Volume 227 — Federal Reporter

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Habeas corpus on petition of Yee Yok Yee, next friend and on behalf of Yee Kong, against W. W. Sibray, Immigrant Inspector, and others. Writ granted, and defendant brings error.</p> <p>The following is the opinon of the District Judge:</p> <p>This is a writ of habeas corpus, issued on the petition of Yee Yok Yee, next friend and on behalf of Yee Kong, who is confined in the Allegheny county jail. The facts of the case, as they appear in this record and as disclosed by the testimony, are as follows:</p> <p>Yee Kong was born in China, and at the age of 20 years arrived in the United Hiatos at the port of San Francisco, Cal., on the steamship Siberia, landing on October 31, 1913. On Ms entry á certificate was issued to him by the immigration officer in charge in the following form:</p> <p>“Name, Yee Kong.</p> <p>“Description.</p> <p>“Age, 20. Height, 5 ft. 5 in.</p> <p>“Occupation, student, San Francisco, Cal.</p> <p>“Admitted as son of official, 13013/6-8 S. S. Siberia, October 31st, 1913.</p> <p>“[This is followed with some marks of identification.]</p> <p>“Issued at the port of San Francisco, Cal., this 28th day of November, 1913.</p> <p>“LSeal] ' Samuel W. Backus,</p> <p>“Immigration Official in Charge.”</p> <p>On the face of the certificate is a photograph of the alien. On the reverse side it is certified that the person named and described on the reverse side has been regularly admitted to the United States as of the status indicated, whereof satisfactory proof has been submitted.</p> <p>About 14 months later, to wit, in January, 1915, the defendant was arrested and brought before the United States commissioner, charged with being a Chinese laborer unlawfully within the United States. On February 2, 1915, said case being called before the commissioner, the same was withdrawn by the representatives of the government. In the meantime, on January 21, 1915, a warrant was issued for the arrest of Yee Kong on the ground that he has been found in the United States in violation of section 6 of the Chinese Exclusion Act of May 5, 1892, c. 60, 27 Stat. 25, as amended by the Act of November 3, 1893, c. 14, § 1, 28 Stat. 7 (Comp. St. 1913, § 4320), being a Chinese laborer not in possession of a certificate of residence. 'A hearing was had before L. B. Spaun, examiMng inspector, and on submitting the proofs taken the Acting Commissioner General found that the alien is in the United States in violation of law, and a warrant for his deportation was issued on April 16, 1915. In the meantime the alien, unable to give the bond required, has been incarcerated in the Allegheny county jail.</p> <p>It seems to me, from the records and proofs before me, that the rights and liberties of this young Oriental have been flagrantly disregarded and violated. His deportation is ordered on the ground that he is a Chinese laborer within the United States without a certificate of residence. TMs is the sole ground for which he was arrested, for wMch he was tried, and for which he is ordered deported. Now upon what, if any, legal proof is this order based? Assuming, for the present, that the government has shown that the alien is a China-man doing labor within the United States, and that this showing shifts the burden of proof upon him to show that he is lawfully within the country, the production of his certificate of identity, which was offered and is a part of this record, certainly shifts the burden of proof back again upon the government to show that, notwithstanding this fact, he is still unlawfully within the country. The certificate sets forth that the alien has been regularly admitted to the United States as of the status indicated therein and that satisfactory proof thereof has been admitted. The status indicated in the certificate is that of a student, son of an official, and the testimony in the record on the part of the alien shows that he is the son of Yee Yok Yan, who was president of one of the Six Companies in San Francisco. TMs makes for him a prima facie case. Such a certificate is not to be treated as a mere delusion, a false passport subject to be dishonored at any time at the caprice of any official of the government. It was said in United States v. Quan Wah (D. C.) 214 Fed. 462:</p> <p>“Nor can the fact that the burden of proof to show right to be in the United States is thrown upon the Chinaman necessitate his further showing that the action of the authorities who decided he had the right to enter was correct, unless the evidence shows that his entry was fraudulently obtained. Liu Hop Fong v. United States, 209 U. S. 453 [28 Sup. Ct. 576, 52 L. Ed. 888]. The decision of his right to enter was presumptively correct, and, unless the United States shows persuasively to the contrary, the mere certificate of admission is sufficient. United States v. Ju Toy, 198 U. S. 253 [25 Sup. Ct. 644, 49 L. Ed. 1040]; Fok Young Yo v. UMted States, 185 U. S. 296 [22 Sup. Ct. 686, 46 L. Ed. 917]; Lem Moon Sing v. United States, 158 U. S. 538 [15 Sup. Ct. 967, 39 L. Ed. 1082].”</p> <p>Tlio presumption arising from the certificate that the alien was lawfully admitted to the United States must be overcome by some lawful proceeding sustained by competent testimony. What is the cause of his deportation? The warrant of arrest and the warrant of deportation sets forth as follows:</p> <p>“Yee Kong, who landed at the port of San Francisco, California, ex S. S. Siberia, on the 31st of October, 1913, is subject to be taken into custody and returned to the country whence he came, under section 21 of the Immigration Act, approved February 20, 1907, being subject, to deportation under the provisions of a law of the United States, to wit, the Chinese Exclusion Laws, for the following among other reasons: That he has been found within the United States in violation of section 6 of the Chinese Exclusion Act of Slay 5, 1892, as amended by the Act otl November 3, 1893, being a Chinese laborer not in possession of a certificate of residence.”</p> <p>Turning to section 6 of the act referred to, we find that it provides as follows:</p> <p>“And it shall be the duty of all Chinese laborers within the limits of the United States, who were entitled to remain in the United States before the passage of the act to which this is an amendment, to apply to the collector of internal revenue of their respective districts within six months after the passage of this act for a certificate of residence; and any Chinese laborer within the * ® * United States, who shall neglect, fail or refuse to comply with the provisions of this act and the act to which this is an amendment, or” who, after the expiration of said six months, shall be found within the jurisdiction of the United States without such certificate of residence, shall be deemed and adjudged to be unlawfully within the United States.”</p> <p>In other words, his deportation is based on the proposition that he is a Chinese laborer without a certificate of residence.</p> <p>The importation of Chinese laborers is the thing forbidden by the act of Congress. At the time of the passage of the act referred to, Chinese laborers in the United States were allowed to remain simply by registering iu accordance with the provisions of the act referred to, and only those who failed to so register were subject to deportation. It follows, also, as of course, that those who came afterwards as Chinese laborers, and were found within the country, were subject to deportation. They had shifted upon them by the act the burden of proof to show their right to remain and failing in this their deportation followed. In United States v. Quan Wah, supra, the court aptly said:</p> <p>“This case raises two questions, one of which has previously been decided, viz., whether, upon credible testimony that the Chinaman entered the United States in the exempt class, he is liable to deportation if he becomes a laborer thereafter; and, second, whether doubt cast upon his real status when (altering is a failure on his part to show that he has a right to remain. Both these questions must be answered in favor of the Chinese person. As lias been decided in the case of United States v. Lee You Wing [D. C.] 208 Fed. 166, affirmed February 17, 1914, 211 Fed. 939 [328 C. C. A. 437], .the importation or the entry of Chinese laborers into the United States is the thing forbidden by the statute. As to a Chinese then in the United States, only those who remained without proper registration at the time of the former registration law, and who were laborers at the time of the passage of that law, were subject to deportation for their subsequent status. Tom Hong v. United States, 193 U. S. 537 [24 Sup. Ct. 517, 48 L. Ed. 772].”</p> <p>This act does not apply, and was never intended to apply, to Chinese in the United States under the exempted class. As to them, they are admitted, not as laborers, but as belonging to other vocations of life. Such aliens were at no time entitled to registration, and it would be an anomaly in procedure to admit an alien as a member of the exempted class and then deport him because at a later date it was alleged he had become a member of the excluded class.</p> <p>We believe it to be the law that where, at the time of the passage of the act referred to, a Chinese person was in the United States lawfully, and not entitled to registration as a laborer, that he is not subject to deportation though he subsequently become a laborer. United States v. Louie Juen [D. C.] 128 Fed. 522; United States v. Leo Won Tong [D. C.] 182 Fed. 190; United States v. Seid Bow [D. C.] 139 Fed. 56.</p> <p>In the case of United States v. Foo Duck [D. C.] 163 Fed. 440, affirmed by the Circuit Court of Appeals, 172 Fed. 858, 97 C. C. A. 204, it was held that a Chinese alien admitted into the United States as the minor son of a resident merchant may not be deported for the sole reason that after attaining his majority he has worked as a laborer.</p> <p>If it was claimed by the government that the alien here was, admitted to the United States through misrepresentation or fraud, those facts should have been averred so that he would have been given a full opportunity to meet them. But this proceeding Was not based on any such charge. Being com vinced that the order of deportation is illegal and unjust, in view of the proceedings instituted against him for that purpose, the petition must be sustained, and the relator discharged and it is so ordered.</p>

<p>In Error to the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Action by Erank R. Jarvis against the Portland Terminal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Vendor and Purchaser &wkey;>244 — -Bona Eide Purchaser — Unrecorded Deed.</p> <p>Evidence held to support a finding by the trial court that persons who procured a quitclaim deed to an interest in ore land were acting as agents for defendant, to whom they immediately conveyed, that they had knowledge that their grantor had previously conveyed a part of his interest in the land to complainant by a deed which had not been recorded, and that defendant therefore took subject to such deed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. <&wkey;244.]</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois; Arthur U. San-born, Judge.</p> <p>In the matter of the Desnoyers Shoe Company, bankrupt; the Sangamon Loan & Trust Company, trustee. From an order allowing its claim in a reduced amount, the United Shoe Machinery Company appeals.</p> <p>Appellant’s claim as a creditor included, as filed, the full amount of royalties due under numerous leases of shoe machinery. It was allowed for only 50 per cent, of the royalties. The lease contained the following provision:</p> <p>“5. The lessee shall pay to the lessor on the last day of each calendar month as rent or x'oyalty the sum of one (.1) cent for eacli pair of misses' and children’s, and one and one-quarter (1%) cents for each pair of all other hinds, of boots, shoes, or other footwear or portions thereof, lasted or manufactured or prepared duxing the next preceding calendar month in any way, whether wholly or in part, by the aid of the leased machinery or any part thereof: Provided, however, that in all cases when the lessee shall pay to the lessor on or before the 15th day of the. calendar month the rent or royalty due for the use of the leased machinery for the next preceding calendar month, the lessor will in considera tioxx of such prompt payment grant a discount of 50 per cent, from such rent or royalty due for such preceding calendar month.”</p> <p>The petition in bankruptcy was filed July 21, 1911. The bankrupt’s bookkeeper from November 1, 1909, testified that for a year preceding bankruptcy it was the custom of the lessor to accept as payment in full 50 per cent, of the royalties when paid after the 15th of the month following that in which they were earned. No testimony as to the practice between November, 1909, and Juno, 1910, was given, and none as to the dates when payments were made during the year beginning July, 1910, except as shown by bills dated July 1, August 1, September 1, October 1, and December 1, 1910, and I'ebruary 1, 1911. Each of these bills was for royalties earned during the preceding month, and each of them was paid in full by payment of the 50 per cent, on some day between the 17th and 27th of the month in which they wore dated. Testimony that the trustee’s net 50 per cent, payment, made October 10, 1911, for royalties earned in August, 1911, was received as payment in full, was also admitted.</p> <p>The referee held that the net amount represented the real debt, and that the other 50 per cent, was an unlawful penalty. The court confirmed his report, both on this ground and on the further ground that the conduct of the parties evidenced a modification of the leases.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Page Morris, Judge.</p> <p>Action at law by the Commercial State Bank against Cass Moore and Charles H.'Tully. Judgment in favor of plaintiff against Moore, and in favor of Tully against plaintiff, and plaintiff' brings error.</p>

