennig Engineering Company. Application by J. W. Rapple against Harry A. Dutton, as trustee, to compel- the trustee to apply partnership assets to the payment of. a firm debt. The application was denied, and the applicant petitions for review.

Ad ion at law by Cornelia G. Goodrich and others against the Houston Oil Company of Texas and others. Judgment for plaintiffs, and defendants appeal.

<p>1. Cot.tjsiok <&wkey;70 — Moving and Mooeed Vessel — 'Vessel Lying in Pate-way.</p> <p>That a vessel is lying moored in the fairway, where she has no lawful right, is not a bar to recovery for her injury in collision, where the moving vessel, by proper navigation and the exercise of reasonable care, could have avoided the collision.</p> <p>[Ed. Note. — Por other cases, see Collision, Cent. Dig. §§ 91-100; Dec. Dig. &wkey;>70.]</p> <p>2. Navigable Wateks <&wkey;20 — Deawbeidges—Begttlations foe Opening Draw.</p> <p>Act Aug. 18; 1894, c. 299, § 5, 28 Stat. 362 (Comp. St. 1913, § 0973), regulating drawbridges over navigable streams, and the regulations of August 4, 1910, made thereunder, which provide that an approaching vessel, when “not less” than 1,000 feet distant, shall signal for the opening of the draw, must be construed as requiring the vessel to signal when approximately 1,000 feet distant, and where appreciably farther away when the signal is given the opening of the draw by the time she is within .1,000 feet is a compliance with the regulation.</p> <p>[Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 73-99; Dec. Dig. <&wkey;20.]</p> <p>3. Collision <&wkey;74 — Moving and Moored Vessel — Fault.</p> <p>Evidence held, to sustain a finding that a collision between moving and1 moored vessels was due solely to the negligent handling of the moving vessel and her failure to have a licensed pilot.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 104; Dec. Dig. &wkey;74.]</p>

<p>lu Error to the District Court of the United States for the Northern District of West Virginia, at Martinsburg; Alston G. Dayton, judge.</p> <p>Action by Peter W. Reherd, as receiver of the late firm of Walton, Purcell, Moorman & Co., against the Coal & Iron Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Dooling, Judge. Habeas corpus by Chu Tai Ngan against Samuel W. Backus, as Commissioner of Immigration at the Port of San Francisco, and the United States, to review an order directing her deportation. Writ dismissed, and she appeals.

<p>Contracts <&wkey;28— Evidence as to Agreement — Abmissitsility.</p> <p>in an action by the indorsor of a note to recover of another indorser the amount paid by reason of the indorsement under the claim that defendant had agreed as between himself and plaintiff to pay the note, it was proper to show the existence of defendant’s alleged duty and the naturalness and oquitabloness of Ms alleged agreement as bearing: upon the probability that it was made.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 133-110, 1755, 1782-1784, 1785%, 1820, 1821; Dec. Dig. &wkey;28.]</p>

' Appeal from the District Court of the United States for the Southern District of New York. This cause comes here on appeal from an order and decree holding that letters patent No. 662,714, granted to the Elmira Skirt Company as assignee of Henry J. Eeuchtwanger, was valid and infringed, and awarding an injunction and an accounting.

Appeals from the District Court of the United States for the Eastern District of New York. These causes come here upon appeals from decrees finding infringement by defendants of United States patent No. 1,095,406, issued May 5, 1914, to Clarence J. Lawson for an improvement in machines for applying bottle closures. The defendants in one suit are makers; in the other, users. The opinion of the District Judge will be found in 226 Fed. 203.

In Equity. Suit by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against the Diamond Rubber Company of New York. On exceptions to master’s report. This is a hearing upon exceptions to a master’s report upon an accounting in a suit in equity for patent infringement.

<p>1. Patents —Validity and Infringement — Cup Dispensing Api>aba-tus.</p> <p>The DuivUen patent, No. 1,031,508, lor a dispensing apparatus for delivering a cup or fluid container, held not anticipated, valid, and infringed.</p> <p>2. Patents <S=»9.'5 — Amendment of Application — Effect of Pjuob Assignment.</p> <p>An applicant for a patent, although he has assigned his rights under the application, may still complete the taking out of the patent, and, if necessary, amend the claims within the scope of the specification.</p> <p>¡Ud. Note. — For other cases, see Patents, Cent. Dig. § 127; Dec. Dig.</p> <p>3. Patents <®^328 — Validity and Infringement — Sanitary Cup.</p> <p>The Luellen patent, No. 1,032,557, for a paper enp to be used in connection with a coin-controlled apparatus for dispensing beverages or similar purposes,' held valid, but not infringed.</p>

If Equity. Suit by the Weber Electric Company against the Wirt Manufacturing Company for infringement of letters patent No. 743,-200. for an incandescent electric lamp socket, granted to August, WJx-r November 3, 1903. On final hearing. Decree for complainant.

<p>1. Patents <@=>328 — 'Validity and Infringement — Electric Lamp Socket.</p> <p>Tlie Weber patent, No. 743,206, for an incandescent electric lamp socket, claim 4, is not limited, either by the prior art or by amendments made in the Patent Office, to the precise structure shown and described, but, in view of its advance over the prior art and the general adoption of the device, it is entitled to a fair range of equivalents; also held, infringed.</p> <p>2. Patents <@=>368 — Construction—Effect of Amendment of Claims.</p> <p>The limitation imposed by an amendment of a claim to meet objections of the Patent Office will be given its necessary effect, but the estoppel will not be extended beyond that.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. <@==>168.]</p> <p>3. Patents <@=>243 — Infringf.ment—Changing Form of Structure.</p> <p>Merely changing the form or location of the mechanical elements of a patented structure does not avoid infringement, if such alterations are but different ways of mechanically expressing the dominant feature of the inventive idea and achieve the same result in substantially the same way.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 382-384; Dec. Dig. <@=>243.]</p>

<p>In Equity. Suit by the General Electric Company against the Philadelphia Electric & Manufacturing Company. On final hearing on bill, answér, and proofs. Decree for defendant.</p>

<p>Patents <3t5>301 — Sutt eoe Infringement — Preliminary Injunction.</p> <p>Where the complainant in an infringement suit' lias unnecessarily delayed bringing the cause on for hearing, until one of the patents involved has; almost expired, the court is justified in refusing a preliminary injunction, especially when it would injuriously affect the public.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 489-495; Dec. Dig. <s=»:50L]</p>

At Law. Action by Taggart Aston against the Examiner Printing Company and others. Judgment for plaintiff, and defendants apply fur new trial.

<p>■ In Admiralty. Petition of the Great Takes Construction Company, as owner of tire steam derrick Teddy, for limitation of liability.</p>

In Equity. Suit by Henry L. Bogert, Townsend Lawrence, and Anita Lawrence, as executors of the will of Walter B. Lawrence, deceased, suing on behalf of themselves and other stockholders of the Houston & Texas Central Railway Company similarly situated who iinay come in and contribute to the expenses of the action, against the Southern Pacific Company. Decree for complainants.

<p>1. Conspiracy <&wkey;27 — Criminal Liability — Overt Act.</p> <p>The commission of conspiracy is not complete until one or more of the conspirators do some overt act or acts in execution or furtherance of the conspiracy, which acts may be innocent in and of themselves, or criminal acts in their very nature or by virtue of some statute of the United States.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 38, 39; Dec. Dig. &wkey;27J</p> <p>2. Conspiracy <&wkey;>43 — Indictment—Overt Acts.</p> <p>An indictment for conspiracy must plainly and distinctly set out the overt acts, or some of them, and if the conspiracy be that one was to do the overt act, and that the other should aid and abet him, the indictment-necessarily and properly charges what each was to do.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. &wkey;>43.]</p> <p>3. INDICTMENT AND INFORMATION <S&wkey;125 — 'FEDERAL STATUTE-DUPLICITY — > Conspiracy.</p> <p>Rev. St. § 5209 (Comp. St. 1913, § 9772), provides that a teller who embezzles, abstracts, or willfully misapplies any of tbe funds of tbe bank, with intent to injure or defraud, and every person wbo with like intent aids or abets him in any such act, shall be guilty of a misdemeanor. Penal Code (Act March 4, 1909, c. 321), § 332, 35 Stat. 1152 (Comp. St. 1913, § 10508), provides that whoever directly commits any act constituting an offense defined in any law of the United States, or aids or abets its commission, is a principal. An indictment (barged a conspiracy between defendants to commit an offense against the United States, in that one of them, acting as teller in a national bank, would abstract its funds, and that the other defendants would aid and abet him in so doing. II ehl that, while it was unnecessary to allege that the overt act constituted a crime, the rule against duplicity did not prohibit tbe charging of overt acts in and of themselves crimes, or a statement that such acts of themselves constituted a crime, since the conspiracy to commit a crime against the government and the commission of the crime are separate and distinct crimes, and since, if the proof failed to establish the conspiracy, the whole count fails, and a defendant could not be convicted under a conspiracy count, on a showing- that he had committed the acts charged theréin as an overt act.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig §§ 331-400; Dec. Dig. &wkey;125.]</p> <p>4. Conspiracy <&wkey;37 — Defenses.</p> <p>The fact that conspirators, in doing acts to execute the conspiracy actually commit the crime which they conspired to commit, is no de fonse to the charge of conspiracy.</p> <p>[Ed. Note.- — For other cases, see Conspiracy, Cent. Dig. §§ 68-70; Dec Dig. &wkey;37.]</p> <p>5. Indictment and Information <&wkey;125 — Duplicity—Conspiracy.</p> <p>An indictment for conspiracy to commit an offense against the United States, charging that one of the defendants, as teller of a national bank, abstracted, misapplied, and embezzled moneys, and in each of such counts charging that the other defendants aided and abetted such acts, was not bad for duplicity, since, under Penal Code, § 332, one aiding and abetting an offense against tbe United States becomes a principal and commits the same crime.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. ¡jij 331-400; Dec. Dig. <&wkey;>125.]</p>

In Bankruptcy. In the matter of Adam Stanny, bankrupt. On motion to punish the bankrupt for contempt of court in disobeying an order of the referee.

In Bankruptcy. In the matter of the Rockaway Soda Water Manufacturing Company. On order to show cause why money received from funds of bankrupt corporation just before petition was filed should not be returned.

<p>1. Shipping <&wkey;l32 — Liability for Damage to Cargo — Unseaworthiness.</p> <p>The forepeak of a vessel became filled with sea water on a. voyage from Genoa to New York, and a shipment of hides stowed therein was spoiled. The water entered through holes in a plate where the points of two rivets had broken off. The vessel was 13 years old, and there was evidence that the ends of the rivets were rusted, which might have resulted from their not being hammered down sufficiently tight on the plate to exclude the water. The vessel was surveyed and repaired generally at Genoa, but there was no evidence that the rivets were inspected or tested. The pump in the forépeak which, if in good condition, could have kept down the water when started, proved ineffective, and at the end of the voyage was found to be cracked and to have been patched with cement in the between-decks. There was general testimony by the officers that it was examined at Genoa, but it was not shown how thorough the examination was or that it was tested. Heavy, but not extraordinary, weather was encountered during the voyage. Held, that claimant had not sustained the burden of proving that the ship was seaworthy at the beginning of the voyage and that she was liable for the cargo damage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. &wkey;>132.]</p> <p>2. Shipping <&wkey;132 — Suit for Damage to Cargo — Burden of Proof.</p> <p>Where cargo was damaged by sea water which entered through holes in the plates where the ends of two rivets had broken off, the burden is on the vessel to show the cause of the breakage, and the fact that she encountered heavy weather during the voyage is nott alone sufficient to support a finding that it was due to perils of. the sea, in the absence of proof that the rivets were in good condition at the commencement of the voyage.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dee. Dig. &wkey;132.]</p> <p>3. Shipping c&wkey;132, 140 — Damage to Cargo — Exemption in Bill of Lading-Latent Defects.</p> <p>A provision in a bill of lading exempting the ship from liability for loss or damage to cargo caused by “unseaworthiness of the ship at the commencement or at any period of the voyage arising from any latent defect in hull” must be strictly construed, and to bring a case within it the proof must show that the defect was latent at the beginning of the voyage and could not have been discovered by an inspection.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487, 493-495; Dec. Dig. &wkey;132, 140.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York. •</p> <p>Tliis cause comes here upon appeal from a decree in favor of libel-ant, for damages to a lot of salted hides, loaded in December, 1910, on the steamship Citta di Palermo, which upon arrival here were found wet and rotted from contact with and immersion in sea water. The hides were stowed m the forepeak; the vessel encountered very severe weather which continued for several days. On the morning of January 19th, sea water was discovered in the forepeak. The pump was immediately started, but the leak could not be located or the inflow of water stopped, and the compartment remained flooded to the height of the water line until arrival at New York. The vessel being placed on dry dock, it was found that on the starboard side, about on the 13 Toot mark and forward of the collision bulkhead the points of two rivets were off; the beads of the rivets on the inside were tight up' against the frame and the part of the rivets extending from the head to the point where the frame came against the plate was there. It is not disputed that the water which entered the compartment came through these rivet holes and between the plate and the frame. The opinion of Judge Veeder will be found in 226 Fed. 522.</p>

Suit by W. A. Gaines & Co., a corporation, against the Rock Spring Distilling Company and another. From a decree of dismissal, complainant appeals. Appellant, Gaines & Co., is a Kentucky corporation. Appellee Rock Spring Distilling Company is also a Kentucky corporation, and appellee RosenfieJd is the licensee and operator of its distillery, and is a citizen of Kentucky. The appellant will bo referred to as plaintiff; tho appellees, as defendants.