<p>1. Appeal and Error <&wkey;272, 273 — Exceptions to Instructions — Rule of Court.</p> <p>Assignments of error based on exceptions to the charge of the court, or to requests refused, not taken specifically in writing, and immediately on the conclusion of the charge, and before the jury retired, as required by rule of the appellate court, will not be considered.</p> <p>lEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1611-1623, 1625-1630, 1764; Dec. Dig. &wkey;272, 273; Trial, Cent. Dig. §§ 680, 689.]</p> <p>2. Trial <&wkey;284 — Instructions—Effect of Failure to Object or Except.</p> <p>Where the court in its charge assumed that a certain fact was conceded by a party, a failure of such party to object or except at the time is a waiver of any objection.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 683-685; Dec. Dig. <@=>284-.]</p> <p>3. Master and Servant <&wkey;118 — State Regulation of Coal Mines — Liability for Violation.</p> <p>Act Pa. June 9, 1911 (P. L. 756, art. 4, § 8), requiring shelter holes to be provided on all main hauling roads in bituminous coal mines on which hauling is done by machinery, applies to all such roads, without regard to their width; and the fact that the act also requires the mine foreman to see that such shelter holes are cut does not relieve the owner from liability for injury to a miner resulting from failure to comply with such provision, if he has knowledge of the fact.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209 ; Dec. Dig. &wkey;118.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>■ In the matter of the bankruptcy of Jamison Bros. & Co. Petition by Robert Toland and others, as executors of Edward D. Toland, deceased, against O. B. George and others. From a decree reversing a referee’s order in favor of the petitioners, petitioners appeal.</p> <p>The following is the opinion of the court below:</p> <p>The ways of these bankrupts were so devious that the tracing of their course is a labyrinthian task. They were involved in so mány contemporaneous transactions follo'wing down along parallel lines that any chronological statement of the facts almost compels repetitions. We may begin, however, with the statement that the bankrupts were bankers and brokers. In the course of their business they received, for loans or advances made, pledges of bonds and certificates of stocks as collateral, or otherwise held securities belonging to their customers. These it is charged they hypothecated, some with and others without authority, for moneys borrowed by them. It is further charged that some of the powers by which the transfers were made wei'e forged. Accompanying tile transfers by means of these forged powers were implied or express warranties by the assignors, and in some instances by brokers, of the genuineness of the signatures. Even the trustee, and brokers acting for him, have innocently enough been drawn into tills complication through sales made by the trustee following transfers now asserted to have been forged. Out of the first stage of Uie.se crooked transactions by the bankrupts spring three classes of claimants. Some have claims to share in the assets of the bankrupt estate. Others claim some of the assets as their property. These classes of claimants are those whoso securities were used with authority, those whose securities were fraudulently disposed of, and those whose supposed transfers had been forged, in addition to the parties (since paid) who had made collateral loans to the bankrupt. Out of the sales made by pledgees and others through forged transfers arise another class of claimants in those who have suffered or are threatened with loss because of the implied or express warranties into which Ihey were drawn. Other parties, of whom no special mention need now be made, are also involved in tills record.</p> <p>In this outline statement particular reference need only be made to the parties who are concerned witii the report of the referee now before us for review. These are A. A. Sellers, G. P. Shoemaker, Frank H. MacMorris, John S. Datta, O. B. George, Smyth, Henry & Kirkbride, and Edward D. Toland. Any attempt to give in detail the facts which show the relations (except in their general bearings) of each to the others and to the bankrupt estate would call for a lengthy statement. These facts have already in part been stated. We therefore confine ourselves to the facts not appearing in ihe adjudications heretofore made. The first complication grew out of the fact, already mentioned, that the bankrupts had pledged for loans made to them securities belonging to others. The holders of this collateral sold it. In some instances all the collateral, and in others part of what was so held, was sold. The money balance remaining after payment of-the loans and the unsold securities were turned over to the trustee. The referee then went into an inquiry to find who were entitled to the unsold securities and to the remaining proceeds of those sold. This he in the first instance determined in proceedings which began July 6, 3911, and ended with his order of July 6, 1932. This order was followed on a petition for O. review of his findings by the decree of this court on May 26,1913, and this in turn by the decree of the Circuit Court of Appeals on appeal and after reargument. The mandate of the latter court was lodged of record here December 20, 1913.</p> <p>On this statement of facts the only inquiry which would suggest itself is how any question could arise over what had thus been determined. It seems to have been brought into question in this wise. At the time the collaterals were sold the title was supposed to have been in the control of the pledgees, of whom, for illustration, Edward D. Toland was one. The power to dispose of the securities was evidenced (it is to be supposed) by the usual form of transfer executed in Wank. No question of the genuineness of these signatures had arisen. Following the usual practice Toland in making sale of those sold warranted such genuineness. On October 30, 3932, he was notified that the signature to the transfer of one of the securities he had sold was a forgery. Anticipating that ho might be held liable on his warranty, he on November 15, 1912, applied to the referee for an. order for the return to him of the cash and unsold securities which he had turned over to the trustee. The purpose was that lie might thus recoup any loss sustained by him because of his warranty.</p> <p>We must pause here to bring into the narrative and down to this point another branch of the ease. Among the securities delivered to the trustee were bonds of the par value of $5,000, known as “Consols 4’s” of the Securities Company of New York. These were sold by the trustee through the brokerage firm of Smyth, Henry & Kirkbride, who, as in the case of the Toland sales, warranted the'genuineness of the signatures to the transfer. On November .20, 1932, Smyth, Henry & Kirkbride applied for a like order with that of Toland, that ihe proceeds of these bonds be paid over to them for protection against possible loss because of their warranty. There were other petitions presented, hut they were all of like tenor with, the above. Subsequent to, but along with, the filing of these petitions, Latta and other claimants to the property and moneys in the' hands of the trustee asked for orders on him to deliver what the court had determined to belong to them- These petitions were met with demurrers and answers which we need not follow. The proceedings finally culminated, after interpleading orders, in a ruling by the referee refusing the prayers of the petitions of Latta and George, and granting the prayer of Tol- and, and granting also that of Smyth, Henry & Kirkbride, so. far as to order that the proceeds of the Securities Company bonds be held by the trustee. Lat-ta, George, Sellers, and Shoemaker filed petitions to have this decisión and order reviewed, and they are accordingly now before the court.</p> <p>Whatever might be said of the general equities of Toland, we are confronted with this dilemma. The District Court has decreed that certain parties are “entitled to” the named securities and sums of money in the hands of the trustee. The appellate court has given its sanction to this decree by its affirmance and adoption, so that it has become the decree of that court. The order of the referee nullifies this decree and substitutes one of his own making for it. Clearly this was beyond the power of the referee or of this court to do. Mandates of the Court of Appeals to this court are to be obeyed. They cannot be annulled or modified, except by that court or the Supreme Court on appeal, and no referee can make any .orders inconsistent with what the court has decreed.</p> <p>This disposes of the discussion and calls for a revocation of the order.</p> <p>It may be said in passing, however, that the fact upon which the supposed equity of Toland turns came to light nearly seven months before the decree of May 26, 1913, was entered in this court, and that the jeopardy in which he feels himself placed grew out, for all that appears, of his own voluntary act of entering into an agreement of warranty with the purchaser of the bonds and stocks which he sold. The predicament of Smyth, Henry & Kirkbride is one which carries with it a strong appeal for any aid in extricating them,'which can be rendered without doing violence to the rights of others. It is evident, however, that no harm can come to them through any proceedings in this cause until distribution of the fund which they ask to be held for their protection. This, indeed, applies also to Toland.</p> <p>The orders and each of them, brought up by this petition for review, are revoked and annulled, and the report remitted to the referee, with directions to proceed with the cause in accordance'with the decree of this court of May 26, 1913, as affirmed by the Circuit Court of Appeals.</p>

<p>1. Appeal and Error <&wkey;324 — Parties—Severance.</p> <p>A formal summons, followed by an order of severance, is not indispensable to the- maintenance of an appeal by one of the parties to a decree, if it fairly appears from the record that the parties who might have joined have been notified to do so, and have refused.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1806-1809; Dee. Dig. &wkey;324J</p> <p>2. Corporations <&wkey;4S0 — Mortgages—Priority over Secret Equities.</p> <p>The intervener’s guardian purchased lands and conveyed them to the B. Company, which executed a mortgage thereon to a trust company to secure an issue of bonds. The B. Company contracted for the sale of the land to the F. Company for a sum payable in .installments to the trust company, which assented in writing and ratified the contract. One payment was made and the F. company thereafter became bankrupt. By order of the bankruptcy court, and with the consent of the B. Company, the trustee in bankruptcy surrendered and renounced the bankrupt’s rights under the contract. The order of such court recited that the rights of the trust company were preserved under its contract with the B. company, and at the foot of the order was a consent thereto by the trust company, “with all rights of the trust company preserved.” The land was sold at foreclosure for much less than the unpaid installments of the purchase price. The intervener claimed that her guardian purchased the land with her money. Held, that the rights of the trustee in the land were not subordinate to the secret equity of the intervener; the public records not disclosing its existence, and the trustee having no notice thereof when its rights attached.</p> <p>[Ed. Note. — For other cases, see Corporations, Dee. Dig. <®=»480; Mortgages, Cent. Dig. §§ 307-343.]</p> <p>3. Corporations <&wkey;>480 — Mortgages—Property Subject — Payments by Purchaser.</p> <p>The money paid by the F. Company was held by the trust company in its capacity as trustee under the deed of trust, "and was subject to the lien thereof, though such company did not apply it on the secured debt, or make any mention thereof in a bill to foreclose the deed of trust, as it was obviously the intention of the contract that a compliance by the If. Company with the terms thereof would entitle it to a conveyance free from the incumbrance and have the effect of substituting the money paid in lieu of the land, and moreover the trustee’s trust relation prevented its holding ’ such payment free from the lien.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. <&wkey;480; Mortgages, Cent. Dig. §§ 307-343.]</p> <p>4. Bankruptcy &wkey;>268 — Sales—Mortgages—Payments by Purchaser.</p> <p>The lien of the deed of trust upon the payment had not been released or discharged; the trustee’s consent to the order of the bankruptcy court not having that effect, especially as the land sold for less than the unpaid installments of the purchase price.</p> <p>[Ed.' Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 372-379; Dee. Dig. <&wkey;26S.]</p>

<p>Appeal from the District Court of the United States for the Southern District of Iowa; Smith McPherson, Judge.</p> <p>On motion for rehearing.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Hunt, Judge.</p> <p>Action at law by Peter Petrovich against the Keystone Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Words and Phrases — “Wholesaler”—“Jobber”—“Retailer.”</p> <p>A “wholesaler” is one who buys in comparatively large quantities, and who sells, usually in smaller quantities, but never to the ultimate consumer of an individual unit. He sells either to a “jobber,” a sort of middleman, or to a “retailer,” Who sells to the consumer. The quantities bought by the wholesaler may vary from a fraction of a car load to many car loads; it being the character, not of his buying, but of his selling, that marks him as a wholesaler.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Jobber; Retail Dealer; Wholesale Dealer.]</p> <p>2. Monopolies &wkey;>17 — Discrimination—Statutory Provisions.</p> <p>Defendant was engaged in selling under a. trade-name purified wheat middlings selected by it and put up in packages. Its whole business covered . less than 1 per cent, of the total middlings bought and sold in the country. It decided to sell only to wholesalers, and so announced to the trade, but for a time made an exception as to a particular retailer. It afterwards decided that it would no longer sell to such retailer, and did not thereafter sell to him. Meld, that this was not unlawful,' and such retailer was not entitled to an injunction restraining, defendant from refusing to sell its goods to it, and it was wholly immaterial why it ceased to sell to such retailer, as neither the Sherman Act (Act July 2, 1890, c. 647, 26 Stat. 209) nor the Clayton Act (Act Oct. 15, 1914, c. 323, 38 Stat. 730) has changed the rule that a trader may reject the offer of a proposing buyer for any reason that appeals to him, whether it be because he does not like the buyer’s business methods, or because of some personal difference.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <&wkey;17.]</p>

<p>Bankruptcy <&wkey;151 — Appeal to Circuit Court op Appeals — Amount of Claims.</p> <p>Where the claim against a bankrupt’s estate, presented and allowed, is for over §2,500, with specific liens as security therefor, the ease is properly appealable to the Circuit Court of Appeals, though no one of the liens amounts to §500, and the only contest is as to the right to the liens.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. &wkey;>451.</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.3</p>

<p>Appeal from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge.</p> <p>A claim of the E. T. Burrowes Company against M. B. Campbell, bankrupt, was allowed. From the judgment, George Stuart, trustee, appeals.</p>

<p>Courts &wkey;405 — Premature 'Writ — Overruling Demurrer.</p> <p>Writ of error, sued out by defendant after the overruling of its general demurrer to the declaration in a damage suit, without waiting for final judgment, is premature.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. <&wkey;>405.]</p>

<p>Appeal from the District Court of the United States for the District of Delaware; Edward G. Bradford, Judge.</p> <p>Suit in equity by the Crown Cork & Seal Company of Baltimore City against the Bond Bottle Sealing Company. Decree for defendant, and complainant appeals.</p>

Appeals from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge. Suit in equity by the North American Chemical Company against the Keno- Supply Company. From the decree, both parties appeal. The following is the opinion of Dodge, District Judge, in the court below: Three United States patents are in suit in this case, all owned by the plaintiff, company.

<p>1. Patents &wkey;?318 — Infringement—Accounting fob Profits.</p> <p>On an accounting for profits for infringement of a patent for a tabulating attachment for a typewriting machine so constructed that it may be attached to or removed from the machine without interfering with its use ,as a typewriter, complainant is not entitled to recover all of the profits made by the infringer on the entire machine, but to such only as are shown to be legally attributable to the tabulators; and where the infringing device was also patented, and was an improvement on that of the patent in suit, recovery should be limited to the profits derived from the use of the infringing, as distinguished from the noninfringing, elements of the tabulators sold, if apportionment is possible.</p> <p>[Ed. Note. — For other cases, see Patents,- Cent. Dig. §§ 9C3-9U9, 971; Dec. Dig. <&wkey;318.)</p> <p>2. Patents <&wkey;319 — Accounting for Infringement — Damages.</p> <p>While damages are recoverable for infringement, regardless of whether or not profits have been allowed or have been made by the infringer, damages cannot be awarded, without evidence either of lost sales or to establish a royalty basis for their recovery; and the court cannot assume that, if defendant had not sold the infringing machines, complainant would have made the sales, especially where there were other and large competitors in the field.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 293, 970; Dee. Dig. <&wkey;>319.</p> <p>Accounting by infringer for profits, see notes to Bricliill v. Mayor, etc., of City of New York, 50 C. C. A. 8; Clark v. Johnson, 120 C. C.- A. 389.]</p> <p>8. Appeal and Error <&wkey;266 — Preservation of Grounds of Review — Masters — Exceptions to Report.</p> <p>No exceptions to a master’s report, not taken before the master, can be raised in an appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1552-3585, 1588-1571; Dec. Dig. <&wkey;266.]</p> <p>4. Patents <&wkey;287 — Suit for Infringement — Joint Liability.</p> <p>Where one defendant manufactured infringing articles, some of which were bought by its codefendant, conducting an independent business, and resold at its own prices, neither defendant is liable for the infringement by tbe other.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 853, 856; Dec. Dig. &wkey;287.[</p>

<p>1. Appeal and Error <&wkey;854 — Scope op Review — Grounds of Decision.</p> <p>Error is not assignable to the reasons for a decree given in the court’s opinion.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. &wkey;854.]</p> <p>2. Patents <&wkey;112 — Suit fob Infringement — Defenses—Effect of Interference Proceedings.</p> <p>The failure of a party to an interference proceeding in the Patent Office to make any showing or take any testimony does not .estop him to claim that he was the original inventor in subsequent litigation for infringement.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 162-165; Dee. Dig. <&wkey;>112.]</p> <p>3. Patents <&wkey;92 — Person Entitled to Patent — Joint Invention.</p> <p>Where a machine was the joint product of two men, who built it together, neither can secure a valid patent therefor as the sole inventor.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 124; Dec. Dig. &wkey;92.]</p> <p>4. Patents <&wkey;328 — Anticipation—Tie Plug Machine.</p> <p>The Smart reissue patent Ño. 13,579 (original No. 956,207), for a machine for making tie plugs,, held void for anticipation.</p>

f the United States for the District of Massachusetts; Clarence L. Hale, Judge. Suit in equity by the American Brake Shoe & Foundry Company against the Hoadley Brake Shoe Company for infringement of letters patent No. 651,435, for a railway brake shoe, issued June 12, 1900, on application of Gardner W. Chipley. Decree for complainant, and defendant appeals.