<p>1, TKADE-MABKS AND TRADE-NAMES &wkey;>85~YALIDITY or Tbade-Maek.</p> <p>A trade-mark, attached, to a medicinal preparation which may do some good along the lino of its advertised benefits, is not invalid merely because the preparation is harmful when an excessive amount thereof is taken.</p> <p>[Ed. Note. — For other cases,.see Trade-Marks and Trade-Names, Cent. Dig. § 94; Dec. Dig. <&wkey;85.J</p> <p>2. T ¡ v v- M v;ks and Trade-Names <&wkey;31 — Property Right in Trade-Mark.</p> <p>If there is a property right inhering in a trade-mark, perfected by adoption, or by adoption and use, it seems that a later appropriator is a trespasser, though at the time of the later appropriation the prior claimant of the trade-mark had not extended his trade into the later appropriator’s territory, and the mere fact that there has been no actual conflict in trade is not a sufficient answer to the prior appropriator’s demand for relief.</p> <p>[Eil. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § R5; Dec. Dig. <&wkey;>.‘ll.]</p> <p>3. Trade-Marks AND Trade-Names i&wkey;63 — Property Right in Trade-Mark —Injunctive Relief.</p> <p>Claimant’s predecessor in business, whose name was Regis, compounded about 1S77 a medicine useful for dyspepsia and some other disorders, and devised and adopted as a distinguishing name therefor the word “Res.’’ This word was used in advertising signs, and marked on the boxes and packages put on the market, and it became her trade-mark. In 1898 she registered the word as a trade-mark under the laws of Massachusetts, and in 1900 the trade-mark was registered in the Patent Office. During more than 20 years after the adoption of the trade-mark nothing was done to make the product known outside of the New England states, save sporadic sales in territory practically adjacent thereto. No advertising wras intended to reach Kentucky, and no salesman was sent there. Defendant, ignorant of the trade-mark of complainant or his predecessor, adopted for its medicine, a blood purifier, the word “Rex.” Defendant had been using the mark in his own trade for more than 15 years, and had expended several thousand dollars in making the drug known, and had established a considerable, though local, business in Louisville, Ky., and vicinity, and its excursions outside of the local field were inconsiderable. Held, that complainant was not entitled to an injunction to restrain defendant from using in the future “Rex” in connection with its preparation, and in the territory already occupied.</p> <p>[Ed. Note. — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §' 77; Dec. Dig. <&wkey;>63.</p> <p>Unfair competition in use of trade-mark or trade-name, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>On Petition for Rehearing.</p> <p>4. Trade-Marks and Trade-Names <&wkey;86 — Laches—Estoppel.</p> <p>Though the first appropriator’s mere laches will not prevent an injunction against a later appropriator, yet where the mark is one likely to be adopted by some one else, where it has been so adopted by defendant in good faith, and expenditure invested in it, and where complainant’s neglect to do anything in the way of extending trade or giving notice has been extreme enough, the principles of estoppel operate to prevent an injunction.</p> <p>[Ed. Note. — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. i&wkey;86.]</p> <p>5. Trade-Marks and Trade-Names <&wkey;26 — Adoption of Trade-Mark — Publication.</p> <p>The duty of one adopting a trade-mark in bringing it at once to the attention of the public rests on the theory that, in the absence of a widespread knowledge of the existence of the claim to the mark, others will be likely to adopt it and spend their money in its promotion in their own interest, and so the obligation varies with the circumstances of each case.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 29; Dec. Dig. <&wkey;26.]</p> <p>6. Trade-Marks and TraIde-Nahes <&wkey;45 — Registration under State Law —Effect.</p> <p>The effect of registration of a trade-mark under the law of a state is confined to that state.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 53, 59; Dec. Dig. &wkey;45.]</p> <p>7. Trade-Marks and Trade-Names <&wkey;45 — Registration of Trade-Mark under Federal Act — Notice.</p> <p>■Registration under the federal Trade-Mark Act is not actual or constructive notice of the rights claimed, though it tends to give notice, since the substance of the registration is published in an official journal, which Is regularly scrutinized by many manufacturers and dealers and those proposing to adopt a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. jj§ 53, 59; Dec. Dig. <&wkey;45J</p> <p>8. Teade-Marks and Trade-Names &wkey;>$7 — Injunctive Relief — Estoppel.</p> <p>Complainant’s predecessor in business, whose name was “Regis,” compounded about 1877 a medicine and adopted as a distinguishing name tlieiefor the word “Rex.” It was registered as a trade-mark in 1898 under the law of Massachusetts, and in 1900 it was registered in the Patent Office. Complainant's predecessor, prior to 1900, made no appreciable effort to extend her trade or mark beyond Massachusetts. She did not advertise in any,journal, nor employ any outside solicitors. Defendant, ignorant of the trade-mark adopted for its medicine the word “Rex,” and used it in his own trade for many years expending several thousand dollars in making its medicine known and establishing a business in Kentucky. Held, that complainant and predecessor were, because of estoppel, not entitled to injunction to restrain defendant from using in the future “Rex” in connection with its medicine.</p> <p>(Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 95; Dec. Dig. &wkey;87.]</p>

<p>Appeal from the District Court of the United States for the East-en District of South Carolina, at Columbia; Henry A. M. Smith, Judge.</p> <p>[Jill by Edward H. Titus against the Granite Brick Company and another. From a decree for complainant, defendants appeal.</p>

<p>1. Appeal and Error <§=3336 — Dismissai>-Parties.</p> <p>In view of Rev. St. § 1005, declaring that a writ of error or appeal, defective by reason of the absence of parties, may be corrected in the discretion of the court although the period within which a new writ of error could be sued out from the date of the original judgment had elapsed, an appeal by judgment creditors, who sought to enforce the lien of their judgments upon the winding up of a corporation, will not be dismissed because simple contract debtors other than the principal one were not made parties; it appearing that all rights which they might have urged were urged by the one who was a party.</p> <p>[13d. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1S6S-1876; Dec. Dig. <§=5336.]</p> <p>2. Corporations <@=3566 — Dissolution—Liens—Recovery.,</p> <p>Where a court of equity takes jurisdiction over the property of a debt- or corporation to wind it up, no lien can be acquired save under special circumstances or provisions of law, except by decree of the court having jurisdiction.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 2283-2286; Dec. Dig. <@=566.]</p> <p>3. Equity <§=339 — Jurisdiction—Complete Relief.</p> <p>Where a court of equity acquired jurisdiction of a suit by a creditor of a corporation to whom corporate stock had been pledged, and it appeared that the corporation was insolvent, the court will retain jurisdiction and proceed to administer complete relief.</p> <p>[Ed. Note. — For other cases, see Equity, Cent Dig. §§ 104 — 114; Dee. Dig. <§=3.39.]</p> <p>4. Corporations <@=3566 — Insolvency—Judgment Liens — Validity.</p> <p>A creditor of a corporation filed his bill in federal court against the corporation, praying that it be restrained from mortgaging or otherwise incumbering its property, that a receiver be appointed, and that other creditors be required to prove their claims. A temporary restraining order was issued which did not restrain the other creditors from reducing their claims to judgment, and pending further proceedings plaintiffs in error reduced their claims to judgment‘in the state courts. Thereafter a receiver was appointed, and the federal court proceeded to wind up the affairs of the corporation. Reid that, by reason of their superior diligence, plaintiffs in error were entitled to their liens acquired by their judgment at law, for, until a decree was passed either enjoining creditors froni pursuing their legal remedies or a receiver was appointed, they might proceed at law.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. <©=3566.]</p> <p>6. Equity <§==54 — Maxim—Equity Follows the Law.</p> <p>Where creditors reduced their claims to judgment notwithstanding the filing of a suit wherein a receiver was subsequently appointed and all creditors were required to prove their claims, such creditors, under the maxim that equity follows the law, take priority despite the! rule that equality is equity.</p> <p>[Ed.- Note. — For other cases, see Equity, Dec. Dig. <§=354.]</p>

<p>1. Master and Servant <§==>284 — Relation—Question ion Jury.</p> <p>In an action for personal injury to plaintiff while working on a dock in discharging a vessel, held, on the evidence that whether the defendant, as managing agent of the vessel, was individually liable as plaintiff's employer was for the jury.</p> <p>[Ed. Note. — Dor other eases, see Master and. Servant, Cent Dig. §§ 1000-3090, 1092-1132; Dee. Dig. <§=284.]</p> <p>2. Master and Servant <®=sj277 — Disclosure of Part of Knowledge.</p> <p>The fact that, a dock laborer employed by defendant in discharging a vessel acknowledged receipt of money by signing a pay roll, headed, “from Captain ——■ for account of above steamer and her owners,” was not conclusive proof to him that the defendant was not the owner as well as the manager, and did not put him upon inquiry, since a third person’s knowledge of facts and circumstances which, if reasonably followed by inquiry, would have disclosed the principal, does not operate to relieve the agent from personal liability, but such person must have actual knowledge of the principal’s identity.</p> <p>[Ed. Note. — For other cases, seo Master and Servant, Cent. Dig. § 953; Dec. Dig. <§=>277.]</p> <p>8. Appeal and Error ®=274™Instructions — Scope of Exception.</p> <p>In an action for personal injury to a dock laborer while discharging a vessel, an exception to the refusal of defendant’s instruction that the foreman and engineer operating the winch were plaintiff’s fellow servants, for whose negligence ho could not recover, taken on the ground that the Oregon Employers’ Liability Act (Laws 1911, p. 16) did not apply to the unloading of vessels engaged in interstate commerce, did not question an instruction that under the state law all machinery not operated by hand, whenever it was necessary for safety, should be provided with a system of communication signals, and that defendant’s failure to comply therewith would bo negligence entitling plaintiff to recover, but only questioned the part of the state law providing that the negligence of a superintendent should not be a defense to an action.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1631-1645; Dec. Dig. @=>274.]</p> <p>4. Master and Servant @=>287 — Master’s Liability — Fellow Servants.</p> <p>It could not be said, as a matter of law, that the mate of a vessel superintending its discharge, with power to discharge the dock laborers, was a fellow servant of a dock laborer.</p> <p>[IOd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045,1051,1052, 1054^-1067; Dec. Dig. @=>287.</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>5. Master and Servant @=>182 — Master’s Liability — Fellow Servants— Statutes.</p> <p>Plaintiff, employed in Oregon by defendant, a local corporation, as a dock laborer in the discharge of a vessel, in his common-law action for damages for injuries sustained, was entitled to the protection of Oregon Laws 1911, p. 16, declaring that negligence of a fellow servant, shall not be a defense to a servant’s action for injury from the negligence of any person engaged in superintendence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 371, 372; Dec. Dig, @=>182.]</p> <p>6. Commerce @=>57 — Regulation—Master and Servant.</p> <p>The Oregon statute, depriving an employer of the defense that the negligence resulting in injury to a servant was that of a foreman, is not a regulation of or a burden on interstate commerce, hut a law clearly within the power of the state to enact as to injuries through negligence in actions arising within the state as to all persons engaged in business therein, whether such business is connected with interstate commerce or not.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 72-76, 88, 90. 92-102; Dec. Dig. @=>57.]</p> <p>7. Master and Servant @=>131 — Master’s Liability — State Regulation— Police Power.</p> <p>A state may, in the exercise of its police power, whenever necessary for the safety of persons employed at and about machinery, enact the humane and reasonable requirement that there shall be a system of communication by signals for the protection of its citizens and those within its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 265, 279; Dec. Dig, @=>131.]</p> <p>8. Admiralty @=>20 — Jurisdiction—Tort—Personal Injury to Dock Laborer.</p> <p>In an action at law for injury sustained by plaintiff while working on a dock in defendant’s employ in discharging a vessel, the Oregon employers’ liability, law, providing that whenever necessary for the safety of persons employed in and about it, all machinery not operated by hand power shall be provided with a system of communication by means of signals, was applicable where the injury occurred on the dock, since the case was not within the admiralty jurisdiction, nor was the state láw rendered inapplicable by the fact that the plaintiff’s contract of employment was a maritime contract, since the plaintiff was suing, not upon the contract, but on the ground of defendant’s negligence.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent Dig. §§ 216, -225, 231; Dec. Dig. @=>20.]</p> <p>■9. Admiralty @=>1S — Jurisdiction—Tort. •</p> <p>The test of admiralty jurisdiction in tort is locality; where the cause of action is completed on navigable waters, admiralty has jurisdiction, but wliwe it is completed on land, the remedy belongs to the courts of common law.</p> <p>[Hd. Note. — For other cases; see Admiralty, Cent. Dig. §§ 206-221; Dec. Dig. <G=>18.</p> <p>Admiralty jurisdiction of torts, see notes to Campbell v. H. Haekfeld & Co., 62 O. C. A. 27Í); Monongahela Eiver Consol. Coal & Coke Co. v. Schin-merer, 117 C. C. A. 203.]</p> <p>10. ADMIRALTY ©=1 — JURISDICTION—STATE LEGISLATION.</p> <p>The maritime law of the United States subsists as an entirety, of which tiie federal courts have exclusive jurisdiction, and must be administered by i hem unaffected by state legislation.</p> <p>[Xíd. Note. — For other eases, see Admiralty, Cent. Dig. §§ 1-17; Dec. Dig. ©=1.]</p> <p>11. Admiralty <3=>21 — Jurisdiction—-Tort on Navigable Waters.</p> <p>In the absence of a x’emedy by maritime law, a state statute may furnish a remedy for death which occurs from tort on navigable waters, which remedy may be enforced in a proceeding in admiralty.</p> <p>fill. Note. — For other cases, see Admiralty, Cent. Dig. §§ 218-220; Dec. Dig. ©=21.]</p> <p>12. Courts ©=322 — United States Courts — Diversity oit Citizenship— Amendment oi? Complaint.</p> <p>Under Act Cong. March 3, 1915, c. 90, 38 Stat. 956, permitting an amendment in the appellate court so as to show on the record diverse citizenship and jurisdiction, plaintiff, in an action at law for personal injury while in the employ of defendant, brought in the federal court on ground of diversity of citizenship, whoso complaint properly alleged the citizenship of defendant; but did not allege his own citizenship, might amend so as to show the diversity of citizenship.</p> <p>[Ud. Note. — For other cases, see Courts, Cent. Dig. §§ 876-881, 8S7; Dec. Dig. ©=322.]</p> <p>iioss, Circuit Judge, dissenting.</p>

Dool'mg, judge. Bill by the Power & Irrigation Company of Clear Rake, a corporation, against Joseph Craig and others. From a judgment dismissing the suit, complainant appeals.

<p>Jn Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Action by the Pensacola State Bank against J. E. Thornberry and others. There was a judgment for defendants, and plaintiff brings error.</p>

<p>1. Carriers <&wkey;189 — Carriage of Goons — Rates—Aggregation.</p> <p>An express company’s rale, that two or more packages forwarded by one shipper at the same time to one consignee at one address must bo charged for on the aggregate weight, provided that any of the packages weighing less than 20 pounds each shall be charged for as weighing 20 pounds each, restricts aggregation to instances where one shipper forwards several packages at the same time, and permits aggregation in such cases without regard to the amount of the merchandise rate, established by the company as the basis for rates on all classes of articles transported.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. &wkey;189.]</p> <p>2. Oakeieks <©=>189 — Carriage of Goods — Rates—Aggregation.</p> <p>The provision, in an express company’s rule for aggregating weights and the charge on the aggregated weight, that, where the merchandise rate per 100 pounds is $1.50 or more, two or more packages forwarded by the same company from the same city or town on the same date to one consignee at one address must be charged for on the aggregate weight, If a lower charge is thereby made, extends the practice of basing charges on aggregate weights to cases where several shippers forward two or more xiackages on the same date, resulting in a lower charge, but restricts the rule of aggregating weights to cases where the merchandise rate por 100 pounds is $1.50 or more.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. <&wkey;189.)</p> <p>3. Oabbieks <&wkey;.189 — Carriage of Goods — Rates—Aggregation.</p> <p>An express company’s rule that, where the basic merchandise rate per 100 pounds is $1.50 or more, two or more packages forwarded by the same company from the same city on the same date to one consignee at one address, whether from one or more than one shipper, must be charged for on the aggregate weight, if a lower charge is made thereby, and that, where the basic rate is less than $1.50, the aggregate charge on shipments from more than one shipper to one consignee forwarded from tlie same point on the same date must not be more than where the rate is $1.50, deals with two distinct situations, the first part of the rule dealing with aggregate weights, and the last with charges, and several packages shipped by several consignors between points at which the basic rate is ¡¡51.50 or more must be aggregated, if the charge thereby-made is lower than the total of the graduated charges for the packages under the general merchandise rates, and where the basic rate is less than ¡¡>1.50 the aggregate charges on nonaggregated shipments must not be more than where the rate is $1.50, and the last provision of the rule fixes a maximum aggregated charge on nonaggregated weights of packages where the basic rate is less than $1.50, and the maximum charge is so fixed that the aggregate charges on nonaggregated packages shall not exceed the charge on aggregated packages shipped under the rate of $1.50 or more, thereby preventing a higher charge for a" short haul than is demanded for the same gross weight on a long haul.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 162, 854, 855, 850-865; Dec. Dig. &wkey;189.]</p> <p>4..Commebce <&wkey;92 — Carriage op Goods — Rates—Jurisdiction.</p> <p>The question of the construction of a rule of an express company providing for aggregating weights, to determine whether the company has been paid excessive charges, does not rest solely within the jurisdiction of the Interstate Commerce Commission, but the District Court has jurisdiction in an action by a shipper to recover alleged overpayments.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 142; Dec. Dig. <&wkey;92.]</p> <p>On Petition for Rehearing.</p> <p>5. Carriers c&wkey;l89 — Carriage op Goods — Rates—Aggregation.</p> <p>Under an express. company’s rule that, where the basic merchandise rate per 100 pounds is $1.50 or more, two or more packages forwarded by the same company from the same city on the same date to one consignee at one address, whether from one or more shippers, must be charged for on the aggregate weight, if a lower charge is made thereby, and that, where the basic rate is less than $1.50, the aggregate charge on shipments from more than one shipper to one consignee, forwarded from the same point on the same date, must not be more than where the rate is $1.50, the consignee cannot, where a large number of shipments are received, pick out packages of weights that will aggregate, and, by aggregating their weights, pay the aggregate rate on the selected packages and the graduated rates on packages of weights not capable of aggregation.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 162, 854, 855, 859-865; Dec. Dig. &wkey;189.]</p>

<p>1. MORTGAGES <&wkey;32-TRANSACTION — STATUTE.</p> <p>Under Civ. Code Cal. § 2924, declaring that every transfer of an interest in property as security for the performance of another act is a mortgage, section 2SS8, declaring that, notwithstanding an agreement to tile contrary, a lien transfers noi title to the property subject thereto, and Code Civ. Proc. Cal. § 744, providing that a mortgage shall not be deemed a conveyance so as to enable the mortgagor to recover possession without foreclosure and sale, a transaction whereby the complainant’s predecessor, owning and in possession of land, borrowed money from defendant and executed its promissory note, and to secure the note executed a deed absolute in form, was a “mortgage.”</p> <p>[Ed. Note. — Fbr other cases, see Mortgages, Cent. Dig. §§ 60-66, 84r-94; Dec. Dig. <&wkey;32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Mortgage.]</p> <p>2. Limitation ox Actions <&wkey;167 — Security—Lien—Extinguishment.</p> <p>Where mortgage notes were barred by the limitation of Code Civ.‘ Proc. Cal. § 337, the lien created by the mortgage was thereby extinguished under the express provision of Civ. Code Cal. § 2911.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 652; Dec. Dig. &wkey;>167; Mortgages, Cent. Dig. § 1599.]</p> <p>3. Quieting Title <&wkey;l — Form ox Action — Allegations.</p> <p>Where complainant, the owner of the legal title to land, had mortgaged it by deed absolute in form to secure its indebtedness to the defendant, which mortgage lien had been extinguished by operation of law beforei the commencement of the suit, and the other defendants had taken with full knowledge of the nature of the conveyance, a bill for an accounting, etc., was a bill to quiet title to the land in question.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 1, 2; Dec. Dig. &wkey;>l.]</p> <p>4. Quieting Title @=»14 — Conditions Precedent.</p> <p>The mortgagor will be required to pay the mortgage debt as a condition of redeeming, though the lien is extinguished because equity requires every one seeking equity to do equity.</p> <p>[Ed. Note. — For other eases, see Quieting Title, Cent. Dig. § 46; Dec-Dig. &wkey;>14.]</p> <p>5. Courts <&wkey;312 — United States Courts — Jurisdiction.</p> <p>A bill in the nature of a mortgagor's bill to redeem, based upon the effect imposed by state statute upon the instrument executed by complainant’s predecessor to defendant, and upon the conveyance of the legal title to the land by the trustees of the complainant’s predecessor to complainant, was not a suit based upon a chose in action within Judicial Code, § 24 (Act March 3, 1911, e. 231, 36 Stat. 1091 [Comp. St. 1913, § 991]), providing that no District Court shall have cognizance of any suit to recover on a chose in action unless it might have been prosecuted- in such court if no assignment had been made.</p> <p>[Ed. Note. — For other cases, see Courts, Gent. Dig. §§ 865-875; Dec-Dig. &wkey;j312.]</p>

T. Dooling, Judge. Suit by the Power & Irrigation Company of Clear Lake, a corporation organized and existing under the laws of the state of Arizona, against L. D. Stephens arid the Yolo Water & Power Company, a corporation organized and existing under the laws of the state of California. Judgment for defendants, dismissing the suit, and plaintiff appeals.

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; M. T. Dooling, judge.</p> <p>Suit by tlie Power & Irrigation Company of Clear Lake against J. M. Adamson and others. From a judgment .of dismissal, plaintiff appeals.</p>

<p>1. Evidence <&wkey;441 — Parol» Evidence — Written Instruments — Admissibility — “Express Warranty.”</p> <p>Notwithstanding Gen. Code, Ohio, § 8392, declares that any affirmation of fact or any promise by the seller relating to the goods is an express warranty, if the natural tendency of such affirmation is to induce the buyer to purchase, an oral representation made in the negotiations leading up to a written contract of sale is not admissible to establish a warranty, where the written contract purported to declare the agreement between the parties.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. <&wkey;441; Contracts, Cent. Dig. § 1616; Sales, Cent. Dig. § 721.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Express Warranty.]</p> <p>2. Sales <&wkey;273 — Warranties—Implied Warranties.</p> <p>Where secondhand coal barges are sold, there is no implied warranty that they are equal in quality to the new, but only that they are reasonably fit for the purpose for which they are intended.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 772-776; Dec. Dig. <&wkey;273J ____</p> <p>3. Sales <&wkey;137 — Action's fob Breach — Pleadings.</p> <p>Where the seller’s false statement as to the age of coal barges and as to whether they were1 made of pine or hemlock were not alleged as warranties, no recovery could be had on that ground.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1248-1257; Dec. Dig. <&wkey;437J</p> <p>A Sales <&wkey;2S5 — Action for Breach op Warrants — Notice.</p> <p>Under Gen. Code Ohio, § 8429, a purchaser has neither right of action for breach of warranty in a contract of sale, nor defense to an'action for the purchase price, unless notice thereof is given within a reasonable time after ascertaining it.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 806-808, 810; Dec. Dig. <&wkey;>285.]</p> <p>5. Sales &wkey;>285 — Actions—Jury Question.</p> <p>What is a reasonable time within which to give notice to a seller of breach of warranty is usually one of fact for the jury, though it may be one of law, where there is no room for different inferences and the facts are undisputed.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 806-808, 810; Dec. Dig. <&wkey;>285.]</p> <p>6. Sales <&wkey;288 — Breach oe Warranty — Defenses.</p> <p>Where a buyer, after discovering the seller’s breach of warranty as to the seaworthiness of coal barges, renewed or paid the purchase-money notes the breach was waived.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 817-823; Dec. Dig. &wkey;288.]</p> <p>7. Corporations <&wkey;428 — Knowledge of Officers — Knowledge of Corporation.</p> <p>A corporation is charged with knowledge of its president and vice president of defects in coal barges which it purchased, as well as with knowledge of defects discovered by the superintendent of transportation.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. <&wkey;428.]</p> <p>8. Sales <&wkey;441 — Warranties—Breach—Evidence.</p> <p>That, a year after the first delivery, coal barges were discovered to be unseaworthy, it appearing that several trips had been made in the interim, is not substantial evidence that they were unseaworthy at the time of sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig. <&wkey;441.]</p> <p>9. Sales <&wkey;139 — Breach of Warranty — Burden of Proof.</p> <p>Under the facts of the case, the buyer, who claimed that the seller breached a warranty as to the seaworthiness of coal barges, had the burden of proving that the unsea worthiness of certain of the barges was not discovered before a given date.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1258-1260; Dec. Dig. &wkey;439.]</p> <p>10. Sales <&wkey;441 — Breach of Warranty — Evidence.</p> <p>In an action for breach of warranty in a sale of coal barges, evidence heM insufficient to show that the unseaworthiness of certain barges was not discovered before a given date.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 1277-1283; Dec. Dig. <&wkey;>441.]</p> <p>In Error to- the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p>

E. Sanborn, Judge. Action by the United States of America, for the use of- tlae John Davis Company and others, against the Illinois Surety Company and W. H. Schott. Judgment for a part of the claimants against the Surety'Company, and in favor of the Surety Company against part of the claimants, and judgment for defendant Schott, and part of the claimants and the Surety Company bring error.