<p>Appeal from the District Court of the United .States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by David C. Gilliland against Cecil F. Adamson. From a decree for complainant, defendant appeals.</p>

<p>.1. Patents <&wkey;259 — “Contributory Infringement” — Sale of Repairs to Owners of Patented Machines.</p> <p>The furnishing of repair parts to the owner and user of a patented machine, where the repairs do not amount to a reconstruction, and in the absence of any express limitation in the contract by which the machine was sold, does not constitute a “contributory infringement” of the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 400-402; Dec. Dig. &wkey;?259.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]</p> <p>2. Patents <&wkey;255 — Infringement—Repair or Reconstruction of Machine.</p> <p>The purchaser of a patented machine is entitled to make necessary repairs and to replace worn-out parts, not separately patented, so long as the identity of the licensed machine is not destroyed; and what he may do bimself another may do for him without being chargeable with infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 397, 399; Dec. Dig. &wkey;s255.]</p> <p>3. Patents <&wkey;259 — Contributory Infringe,ment — Furnishing Repairs for Patentes) Machine.</p> <p>Tho furnishing by defendant of repair parts to users of patented machines made and sold by complainant, of small value severally, to replace parts subject to wear, and which in numerous Distances were purchased by defendant from complainant at customary prices, held not to constitute contributory infringement.</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. §§ 400-402; Dec. Dig. &wkey;239.j</p> <p>4. Patents <&wkey;328 — Validity and Infringement — Leather-Staking Machine.</p> <p>Tho Craig & Slocomb reissue patent, No. 11,843, for a leather-staking machine, held valid, but not infringed.</p> <p>5. Patents (&wkey;l 67 — Construction—Claim for Combination.</p> <p>Where a claim of a patent is for a combination, to lie valid, it must be for ail operative combination, and if an element essential to make it operative is shown and described in the specification and drawings, but is omitted from the claim, it must be read into the latter.</p> <p>[ K<1. Note. — For other cases, see Patents, Cent. Dig. ■ § 243; Dec. Dig. <&wkey;>l(>7.]</p> <p>6. Patents <&wkey;>216 — Infringement—Combination.</p> <p>Each of the parts whose co-operative action is necessary for the performance of the function of a mechanical combination claimed is an essential element of such combination, and a combination, which does not contain it, or its equivalent, is not an infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent Dig. § 387; Dec. Dig. <&wkey;>246.]</p> <p>7. Patents &wkey;>328 — Validity and Infringement — Leather-Staking Machine.</p> <p>The Slocomb' patent, No. 927,609, claims 4 and 5, for a leather-staking machino having a rotatable breast roll with manually operated devices for unlocking and locking it in different positions while the machine is in motion, held not infringed.</p>

<p>In Equity. Suit by the Simplex Concrete Piling Company and the Simplex Foundation Company against the MacArthur Concrete Pile & Foundation Company. On final hearing.</p>

<p>In Equity, Suit by the Salt’s Textile Manufacturing Company against the Tingue Manufacturing Company. On final hearing.</p>

<p>1. Patents <&wkey;328 — Infringement—Door foe Digesters.</p> <p>Tile Dundon patent, No. 653,503, for a door for digesters, adapted for use in canneries where steam is used for cooking the canned product, construed, and helé infringed.</p> <p>2. Patents <@=o237 — Infringement—Substitution of Equivalent Parts—</p> <p>“Substitution of Patently Equivalent Means.”</p> <p>The “substitution of patently equivalent means” to perform one of the functions of an old element of a patented combination, and that a subsidiary one, which works no change in the unitary result, does not avoid infringement</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 374, 375; Dec. Dig. &wkey;237.]</p>

<p>1. Patents <&wkey;214 — Infringement—Revocation of License.</p> <p>Complainant furnished to defendant a patented machine for attaching shoe buttons, bearing a plate stating that it was lent or leased and accepted to use wire bearing complainant’s trade-mark only. There was no other contract between the parties. Complainant furnished wire in coils each sufficient for 1,000 operations of the machine, and in the price charged included a royalty or license fee for the use of the machine for the 1,000 operations. Held, that the contract was in effect a license, revocable at will on completion of the number of operations for which the license fee had been paid, -and that on its revocation by complainant the further use of the machine by defendant constituted an infringement of the patents.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 321-327; Dec. Dig. <&wkey;214.]</p> <p>2. Monopolies <@=>10 — Clayton Anti-Trust Act — Construction—Application to Existing Contracts.</p> <p>Clayton Anti-Trust Act Oct. 15, 1914;, c. 323, § 3, 38 Stat. 731, which makes it unlawful to lease or sell machinery, etc., on any condition or agreement which will tend to prevent the lessee or purchaser from dealing with competitors, is applicable to a continuing contract of lease, although made before its passage.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 9; Dee. Dig. &wkey;>10.]</p> <p>3. Commerce <@=>3 — Contracts Relating to Interstate Commerce — Power of Congress — Subsequent Legislation.</p> <p>All persons entering into contracts involving interstate commerce must do so subject to the right of Congress thereafter to control, regu- • late, or prohibit the performance thereof.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 3; Dec. Dig. <&wkey;3.]</p> <p>4. Constitutional Law <&wkey;155 — Contracts—Effect of Subsequent Legislation.</p> <p>A contract to do a thing, lawful when made, may be avoided by subsequent legislation making it unlawful, and an act of Congress may affect contracts or rights which had their inception before its passage.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 291, 431; Dec. Dig. &wkey;155.]</p> <p>5. Equity <@=>54 — Principles—Enforcing Inequitable Demands.</p> <p>While courts will not refrain from declaring and applying legal principles, because peculiar hardships will result in isolated instances, they are not to be persuaded consciously to do injustice in violation of those principios.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. <&wkey;54.J</p>

<p>At Law. Action by Edward W. Wiley against the Grand Trunk Railway of Canada. Plaintiff was awarded a verdict of $3,500, and defendant moves to set the verdict aside and grant a new trial.</p>

<p>At Law. In the matter of the petitions of Chin Him, alias Chin Ham, Lee Chong, alias Chang Lee, Mark Seon, alias Charles Mark, Arnk Bing, alias Damk Bing, Amk Suen, alias Dong Song, Bo Sui On, alias Bo- On, and Bow Foo, alias Bow Hae Foo (Bee Wugh), for writs o-f habeas corpus.</p>

Iii the matter of C. M. Uiphart, bankrupt. Upon the petition of C. M. Uiphart, as natural guardian and next friend of C. G. Uiphart, an infant son under the age of 14 years and a party to this proceeding, to review the referee’s ruling as to the title to- certain personal property.

_ In Equity. Suit by James W. Closser and Corbley K. Spragg, assignees for the benefit of creditors of James E. lams, against John H. Strawn, trustee. On motion by defendant to dismiss bill, and motion by plaintiffs to remand to state court.

In Admiralty. Suits for collision by the Davis Coal & Coke Company, owner of the barge Hampshire, against the steamship Santa Maria, the tugs John E. Mehrer, Brandywine, and Bristol, with the tug Sweepstakes impleaded, and against William J. Grandfield and others,, owners of the Mehrer. Decree for libelant against the Sweepstakes and the Mehrer and its owners.

In Admiralty. _ Suit by Andrew Olsen, C. Calicris, Peter Alemonakis. and Nick Trataris against the steamship Epsom. Decree for libelants.

<p>At Daw. Action by H. B. Marienelli, limited, against the United Booking Offices of America and others. On demurrer to the complaint.</p> <p>This is a demurrer to a complaint at law for damages under the Sherman Act. Its general outline is as follows: The individual defendants collectively own many vaudeville theaters scattered over the United States, which are, roughly, arranged in two circuits — an Eastern circuit, comprising those owned by one set of the defendants, and with other theaters known as the “Keith circuit,” and a Western circuit, comprising those owned by other defendants, and with other theaters known as the “Orpheum circuit.” The owners of the other theaters making up these two circuits are not parties to the action. The entertainments in these theaters are each made up of short, disconnected acts, aggregating altogether two or three hours. The performers play at a given place not over one week at a time, and the practice is for them to be booked under one contract upon the whole or part of one circuit, making contracts which require them to pass] from theater to theater and from state to state, taking wiih them certain paraphernalia and stage properties. The two corporate defendants are severally booking agents for the two circuits, securing performers to travel upon the whole or part of each circuit and in general acting as agents for the managers or owners.</p> <p>Up to the time of the acts here in question the plaintiff maintained offices in London, Paris, Berlin, and New York, from which it observed and sought out all promising vaudeville performers, and advised the defendants when it knew of them, tiras establishing a kind of clearing house of information between performers and managers. If opportunity offered, it induced performers to come to this country from other countries, and acted as their agent in procuring for them contracts to perform on one or both of the circuits through the whole or a part of the theaters comprised in it. It arranged for the performer’s entrance into the country, passing through the customs Ms paraphernalia, apparatus, etc., and it, advised and helped him to carry them about with him. In general, the plaintiff acted as agent for the performers and as their personal representative in negotiations and contracts with the managers of the theaters, acting through the corporate defendants.</p> <p>All the defendants entered into a combination or conspiracy in restraint of their own business, to be accomplished as follows: The Kastern owners were not to employ any one not booked through the Eastern booking corporation, which was not to act for any theater which employed another booking agent. They were to procure the assent of the other theaters in the Keith circuit to this'plan. They agreed to employ no performer who played outside of the two circuits, and would blacklist any such and post Min with the other theaters; the Eastern booking corporation refusing to act for any theater that disregarded the blacklist. No one should be employed who had as a representative any person who had obtained employment for a performer outside of the two circuits, and if any theater employed a performer who had. such a representative the Eastern booking corporation should not act for that theater. All such representatives of performers should be blacklisted, and might not thereafter negotiate with the Eastern booking corporation, which would not act as agent for any theater who billed a performer represented by a blacklisted agent. Any theater billing a blacklisted performer should be blacklisted, and the Eastern booking corporation would no longer act for it. The Western booking corporation should be advised of these blacklists.</p> <p>Similar allegations were made relating to the Western circuit. The defendants in pursuance of this plan did blacklist the plaintiff, and caused notices to be sent out to that effect, and so entirely destroyed the plaintiff’s business.</p>

<p>In Equity. Suit by the City Council of Augusta against J. R. Timmerman, Auditor, J. F. Mims, Treasurer, and W. R. Swearingen,</p> <p>Sheriff, of Edgefield County, S. C.</p> <p>On rule for temporary restraining order. Denied.</p>

In Bankruptcy. In the matter of C. D. Roberts, bankrupt. Held: with reference to a mortgage executed prior, to the four months period, hut recorded within said period, that the evidence failed to show that the mortgage was given with the intent to hinder, delay, and defraud creditors, and that neglecting to promptly record it was not in itself fraudulent as against other creditors.