<p>1, Banicrtmoy @=>273 — Deposuiory—Action on Bond — Parties.</p> <p>Upon a bond given irarsunnt to Bankr. Act July 1, 1898, c. 541, § 61, 30 Shit 562 (Comp. St. 1913, § 9645), requiring courts of bankruptcy to designate depositories for the money of bankrupt estates and to require bonds therefrom, and section 50h (Comp. St. 1913, §' 963-1), providing that bonds of such depositories may be sued upon in the name of the United States for the use of any person injured by a breach of their conditions, conditioned to pay over all deposits which it shall at any time receive as such depository, the beneficiaries include all depositing trustees and receivers of bankrupt estates.</p> <p>[Ed. Nota- — For other cases, see Bankruptcy, Cent. Dig. § 347; Dec. Dig. <8™273.]</p> <p>2. Bankruptcy @=3273 — Depositories—Bond—Subrogation op Surety.</p> <p>The surety on such bond has no right of subrogation until all the creditors obtain from the depository or the surety payment, not merely of the penalty, but of the depository’s entire obligation.</p> <p>| Ed. Note. — Dor other cases, see Bankruptcy, Cent. Dig. § 347; Dec. Dig. <&»273.]</p> <p>8. Bankruptcy @=>273 — 'Depository’s Bond — Action.</p> <p>Under Bankr. Act, § 50h, providing that bonds of designated depositories may be sued upon in the name of the United States for the use of any person injured by a breach of their conditions, an action may he brought in the name of the United States on behalf and for the use of all the interested parties.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 347; Dec. Dig. @=»273.]</p> <p>4. Bankruptcy @=>273 — Depository's Bond — Action in Equity — Statutes.</p> <p>Under Bankr. Act, § 61, requiring courts of bankruptcy to designate depositories for the money of bankrupt estates and to require bonds therefrom, and section 50h, providing that such bonds may be sued upon ill the name of the United States for the use of any person injured by breach of their conditions, the claims of trustees and receivers in several bankruptcy proceeding's, though based upon a single obligation, are several, and, as the United States is not a trustee empowered to represent the claimants as equitable beneficiaries, the common law furnishes no remedy, s;o that a court of equity could alone afford an adequate remedy, and, where the action had been brought at law, judgment will be reversed, and the cause remanded, with leave to amend the pleadings, that it may proceed as a suit in equity, pursuant to Judicial Code, § 274a, added by Act March 3, 1915, e, 90, 38 Stat. 956.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. § 347; Dec. Dig. <S=>273.]</p>

<p>In Error to.the District Court of the United States for the Second Division of the Northern District of California; Win. C. Van Fleet, Judge.</p> <p>Action by John Wieland, doing business under the firm name and style of Wieland Bros., against the Canadian Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error.</p> <p>The defendant in error brought an action to recover the value of goods delivered to the plaintiff in error for transportation from Antwerp, Belgium, to San Francisco, Cal. The goods were destroyed by fire while they were stored in the government warehouse at Antwerp, in the custody of the customs authorities of the ..kingdom of Belgium. A jury trial was waived, and the cause was tried before the court on an agreed statement of facts, the substance of which is the following:</p> <p>The defendant is a corporation of the Dominion of Canada, having a place of business in San Francisco, and is a common'carrier of goods for hire. It maintained an agency in the city of Antwerp, Belgium, in the sole charge of one Debenham, who for seven years had been its European continental traffic agent. It was his duty as such traffic agent to receive at Antwerp, Belgium, to the extent that such shipments could be received by any one at Antwerp, pursuant and subject to the provisions of the International Treaty hereinafter referred to, and the laws of the kingdom of Belgium, shipments of merchandise such as that here involved coming there in bond for export pursuant and subject to said treaty, intended to be transported by the defendant, and to give such directions to the government authorities at Antwerp as were necessary to have such shipments of merchandise placed on board of steamers leaving Antwerp, and connecting with defendant’s railroad at Montreal, Canada, lint it was liis duty to receive and forward such shipments and merchandise as aforesaid only to the extent and in the sense and in the manner according to which shipments of merchandise coming into the kingdom of Belgium in bond for export, pursuant and subject to the terms of the International Treaty might be received by any one at Antwerp, to be thence forwarded under and pursuant and subject to the provisions of said treaty. The defendant did not own the steamers upon which the shipments were embarked, but arranged with the owners of steamers for such space as was required from time to time to carry to Montreal such shipments as were ultimately intended to be carried towards their destination by the defendants railroad. Such arrangements for ocean carriage of the shipments were contemplated by plaintiff and defendant in their dealings involved in this action. The plaintiff made arrangements from time to time with the defendant at Ban Francisco, by the terms of which, pursuant and subject to the terms of tbe treaty and the laws of the kingdom of Belgium, and not otherwise, Deben-ham, on behalf of the defendant, was to receive and cause to be embarked at Antwerp, pursuant to the arrangements aforesaid, ail the shipments of merchandise consigned to defendant for carriage from Antwerp to San Francisco for .an agreed rate of freight, and many shipments had been made under such arrangements prior to the shipment here in suit. In the regular course of business, and in pursuance of the terms of the arrangements aforesaid, shipments had been from time to time received by said Debenliam for plaintiff, forwarded to San Francisco, and delivered to plaintiff, during the five years preceding the shipment here in question.</p> <p>On May 11, 1901, Oswald Roth of Uster, Switzerland, shipper of the goods mentioned in the complaint, intending to send the same via Antwerp to plaintiff at San Francisco, by way of defendant’s road from Montreal, wrote to Debeiihain as follows: “Messrs. Wieland Bros, at San Francisco have advised me that in future I must send my consignments by the last boat leaving Antwerp each month. Please let me know at once when the last sailing will take place this month.” On May 13, 1901, Debenham answered as follows: “I request you to send me the lot of cheese for account of Wieland Bros, of San Francisco to Antwerp Bassins Transit Station, so that it will arrive on the 22d inst.” On May 14, 1901, Roth answered: “I cannot get the shipment of 35 tubs ready to-morrow, and as Thursday is a holiday I cannot send it in time for the sailing on the 22d. Kindly let me know the date of sailing of the very next steamer following. * * * I counted on it sailing on about May 25th or isOth.” On May 17, .1901, Debenhom replied: “Please prepare tho cheese so that it may arrive here towards the end of the month, for very probably there will be a sailing for Montreal by the end of the month, or on one of the first days of June. I shall have definite nows to-morrow or day aftei, and meanwhile await my advices before shipping.” On May 20, 1901, Debenham again wrote to Roth: “Confirming mine of tho 17th inst., 1 take pleasure in advising you that the steamer Sardinian Prince will sail on June 5th, and L request you therefore to forward me tho lot of cheese to Antwerp South Transit Station, to arrive not later than June 3d.” On May 24, 1901, Debenham again wrote to Both: “Please let me know by return mail if you will act on my letter of the 20th inst.”</p> <p>The International Treaty so referred to, binding upon various nations of Europe, including Switzerland, France, Germany, and Belgium, provided that shipments of merchandise intended for export beyond the territory of any of said nations could be transported through the territory of such nation “iii bond”; that is to say, shipments of such, merchandise could, pursuant and subject to the provisions of said treaty, be transported into and beyond the territory of such nations without payment of any duty, provided that each of tho said shipments oí merchandise were contained in receptacles that remained sealed, unbroken, and in the uninterrupted, exclusive, and official custody of the governmental customs authorities of the nations whose territory it was traversing throughout its transportation through such territory, and during its continuance in such territory, and until its final deportation there-fyom. But persons standing in the relationship to such shipments of merchandise such as Debenham occupied to the shipment in controversy had the right to direct such governmental customs authorities when and where such shipments should be delivered for deportation. On May 25, 1901, the shipment of merchandise, consisting of 35 tubs of cheese which is involved in this action, and which was a shipment of merchandise intended to be forwarded pursuant and subject to the provisions of the arrangements aforesaid, and of the International Treaty above referred to, through territory belonging to the republic of Switzerland, the republic of France, the German empire and the kingdom of Belgium in bond for export from the port of Antwerp to San Francisco, there to be delivered to the plaintiff, was placed on board a local railroad train at Uster, Switzerland, consigned to the firm of Niebergall & Goth, forwarders in Basel, Switzerland; the waybill indicating that the shipment was sent in bond in transit to the United States by way of Basel and Antwerp. The car containing the shipment arrived in Basel on, May 28th, and the original car containing the shipment was forwarded by Nieber-gall & Goth on the same day by way of the Alsace-Lorraine Imperial Bail-road, and the Belgian State Bailroad to Debenham at Anver-Bassins Station. Antwerp; Debenham being, pursuant to the arrangements aforesaid, designated as the consignee of the shipment in the accompanying waybill covering the transit from Basel to Antwerp. When the merchandise arrived at Sterpen-leh, a station on the Belgian frontier, it was received by the Belgian State Bail-road about 5 p. m. May 29th. From there it was carried by the latter railway to Anver-Bassins Station at Antwerp where it arrived May 30, 1901. The Belgian State Bailway was operated by the government of the kingdom of Belgium, and the same officials of the government who operated the railroad were also customs officers of the government, acting as such with respect to the freight which was transported by said railroad, pursuant to the provisions of the treaty aforesaid. Upon the arrival of the car at Anver-Bassins Station, at Antwerp, as aforesaid, the station authorities notified Debenham of its arrival, and delivered to him the waybill whiph accompanied the shipment.</p> <p>According to the provisions of the treaty and the laws of the kingdom of Belgium, Debenham then had the option of directing the railroad customs officials to take the goods to the Belgian governmental customs warehouse, called the Entrepot Boyal, there to remain until such time as he should direct them to be taken to the ship which was to receive them, or of directing said officials to take the car containing the goods to the wharf at which the ship was to receive them, there to remain until such time as he should direct the goods to be placed on board such ship. In either case the goods were required -to remain, and would have remained during their entire transit, and their detention, whether in the EntrepSt Boyal, or on the.wharf, in the uninterrupted, exclusive, official custody of the government customs authorities until actually loaded on board the ship. As the ship, at the time of the arrival of the goods at Antwerp, was not ready to receive them, Debenham directed the railroad customs officials to take the goods to the Entrepot Boyal, there to be held in the custody of the Belgian customs authorities until he notified them that the vessel which was to receive the shipment was ready to receive and embark the same for export from Belgium, whereupon it would have been the duty of the Belgian customs authorities to transport the shipment from the Entrepot Boyal to the wharf and there deliver it physically to the ship which was to receive it, and to make certain that the shipment was actually embarked on the vessel and carried out of the kingdom of Belgium. Under the provisions of the said treaty and the laws of the kingdom of Belgium, a shipment of merchandise like the one aforesaid, passing through Belgian territory in bond in transit merely, was required to remain uninterruptedly in the exclusive official custody, possession, and control of the customs authorities of the kingdom of Belgium (subject to the direction of persons standing in a relationship to such shipments such as Debenham occupied to the shipment in controversy, as to when and where such shipments should bé delivered for deportation, as aforesaid), until the shipment was actually physically delivered by such customs authorities at the instance of the consignee, on board the vessel which was to transport it beyond the kingdom, unless the consignee paid to Hie Belgian government the charge and duties due on the shipment, and accepted actual physical delivery and possession thereof.</p> <p>In pursuance of the directions of Dehenham, the car which contained the goods im olved in this controversy was taken by the customs authorities from the Anvers-Bassins Station to the Entrepot Boyal, where, on June 1, 1001, the goods were unloaded from the car and stored in the warehouse, under the exclusive custody and control of the Belgian customs authorities. Those authorities then delivered to Dehenham, a document called “Acquit de Transit,” which Dehenham was to keep until the moment when the goods were to be removed from the warehouse to the steamer, and was to deliver up the same to ihe customs authorities whenever, on his directions, the goods were to be embarked on hoard of the deporting vessel. Whenever the goods were thus to be removed, the law required that Dehenham should present this “Acquit de Transit” to the customs authorities, whereupon the latter would issue a “Bemise au Depart,” and send the goods to the deporting steamer; the odicers of the customs remaining in custody thereof until the goods were actually and eventually loaded on board, and thereby passed out of the Mugí lorn. The warehouse charges were paid by Dehenham. The transportation charges from the warehouse to the steamer would have been payable by him, and chargeable to and collectible from Both, the shipper. Debenliam did secure a “Bemise au Depart” for the goods before they were destroyed in the bonded warehouse. Dehenham, as agent of the defendant, advertised in the .Lloyd AuversoJs, an Antwerp daily newspaper, on May 22, 1001, that the steamer ¡Sardinian Prince would be able to load for Montreal direct, and would sail on June 3, 1001. That steamer entered the port of Antwerp at noon, Saturday, June 1, 1001, in ballast, and was berthed, and began to load her carg-o on Monday, June 3d, finished loading June 7th, during the night, and left the port on June 6th. On June 5, 1001, at 2:36 p. in., fire broke out In the Entre-pot Boyal, which destroyed the building and contents, including the goods here in suit. The fire was not due to any fault or negligence of the defendant. The market value of the cheese at the time and place where it was destroyed was the sum of 16,560.40 francs, and its value at San Francisco on August 3, 1001, the day when, in due course, it would have arrived there, had it been shipped on the Sardinian Prince, was the sum of $6,200.</p> <p>Upon the pleadings and the agreed statement of facts, the court below ordered that judgment be entered in favor of the plaintiff and against the defendant in the sum of $6,200, together with interest at 7 per cent, per annum from August 1, 1901, to December 14, 1014.</p>

<p>1. CORPORATIONS &wkey;>334 — -DECLARATION OF DIVIDENDS-LIABILITY OF DIRECTORS.</p> <p>When directors declare a dividend in good faith and without negligence, they are not liable merely because it turns out to have impaired the capital stock; but it is equally well settled they cannot escape liability when they are in actual charge of the business and ought to know the dividends declared had not been earned.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1452; Dec. Dig. <&wkey;>334.]</p> <p>2. Bankruptcy <&wkey;303 — Actions—Evidence.</p> <p>In a suit by the trustee in bankruptcy of a corporation against its directors and officers to recover dividends illegally paid, evidence held, to show that the directors knew, or by the exercise of care must have known, the dividends were paid out of the capital stock.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-402.; Dec. Dig. &wkey;803.]</p> <p>3. Corporations <&wkey;214 — Dividends—Liability to Return.</p> <p>Where a married woman, who was a stockholder in a corporation, transferred her stock to her husband, so that he could act as her agent, and be was president of the company, sbe is liable for dividends wrongfully paid out of the capital stock, being chargeable with the knowledge of her agent.</p> <p>[Ed. Note. — For other, cases, see Corporations, Cent. Dig. §§ 960-977; Dec. Dig. <&wkey;244.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Judge.</p> <p>Action by the United States against the Chesapeake & Ohio Railway Company. To the judgment rendered, both parties bring cross-writs of error.</p>

<p>Appeal from the District Court-of the United States for the Northern District of West Virginia, at Parkersburg, in Bankruptcy; Alston G. Dayton, Judge.</p> <p>In the matter of the bankruptcy of Creed Collins individually and as a member of the partnership of the Collins Company. Petition by Miles M. Brown and George R. Hill, late partners trading as Brown & Hill, against Homer Adams, as trustee. From a decree reversing the decision of the referee, the trustee appeals.</p>

<p>Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Bills by J. H. Lane & Co. and John M. Tallman against the Maple Cotton Mills and others, by J. H. Lane & Co. against the Hamer Cotton Mills and others, and by John M. Tallman against the Dillon Cotton Mills and others. Decree for defendants, and complainants appeal. Affirmed.</p>

Dooling, J udge. Action by the Power & Irrigation Company of Clear Take against Dank of 'Woodland and others. The action was dismissed on demurrer (213 Fed. 109), and plaintiff brings error. Tid;: action having been dismissed by the court below on-demurrer for lack of jurisdiction, we have to see whether the complaint brought the case within it:; jurisdiction. It contains three counts.