<p>1. Mortgages <&wkey;307 — Oten—Taking of New Mortgage in Renewal.</p> <p>Where a mortgage is renewed before maturity, or the evidence of the debt is changed by the substitution of new notes therefor, or for such portion thereof as. may remain unpaid, the lien of the mortgage is not lost or affected, even though it is discharged of record and a new mortgage is taken on the same property, unless the circumstances of the transaction disclose clearly that such was the intention of the parties. Nor does including in the new mortgage an additional indebtedness not covered by the first discharge the lien of the old mortgage, so far as the indebtedness secured thereby remains unpaid, unless such be the purpose of the parties.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 864, 897; Dec. Dig. <&wkey;307.]</p> <p>2 Novation &wkey;7, 18 — Nature and Requisites- — Intention of Parties.</p> <p>Tlie question whether a debt has been novated by a particular transaction is ordinarily one of fact, dependent entirely upon tlie intention of the parties, and it can only ho predicated on the terms of a written instrument, where they are so plain and explicit as to leave no doubt of tlieir construction, when it may be treated as a question of law.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. §§ 7, 13; Dec. Dig. <&wkey;7. 13.]</p> <p>3. I’dblic Lands <&wkey;120 — Suit for Cancellation of Latent — Rights of Bona Fri»¡ Mortgagee,</p> <p>A mortgage of land for which the mortgagor holds a final receipt from the United States, though executed before the issuance of patent, if taken in good faith and for value, protects the holder as a bona fide purchaser, and is superior in equity to tlie right of the government to a cancellation of the patent for fraud of the patentee.</p> <p>[Ed. Note.- — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. &wkey;>120.]</p>

<p>1. Bankruptcy c&wkey;299 — Action by Trustee — Parties.</p> <p>A trustee in bankruptcy, suing for money paid by bankrupt without consideration to a corporation, should, as a protection, in case of I lie corporation becoming insolvent, join as defendants all those shown by the complaint to be personally liable.</p> <p>[Nil. Note. — For other eases, see Bankruptcy, Cent. Dig. § 448; Dea Dig. &wkey;299J</p> <p>2. Bankruptcy <&wkey;299 — Action by Trustee — Parties^—Pleading—Knowingly.</p> <p>The complaint of the trustee in bankruptcy of a corporation to recover money paid by it to defendant corporation, showing that the same persons constituted a majority of the directors of each corporation, and alleging that they, acting for bankrupt, caused it to pay large sums to defendant without consideration, “knowing” the facts, shows a personal liability of the directors as regards the propriety of joining them as defendants; an intent to defraud being presumed from, the doing “knowingly” of the wrongful act resulting in tile injury to bankrupt.</p> <p>¡Kd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 448; Dec. Dig. &wkey;289.J</p>

<p>Proceeding by the United States against John Leles to cancel a certificate of naturalization issued to defendant. On motion to dismiss.</p>

<p>At Law. Action by the United Press Associations against the National Newspapers’ Association.</p>

<p>1. Equity <&wkey;>362 — Pleading'—Motion to Dismiss.</p> <p>Under equity rule 22 (J98 Fed. xxiy, 115 O. C. A. xxiv) and Act March 3, 1915, c. 90, 38 Stat. 950, which provides that “any party to the suit shall have tho right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court,” a motion to dismiss a hill because complainant has an adequate remedy at law will not lie.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 958-961; Dee. Dig. <&wkey;362.]</p> <p>2. Equity &wkey;441 — Suit for Enforcement of Decebe — -Suit in Equity.</p> <p>A bill- in equity is the proper remedy for enforcing a decree of another court of equity for an accounting.</p> <p>[Ed. Noto. — For other cases, see Equity, Cent. Dig. §§ 1058-1001; Dee. Dig. <&wkey;44Ll</p> <p>3. Contracts <&wkey;355 — Actions—Judgment.</p> <p>Complainant had a claim against defendant corporation, which a majority of the stockholders acknowledged and were willing to pay, but because of dissent of the remaining stockholders they caused defendant to pay their proportionate share of the claim, taking an agreement from complainant to assign to defendant a proportionate share of any sum received by suit. In a suit on the claim the court treated such agreement as a payment,' and entered decree only for the balance due. Held, that by such action defendant obtained the full benefit of the agreement, and could not claim thereunder any share of the sum recovered by the decree.</p> <p>[Ed. Note. — For other cases, see Contracts, Doc. Dig. <&wkey;355.]</p>

<p>In Admiralty. Suit by John Bashaw and others against the steamship Rochester. On exceptions to libel.</p>

The Philadelphia's: Reading Railway Company was charged with* crime, and pleas in abatement were filed. On replication to such pleas. Pleas overruled.

<p>Bankruptcy <&wkey;140 — Property Vesting in Trustee — -Unrecorded Conditional Sale Contracts.</p> <p>Bankr. Act July 1, 3.898, c. 541, § 47a(2), 30 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 86 Stat. 840 (Comp. St. 1933, § 0031), which vests a trustee, as to property coming into bis possession, with “all tlio rights, remedies and powers oí' a creditor bolding a lien by legal or equitable proceedings thereon,” does not entitle Mm as against the seller to bold property delivered to the bankrupt under a conditional sale contract reserving title, which, although unrecorded, is good under the state statute, except as against subsequent purchasers, pledgees, or mortgagees in good J'aith.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <&wkey;140J</p>

H. $. Thomson, Judge. Proceeding by the United States for deportation of Hoey Ay .Sing. Order of deportation affirmed by the District Court, and defendant appeals. The following is the opinion of the District Court: This case has given me considerable thought and solicitude, being desirous on one hand of upholding the law, and on the other anxious to avoid the injustice which would result in the deportation of one who in fact was an American citizen.

<p>1. Trade-Marks and Trade-Names <&wkey;71 — Infringement or Trade-Mark— Marking Article After Expiration or Patent.</p> <p>Plaintiffs’ predecessors manufactured the Jenkins valve, a standard type, under patents; plaintiffs continuing such manufacture after the expiration of the patents. Defendant, Kelly & Jones Company, stamped a like valve on one side “Standard Jenkins Valve,” and on the other “Made by Kelly & Jones Company.” Held insufficient to unmistakably inform the public that the thing manufactured was the work of the Kelly & Jones Company, within the rule that where, during the life of a patent, the name has become the identifying and generic name of the thing patented, such name passes to the public with the cessation of the patented monopoly, and where another avails himself of the expiration of the patent right to make the machine and use the generic designation, the name must not 1)0 used so as to deprive others of their rights and deceive the public, but the product must be marked so as to show the public that it is the work of the one making it.</p> <p>[lid. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. &wkey;71.]</p> <p>2. Trade-Marks and Trade-Names <@=>71 — Uneair Competition — Test or.</p> <p>Courts do not decide misleading markings on manufactured goods, the patent on which has expired, by the caveat emptor rule of buyer and seller, but on the theory that a buyer who has become accustomed to a particular article is entitled to be unmistakably informed that a person other than the former maker is manufacturing the same; the rights of the rival makers- not being the only thing to be considered.</p> <p>[Fd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. &wkey;71J</p> <p>3. Trade-Marks and Trade-Names <@=>100 — Approval or Markings or Goods — Remand or Cause.</p> <p>On appeal from a decree dismissing a proceeding in contempt for violation of an injunction against the use of a misleading marking on manufactured articles, the patent on which had expired, the Circuit Court of Appeals, after reversing the decree, and indicating the general style of marking that should be followed, and on the submission by defendant of markings, approved such markings, the parties having finally agreed thereon, and remanded the cause to the District Court for a determination as to the disposal of articles in the hands of defendant not conforming to the markings as approved.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 114; Dec. Dig. <g=»100J</p>

<p>1. Patents <&wkey;328&emdash;Validity and Infringement&emdash;Method of Operating Compressed-Air Engines.</p> <p>The Hodges patent, No. 953,334, for a method of operating compound compressed-air engines, in which, atmospheric air is used as a means for re-heating the compressed air, after its expansion in the first or high ■ pressure cylinder, and before it passes into the second cylinder, claims 1 and 4, were not anticipated, and are valid in so far as that method is employed upon locomotives; also held infringed.</p> <p>2. Patents <&wkey;I32 — -Validity—Mktuod and Apparatus Patents.</p> <p>The rejection of claims in an application for an apparatus patent, although acquiesced in by the applicant, does not invalidarte a patent subsequently granted to him for the method of operation of such apparatus.</p> <p>[Ed. Note.--For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. &wkey;112.]</p>

<p>Patents <&wkey;828 — Validity and Infringement — Process and Apparatus for Grinding Plate Glass. -</p> <p>The Hitchcock patent, No. 1,056,416, for a method of applying abrasives to apparatus for grinding plate glass, by which the sand is graded as to fineness for use in the successive grindings, discloses a process novel in, practice, useful In result, and inventive in character, and is valid, as is also patent No. 1,056,415, to the same patentee, for apparatus for practicing the process. Both patents also held infringed.</p>

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Suit in equity by the Belsteel Company and John Kerwin against the Lorain Steel Company.</p>

<p>Criminal prosecution by the United States against Matthew T. Grad-well and others. On demurrers to pleas in abatement by defendant Earl Dodge.</p>

<p>1. Aliens <&wkey;23 — Guíñese Exclusion Act — Admission as Member op Exempt Class.</p> <p>A minor son of a Chinese person, who is a member of one of the exempt classes, admitted as such into the United States, does not forfeit his right to remain by subsequently working as a laborer.</p> <p>[ltd. Note. — For other cases, see Aliens, Cent. Dig. §§ 76-90; Dec. Dig. <&wkey;>23.‘J</p> <p>2. Aliens <&wkey;32 — Proceedings por Deportation op Chinese — Stjppiciency op Charge.</p> <p>Technical objections to the form of the warrants in Chinese deportation cases are not sustainable, when it appears that the alien had notice of the actual charge against him in time to meet it and had a fair hearingtkereon.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec.. Dig. <&wkey;>32.]</p> <p>3. Aliens <&wkey;32 — Proceedings p.or Deportation op Chinese — Fairness op Hearing.</p> <p>The fact alone that a Chinese alien before, at, or after his arrest was interrogated without counsel being present does not show that his hearing was not fair, although it is a circumstance which may be considered.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec.. Dig. <&wkey;32J ,</p> <p>4. Aliens <©=?32 — Proceedings por Deportation op Chinese — Evidence.</p> <p>The fact that a Chinese alien was allowed to land is not the equivalent of a certificate of status or residence, and does not shift the burden of proof from him in subsequent proceedings for his deportation.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. &wkey;>32.]</p> <p>5. Aliens <&wkey;32 — Proceedings por Deportation op Chinese — Suppiciencyop Evidence.</p> <p>In proceedings for deportation of a Chinese person before administrative officers, if the evidence is such as might lead a fair and reasonable-man to think that the charge against the defendant was made out, their-decision is not reviewable by the courts.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent Dig.” §§' 84, 92-95; Dec-Dig. <&wkey;32.]</p>

<p>1. Partnership <&wkey;197 — Actions—Statutory Provisions.</p> <p>Under Rev. St. Ohio, § 5011, providing that a partnership formed for the purpose of carrying on a trade or business in the state or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, if a partnership holds property in the state, it may be sued by the firm name, though not formed for the purpose of holding proxierty in the state.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 360; Dec. Dig. &wkey;197.1</p> <p>2. Corporations &wkey;>89 — Stock Assessments — Notice.</p> <p>Under the statutes of Ohio, notice to a nonresident partnership of an assessment on corporate stock owned by it was not invalidated by the previous death of one of the partners; the proceeding being in a sense one in rem.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 367-379, 381, 382; Dec. Dig. <&wkey;89.]</p> <p>3. Limitation or Actions &wkey;1S0 — Actions—Pleading—Dbmukbeb.</p> <p>Rev. St. Ohio, § 3258a, providing that an action upon the liability of stockholders under the preceding section can only bo brought within 18 months after the debt or obligation shall become enforceable against stockholders, is a statute of limitation, and not available on demurrer.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 670-675, 681; Dec. Dig. &wkey;.1S0.]</p>

<p>In Admiralty. Suit by the Mechanics’ Foundry & Machine Company against the fishing schooner Quickstep, heard with seven other cases.</p>

<p>In Equity. Suit by L. I. Cottrell, doing business as Cottrell's Montavilla Grocery, Woodward, Clarke & Co., a corporation, John H. Cowls, Edward McBurney, B. F. Cunningham, P. J. Peterson, and C. H. Reed, copartners doing business as Peterson & Reed, and J. Woolach and M. J. Woolach, copartners doing business as Woolach & Son, against the Sperry & Hutchinson Company, a corporation, George M. Brown, Attorney General of the state of Oregon, and Walter H. Evans, District Attorney of Multnomah county, state of Oregon.</p>