<p>1. Equity <&wkey;274 — Pleading—Bill—Amendments.</p> <p>Where complainant filed an amendment waiving relief prayed on the ground of the invalidity of the foreclosure proceedings, and prayed only that the purchasers be decreed to hold as trustees, ho impliedly affirmed the legality of the purchasers’ title.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 566; Dec. Dig. &wkey;274.]</p> <p>2. MORTGAGES <&wkey;516-FORECLOSURE-PURCHASERS.</p> <p>On foreclosure, a mortgagee may buy in the property sold by the receiver.</p> <p>[Ed. Note.- — For other eases, see Mortgages, Cent. Dig. § 1518; Dee. Dig. &wkey;516.]</p> <p>3. Corporations <&wkey;312 — Purchasers—Foreclosure Sale.</p> <p>A trustee and general manager of a mining corporation, who did his utmost to stave off foreclosure of a mortgage, may, the mortgage having been foreclosed, bid in the property at sale.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1876-1386, 1388-1892 ; Dec. Dig. &wkey;312.]</p> <p>4. Corporations <&wkey;209 — Stockholder’s Action — Laches—-What Constitutes.</p> <p>Where the trustee and general manager of a mining corporation, in conjunction with the mortgagee, acquired the corporate property at foreclosure sale, shareholders who had knowledge of the pui’Chase cannot, three years thereafter, the purchasers having expended large sums in developing the property, demand that they hold it In trust for the benefit of the corporation for particularly In cases of such property is active diligence required.</p> <p>]Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 806, 807; Doc. Dig. <&wkey;209.]</p>

<p>1. Negligence @=»136 — Question or Law — Evidence.</p> <p>Questions of negligence are not questions of law, justifying direction of a verdict, except where all reasonable men must draw the same conclusions from the evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <&wkey;136.]</p> <p>2. Bailboads <&wkey;400 — Death of Person on Track — Negligence—Question fob Jury.</p> <p>Proof that a railway company backed without any warning a train of five cars over the track, where it knew laborers of a city were at work in constructing a sewer under the track, was sufficient to require submission to the jury of the issue whether the company exercised due care for the safety of the laborers, who, by virtue of an agreement between the company and the city, were not trespassers, but rightfully on the track. • i</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1365-1381; Dec. Dig. <&wkey;400J</p> <p>3. Appeal and Error <&wkey;1068 — Harmless Error — Erroneous Submission op Issues.</p> <p>Error in submitting to the jury a ground of negligence, arising from the fact that there was no substantial evidence to warrant a finding of negligence, was not prejudicial, where the record showed conclusively that it could not possibly have affected the result of the trial, especially in view of the statement by the court to the jury that in its opinion the evidence on that ground of negligence was insufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. &wkey;106S.]</p> <p>4. Bailroads <&wkey;400 — Death op Person on Track — Negligence—Evidence.</p> <p>An employe of a city worked on a sewer under the tracks of a railroad company, and was killed by a train backing over the track. Workmen who were within a few feet of the employs testified that they did not hear any bell. The fireman testified that he gave the cord one pull when the train started, and that the boll tapped. The engineer testified that the bell was tapped. The train was only from three to six feet from tho place where the employe was at work. Switching of many trains was being conducted at the time. Held to authorize the submission to tho jury of the issue whether the bell was ringing when the train was backing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. <S&wkey;400.]</p> <p>5. Railroads <&wkey;400 — Death oe Person on Track — Negligence—Failure to Keep a Lookout.</p> <p>Whether a railway company, backing a train without keeping a lookout on the rear of the train, while knowing that men were at work on its tracks constructing a sewer for a city, was negligent, was properly submitted to the jury, though it was not a custom of the company, when backing trains, to have a rear brakeman, for there was nothing to show that the workman killed by the train knew of the custom.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. <&wkey;400.]</p> <p>6. Railroads <&wkey;867 — Death oe Person on Track — Negligence—Custom.</p> <p>The custom of a railway company not to have a rear brakeman when backing a train does not relieve it from liability for the death of a person rightfully on the track and struck by the train, if the accident would not have occurred had due diligence been exercised.</p> <p>[Ed.' Note. — For other cases, see Railroads, Cent. Dig. §§ 1257, 1258; Dec. Dig. &wkey;367.]</p> <p>7. Master and Servant <&wkey;>203 — Assumption oe Risk — Applicability oe Doctrine.</p> <p>The doctrino of assumption of risk applies only where the relation of master and servant exists, and in an action for the death of a person struck by a train it is not error to refuse to charge that decedent assumed tho risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dee. Dig. &wkey;203.]</p> <p>8. Appeal and Error <&wkey;>959 — Pleading <&wkey;236 — Questions Reviewable— Discretion oe Trial Court — Allowance oe Amendments.</p> <p>Allowance of amendment to the complaint rests in the court’s discretion, and in absence of abuse of discretion, it is not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3825-3831 ; Dec. Dig. <&wkey;959; Pleading, Cent. Dig. §§ 601, 605: Dec. Dig. &wkey;236.]</p> <p>9. Pleading <&wkey;>286 — Pleadings—Amendments.</p> <p>The allowance of an amendment to the complaint, in an action for the death of a person struck by a backing train, by specifically alleging that at the time of the accident it was the rule and custom of the company to liave a brakeman on the rear car of a moving train when backing, was not an abuse of discretion,, for it was immaterial whether there was such a rule or custom.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. &wkey;236.]</p> <p>10. Railroads <&wkey;376 — Death oe Person on Track — Evidence—Admissibility.</p> <p>An agreement between a city and a railroad company, which permits the city to construct a sewer under switch tracks, and which requires the city to so construct and maintain the sewer that it shall not damage the tracks, and which provides that the city will save harmless the company from injuries to persons while making the sewer, does not relieve the company from liability for death of an employe of the city at work on the sewer, caused hy the negligence of tho company in backing a train over Mm, in the absence oí any proof that the employs knew of the agreement.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. &wkey;>376.]</p>

<p>1. Carmebs <&wkey;32 — Regulation—Rebating.</p> <p>The Elkins Law (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847, as preserved by amendment by Act June 29, 1900, e. £591, § 2, 34 Stat. 587 [Comp. St. 1913, § 8597J), making it an offense to give a rebate whereby any property shall, by any device whatever, be transported at a less rate than that named in the tariffs, aims to prohibit, not only discrimination between shippers, but any departure from the tariff rates, irrespective of its actual discriminatory effect; and that the full tariff rate is collected does not negative the possibility of a rebate in respect thereto, either in a lump cash sum in advance, or by later or earlier indirect payments.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent."Dig. §§ 83-85; Dec. Dig. <&wkey;>32.</p> <p>What constitutes an unlawful preference or discrimination by a carrier under interstate commerce regulations, see note to Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 94 C. C. A. 230.]</p> <p>2. Carriers &wkey;>32 — Rebate—Loan.</p> <p>Under such provision, a railroad whose .charter did not permit it to loan money, or to buy and sell coal lands, which, through a company it organized, contracted with a coal company to loan it a large amount upon notes bearing interest at 2 per cent., and borrowed tbe amount on its own notes, with interest payable at 4 per cent., and to which the coal land was to bo conveyed as security for the loan, and which at its own cost constructed tracks on the land and obtained the coal company’s exclu-sivo tonnage, a minimum being fixed for each year, and to which the coal company agreed to sell coal for its use at §1.20 per ton, subject to change according to the wage and mining scale, was guilty of an unlawful rebating, where the fact that the railroad had never had difficulty in getting coal at the market price, sometimes less than the agreed price, justified the jury in finding that such provision was a subterfuge and of no value.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. &wkey;>32.]</p> <p>3. Criminal Law &wkey;>829 — Prosecution fob Rebating — Requested Instructions — Given Instructions.</p> <p>In a prosecution for rebating un,der the Elkins Law (Act Feb. ID, 1903, c. 70S, § 1, 32 Stat. 847, as preserved by amendment by Act June 29, 1906, e. 3591, § 2, 34 Stat. 587 [Comp. St. 1913, § 8597]), there was no error in refusing defendant’s request to charge that devices for rebates are not prohibited, unless property of the shipper was transported at a less rate than that named in the defendant’s published tariffs, where the court had previously pointed out the necessary elements of the offense.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. &wkey;>829.]</p> <p>4. Cakbiebs <&wkey;38 — Prosecution fob Rebating — Instructions.</p> <p>In a prosecution for rebating under the Elkins Law (Act Feb. 19, 1903, c. 708, | 1, 32 Stat. 847, as preserved by amendment by Act June 29, 1906, c. 3591, § 2, 34 Stat. 587 [Comp. St. 1913, § 8597]), the statement of the court, after setting out the language of the act and discussing the allegations as to a device and the intention of the parties, to the effect that the indictment concluded with a charge that the defendant, through the device named, unlawfully gave a rebate to a named shipper in the transportation of property in interstate commerce, was not objectionable as allowing the jury to find that the mere concoction of the device, without transportation at a reduced rate, would justify a conviction.-</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. &wkey;»38.] . •</p>

<p> (Syllabus by the Court.) </p> <p>Criminal Law <&wkey;999 — Suspension oe Sentence — Invalid Obdeb — Bb-keot.</p> <p>Conceding iliac an order made by a court without statutory authority, In the absence of the pendency oí a motion íor a new trial, a motion in arrest of judgment, a writ o£ error, or some necessity thereby to preserve the rights of the convict, or to prevent the infliction upon Mm of undue hardship, suspending in whole or in part, during good behavior, or for an indefinite time, a sentence of fine and Imprisonment against him, is unauthorized, yet such order does not, although made at the same time wiih, or embodied in, the judgment imposing the sentence, invalidate that sentence, and the court may issue a mittimus and enforce it, after the expiration of the term at which It is imposed, notwithstanding the order of suspension.</p> <p>LEd. Note. — For other cases, seo Crimina] Law, Cent. Dig. §§ 2550-2553; Dec. Dig. <&wkey;999.]</p>

<p>SuirpiNO &wkey;>14 — Begulation of Steam Vessels — Penalty fot? Violation of ItrCULATIONS.</p> <p>Tlie violation by a steam vessel, subject to tbe inspection laws of the United States, oí Rev. St. § 4403, as amended by Act April 2, 1908, «. 123. § 1, 35 Slat. 55 (Comp. St. 1913, § 8225), by failing to take on board for a voyage a licensed mate as required by tlie certificate of the local inspector, subjects the vessel and her owner to the penalty of SoOO prescribed by section 4499 (Comp. St. 1913, § 8275) for violation of any provision of that rifle.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 28, 29; Dec. Dig. <&wkey;ll.]</p>

<p>Shipping <&wkey;>132 — Liability op Yessel fob Loss op Cargo — Negligent Delivery.</p> <p>A finding] that the capsizing of a scow and the dumping of her load while she was taking cargo, consisting of kainit and potash, from a steamship through chutes, with two men furnished by the ship to trim the load, was due to negligent loading and trimming, for which the ship was responsible, held supported by the evidence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 471-487; Dec. Dig. <&wkey;132.</p> <p>Liabilities of vessel owners for loss or injury from improper stowage, see note to The Gualala, 102 O. C. A. 553.]</p>

<p>1. Indians <&wkey;15 — Allotted Lands — Conveyance by Heie — Restrictions.</p> <p>Though the period for which the Creek Agreement made a prior allotment to an Indian, confirmed thereby, inalienable by the allottee or his heirs without approval of the Secretary of the Interior, expired before enactment of Act April 26, 1906, c. 1876, § 22, 34 Stat. 145, prohibiting full-blood heirs of a deceased Indian conveying his land without approval of such officer, a conveyance by such heirs of such land after such enactment is subject thereto.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. <&wkey;15J</p> <p>2. Indians &wkey;>15 — Death of Allottee — Conveyance by Heir.</p> <p>Act May 27, 1908, 35 Stat. 312, prohibiting the conveyance of any interest in an. allotment by any full-blood Indian heir of the allottee without the approval of the court having jurisdiction of the settlement of the estate of the deceased allottee, renders a deed of such heir voidable, if made without such approval.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. &wkey;?15J</p>

<p>Cross-Appeals from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. M. Smith, Judge.</p> <p>Suit by the Penn Bridge Company and another against the County of Kershaw. From the decree, -both parties appeal.</p>

<p>Appeals from the District Court of the United States for the F.ast-eni Division of the Northern District of Illinois; Arthur D. Sanborn, Judge. . .</p> <p>. . Suit in equity by the Schmertz Wire Glass Company and the Mississippi Wire Glass Company against the Western Glass Company. From fuiaj decree afíer an accounting, both parties appeal.</p>