<p>1. Commerce <&wkey;98 — Interstate Commerce Commission — Review of Proceedings.</p> <p>A conclusion of the Interstate Commerce Commission upon a question of fact, such as the reasonableness of a rate or the giving of a preference, whose correctness depends wholly upon a consideration of the weight to be given evidence before it, will not be reviewed by the court; but a conclusion which plainly involves, under the undisputed facts, an error of law, or which is shown to be supported by no substantial evidence, or to be contrary to the indisputable character of the evidence, thereby likewise involving an error of law, will be so reviewed.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 148; Dee. Dig. &wkey;98.]</p> <p>2. Carriers <&wkey;32 — Regulation—Statutory Provisions — “Facility for Interchange of Traffic.”</p> <p>An arrangement whereby the entire switching service of each of two railroad companies over tracks separately or jointly owned by them is performed jointly by both operating as joint principals through a terminals association maintained by them as their joint agent, each switching for both itself and the other railroad, the charge therefor based on actual cost being made against the road having the transportation haul is a reciprocal switching arrangement, and constitutes a facility for the interchange of traffic between the lines to two railroads within Interstate Commerce Act (Act Feb. 4, 18S7, c. 104, 24 Stat. 380 [Comp. St. 1913, § 8565]) § 3, providing that every common carrier shall, according to respective powers, afford all reasonable, proper, and equal facilities fo» the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates between such connecting lines; and hence the railroads doing such switching must afford equal facilities to all other lines for like interchange of traffic without, discrimination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. &wkey;332.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Facilities.]</p> <p>3. Carriers <&wkey;32 — Regulation—Statutory Provisions — “Unjust Discrimination.”</p> <p>Where the entire switching service of two railroad companies was performed jointly by both operating as joint principals through a terminals association as joint agent and the physical conditions surrounding the interchange of traffic between such roads were not substantially different from those surrounding the interchange of traffic between the lines and those of another road not a member of the Terminals Association, and the cost to the former being the same whether the traffic was competitive or not, the refusal of such roads to switch competitive traffic to and from the third road on the same terms as the noncompetitive traffic, while interchanging both kinds of traffic on the same terms with each other, constituted an “unjust discrimination” under Interstate Commerce Act, § 3, requiring every common carrier to afford all reasonable, proper, and equal facilities for the interchange of traffic to connecting lines without discrimination, regardless of the fact that joint terminals have been con-strutted by the two members of the association at great expense and are maintained by them.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. &wkey;>32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Unjust.J</p> <p>4. Carriers ¡&wkey;33 — Regulation—Statutory Provisions — Validity.</p> <p>An order of tlie Interstate Commerce Commission, requiring that certain railroad companies which had entered into an agreement for a reciprocal switching should' cease to maintain a practice whereby they refused to switch interstate competitive traille to and from the tracks of another road on the same terms as interstate noncompetitive trafile, while interchanging both kinds of traffic on the same terms with each other, and that they should establish rates for such other road, which should not be different from those maintained with respect to similar shipments from their respective tracks, is not invalid as requiring the parties to the switching agreement to give the use of their tracks and terminal facilities to the third road within the proviso of Interstate Commerce Act, § 3, that common carriers shall not be required to give tlie use of their tracks or terminal facilities to another carrier engaged in like business.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 86-90; Dec. Dig. &wkey;83.]</p> <p>5. Carriers <&wkey;33 — Regulation—Rates.</p> <p>An order of the Interstate Commerce Commission, requiring certain railroads which had entered into a reciprocal switching agreement to allow another road to participate in its facilities upon equal terms, is not invalid as involving transportation rather than switching, and requiring the establishment of a joint rate and through, route.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 86-90; Dec. Dig. &wkey;>33.J</p> <p>6. Constitutional Law &wkey;>297 — Due Process — Regulation ot? Commerce.</p> <p>An order of the Interstate Commerce Commission, requiring railroads doing reciprocal switching under a joint agreement to allow a third railroad to participate in the facilities .thereof on equal terms, is not invalid as taking property without due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 832-834; Dec. Dig. &wkey;297.J</p> <p>7. Carriers <&wkey;33 — Regulation—Switching Operations.</p> <p>An order of the Interstate Commerce Commission, requiring railroads which are parties to a reciprocal switching arrangement to allow another railroad to participate in the facilities thereof on equal terms, was not invalid because one of the parties to such arrangement had no track connection with the third road within the switching limits of the terminals maintained by the parties to the agreement, where it connected with such road within such switching limits over the lines of another party to the agreement.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 86-90; Dec. Dig. <&wkey;>33.]</p> <p>8. Carriers <&wkey;33 — Regulation—Switching Agreements.</p> <p>An order of the Interstate Commerce Commission, requiring railroads doing their switching under a reciprocal agreement to allow a third road to participate in the facilities thereof,, was not invalid as against the objection that it required the admission of such third into the switching agreement, or to do switching at less than the actual cost of service.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 86-90; Dee. Dig. <&wkey;>33.J</p> <p>9. Carriers <&wkey;33 — Regulation—Switching Operation.</p> <p>An order of the Interstate Commerce Commission, requiring roads which were doing their switching under a reciprocal agreement to give equal facilities to a third road, was not objectionable as requiring the abrogation of the switching agreement. * ></p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. É 86-90; Dec. Dig. <&wkey;>33.]</p> <p>10. Commerce <&wkey;91 — Interstate Commerce Commission — Review—“Final Hearing.”</p> <p>A hearing before three judges of a motion to dismiss for want of equity a petition to set aside an order of the Interstate Commerce Commission is a final hearing within the meaning of Act Oct. 22,1913, c. 32, 38 Stat. 220 (Comp. St. 1913, § 998), relating to final hearings before three judges of any suit brought to sustain or set aside an order of the Interstate Commerce Commission.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 338-355; Dec. Dig. &wkey;>91.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Final Hearing or Trial.]</p> <p>11. Injunction <&wkey;114 — Grounds—Injury.</p> <p>An order made by the Interstate Commerce Commission in reference to switching operations against a holding company carrying on no railroad or switching operations whatever, and which cannot apply or affect such holding company in any way, involves merely abstract and theoretical injuries, without substantial prejudice, and will not be enjoined at its instance.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dec. Dig. <&wkey;114.]</p>

<p>1. Appeal and Error &wkey;>477 — Stay oe Proceedings — Authority op Court.</p> <p>A court of equity has inherent authority in the exercise of a sound, discretion to accompany a decree changing the status quo, with an appropriate provision preserving the status quo pending an appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2247-2219; Dec. Dig. &wkey;477.]</p> <p>2. Appeal and Error <&wkey;477 — Stay op Proceedings — Authority oe Court.</p> <p>The inherent power of a court of equity to maintain the status quo pending ah appeal from a decree changing the status quo is not impaired or lessened by any provision of Interstate Commerce Act Feb. 4, 1887, c. 101, 21 Stat. 379, the act creating the Commerce Court (Judicial Code [Act March 3, 1911, c. 231] § 200, 3G Stat. 1087) or Act Oct. 22, 1913, c. 32, 38 Stat. 219, abolishing the Commerce Court and transferring its jurisdiction to the District Courts.</p> <p>LEd. Noto. — For other cases, see Appeal and Error, Cent. Dig. §§ 2247-2249; Dee. Dig. &wkey;477.]</p> <p>3. Commerce <&wkey;98 — Interstate Commerce Commission — Setting Aside Orders — Stay Pending Appeal.</p> <p>Where it appeared, on a motion to modify a decree denying an interlocutory injunction and dismissing the petition, in a suit to set aside an order of the Interstate Commerce Commission relative to the interchange of (raffle between the petitioners and a certain other railroad, that if the decree should be reversed by the Supreme Court a great and irreparable injury would in the meantime result to the petitioners, by reason of a diversion of part of their traffic by competing railroads, enabled to obtain access to local industries on their lines through the enforcement of such order, and the expense and disturbance of their business caused by changing their former practices and the publication of new tariffs, while it did not clearly appear that any particular individuals would suffer material financial injury if the order of the Commission was stayed for a short time, the enforcement of the order would be stayed, to enable the petitioners to perfect their appeal, and present to the Supreme Court an application for a preliminary suspension order ponding the hearing of the appeal.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 148; Dec. Dig, <S&wkey;9S.]</p>

In Equity. Suit by the Western Union Telegraph Company against the Georgia Railroad & Banking Company, the Louisville & Nashville Railroad Company, and the Atlantic Coast Line Railroad Company. On motion by defendants to dismiss bill.

<p>1. Corporations <&wkey;298, 305 — Duties and Powers of Directors — Delegation of Authority.</p> <p>The stockholders of a corporation have a right to expect from their directors a conscientious consideration of every proposition which is presented, and which involves any interest of the company, and such consideration must be given and action taken in formal meetings. The directors have no power to act as such individually, nor can they delegate the powers vested in them to act for the corporation to any officers or men, even though they are the majority stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1292-1317, 1319, 1329-1332; Dee. Dig. &wkey;298, 305.]</p> <p>2. Corporations &wkey;>180 — Minority Stockholders — Right to Equitable Remedy.</p> <p>Where the business and affairs of a corporation, instead of being managed by its directors, are taken over by the agents and officers of other concerns having the same majority stockholders, and are managed in' the interests of such other corporations, and the minority stockholders are deprived of their just rights, they are entitled to a remedy in equity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 665-673; Dec. Dig. &wkey;>180.]</p> <p>3. Mixes and Minerals <5&wkey;104 — Mining Corporations — Grounds for Appointment of Deceiver- —Maladministration.</p> <p>The directors of a mining company met but four times in four years, and did not call a stockholders’ meeting for more than three years, during which time the company expended $250,000, which was practically all of its available funds, and also sold property for $50,000 which a short time afterward ivas worth $500,000. All of such business was transacted without authority from the directors, by officers who were also officers or employes of other mining companies having the same majority stockholders. The work done was not calculated to, and did not, benefit the company, but did benefit the other companies. Held, that such facts entitled minority stockholders to the appointment of a receiver.</p> <p>[Eel. Note.' — For other cases, see Mines and Minerals, Gent. Mg. § 228; Dec. Dig. &wkey;104J</p>

<p>1. Bankruptcy <&wkey;>292, 293 — Suits by Trustee — Jurisdiction.</p> <p>An action by a trustee to recover property alleged to have been transferred by the bankrupt within four months and when insolvent to defendant, whieh was a general creditor, to give defendant a preference, and to hinder, delay, and defraud other creditors, is within the terms of Bankr. Act July 1, 1898, c. 541, § 67e, 39 Stat. 564, as amended by Act Feb. 5, 1903, c. 487, § 16, 32 Stat. 809 (Comp. St. 1913, § 9651), and therefore one of which the bankruptcy court is thereby given jurisdiction, although plaintiff admits that he does not know the nature or value of the property and demands a discovery from defendant.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419, 411, 413, 415-417; Dec. Dig. &wkey;292, 293.]</p> <p>2. Bankruptcy <&wkey;293 — Suits by Trustee — Jurisdiction.</p> <p>A suit by a trustee, alleging that defendant claims to be the owner of an account due from a debtor to the bankrupt, that such claim is fraudulent and the result of a conspiracy to defraud the bankrupt’s creditors, and praying that defendant’s claim be decreed invalid, is one in the nature of a suit to quiet title to personal property, and not to recover property, and is not within the jurisdiction of a federal court, unless with defendant’s consent, where it could not have "been brought in that court by the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, • Cent. Dig. §§ 411, 417; Dec. Dig. &wkey;o293.j</p> <p>3. Bankruptcy &wkey;>287 — Suits by Trustee — Equity Jurisdiction.</p> <p>A suit by a trustee to recover a voidable preference under Bankr. Act July 1, 1898, c. 541, § 60b, 30' Stat. 562, as amended by Act June 25, 1910, c.. 412, § 11, 36' Stat. 842 (Comp. St. 1913, •§ 9644), where no preliminary relief is necessary to a recovery, is not cognizable in equity, the remedy at law being plain, adequate, and 'complete; but a suit under section 67e, to recover property fraudulently transferred, involves actual fraud, and is within the equity jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 444-447; Dec. Dig. <&wkey;>287.]</p>

Criminal prosecution by the United States against Frank C. Marrin. On petition for writ of habeas corpus and application for order of commitment.

<p>1. CotrBTS &wkey;>280 — Federal Courts — Determination of Jurisdictional Questions.</p> <p>The District Court, separately from the trial on the merits, may hear and determine questions relating to its jurisdiction in any pending action, whether raised by objections to the complaint, plea in abatement, or by motion pending trial.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. &wkey;2S0J</p> <p>2. Courts <&wkey;329 — Federal Courts — Jurisdictional Amount — Conclusiveness of Ad Damnum Clause.</p> <p>The statement of the amount of the claim in the ad damnum clause of the complaint does not give the District Court jurisdiction, unless the facts pleaded sufficiently support the assertion of damages, so as to show that the statement of the amount involved is either in good faith or is open to fair controversy.</p> <p>lEd. Note. — For other cases, see Courts, Cent. Dig. § 897; Dec. Dig. <S&wkey;329.]</p> <p>3. Courts <&wkey;328 — Federal Courts — District Court — Jurisdictional Amo unt — Counterclaim.</p> <p>When the jurisdictional amount in a suit in the District Court is in question, the tendering of a counterclaim in an amount which in itself, or when added to the amount of the petition’s ad damnum, makes up the jurisdictional amount, establishes jurisdiction, whatever the state of the ' complaint.</p> <p>LEd. Note. — For other cases, see Courts, Cent. Dig. §§ 890-896; Dec. Dig. <&wkey;>328.]</p> <p>4. Courts <&wkey;280 — Federal Courts — Jurisdiction—Jurisdictional Amount. Where, in an action in the District Court, the defendant moved for leave to plead separately to the jurisdiction, without prejudice to his right to plead to the merits and to assert any counterclaim, on the ground that the amount involved, exclusive of interest and costs, was less than $3,000, alleging that the plaintiff’s claims were fictitious, and made for the sole purpose of making it appear on the record that the amount involved the jurisdictional limit of the court, such motion will be denied, since its granting would establish a precedent, making it possible in any action at law for a defendant to procure an exhibit of the whole of the plaintiff’s, case prior to preparing his answer, while the defendant, in answering, could plead such facts as affected the good faith of the complaint, tending to show that the jurisdiction of the court was improperly sought, not merely facts tending to reduce the amount of plaintiff’s complaint below the jurisdictional amount, and with such defense could set up any counterclaim, which, if evidence on the defense of want of jurisdiction established that the court was improperly entered, the defendant, following favorable action on his motion to dismiss the complaint, might dismiss his counterclaim without prejudice, gaining all sought by the motion to plead to the jurisdiction. -</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. <§=~>280.]</p>

<p>In Equity. Suit by the Isaac McLean Sons Company against William S. Butler & Co., Incorporated. Heard on claims, disputed by receivers, of Elizabeth F. Sullivan, Agnes Murphy, James A. Gagnon, and John N. Jowett</p>

<p>Aliens <&wkey;>(1(¡ — Naturalization—Merchant Seamen.</p> <p>An alien seaman, who has served three years on board of a merchant vessel of the United States subsequent to his declaration oí intention to become a citizen, and who produces his certificate of discharge and good conduct during that time, together with the certificate of his declaration of intention, is by the terms of Rev. St. § 2171 (Comp. St. 1913, § 4357), entitled to admission as a citizen without further proof.</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. § 130; Dea Dig. <S=00.)</p>

Dr. W. A. Charter was indicted for an offense under the Harrison Act. On application for leave to withdraw a plea of not guilty and file a motion to quash or a demurrer.

<p>In Bankruptcy. In the matter of the Butte Duluth Mining Company, alleged bankrupt.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; William L. Day, Judge.</p> <p>Suit in equity by Parthenia Burke Ross against the Quinnesec Iron Mining, Company, Price McKinney, James W. Corrigan, Fred W. Steinen, James E. Ferris, Andrew Squire, and Corrigan, McKinney & Co., a partnership. Decree for defendants, and complainant appeals.</p>

Pollock, Jpdge. In the matter of the Bank of Sully, Iowa, bankrupt. Prom an order awarding priority to the claim of Herbert Roedenbeck, E. B. Macy, trustee, appeals.