<p>Appeals from the District Court of the United States for the Southern Division of the Sbutnern District of Illinois; J. Otis Humphrey, Judge.</p> <p>Suit in equity by William H. Stockham ánd the Roberts & Schaefer Company against James Duncan and others. From final decree after an accounting, both parties appeal.</p> <p>For convenience, the appellants in said cause No. 2158 and appellees in said cause 2162 are herein termed complainants, and the appellees in cause 2158 and appellants in cause 2162 are termed defendants. In pursuance of the opinion of this court in Duncan et al. v. Stockham et al., 204 Fed. 781, 123 C. C. A. 133, and the order entered in said cause, affirming the decree of the District Court entered January 5, 1912, holding patent No. 657,184, granted to E. A. Stewart on September 4, 1900, for a coal washer, to be valid and infringed, said cause proceeded to an accounting as against all the defendants, both corporate and individual, before the master. On the hearing complainants proceeded to introduce evidence as to instances of alleged infringement other than that of the Lumaghi plant involved in the said suit. The one claim of tlie patent reads as follows, viz.: “The combination in a coal waslier of a vertically reciprocating jig 11, provided with a perforated bottom J, metallic diding joints 8, T, oil its sides, water tank G, with inclined bottom, perforated bucket elevator G, tank ,D, elevator O, tank E, centrifugal pump /’, tank B, opening Q between tanks B and 0, valve M to close opening (^.substantially as described.”</p> <p>The evidence shows conclusively that none of the washers, except the one described in ihe bill, known as the Lumaghi plant, included the tank E as a part of its combination. In operation a so-called jig discharges the clean coal into tank I), The surplus water from tank I) overflows into tank E, from which it is pumped back into tank B, whereby a constant circulation of water is secured. The tank I) is separated from tank E by a partition somewhat lower than the other walls of the tank, over which partition the water flows slowly in a vide, thin stream into tank E. The theory seems to be, that there is thus secured in tank E a quiet body of water from which the coal dust will readily settle to 1 lie bottom, leaving clear waiter to be pumped back to tank IS lot io-nse in washing the coal. In the process, the heavier coal is collected in tank D by means of the partition, wall between the two tanks. In the patent, on<l in the evidence, and in the former opinion of this court sustaining the patent, the lank M is treated as an essential element of the combination. The master ¡aid the District Court came to that conclusion and held that none of the device save that of the Lumaghi plant, was an infringer. Complainants made no (laim for profits, but only to damages growing out of loss of, and upon con-traéis for the construction of, the several alleged infringing and other plants, by reason of said alleged infringement. With reference to the Lumaghi plant, defendants attempted to show that at the time this plant was built it had no lank E, but that at the time the original bill was fifed tank E had been added, so that, while infringement did actually exist when the suit was brought, still at the time it was first -built said washer was not an infringo-mei’t. The record shows that the Lumaghi people were demanding a Stewait washer, ¡hat the first washer sold them was unsatisfactory, that they insisted on a change, and that defendants made the infringing change before they received payment.</p> <p>Iv. is in evidence that the Luiuaghl washer contained four jigs and that in furnThi’ ig these complainanis would have netted a profit of $1,250 eacli therefor, or a Lump sum of $5,000. The. master was of the opinion that there were involved in the construction of the Lumaghi device, and included in the items of cost and profit realized thereon, a, number of items which were not covered by the patent, and that it was the duty of complainants to have ap-yoj'¡ ííjtiod the profits arising from the contract for the erection of the Lumaghi plant, so far as the same were coveted by the patent, and such as grew out of ike rest of sold coal washer, which complainants, he found, had failed lo do, and that therefore, under the authority of Westing-house v. K. Y. Air-Brake Co., 110 1’ed. 347, 72 O. O. A. 61, they could recover only nominal damages in that case.</p> <p>On tli.5 hearing before the District Court upon exceptions to the master’s report, the District Court sustained the exception to so much thereof as found that complainants should have apportioned the damages as aforesaid, and were, because of their failure so to do, not entitled to substantial damages as to said J.iunughl plant, but confirmed said report in all other respects. The dec:-CO of the District Court recites that the Lumaghi plant order was given because it contained the washer of the patent, that the Stewart washer was the heart of the plant and induced the trade, and that complainant s’ damages should be measured by the profit they would have made on the entire order, and therefore entered a decree against defendants for the sum of $5,000. i’reiti Hits decree these appeals have been jirosecuted.</p> <p>The eirora assigned by complainants are in substance that the court erred in not ai lowing complainants $7,400 on account of the Lumaghi plant; in not holding ihat ail the other plants erected by defendants were infringements of the patent, in not allowing complainants $13,088 on account of their losses due to reduction of price on three particular contracts referred to, in not allowing complainants the actual damages which they suffered on account of their failure to obtain three other contracts, in not allowing complainants $1,250 per Jig on the remaining jigs, or all the jigs, erected by defendants, and in not allowing the complainants a total sum of $74,908.</p> <p>Defendants assign for error the entry of the judgment for $5,000 and costs and the holding of them jointly.</p>

<p>In Equity. Suit by John D. Tompkins against the St. Regis Paper Company. On final hearing. Decree for defendant.</p> <p>Suit in equity to recover profits and damages for alleged infringement of United States letters patent No. 458,135, issued August 18, 1891, on application filed July 30, 1888, and an accounting therefor. The suit is by the patentee.</p>

<p>1. Patents <0=>318— Infringement oí’ Process Patent- -Profits Recover-a bi a.</p> <p>an accounting for proiits made by tbe use of an infringing process, complainant is entitled to have taken into account all products of value resulting from tbe use of tbe patented process, whether there is a product claim in the patent or not.</p> <p>Lild Note. — For other eases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. 0=»3J8.1</p> <p>2. Patents <&-»312 — Infringement—Accounting for Promts — Evidence.</p> <p>On an accounting for proiits made by un infringer, where proiits are showif by complainant, the inferences from other evidence, necessarily within the control of defendant, as to their amount or cost ox production, are justified in favor of complainant, where, if incorrect, that fact can be readily shown by defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 511-549; Dec. Dig. C-t»312.]</p> <p>«..Patents <s=»318 — Infringement on Pbooess Patent — Accounting for Profits.</p> <p>In finding tbe value of the raw material used by an Infringer of a process patent, for the puriio.se of ascertaining his proiits, the cost of such material to defendant, and not its value at the time of use, is to be taken.</p> <p>[E<1. Noto.' — For other casos, see Patents, Cent. Dig. §§ 566-570; Dee. Dig. <3=»3I8.]</p> <p>4. Patents <§=»318 — Infringement—Accounting for Profits.</p> <p>The good will gained by a defendant through its infringement of a patent is not an element to be valued and charged against him on an accounting for profits.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 566-576; Dec. Dig. <J=»318.]</p>

<p>Patents <§H>328 — Validity and Inekinqement — Pai’ek-Making Machine,</p> <p>The Eibel patent, No. 845,224, for an improvement in Fourdrinier machines, held void for prior public use; also not infringed, if conceded validity.</p>

<p>In Equity. Suit by the Peerless Wire Pence Company against the Jackson Pence Company. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by the Engineer Company against the Hotel Astor, William C. Muschenhcim, its president, and William C. Muschenheim, individually, for infringement of letters patent Nos. 817,438 and 826,-349, for mechanism and method for regulating furnaces, granted to Embury McRean. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by Charles A. Besser against the Merillat Culvert Core Company. On final hearing. Decree for defendant.</p>

<p>In Equity. Suit by the Automatic Recording Safe Company against the Burns Company. On motion for preliminary injunction.</p>

<p>In Equity. Suit, by George W. Todd & Co. against the J. Whitaker Manufacturing Company. On final hearing. Decree for complainant.</p>

<p>In Equity. Suit by the Sanitary Street Flushing Machine Company against the Studebaker Corporation.</p>

<p>1. Patents <&wkey;32S — Validity and Ineein&ement — Carbureter.</p> <p>The Parkin patents, Nos. 968,597 and 1,082,762, for an improved car-bureter, which cover a combination having as elements auxiliary air intake valves regulated by two springs coming into use to automaticlly meet the requirements of low speed and high speed, and at the same time independently adjustable to meet the needs of special conditions, discloses a novel combination and patentable invention; also held infringed.</p> <p>2. Patents <&wkey;45 — Validity—Evidence oe Want oe Novelty.</p> <p>To invalidate a patent on the ground of lack of inventive novelty, in that the claimed invention was before known to aiid used by others, requires clear and convincing proof.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 51-53; Dec. Dig. <&wkey;45.]</p>

<p>1. Appem, Aun Error &wkey;>1010 — Review—Questions of Pact.</p> <p>While findings oí fact will not be disturbed, unless devoid of support in the evidence, fact inferences may be reviewed and corrected if unsupported by the facts as found, or if idle wrong inference is drawn,</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 397!) - 3982, 4021; Dec. Dig. &wkey;10!0.]</p> <p>2. Appeal and Error &wkey;>1008 — Review—Questions of Fact.</p> <p>Surrender by tlie receiver of property leased by a bankrupt by tendering the keys to the landlord and acceptance thereof by him was a question of ultimate fact subject to review.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3902-3969; Dec. Dig. <@=>1008.]</p> <p>3. Landlord and Tenant <@=»109 — Surrender of Lease — Acts Constituting.</p> <p>Where the receiver of a bankrupt brought the keys to premises leased to the landlord and tendered them for the purpose of surrendering the premises, and the landlord retained the keys without any denial of the natural meaning of such acceptance, and subsequently exercised acts of ownership over the property, a iinding of surrender and acceptance of' the premises was justified.</p> <p>riid. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 350 360, 363-365, 368-371; Dec. Dig. &wkey;109.]</p> <p>4. Landlord and Tenant <&wkey;231 — Surrender of Lease — Burden of Proof.</p> <p>Tlie burden of proof of a surrender and acceptance of demised premises by the landlord is upon the lessee.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §| 926-934; Dec. Dig. &wkey;231.J</p>

<p>1. Creditors’ Suit <&wkey;l — “Creditors’ Bum” — Nature op.</p> <p>A “creditors’ bill” is simply an effort on the part of the judgment creditors, unable to collect their debts through the medium of the law, to reach equitable interests of the debtor, and so a bill by members of a fraternal insurance association to have a receiver appointed is not a creditors’ bill.</p> <p>fF.d. Note.---For other cases, see Creditors’ Suit, Cent. Dig. §§ 1, 2; Dec. Dig. &wkey;l.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Credi tors’ Bill.]</p> <p>2. IlVStJR.' VCE <&wkey;708 — FRATERNAL INSURERS — NATURE OR.</p> <p>An incorporated association, composed of members upon whom assessments were made for the purpose of paying death benefits for deceased iaenii .eis, not conducted for profit, is in the nature of a trust, and a court of equity lias jurisdiction to protect the trust fund.</p> <p>[Kd. Note. — -For other cases, see Insurance, Cent. Dig. § 1845; Dec. Dig. <&wkey;7(K8.]</p> <p>3. INSURANCE <&wkey;708 — Appointment of Receiver — Fraternal Insurance Companies.</p> <p>An incorporated fraternal insurer, which, was simply an aggregation of individuals upon whom assessments were imposed to collect death benefits, lost its young members, so that the average age was 55, and the membership decreased to a point where, at the original rates, assessments had become insufficient to pay the claims. It appeared .that, if the assessments were raised to the necessary figure, the younger members would withdraw. Held that, in such case, the court would appoint a receiver to take over the assets of the company and hold them for those interested, paying only the matured claims, and in case of rehabilitation the property would be turned back to the association.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent Dig. § 1845; Dec. Dig. <&wkey;>708.]</p> <p>4. Insurance &wkey;>708 — Appointment of Receiver^-Fraternal Insurance Companies — Objection.</p> <p>Though the state of Missouri, in which a fraternal insurer was incorporated, reserved the right to appoint a receiver when such company should be in a condition that there would be a strong likelihood of inability to carry out the object for which it was organized, the insurer cannot, where the state, speaking through its Attorney General, disavowed an intention to appoint a receiver, object to the appointment by the federal courts.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1845; Dec. Dig. &wkey;708J</p> <p>5. Insurance &wkey;>708 — Fraternal Insurers — Expenses.</p> <p>Where the officers of a fraternal insurer called a meeting, pursuant to the direction of the court, to form a plan for rehabilitation, expenses incurred for such meeting are properly allowed.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1845; Dec. Dig. <&wkey;>708.]</p> <p>6. Insurance <&wkey;708 — Fraternal Insurance — Salaries.</p> <p>Where the court directed that salaries of officers of a fraternal insurer should be reduced to living wages, it is improper to continue to pay the same salaries that were paid when it was in a flourishing! condition.</p> <p>[Eel. Note. — For other cases, see Insurance, Cent. Dig. § 1845; Dec. Dig. <&wkey;>708.]</p>

<p>At Law. Action by William H. Mills and others against the Le-high Valley Railroad Company and others. On petition for allowance of counsel fees.</p>

<p>1. Trade-Marks and Trade-Names <&wkey;3 — Word Descriptive of Quality of Goods — Statute.</p> <p>Where a manufacturer of aluminum ware stamped it with the arbitrary-word “Wearever,” such word, though expressive of durability, was distinctive and entitled to protection from imitation by other makers of similar ware, for although the registration of a trade-mark consisting of words or devices which are descriptive of the grade or quality of the articles upon which they are used is prohibited by Comp. St. 1913, § 9490, nevertheless a word or mark, though descriptive of the quality and character of the goods, which has not been previously used in connection with, such goods, may be entitled to protection, provided that it has acquired a secondary meaning, indicating origin and ownership of the articles to which it is applied.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig, §§ 4r-7; Dec. Dig. &wkey;>3.]</p> <p>2. Trade-Marks and Trade-Names <&wkey;59 — Infringement—Descriptive Words.</p> <p>The trade-mark “Everlasting,” stamped upon aluminum ware, did not infringe the trade-mark “Wearever,” Cor, though suggesting the samo quality ol durability, it did not so closely resemble “Wearever” in appearance and sound, when applied to such ware, as to deceive an intending purchaser into believing that he was buying the other goods.</p> <p>[Ed. Note.- — For . other eases, see Trade-Marks and Trade-Names, Cent. Dig. 68-72; Dec. Dig. <&wkey;>59.]</p> <p>3. Trade-Marks and Trade-Names &wkey;>59 — Infringement—Resemblance of Words.</p> <p>Where the maker of aluminum cooking utensils stamped thereon the trade-mark “Everlasting,” in connection with the word “Ware,” such trade-mark tended to deceive buyers into thinking that the goods were a heavier and more expensive grade of such utensils, stamped with the trade-mark “Wearever,” or “Everwear,” and such use of the word “Everlasting,” in connection with the word “Ware,” was injurious to the maker of “Wearever” utensils, and an unlawful infringement.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 07-72; Dec. Dig. &wkey;59.]</p> <p>4. Trade-Marks and Trade-Names <&wkey;93— Unfair Competition — Deception of Buyers.</p> <p>Where the trade-mark used by a maker of aluminum cooking utensils was so nearly like that used by another plaintiff as to tend to deceive the public into buying the goods of the first for those of plaintiff, he could enjoin'the unfair competition, without showing actual deception of buyers ; it being sufficient if the proofs show that the probable use of- the infringing label will be to deceive the ordinary purchaser buying in the ordinary way.</p> <p>I Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 104-106; Dec. Dig. &wkey;93.]</p>

In Admiralty. Suit for collision by Joseph B. Wortendyke, owner of the barge Roger Kane, against the tug Henry S'teers; Henry Steers, claimant. Decree for libelant.