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Criminal prosecution by the United States against Marion W. Rose and others. From a judgment of conviction, defendant Rose brings error.</p>

Dyer, Judge. Action at law by George B. Vaughan and Michael Conroy, copartners as Vaughan & Conroy, against the McArthur Bros. Company, a corporation. From an order remanding the cause to the state court, and taxing the costs made in the District Court to plaintiffs, they bring error.

<p>Insurance <&wkey;85 — Revocation or Agency — Breach oe Contract.</p> <p>A contract of agency by which a life insurance company appointed a general agent for certain territory, to be paid by commissions on the premiums collected on policies secured by him, in the absence of any provision for a fixed term is one terminable at will, notwithstanding a provision for its termination on notice, and the fact that the company ceased to do business in such territory did not constitute a breach of the contract for which the agent can recover damages.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dec. Dig. &wkey;85.]</p>

<p>1. Creditors’ Suit &wkey;>ll — Necessity of Prior Judgment — Nonresidence and Insolvency of Debtor.</p> <p>A federal court of equity has jurisdiction of a suit by creditors to set aside a fraudulent conveyance, although they have not reduced their claims to judgment, upon allegation and proof that the debtor has left the jurisdiction and is insolvent.</p> <p>[Ed. Note. — Eon other cases, see Creditors’ Suit, Cent. Dig. §§ 46-66; Dec. Dig. <&wkey;>ll.]</p> <p>2. Courts <&wkey;359 — Federal Courts — State Laws as Rules of Decision— Fraudulent Conveyances.</p> <p>Whether a conveyance is fraudulent as to creditors must be determined in a federal court by the local law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. &wkey;»359.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>3. Fraudulent Conveyances <&wkey;104 — Transfers . Invalid — Husband and Wife.</p> <p>Under the law of Arkansas as established by decision, the conveyance by a husband to his wife of land which stood in his name at the time he contracted debts, the creditors relying on his apparent ownership, is fraudulent as to such creditors.</p> <p>[Ed. Note. — For other eases, see Fraudulent Conveyances, Cent. Dig. §§ 337-344; Dec. Dig. &wkey;104.]</p> <p>4. Courts <&wkey;347 — Practice under Equity Rules — Pleading—Set-Off.</p> <p>Allegations in an answer, intended to plead a set-off, held insufficient under equity rule 30 (198 Fed. xxvi, 115 C. C. A. xxvi).</p> <p>[Ed.' Note. — For other cases, see Courts, Cent. Dig. § 921; Dee. Dig. <&wkey;347.]</p>

Landis, Judge. In the matter of John W. Farley & Co., bankrupts. To. review an order of the District Court concerning the disposition of a balance in the hands of Joseph P. Gallagher, trustee, the Ft. Dearborn National Bank of Chicago and another appeal and bring petitions to review and revise. Appeals dismissed. By agreement of parties the above four cases were heard together upon the record filed in No. 2205. Cases Nos. 2205 and 2263 are on appeals from the District Court.

Landis, 'Judge. In the matter of John W. Duntley, bankrupt. From a judgment dismissing the petitions of Frank C. Patten and another to have Duntley adjudicated a bankrupt, the petitioners appeal.

Anderson, Judge. Petition by the Continental Motor Manufacturing Company and others to have the Brown Commercial Car Company adjudicated a bankrupt. From a decree adjudging such company a bankrupt, it appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur L. Sanborn, Judge.</p> <p>Suit by the Buffalo Specialty Company against Noah Van Cleef and others, a copartnership doing business as Van Cleef Bros. From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge. _ ..."</p> <p>_ Chin ■ Sing was convicted of violation of the laws as to smoking opium, and brings error.</p> <p>The indictment herein consists of six counts, of which the first four are based upon the act of Congress approved January 17, 1914, entitled “An act regulating the manufacture of smoking opium within the United States and for other purposes” (38 Stat. 277, c. 10), and the last two are based upon the act of Congress approved February 9, 1909, entitled “An act to prohibit the importation and use of opium for other than medicinal purposes” (35 Stat. 614, c. 100 [U. S. Comp. St. 1913, §§ 8800, 8801]).</p> <p>Inasmuch as the exact language of these acts becomes material under the errors assigned, they are set out here. The former provides:</p> <p>“Section 1. That an internal revenue tax of .$300 per pound shall be levied and collected upon all opium manufactured in the United States for smoking purposes; and no person shall engage in such manufacture who is not a citizen of the United States and who has not given the bond required by the Commissioner of Internal Revenue. Every person who prepares opium suitable for smoking purposes from crude gum opium, or from any preparation thereof, or from the residue of smoked or partially smoked opium, commonly known as yen shee, or from any mixture of the above, or any of them, shall be regarded as a manufacturer of smoking opium within the meaning of this act.</p> <p>“Sec. 2. That every manufacturer of such opium shall file with the collector of internal revenue of the district in which his manufactory is located such notices, inventories, and bonds, shall keep such books and render such returns of material and products, shall put up such signs and affix such number to his factory, and conduct his business under such surveillance of officers and agents as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. But the bond required of such manufacturer shall be with sureties satisfactory to the collector of internal revenue, and in a penal- sum of not less than $100,000; and the sum "of said bond may be increased from time to time and additional sureties required, at the discretion of the collector or under instructions of the Commissioner of Internal Revenue.</p> <p>“Sec. 3. That all opium prepared for smoking manufactured in the United States shall be duly stamped in such a permanent manner. as to denote the payment of the internal revenue tax thereon.</p> <p>“Sec. 4. That the provisions of existing laws covering the engraving, issue, sale, accountability, effacement, cancellation, and the destruction of stamps relating to tobacco and snuff, as far as applicable, are hereby made to apply to stamps provided for by the preceding section.</p> <p>“Sec. 5. That a penalty of not less than $10,000 or imprisonment for not less than five years, or both, in the discretion of the court, shall be imposed for each and every violation of the preceding sections of, this act relating to opium by any person or persons; and all opium prepared for smoking purposes wherever found within the United States without the stamps required by this act shall be forfeited and destroyed.</p> <p>“Sec. 6. The provisions of the act of October first, eighteen hundred and ninety (Twenty-sixth Statutes, page fifteen hundred and sixty-seven), in so far as they relate to the manufacture of smoking opium, are hereby repealed.”</p> <p>The two sections of the latter act read as follows, viz.:</p> <p>“Section 1. That after the first day of April, nineteen hundred and nine, it shall be unlawful to import into the United States opium in any form or any preparation or derivative thereof: Provided, that opium, and preparations and derivatives thereof, other than smoking opium or opium prepared for smoking, may be imported for medicinal purposes only, under regulations which the Secretary of the Treasury is hereby authorized to prescribe, and when so imported shall be subject to the duties which are now or may hereafter be imposed by law.</p> <p>“Sec. 2. That if any person shall fraudulently or knowingly import or bring' into the United States, or assist in so doing, any opium- or any preparation or derivative thereof contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such opium or preparation or derivative thereof after importation, knowing the same to have been imported contrary to law, such opium or preparation or derivative thereof shall be forfeited and shall be destroyed, and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or by imprisonment for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have, or to have had, possession of such opium or preparation or derivative thereof, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury.”</p> <p>The first count of the indictment charged the unlawful manufacture of opium for smoking purposes and that the bond required by law had not been given. The second count charged the same offense, reciting that a bond with sureties satisfactory to the collector of internal revenue and in a penal sum of not less than $100,000 had not been given. The third count charged plaintiff in error with unlawfully being engaged in the manufacture of opium for smoking -purposes, that he had failed to file with the collector of internal revenue of the district in which his manufactory was located the notices, inventories, and bonds, and had failed to keep the books and render the returns, and to operate the business under the surveillance, required by the Commissioner of Internal Revenue, with the approval of the Secretary of tho Treasury. The fourth count charged plaintiff in error with the unlawful manufacture of two pounds of opinm for smoking purposes and that he failed to stamp the opium in such a permanent manner as to denote tile payment of the internai revenue tax thereon. The fifth count charged that plaintiff in error imported and brought into the United States a large quantity of opium not for medicinal purposes, under regulations prescribed by the Secretary of the Treasury. The sixth count charged plaintiff in error with unlawfully receiving and concealing smoking opium which had previously been imported into the United States contrary to law.</p> <p>From the record it appears that, when the officers arrested plaintiff in error, there was found upon the premises in which tho arrest was made several pails Of opium in different stages of manufacture, five pounds of crude opium wrapped in a. leaf, certain utensils used in the manufacture, sale, and use of opium, and several smoking outfits. This was on March 3, 1914, or 48 days after the act upon which counts 1, 2, 3 and 4 are based was approved. The government chemist identified the opium so seized as crude gum opium, the aqua solution of gum opium, opium in all its various stages of manufacture, the finished product, and smoking opium. These analyses were before the jury. Plaintiff in error admitted he was the boss. He was pointed out by tixe man in charge as the boss. He produced the keys to the several drawers from Ms pocket, and otherwise held himself out as the proprietor, though he later denied that he was.</p> <p>Plaintiff in error’s motions at the close of the government’s evidence and of all the evidence to direct a verdict were denied. He was found guilty upon all the counts of the indictment, and was sentenced to five years’ imprisonment in the penitentiary at Joliet, 111., from which judgment of the court this writ of error was taken.</p> <p>The errors assigned are:</p> <p>(1) Tho overruling of the motions to direct a verdict, both at tho close of the government's ease and at the conclusion of all the evidence.</p> <p>(2) The evidence fails to show that plaintiff in error manufactured opium without giving bond as required, or that he manufactured opium for smoking purposes after the statute went into effect, or at all.</p> <p>(3) The evidence fails to show that plaintiff in error knowingly or otherwise imported gum opium, or that he concealed such opium knowing that it was wrongfully imported, or that same had been in his possession contrary to law.</p> <p>(4) There was produced no evidence to show what bond was required by the Commissioner with the approval of the Secretary of the Treasury.</p> <p>(¡5) No evidence was produced as to the judicial and revenue districts in which the alleged crimes were committed. ■,</p> <p>(0) The court was without authority to instruct the jury as to such matters in tiie absence of evidence.</p> <p>(T) The court admitted in evidence over objection an application and bill for gas pertaining to the premises occupied by plaintiff in error.</p> <p>(5) The jury failed to specify the counts under which the jury found plaintiff in error guilty.</p> <p>(9) The said acts of Congress are unconstitutional.</p> <p>(10) The judgment and sentence of the court are excessive and unwarranted under tlie law and tho evidence and the verdict.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of¡ Illinois; Arthur L. San-born, Judge.</p> <p>In the matter of the Desnoyers Shoe Company, bankrupt. From an order allowing the claim of the United Shoe Machinery Company, the Sangamon Loan & Trust Company, trustee in bankruptcy, appeals.</p> <p>The bankrupt leased shoe machinery from the claimant under numerous leases dated on and after 1904. They contained, among others, the following provisions:</p> <p>“(1) The leased machinery shall at all times remain and be the sole and exclusive property of the lessor and the lessee shall have no right of property therein, but only the right to use the same upon the conditions herein contained. * * * If the lessee becomes insolvent or bankrupt, or has a receiving order made against him, * * * then and in each such case any or all leases of or licenses to use machinery then existing between the lessor and the lessee * * * shall at the option of the lessor cease and determine, and the possession of and full right and control of all machinery the leases or licenses of which are so terminated, shall thereupon revest in the lessor free from all claims and demands whatsoever.”</p> <p>“(10) The term of this agreement shall be 17 years from the date hereof. The lease of and license to use the leased machinery and the clicking machine dies of the lessor shall continue, unless sooner terminated by the lessor because of breach on the part of the lessee, or otherwise as in this agreement, provided, for the full term of this agreement. But if any breach or default shall be made in the observance of any one or more of the conditions herein contained ■* * * obligatory upon the lessee, the lessor shall have the right, by notice in writing to the lessee, to terminate forthwith any or all leases of or licenses to use machinery then in force between the lessor and the lessee. * * * If upon the expiration of the full term of this agreement, the lessor does not request the return of the leased machinery, then the leased machinery and dies shall continue to be held and used under and in accordance with the conditions, stipulations, and provisions in this agreement' contained, and this agreement and the lease and license herein contained shall thereupon be extended indefinitely as to term; but thereafter either the lessee or the lessor, upon 60 days’ notice in writing to the other, may terminate this agreement and the lease and license herein contained, whereupon the leased machinery shall be delivered forthwith to the lessor, as herein provided.</p> <p>“(11) Upon the expiration of this agreement or any extension thereof or the termination of the lease and license herein contained, the lessee shall forthwith deliver the leased machinery to the lessor at Beverly, Mass., in good order, reasonable wear and tear alone excepted.”</p> <p>In some of the leases, designated as “Form 1,” paragraph 11 continues as follows:</p> <p>“And shall thereupon pay to the lessor without prejudice to any other rights or remedies of the lessor the sum of one hundred dollars ($100) in respect to each machine hereby leased as partial reimbursement to the lessor for deterioration of the leased machinery, expenses iu connection with the installation thereof and instruction of operators.”</p> <p>Form 2 lias the following return charge clause:</p> <p>“(7) Independently of and in addition to all other payments herein provided for the lessee upon the expiration or termination of the lease hereby granted or any extension thereof shall pay to the lessor in respect to each machine hereby leased the amount set opposite the name of such machine in column numbered ‘111’ in the ‘Schedule of Machines’ hereinbefore contained: Provided, however, that in case at all times prior to such expiration, or termination the lessee shall have faithfully kept, observed and performed all of the conditions, terms, agreements, stipulations, and provisions of this lease and license agreement, and of all other leases and licenses and agreements between the lessor and the lessee, and is not in default in respect to any pay-' ment or otherwise hereunder or thereunder, and shall promptly and fully carry out all obligations incumbent upon the lessee upon such expiration or termination, the payment in this article hereof provided to be made in respect to each such machine shall be reduced by an amount equal to one-half of the annual payments theretofore made by the lessee to the lessor in respect to such machine under the provisions of article 6 hereof; or in case one-half of such annual payments theretofore made by the lessee to the lessor in respect to such machine equals or exceeds the payment in this article hereof provided to be made in respect thereto then said payment under this article hereof in respect to said machine shall be waived.”</p> <p>The return charge clause iu Form 3 reads as follows:</p> <p>“Upon the expiration or termination of this agreement or any extension thereof, or of the lease and license hereby granted, the lessee, in addition to all other payments in this agreement provided for and without prejudice to any other rights or remedies of the lessor, shall pay to the lessor as partial reimbursement to the lessor for deterioration of the leased machinery, expenses in connection with the installation thereof and instruction of operators, an amount in respect to each machine hereby leased equal to two-thirds of the sum set opposite the name of such machine in the column numbered ‘V in the Schedule of Machines hereinbefore contained: Provided, however, that in case the lease and license hereby granted shall continue throughout the full term of 17 years hereinbefore provided for as the full term of tills agreement and the lessee at the time of returning the leasfed machinery at the end of said full term shall not be in default as to any of the payments under or other conditions, stipulations, or provisions of this or any other lease or license agreement between the lessor and the lessee, then the payment in this article hereof provided for shall not be required to be made.”</p> <p>This form- has in addition a repair charge clause as follows:</p> <p>“Upon the expiration or termination of this agreement or any extension thereof or of the lease and license herein contained, the lessee shall forthwith deliver the leased machinery to the lessor at Beverly, Mass., in good order, reasonable wear and tear alone excepted, and shall thereupon pay to the lessor without prejudice to any of the rights or remedies of the lessor such sum as may be necessary to put the leased machinery in suitable order and condition to lease to another lessee.”</p> <p>The petition in bankruptcy was filed July 21, 1911; on July 26, 1911, a notice in reference to the termination of the leases was served on the bankrupt’s receiver. The claim for the so-called “return charges” and for freight and repair expenses, rejected by the referee as conditional and therefore not provable in bankruptcy, was allowed by the District Court in the sum of over $20,000.</p>