In Bankruptcy. In the matter of William N. Ilallock and Louise N. Kallock, as individuals and as copartners doing business under the firm name and style of the George W. Hallock Bank, bankrupts. Claim of an offset against promissory notes owing the bank. Decision of the referee against the validity of the claim confirmed by the court.

At Law. Action by Frank A. Mitchell and another against Charles C. Cole, as Collector of -Internal Revenue for the Twenty-First District of New York. This is an action by the plaintiffs, Frank A. Mitchell and George F. Lewis, constituting the firm of Mitchell & Lewis to recover the amount paid to the collector of internal revenue as tax and penalty imposed on them as alleged wholesale dealers in oleomargarine, in all $201.01.

<p>Application by Socorro Giralde for naturalization. Applicant admitted to citizenship.</p>

In Equity. Bill by W. W. Robertson, trustee of W. E. and T. G. Trenchard, against Bemis & Vosburgh and others, to attach a parol trust to the legal title to land, and to secure an accounting. Decree for defendants.

<p>In Bankruptcy. In the matter oi the National Home & Hotel Supply -Co .upaiiy, bankrupt. Proceeding by Madeline Kaiser, doing business as ike M. Kaiser Art Company, to reclaim from the trustee in bankruptcy certain property. There was an order denying the petition, and said Kaiser petitions for a review.</p>

<p>1. Trtat, <&wkey;27S--INSTRUCTIONS — Exceptions—SUFFICIENCY.</p> <p>In tf'e District Courts, an exception to a charge, in order to entitle a party to have it entertained on motion for new trial, must be sufficiently d’wl.net and specific to direct the attention of tile court to the particular "vice or error complained of, so tliat the court may see whether the objection Is well-founded, and have an opportunity, before the jury retires, to correc t any error.</p> <p>filch Note. — For other cases, see Trial, Cent. Dig. §§ 68G, €89; Dee. .Dig. 0-0278.1</p> <p>2. Tuivr. <&wkey;27S — IKSTRTiOTroxa—SuirwoiKNOy of Exasmow to Charge.</p> <p>In an action by the United States for the conversion of timber on piddle lands, where the court charged on the measure of damages both as for a willful and for an innocent taking, the defendant excepting to Midi charge in the language: “Wo except as to the measure suggested by the court. We claim that the only mensure tliat can exist under the eircumsl anees is the value of the stumpage in the tree, and 1 think your honor’s instructions add to it another element” — such exception was not sufficiently specific to call the court’s attention to error in its charge as on an innocent taking, urged on motion for new trial, since: (1) The charge covered two alternative propositions, there being nothing in the language of the exception to indicate whether it referred to the first rule stated, regarding the willful taking, or the second, regarding the innocent taking; while (2) if the exception sufficiently indicated its application to flic charge on an innocent taking, it gave no suggestion of the defects which defendant claimed.</p> <p>1 ‘■Id. .Vole. — For other cases, see Trial, Cent. Dig. §§ 680, 689; Dec. Dig. <£-->278.1</p> <p>3. I’uimic Lands <&wkey;13 — Damaoks—Ttmueb on Pujjtac Lands.</p> <p>I n the government’s action for the conversion of timber on public lands, the mea,sure of damages for a willful taking was the value of the timber in whatever condition it may have been in at the time of its disposition or sale by the defendant, and, if the taking was" innocent and under an, honest belief of right, the damages were the difference between the expense of manufacturing- and the price for which the timber was sold.</p> <p>[Gd. Note. — For other cases, seo Public Lands, Cent. Dig. §§ 16-18; Dee. Dig. 4&wkey;13.]</p> <p>4. Tmai, <&wkey;278 — LxsTRUoaTON—Exception- Sufficiency.</p> <p>Where, in the government’s action for the conversion of timber on public lands, the court (‘barged that in fixing the verdict the jury should include interest oil (he value of any lumber converted, from the date of such conversion to the present, at the legal rate of 7 per cent, the exception reserved, “1 except to your honor’s instructions with regard to interest.” was not sufiioienlly specific to call the court’s attention to the crLtcism that the allowance of interest should have been left to the discretionary judgment of the jury to entitle defendant to rely thereon on his motion for new trial, since the charge embraced two propositions, the right, of the plaintiff to interest, and, second, the rate, while the exception was not of a nature to indicate whether the exception was aimed at the discretion fixed in the jury to award interest, or the rate at which they should compute it.</p> <p>¡Ed. Note.--For other cases, see Trial, Cent. Dig. §§ 686, 689; Dec. Dig. &wkey;278.]</p> <p>5. Trial <&wkey;308 — Submission to Jury — Re-reading Testimony.</p> <p>"Where, in the government’s action for the conversion of timber on public lands, the jury requested the further reading of the evidence of a witness, the suspension at the request pf the jury of such reading, when it reached a point where they announced that their desire was satisfied, was not erroneous, since the object for which they had come into court was accomplished, to refresh their memory, and the court was justified in ordering the reading stopped.</p> <p>PM. Note. — For other cases, see' Trial, Cent. Dig. § 743; D'ee. Dig. <&wkey;> 308.J</p>

<p>In Equity. Bill by the Phamix-Buttes Gold Mining Company against Charles J. Winstead and others.</p>

<p>In Equity. Bill by the Phcenix-Buttes Gold Mining Company against Charles J. Winstead and others. Bill dismissed, and, from an allowance of defendants’ costs, plaintiff appeals.</p>

In Bankruptcy. In the matter of the bankruptcy of the Hunter Arms Company. On review of allowance by the referee of the claim of Arvin Rice, as trustee in bankruptcy of the Hunter Bros. Paper Company.

<p>INTERNAL REVENUE <S=»9 — FEDERAL CORPORATION TAX — “DOING BUSINESS.”</p> <p>Where a foreign corporation owned timber lands in a state and operated a match factory, but sold such timber lands to another company, as well as its plant, the payments to be made in installments, the foreign coinuany to retain title until paid in full, although retaining an attorney in the state to look after its interests and an agent for service of process, as required by state statute, such corporation was not thereafter “doing business” in the state, so as to render the property sold taxable to it under Corporation Tax Act Aug. 5, 1909, c. 6, § 38, 3(5 Stat. 112 (Comp. St. 1913, § «300!, providing that every corporation organized under the laws of any foreign country, and engaged in business in any state, shall be subject to pay annually a special excise tax.</p> <p>[Kd. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <@=s>9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p>

<p>In Equity. Suit by Mercer B. Tate, trustee of estate of Fletcher W. Ployd, bankrupt, against Christian L. Brinser.</p>

In Equity. Action by the State Improvement-Development Company against C. W. Leininger, Register of the United States Land Office, and another. The cause was removed to the federal court by defendants on writ of certiorari, and plaintiff moves to remand.

<p>la 'Equity. Bill by ihe San Krancisco-Oakland Terminal Railways, a corporation, against the City of Alameda and others.</p>

<p>1. Courts <§=>14 — Nonresidents—Foreign Corporations — Jurisdiction..</p> <p>Tho. courts of a state cannot acquire jurisdiction, over a foreign corporation in an action by a nonresident, though tho corporation is doing business in the state, unless the action arises out of the business so done in the state.</p> <p>[Ed. Note. — Fór other eases, see Courts, Cent. Dig. § 39; Dec. Dig. <§=> 14.1</p> <p>2. Pleading <§=» 193 — Demurrer—Grounds or Demurrer — Lack or Jurisdiction.</p> <p>Code Civ. IToc. Cal. § 130, provides that the defendant may demur when it. appears upon the face of tho complaint that the court has no jurisdiction of the person of tho defendant or the subject of the action, or if the other defects therein, specified so appear. Held, that the objection,,apparent on the face of the complaint, that an action by a nonresident against a foreign corporation did not arise from the business done by such corporation in the state, could be raised by demurrer. '</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 425, 428-435, 437, 443; Dec. Dig. <§=>193.]</p> <p>3. Courts <§=>37 — Jurisdiction—Waiver or Objections.</p> <p>Such objection was not waived by also demurring on other grounds, which invoked the exorcise of jurisdiction; no other mode being provided for raising such objections, and the Code not contemplating tho dividing up of grounds of demurrer, but requiring that the several grounds relied on must; all he stated in the same pleading.</p> <p>[Ed. Note. — For olher cases, see Courts, Cent. Dig. §§ 147-149, 151, 156; Dec. Dig. C=5>37J</p>

<p>1. Coutmost <@=>102 — Steamship and Tow Meeting — Fog.</p> <p>A collision on the Delaware river in a fog, between an outgoing steamship and a meeting schooner in tow of a tug on a 60-fathom line, held, on conhicting evidence, due to faults on the part of both the steamship and tug; the former being in fault for not hearing the fog signals of the f ng, which she should have heard, and taking earlier precautions, to avoid the tow, and the tug being in fault for being on a course taking her across to the western side of the river, where she had no right under the rules, and which course was especially dangerous in a fog and with her long tow.</p> <p>[Ed. Note. — For other cases, see Collision, Doc. Dig. <@=>102.</p> <p>Collision with or between towing vessels and vessels in tow, see note to The John English, 100 C. C. A. 581.]</p> <p>2. Admiralty <@=>124 — Taxable Costs — Expense oe Surety Company Bond.</p> <p>Tbere is no statute authorizing the taxing of the expense of procuring a surety company bond for the release of a vessel libeled for col-isión as costs, and in the absence of a rule of court or a practice equivalent thereto such expense is not taxable.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 886-857; Dec. Dig. <£=>124.]</p>

<p>Appeal from the District Court of the United States for the District of Nebraska; W. H. Munger and Thomas C. Munger, Judges.</p> <p>Suit in equity by Charles A. Frank and others against the Union Pacific Railroad Company and others. Decree for complainants, and both parties appeal.</p>

<p>1. Corporations <&wkey;478 — Construction op Mortgage — Recitals in Bonds.</p> <p>A recital, in mortgage bonds of a corporation, that the mortgage “covers all real estate, machinery, fixtures, and equipment of every description now owned or hereafter acquired” by the corporation, held limited by the terms of the mortgage itself, which recited that the bonds were secured by the company’s real estate in a certain county, and described and conveyed such real estate, together with the buildings, machinery, appurtenances, etc., “thereunto” belonging.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. § 1871; Dec. Dig. <&wkey;478; Mortgages, Cent. Dig. § 211.)</p> <p>2. Pledges <&wkey;56 — Corporate Bonds — Sale—Rights op Bondholders— Purchase by Pledgee.</p> <p>A pledgee of corporate bonds, which in accordance with the terms of the pledge sold and bought them in, thereby acquired the full title, with whatever rights the pledgor might have against the property of the corporation.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 152-183; Dec. Dig. &wkey;>56.)</p>

<p>Appeal from the District Court of the United States for the District of Alassachusetts; Frederic Dodge, Judge.</p> <p>Suit iu equity by Leo F. Adt against the Bay State Optical Company. Decree for defendant, and complainant appeals.</p>

<p>1. I* vrr:.<ns &wkey;>214 — Licenses—Resmbved Right • oe JPonarasmiKB — Waivmb.</p> <p>Complainant, which, with the exception of the manufacturer, held an exclusive license to sell a 31atented device on a royalty, joined with all other parties interested in the patent in what was called a “promotion contract,” by which complainant was to advance a stated sum to be used for advertising' and promotion purposes, for which it was to be reimbursed in part from the royalties due from it on account of the second million of the devices sold by it thereafter. Held, that such contract operated, either by implied agreement or by waiver, to modify the license contract, so as to annul any right of forfeiture reserved therein for failure of complainant to earn a minimum royalty in any year while the 2,000,000 devices remained unsold.</p> <p>[Ed. Note.. -For other cases, see Patents, Oent. Dig. §§ 321-327; Dec. Dig. &wkey;214.]</p> <p>2. Patents <{&wkey;214 — Licenses—Reserved Right or Forfeiture — Waiver.</p> <p>A reserved right of forfeiture of a license under a patent for breach uf an obligation may bo waived before breach by an act or declaration inducing the licensee to continue in the performance of its obligations and upon which it was reasonably justified in relying as showing an intent to suspend the exercise of the right.</p> <p>[Ed. Note. — -For other cases, see Patents, Oent. Dig. §§ 321-327; Dec. Dig. <&wkey;214.]</p> <p>3. Injunction <&wkey;59 — -Exclusive License — Property Right.</p> <p>An exclusive license under a patent is a unique property right, against tiie destruction of which a court of equity will give protection by injunc-tlvo relief.</p> <p>[Ed. Note.- — For other cases, see Injunction, Cent. Dig. §§ 114-116, 128; Doe. Dig. &wkey;59J</p>

<p>Appeal from the District Court of the United States for the District oE New Jersey; Thos. G. Haight, Judge. *</p> <p>Suit in equity by the De Raski & Thropp Circular Woven Tire Coni' pany against the William R. Thropp & Sons Company. Decree for complainant, and defendant appeals.</p>

This cause comes here upon appeal from a decree, finding infringement o£ two patents. Both patents relate to the regulation of boiler furnaces by what is now known as the “balanced draft” system. The patentee Embury McLean filed an original application May 23, 1904, covering a method and apparatus; under the requirements of the Patent Office this resulted in two patents, No. 817,438, issued April, 10, 1906, for the apparatus and No. 826,349 issued July 17, 1906.

<p>PA’rsivra '©==>■‘528 — Validity and Xnrkingement- — Apparatus fob Washing out AND K-EM LIANG LoCOM.OT.ITE I’OILHBS.</p> <p>Tiie Gale patent, No. P31,337, for an apparatus for washing out and recharging locomotive boilers, which performs the successive functions of blowing olí the water and steam from the boiler, using the blow-off water for washing out, and utilizing the blow-off steam for heating the feed wafer, while the means for performing each of such functions separately was old, regarded broadly as a solution of the general problem of main-tabling the efficiency of the locomotive, discloses a true combination and yahsuable invention; also held infringed.</p>

<p>X. MumciPAr, CoKPoiiATioxs <@=5?46 — Amendment op Charter — Submission to Vote.</p> <p>"Where a city ordinance provided that amendments to the charter might bo proposed by the city councii by ordinance or resolution and be submitted to die voters of the city for approval or rejection, the council could not, by submitting a charter amendment to the electors without resolution, but on motion merely, repeal or supersede a provision in the charter that no franchise should be granted by the city for a longer period than ten years.</p> <p>LEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 123-325; Dec. Dig. <§=>46.]</p> <p>2. Municipal Corporations <§=>272 — Power op- Council — Franchise.</p> <p>A' charter provision that no franchise should be granted for more than ten years constituted a limitation upon the power of the common council to own, buy, sell, and lease property for lighting purposes when authorized by the voters of the city, and applied to the people as well as the council.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 727; Dec. Dig. <§=>272.]</p> <p>’8. Municipal Corporations <§=>71 — Grant by Municipality — Ratification by Legislature.</p> <p>A lighting company franchise granted hy a city council contrary to charter provisions was not ratified hy L. O. L. § 6247, confirming grants of the right to maintain poles and wires located before the passage of the act, the Legislature having no power in the premises, where by Const, art. 11, § 2, municipalities had previously been accorded absolute and sole power to enact and amend or repeal their charter provisions.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 175; Dec. Dig. <®=>71J</p> <p>4. Municipal Corporations <§=>248 — Corporate Powers — Ultra Vires Acts.</p> <p>Where a city authorized to sell its lighting plant and to lease the same, but not authorized to grant franchises for more than 10 years, contracted to grant a franchise for 25 years and to sell the plant, and received the benefits of such agreement, the city cannot defend against a suit for specific performance on the ground that the agreement was ultra vires.</p> <p>[Ed. Note. — 'For other cases, see Municipal Corporations, Cent. Dig. §§ 684-686; Dec. Dig. <§=>248.]</p>

<p>1. Admiralty <&wkey;19' — Jurisdiction—Suit Against City — Negligent Discharge or Harbor Duties.</p> <p>Where a municipality has control of the waters and of the buoys of a harbor, and maintains supervision of the anchorage grounds, and issues permits for harbor privileges, and makes a charge therefor, it is liable for damages caused by negligence in the performance of the assumed duties, ami a suit for the recovery of such damages is within the admiralty jurisdiction.</p> <p>I Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§’ 233, 234; Dec. Dig. <&wkey;19.]</p> <p>2. Admiralty <&wkey;60 — Pleading—Sufficiency or Libel.</p> <p>The general rules of pleading apply to admiralty suits, and a libel alleging with reasonable certainty the essential facts showing a legal duty, a default therein, and a resultant injury, of which it is the proximate cause, is sufficient.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 482-496; Dec. Dig. &wkey;>60.]</p> <p>3. Admiralty <&wkey;60 — Libel—Sufficiency—Negligence of Port Warden.</p> <p>The libel in a suit against a city, which alleges that respondent had control of the harbor, and had prescribed rules and regulations for its use, and line! delegated certain powers and duties to the port warden, who, acting within such powers, had permitted libelant’s barge, loaded with coal, to be moored at a certain buoy, but had afterward, without libelant’s knowledge, removed the harg'e to another buoy, alongside a barge which he knew contained dynamite, by the explosion of which libelant’s barge was capsized, and the cargo lost, held, as against exceptions, to state a caus-.e of action.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§,482-496; Dec. Dig. <&wkey;>60.'J</p>

<p>Shipping &wkey;>209 — Proceedings for Limitation op Liability — Stipulation.</p> <p>Where the owner and charterer of a vessel join in a petition for limitation of liability for a collision, the fact that the charterer manned, victualed, and navigated the vessel on the voyage, and was thus owner pro hac vice, does not require him to join in a stipulation for any more than the value of his own interest in the vessel as charterer; the stipulation for her value being required from the general owner only.</p> <p>[Ed. Note. — Por other cases, see Shipping, Cent. Dig. §§ 640-655, 659, 661, 662; Dec. Dig. &wkey;209.]</p>

<p>In Admiralty. Libel by W. P. Fuller & Co., a corporation, against the steamship Glenlochy.</p>

<p>Prostitution <&wkey;l — “Interstate Commerce” — Subjects oe Regulation-White Slave Act — “Interstate.”</p> <p>Under White Slave Act June 25, 1910, c. 895, 86 Stat. 824 (Comp. St. 1913, -§§ 8812-8819), providing by section 1 that the term “interstate commerce,” as used therein, should include the transportation from any state or territory, or the District of Columbia, to any other state or territory, and by section 2 that any one knowingly transporting any woman or girl in interstate commerce for the purpose of prostitution or debauchery, or for any other immoral purpose, shall be guilty of a felony, the transportation of a woman from one state to another in an automobile for such purposes is an offense, although the recital in the first section is intended only to declare that the territories and the District of Columbia shall be included in the term “interstate,” as well as the various states, yet as “commerce,” meaning traffic or intercourse, does not necessarily involve the idea of a common carrier, the declaration of the act that “any person who shall transport any woman in interstate commerce” is equivalent to the declaration that “any person who shall transport any woman from one state to another.”</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dee. Dig. <&wkey;l.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Commerce; Interstate Commerce.]</p>

<p>1. Statutes &wkey;>231 — Construction—Revision or Amendment.</p> <p>In construing an act in which, in the process of amendment and codification, a semicolon has supplanted a comma, the court will apply the principle that no radical change of meaning was intended by the Legislature in the revision of the act, unless the purpose is clearly manifested by a change in language.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 312; Dec. Dig. <&wkey;231.]</p> <p>2. Statutes i&wkey;18S — Construction—Unreasonable Meaning.</p> <p>An unreasonable meaning should not be given to any statute, unless such a construction is compelled by the specific terms of the act, and not by the merely apparent difference of meaning wrought by the placing of a semicolon for a comma.</p> <p>[Ed. Note.- — For other cases, see Statutes, Cent. Dig. §§ 266, 267, 276; Dec. Dig. &wkey;>188.]</p> <p>3. Railroads <&wkey;33 — Actions—Service—Foreign Corporation — Agent— “Doing Business-’ — Ticket Agent oe Connecting Railroad.</p> <p>Where service was attempted to be made upon defendant railroad, not at all located in Ohio, by serving upon the ticket agent for a road in Ohio connectingi with defendant road, such service was invalid, for one who merely transacts business for a connecting line, though he is located within the jurisdiction, whose acts necessarily involve the defendant corporation in a transportation transaction, is not “doing business,” within the federal view, for such connecting foreign corporation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 70, 71; Dec. Dig. <&wkey;>33.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>4. Evioexoe <&wkey;20 — .Ttjtocxat, Notice — Railroad Customs.</p> <p>'Hie court will take judicial notice of railroad customs, such as the practice and duty of a railroad agent to sell tickets on demand, and thus to transact business, for any railroad over whose line, from the agent’s line and intervening connections, coupon tickets may be issued.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <&wkey;>20.|</p>

In Bankruptcy. In the matter of C. H. Kendrick & Co., bankrupts. On petition by the Quarry Savings Bank & Trust Company for atre-viere of an order of the referee disallowing its claim of $2,500 against the bankrupt partnership.

In Bankruptcy. In the matter of C. H. Kendrick & Co., bankrupts. On motion of Eugene-A. Prindle, one of the bankrupts, to dismiss objections to his discharge filed by the Quarry Savings Bank & Trust Company.

<p>Ln the matters of David Rauch, A. I„ Hyman, and Aronheim & Co., Incorporated, bankrupts. On reports ol the referee. Mailers remitted to the referee for reformation.</p>

In Equity. Action by the United States, for the use of F. C. Wood, against the United Surety Company and others. On exceptions to the referee’s findings and report.

<p>BANKRUPTCY <3=»U 5 — DISCHARGE—MASTER’S REPORT — IPlNDlNGS ¡</p> <p>A report of a special master on objections to a bankrupt’s discharge, with findings that when under examination he refused to answer questions, and that ho had retained certain moneys, will be referred for specific and definite findings as to whether he had refused to answer any material question approved by the court, within Ilankr. Act July 1, 1898, c. 511, § 14b, subsec. 6, 30 Stat. 550 (Comp. St. 1913, § 9598), whether he knowingly and fraudulently concealed from his trustee any property belonging' to his estate in bankruptcy within section 291) (Comp. St. 1913, 8 9í!l3), and, if so, what property, and whether during the four months immediately preceding' the filing of his petition he had transferred or concealed any of his property with intent to hinder or defraud his-creditors within section 14b (4).</p> <p>[Ed. Note. — IPor other cases, see Bankruptcy, Cent. Dig. §§ 698-708, 719, 723, 724, 726, 728; Dec. Dig. <S=>415.]</p>

<p>Bankruptcy <g^348 — Pkefebences—Assigned Checks foe Wages.</p> <p>One wlio cashes checks given by a bankrupt to his workmen for wages is entitled to a preference as an assignee of the claims for wages; the checks unpaid not discharging the debts for which they were given.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dec. Dig. <S==>348.]</p>

<p>In Equity. Suit by Kate E. Stevenson and the Selig Polyscope Company against William Fox and the Fox Film Corporation. On complainants’ motion for temporary injunction.</p> <p>The complaint alleges: That N. Hart Jackson translated into the English language and made an original adaptation for the stage of the drama “Les Deux Orphelines,” by D’Ennery and Cormon, under the title “The Two Orphans.” That the said translation was duly copyrighted by said N. Hart Jackson on the 1st day of February, 1875. That the said copyright in the said play was renewed by Frances W. Jackson, the widow of N. Hart Jackson, and after the securing of such renewal slie duly assigned said renewal of copyright to the complainant Stevenson. That the defendants have reproduced in motion pictures the said translation, and adaptation by N. Hart Jackson.</p>

<p>Collision ©=>95 — Steameb and Small Boat — Fault.</p> <p>Two Italian men and a boy in a row-boat on the Delaware river were caught in a sudden storm and given a line by a motor launch, which towed them into Christiana creek, on the way to Wilmington. A steamer entered the creek 500 feet behind them, and when about a half mile up the creek, as the launch turned to enter the canal on the south side, overtook them and in some manlier the two men went overboard from the row-boat, and were drowned. Held, on conllictmg evidence, that the steamer struck and parted the tow-line and came into collision with the row-boat, and although it was not overturned the two men were either thrown, or in extremis jumped overboard; that the steamer was in fault for negligently or recklessly overrunning the smaller boats, when it could have reduced speed or passed them safely, the channel being 250 feet wide; that the launch was also in fault for not keeping better watch of the steamer and keeping out of her way; that the men in the row-boat, who were in tow and had no control over the movements of the launch, were not in fault.</p> <p>[Ed. Note. — Dor other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. <§=395.]</p>

<p>in Equity. Suit by the Amalgamated. Sugar Company against Frank Hempe and others.</p>

<p>Bankruptcy <&wkey;322 — Corporation—Claim by Stockholder.</p> <p>Where one of the three equal stockholders of a bankrupt corporation, on its organization, transferred to the corporation a stock of merchandise at an agreed valuation, a part of the price being applied in payment for his stock, and the remainder standing as an indebtedness of the corporation, on proof of his claim therefor against the bankrupt estate, the valuation fixed by the parties is not conclusive, but the fair market value of the property will be determined as the basis for the allowance of his claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 508-510; Dec. Dig. &wkey;>322.]</p>

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

<p>In Error to the District Court of- the United States for the Northern District of Georgia; William T. Newman, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p>

<p>Appeal from the District Court of the United States for the1 Southern District of Georgia; Emory Speer, Judge.</p>

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

<p>Appeal from the District Court of tile United States for the Southern District of Georgia ; William T. Newman, Judge.</p>

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

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

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p>

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p>

On petition for rehearing. This cause came here before us for argument on May 17, 1915. The suit is the usual one for alleged infringement of patents. The case was fully presented on testimony including prior patents, etc. It was also carefully argued in the District Court and here. The District Court held the patents valid and infringed by defendants’ device and this court on June 22, 1915, affirmed that decision.