<p>1. Aliens &wkey;>32 — Deportation Proceedings — Judicial Review.</p> <p>In determining whether an alien is lawfully in the United States, the hearings before the administrative officers charged with the execution of the statute are conclusive when fairly conducted; and the conclusions and orders made upon such hearings are not subject to judicial review, unless it be shown that the proceedings were manifestly unfair, that the action of the officers was such as to prevent a fair investigation, or that there was a manifest abuse of the discretion committed to them by the statute.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. &wkey;»32 j</p> <p>2. Aliens &wkey;>32 — Deportation Proceedings — Hearings.</p> <p>A Chinese person, when arrested, was examined by an immigration inspector, and then stated that he was born in China and smuggled into the United States. On a further hearing, when he was represented by counsel, he repudiated these statements, and claimed to be of American birth, and his testimony to that effect was corroborated. Held that, his statements on the first hearing not having been made under duress, nor procured through any abuse of power on the part of the immigration inspector, it was not a denial of a fair hearing to base an order of deportation upon his admissions at such hearing, as such a preliminary investigation as was made is proper and necessary to the efficient administration of the statute.</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;32.]</p> <p>3. Aliens <&wkey;32 — Deportation—Country to Which Alien should be Deported.</p> <p>Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 904 (Comp. St. 1913, § 4269), provides in section 20 that any alien entering the United States-in violation of law shall be deported to the country whence he came, and section 21 (section 4270) similarly provides regarding aliens found in the United States in violation of statute or subject to deportation. Section 35 (section 4284) provides that the deportation of aliens, arrested within the United States after entry and found to be illegally therein, shall be to the trans-Atlantic or trans-Paeific ports from which they embarked for the United States, or, if such embarkation was for foreign contiguous territory, to the foreign port at which such alien embarked for such territory. Held, that a Chinese person, embarking from Hong Kong for a point in Canada with the intent or design of entering the United States, was properly ordered deported to China, notwithstanding a stay of a few months in Canada.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;32J</p> <p>4. Aliens <&wkey;32- — Deportation—Country to Which Alien should be Deported.</p> <p>A Chinese person embarked from Hong Kong for a point in Canada, and after a stay of a l'ew months in Canada unlawfully entered tile United States. It appeared that he had previously long resided in the United States, that he had come to this country from China on three different occasions, and that he had relatives and friends here with whom he liad been engaged in business. Held that, presumptively, he intended to go to the United States, by the way of Canada, because that was what he actually did, and the circumstances, instead of tending against this presumption, supported it, and hence he was .properly ordered deported to China, instead of Canada.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <&wkey;32.</p> <p>What Chinese persons are excluded from the United States, see note to Wong You y. United States, 104 C. C. A. 538.]</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern-District of Illinois; Kenesaw M. Landis, Judge.</p> <p>Ad ion for penalties by the United States against the Elgin, Joliet & Eastern Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>By this writ of error the Elgin, Joliet & Eastern Railway Company socks to reverse a judgment of $3,000 on a directed verdict, based on 30 counts, each, charging a violation ol' an order of the Interstate Commerce Commission, issued on June 28, 1911, and made pursuant to section 20 of the Act Jto Regulate Commerce as amended in 1910.</p> <p>Prior to 19J 0, section 20 authorized the Commission to require annual reports under oath containing a vast amount of statistical informaüon, and provided that -‘if any carrier * * * shall fail to make and file said annual reports within the time above specified, or within the time extended by the Commission for making and filing the same, * * * such party símil forfeit to the United States the sum of one, hundred dollars for each and every day it shall continue to ho in default with respect thereto.” 34 Stat. 593, § 7.</p> <p>By tiie amendment, the following clause was added: “The Commission shall also have authority by general or special orders to require said carriers * « « to file * * * both periodical and special reports concerning any matters about which the Commission is authorized or required by this or any other law to Inquire or to keep itself informed or which it is required to enforce; and such periodical or special reports shall be under oath whenever the Commission so requires; and if any such carrier shall fail to make and file any such periodical or special report within the time fixed by the Commission, it shall be subject to the forfeitures last above provided.” 36 Stat. 556, § 14.</p> <p>The Hours of Service Act (34 Stat. 1416 [Comp. St. 1913, § 8678]), which the Commission is required to enforce, provides that no train dispatcher “shall be * *. * permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period * * • except in case of emergency, when the employés named * * * may be permitted to be and remain on duty for four additional hours * * * on not exceeding three days in any week.”</p> <p>The Commission’s order, as set out in the declaration and stipulation of facts on which the case was heard, reads as follows: “It is ordered, that all carriers subject to the provisions of the act entitled ‘An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon,’ approved March 4, 1907, report within 30 days after the end of each month under oath, all instances where employés subject to said act have been on duty for a longer period than that provided in said act.”</p> <p>The declaration charged that the defendant, “having theretofore failed to make and file with said Commission in any form whatsoever a report of all the instances wherein its employés subject to” the Hours of Service Act were on duty in “December, 1912, for a longer period than that provided in said act, did, on the 1st day of February, 1913, continue to be in default with respect thereto and did fail to make and file with said Commission any report of the following instances” alleging specific instances of service in excess of nine hours.</p> <p>The stipulated facts showed that the employés in question had been in service more than nine, but less than thirteen, hours for three consecutive days in December, 1912; that for December, 1912, the form of report required by the Commission was made within thirty days and that it contained no reference to the excess hours in question. The court rejected defendant’s offer to prove the facts which it claimed constituted an emergency within the statute, and its further offer to prove its belief that the facts did constitute a statutory emergency, and that these instances were omitted from the regular monthly report only because of the good faith understanding and belief of defendant’s chief dispatcher, whose duty it was to make, and who in fact made, the reports, that under the Commission’s order there was no obligation to include these instances, and that the omission was not due to any intention to evade either the Hours of Service Act or the Commission’s order.</p>

Otis Humphrey, Judge: Action by Edward Reiter against the Standard Scale & Supply Company. Judgment for plaintiff, and defendant brings error. This cause was reversed on the former hearing thereof, for the reason that the trial court excluded evidence tendered for the purpose of showing what were the duties of defendant in error as general manager under the terms of the contract between the parties, and not. for the purpose of altering the legal effect of that contract.

M. Morton, Judge. In the matter of the bankruptcy of one Soforenko, wherein William C. Gray was named as trustee. From an order (210 Fed. 562) affirming the disallowance by the referee in bankruptcy of a claim filed by Israel Seligman against said bankrupt’s estate, said claimant appeals.

<p>1. Patents i&wkey;328 — Validity and Infringement — Machine for Edge-Uniting Veneers.</p> <p>The Boeimiug patent, No. 709,864, for a machino for edge-uniting veneers, held valid, and claims 4, 5, 10, 12, and 15 infringed.</p> <p>2. Patents <&wkey;165 — Construction—Claims to be Construed Independently.</p> <p>Each claim of a patent is supposed to embody a complete invention, and is in effect an independent patent for the device it covers, and a limitation contained in one claim cannot be read into another.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. &wkey;?165.]</p> <p>3. Patents &wkey;>236 — Infringemeni>--Substitution of Equivalent Parts.</p> <p>A change in the form of some of the mechanism of a patented machine does not avoid infringement, where the principle of operation is substantially the same, and the same result is produced.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 372, 373; Dec. Dig. <&wkey;236.] ,</p> <p>4. Patents <&wkey;245 — Scope of Invention — Right to Equivalents.</p> <p>Although a patent for a combination in a machine of elements which were old in other and distinct arts, more or less remote, cannot be regarded as one for a primary invention, yet, where the patentee made a material advance in the particular art, the claims are entitled to a range of equivalents commensurate with his invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 386; Dec. Dig. <§=»245.</p> <p>' Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]</p> <p>5. Patents <&wkey;168 — Construction—Estoppel by Cancellation of Claims.</p> <p>The voluntary cancellation of a claim in an application for a patent does not create an estoppel, affecting the construction or scope of other claims as allowed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 243%, 244; Dec. Dig. &wkey;>168.]</p>

Suit in equity by the Thomson Electric Welding Company and another against Barney & Berry, Incorporated, for infringement of letters patent No. 1,046,066, for a method of electric welding, issued to J. Harmatta December 3, 1912. Decree. for defendant, and complainants appeal.

<p>1. Patents <&wkey;328 — Validity and Infringement — Pavement and Process of Laying Same.</p> <p>The Hassam patents, No. 819,652, for a pavement and process of laying the same, No. 851,625, for a process of laying pavement, and No. 861,650, for an artificial structure and process of laying the same, also relating to a pavement, were not anticipated and disclose invention; also held infringed.</p> <p>2. Patents &wkey;>26 — Invention—Combination of Old Elements.</p> <p>While the mere bringing together of old elements, which in their new places do no more than their original work, is not invention, if they co-act with each other in their new and unitary organization, so as to produce a more beneficial result than by their separate operation, it may constitute patentable invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <&wkey;>26.</p> <p>Patentability of combinations of old elements as dependent on results attained, see note to National Tube Co. v. Aiken, 91 C. C. A. 123.]'</p> <p>3. Patents <&wkey;112 — Suit foe Infringement — Defense of Invalidity — Burden and Degree of Pboof.</p> <p>The granting of a patent is prima facie evidence that the patentee is the first inventor of the device or process and of its novelty, and a party alleging invalidity, not only has the burden of proof to establish such defense, but every reasonable doubt should be resolved against him.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. <&wkey;112.]</p> <p>4. Patents &wkey;53 — Anticipation by Prior Use — Abandoned Experiment.</p> <p>A single experiment with a pavement, which was unsatisfactory and was abandoned, is not sufficient in law to anticipate a successful patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 71; Dec. Dig. &wkey;?53.]</p> <p>5. Patents <&wkey;283 — Suit fob Infringement — Estoppel.</p> <p>That a city, in soliciting bids for paving, at the instance of tho owner of patents specified the patented pavement, does not justify one who underbid the owner of the patents in infringing the same, nor estop such owner from suing for the infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 418-450, 452; Dec! Dig. <&wkey;283.]</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Ferdinand A. Geiger, Judge.</p> <p>Suit in equity by the U. S. Slicing Machine Company against G. S. Blakeslee & Co. Decree for defendant, and complainant appeals.</p>

<p>Patents <&wkey;328 — Infringement—Typewriting Machine.</p> <p>The- Wagner patent, No. 633,672, for improvements in typewriting machines, is a narrow one in a crowded art, and not entitled to a broad construction, nor to a liberal application of the doctrine of equivalents. So construed, claim 17 held not infringed by a machine which does not have the “independently movable parallel shafts” on which the feed-rollers are mounted, which are made one of the elements of the claim.</p>

<p>1. Patents <&wkey;828 — Validity and Infringement — Box-Making Machine.</p> <p>Tile Parker patent, No. 980,481, for a box-making machine, especially adapted to the making of boxes or crates for oranges, was not anticipated, discloses patentable invention and marks a distinct advance in Ihe art of great value; the machine being automatic in operation after the parts of the boxes are fed into it, and capable of turning out 450 completed boxes per hour, as against 80 by the manually operated machines of the prior art. Also held infringed.</p> <p>2. Patents <&wkey;243 — Infringement—Uniting Two Elements of Combination</p> <p>in One.</p> <p>The joinder of two elements of a patented combination into one integral part, which, accomplishes the purpose of both without changing the principle of operation of the combination, does not avoid infringement.</p> <p>[Ed. Note. — For other cases, sco Patents, Cent. Dig. §§ 382-384; Dec. Dig. <&wkey;243.]</p> <p>3. Patents <&wkey;241 — Infringement—Machines.</p> <p>A machine which is constructed on the same principle as that of a patent, and which has the same mode of operation, and accomplishes the same result, by the same or equivalent mechanical means, infringes the patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 380; Dec. Dig. <&wkey;>241.]</p>

<p>Patents <&wkey;328 — Validity and Infringement — Acetylene Gas-Generating Lamp.</p> <p>Tiie Baldwin reissue patent, No. 13542 (Original No. 821,850), for acetylene gas-generating lamp, claim 4, the principal features of which are that the water tube extends down into the mass of the carbide and within it is a movable rod or stirrer, which controls the flow of water and also is used to break up the slaked carbide which cakes at the delivery end of the tube, was not anticipated, discloses invention, and is not invalid, as broadening the invention of the original patent because the rod is not limited to one having a bent arm; also held infringed.</p>

In Equity. Suit by Joseph B. Singer against Eamont, Corliss & Co., a corporation, for infringement of claims 2, 3, and 4 of letters, patent No. 880,410 for a combined carton and display device, granted to complainant February 25, 1908. On final hearing.

<p>In Equity. Suit by the Western Union Telegraph Company against the Atlanta & West Point Railroad Company. On motion to dismiss bill.</p>

<p>In Bankruptcy. In the matter of Sidney Willett Hoag, bankrupt. Application to sell a city pension as an ass'et of the estate.</p>

In Bankruptcy. In the matter of Sidney Willett Hoag, bankrupt. On motion to modify the usual bankruptcy injunction, so as to permit the owner of a judgment against Hoag (procured within four months of bankruptcy) to issue an execution under section 1391, Code Civ. Proc. N. Y., against the bankrupt’s pension as a retired employé of this city.

In Equity. Suit by Andrew C. Spring, a stockholder of the Rutland Railroad Company, against William Seward Webb and others. On motion to dismiss the bill. The action was brought by a shareholder of the Rutland Railroad Company, on behalf of himself and all others similarly situated, etc., and is of the kind referred to in equity rule 27 (198 Fed. xxv, 115 C. C. A. xxv). Spring was the sole plaintiff, and he died on December 14, 1914.

<p>Internal Revenue <&wkey;9 — Excise on - Corporation — “Doing Business.”</p> <p>A corporation is “doing business,” and so subject to the excise tax, under Act Aug. 5, 1909, c. 6, 36 Stat. 11, where, though leasing all its property and franchises, except its franchise to be a corporation, it exerts its corporate, powers, whether at its own institution or that of the lessee, by an activity carried on, as by issuance and sale of bonds, to increase its estate, or to do things more than reasonably necessary to enable the lessee to enjoy the rights in existence at the time of the lease or incidental thereto.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p>

<p>At Law. Action by the Public Service Railway Company and another against Herman C. H. Herold.</p>

<p>1. Intern at. Revenue &wkey;>38 — Recovery of Tax Paid — Limitation.</p> <p>The limitation for action to recover an illegally collected excise tax on a corporation as doing business is two years from its payment.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <&wkey;38.[</p> <p>2. Internal Revenue <&wkey;9 — Excise on Corporation — “Doing Business.”</p> <p>A corporation, though it has leased its electric power plant, and all its property and franchises, except the franchise to be a corporation, is “doing business,” and so subject to the excise tax, under Act Aug. 5, 1909, c. 6, 36 Stat. 11; one of the express purposes of its incorporation being to lease such plants.</p> <p>[Ed. 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>At Law. Action by the Public Service Railway Company' and another against Isaac Moffett.</p>

At Law. Action by the Public Service Gas Company and another against Herman C. H. Herold, originally brought in the Supreme Court of New Jersey, and removed to the federal court on certiorari.

<p>At Law. Action by the Public Service Railway Company and another against Herman C. H. Herold.</p>

<p>In Equity. Suit by the Trenton & Mercer County Traction Corporation, the Mercer County Traction Company, the Trenton, Hamilton & Ewing Traction Company, and the Trenton Street Railway Company against the Inhabitants of the City of Trenton, Frederick W. Donnelly, Mayor, and Ralph W. E. Donges, John J. Treacy, and John W. Slocum, constituting the Board of Public Utility Commissioners of New Jersey. On motion for preliminary injunction.</p> <p>On application for preliminary injunction to restrain the city of Trenton and its mayor from proceeding under a certain ordinance of the city, passed on October 22, 1909, and to restrain the board of public utility commissioners of New jersey from continuing a certain order made by them on August 17, 1915, and from conducting a hearing, and taking jurisdiction of the case in which the order was made.</p>

<p>3. Monopolies <&wkey;12 — Clayton Anti-Trust Act — Monopolistic Leases.</p> <p>Leases, by the maker of a very large percentage of all the shoe machinery made in the United Stat es, of machines to shoe manufacturers, consisting' of principal and auxiliary machines, the use of both kinds being necessary in the completion of a shoe, which, leases contain provisions that the lessee shall not use the machine in the manufacture of footwear which has not had certain essential operations performed upon It by other machines leased from the lessor, that he shall use the leased machine exclusively for the class of work for which it is designed, that ho shall obtain all duplicate parts and all supplies for the machine exclusively from Hie lessor at such prices as it may establish, and other similar provisions, and which further give the lessor the right to remove ail leased machines in the event of the violation by the lessee of any term of any one of the leases, hold, on motion for preliminary injunction, illegal, as in violation of Clayton Act, Oct. 15, 1914, c. 323, § 3, 38 Stat. 731.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <&wkey;12.]</p> <p>2. Monopolies &wkey;10 — 1Clayton Anti-Trust Act Construction — Application to Existing- Contracts.</p> <p>Clayton Anti-Trust Act, § 3, which makes it unlawful to lease or sell machinery, etc., on any condition or agreement which will tend to prevent the lessee or purchaser from dealing with competitors of the lessor or seller, is applicable to a continuing contract of lease, although made before its passage.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 9; Dee. Dig.</p>

<p>BANKRUPTCY !&wkey;>136 — JURISDICTJON OF REFEREE — ORDER REQUIRING BANKRUPT to Turn Over Property.</p> <p>A referee is without jurisdiction to make an order requiring a bankrupt to turn over property to his trustee, except in proceedings therefor in which the bankrupt is'given notice and an opportunity to defend.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 233, 235; Dec. Dig. &wkey;>136.]</p>

Munger, Judge. Suit in equity by Smith F. Ferguson, as executor of tire will of Everard D. Ferguson, deceased, and others, against Omaha* & Southwestern Railroad Company and another. Decree for defendants, and complainants appeal.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Equitable Trust Company of New York against the National Bank of Commerce in St. Louis.</p> <p>In the fall of 1806 and for sometime theretofore George E. Nicholson was and had been engaged in the manufacture of cement at Iola, Kansas. Ho was a man of large affairs and had property then worth about one million dollars. One of his competitors was a New Jersey corporation which owned and operated a plant there, ail of its stock being at that time owned by the Iola Portland Cement Company, a corporation of West Virginia. The latter company also owned all of the stock of a Texas corporation, organized for a like purpose, and its plant was then under construction in the latter state. Nicholson feared that the competition and rivalry between the plant in which he was interested and that controlled by the West Virginia company might become disastrous to his interests, and on that account he conceived a plan to acquire a control of the common stock in the West Virginia company, which amounted to 120,000 shares of the par value of $25.00 each; that company had preferred shares outstanding also but holders of those shares did not participate in the management, and profits on them were restricted.</p> <p>Nicholson ascertained that he could buy 110,330 shares of the common stock at par, that is, for $2,758,250. He could not, by his own efforts, obtain so largo a sum, so in the latter part of 1906 he approached Mr. Van 151a room, president of appellant bank, for the purpose of obtaining the assistance of Van Biarcoin and his bank in raising the funds. As tho negotiations between Nicholson and Van Blarcom progressed J. W. Perry, then an employé and later an officer of the bank, was brought into the matter for the purpose of having him take both formal and active participation in behalf of the bank. The result of the negotiations is shown by a written contract between Nicholson and Perry of dato January 17, 1907, from which it appears (a) that Perry was to purchase the common stock of the West Virginia company, (b) that Nicholson was to pay Perry, upon demand, all sums expended in tiie purchase and expenses, (c) Perry was to use his best efforts to negotiate for and procure for Nicholson the loan of such money as was necessary to make the purchase, (d) for that purpose Nicholson was to execute in blank “notes and contracts of pledge in such manner and form and conditioned and provisioned as said J. W. Perry, or B. F. Edwards, or the president or cashier of the National Bank of Commerce in St. Louis (all of which said parties are hereinafter referred to as ‘said parties or either of them’) may require, and to deliver the same to the National Bank of Commerce in St. Louis; and hereby authorizes said parties or either of them to fill up said notes and contracts of pledge in such way, and in such amount, payable at such time and to such parties, and bearing sucb rate of interest as said parties or either of them may elect, and does hereby authorize said parties or either of them upon filling up said notes and contracts of pledge, to deliver, the same to such party or parties as said parties or either of them may elect, for the purpose of obtaining said loan or loans of money. Said parties or either of them shall have the power, upon maturity of any of such notes to fill up and deliver said renewal notes and contracts of pledge therefor, if they so elect, and for that purpose said George B. Nicholson shall execute or have others execute for him, and deliver to said bank, in like manner as above provided, his collateral notes, and contracts of'pledge;” Nicholson further “agrees to deliver to the National Bank of Commerce in St. Louis, at least the sum of Two Million Dollars par value of collateral, and maintain in value the same from time to time, to be satisfactory to said parties or either of them,” and “said parties or either of them shall have the power to pledge said collateral or such part thereof for the payment of all or aiiy of said notes, in such part and amount, as in the judgment of said parties or either of them, they may deem best;” (e) all of the common stock so purchased by Perry was to be, and was in fact, transferred to his name, and he was to hold the same in trust until the full amount of all the notes of Nicholson were fully paid; Perry had the power to vote the stock, to pledge or hypothecate it for the purpose of securing the payment of any or all of Nicholson’s notes, and to pledge it or hypothecate it to secure any renewal of said note or notes; provided, upon the full payment by either Perry or H. G. Hamilton, of Youngstown, Ohio, or Nicholson, of one-third of the purchase price of said stock, together with such interest thereon as Nicholson may have paid or become liable to pay, less dividends on said stock in the meantime, then said third of the stock so purchased was to be delivered to the party making such payment and transferred on the books, provided said stock had not been sold or disposed of under contract or contract of pledge by the contract authorized, and provided further that any part of said one-third may be withdrawn on the same conditions pro rata.</p> <p>The contract also gave Perry the power and duty “To collect and receive during said period of time all dividends that may be declared and paid on said stock not disposed of under contract or contracts of pledge, as herein-above authorized and apply the same to the payment of the principal and interest on said notes, provided to be executed by George E. Nicholson or others for him, and filled up and delivered by said parties or either of them as hereinabove provided, as in the judgment of said parties or either of them may be deemed best.” (f) It was further provided that on the payment of all the notes executed by Nicholson, Perry would cause the National Bank of Commerce in St. Louis to deliver to Nicholson all the collateral he had deposited with it for the purpose of securing the payment of the notes; and (g) “The National Bank of Commerce in St. Louis shall have the power at any time to remove as a party hereto and trustee herein, J. W., Perry, and substitute any other party in his stead, upon notice to that effect, in writing, delivered to Mr. George E. Nicholson; and in the event of the death of said J. W. Perry, to appoint a party to succeed him as a party hereto and as trustee herein. In either of said events, said party so appointed by the National Bank of Commerce in lieu of said J. W. Perry, shall succeed to all his rights and duties herein as a party to this agreement and as trustee herein. This provision shall not be construed to make the National Bank of Commerce in St. Louis liable in any respect whatever on account of any obligation or duty assumed by J. W. Perry, either as party or trustee under this contract.”</p> <p>Some two years later the bank under authority given in the contract sudstituted Tom Randolph, one of its officers, as trustee instead of Perry.</p> <p>It will be observed that H. G. Hamilton, of Youngstown, Ohio was interested in the contract; but it appears from the proof that he and those associated with him withdrew, the appellant furnishing the money to buy them out, formally taking Nicholson’s notes to itself in the manner laid out in the original contract.</p> <p>The 110,330 shares of common stock were purchased by Perry, Nicholson co-operating with him, in January, 1907, and the $2,758,250 required to pay for the same was obtained from the following:</p> <p>Bowling Green Trust Company of New York..................$ 250,000</p> <p>National Park Bank, New York.............................. 100,000</p> <p>First National Bank, Kansas City........................'.... 50,000</p> <p>Pioneer Trust Company, Kansas City......................... 50,000</p> <p>National Bank of Commerce, Kansas City..................... 100.000</p> <p>Commerce Trust Company, Kansas City....................... 100,000</p> <p>Commonwealth Trust Co., St. Louis........................... 300,000</p> <p>William Lanyon............................................. 500,000</p> <p>National Bank of Commerce, St. Louis, Appellant............. 1,308,250</p> <p>And for the respective sums the notes of Nicholson were given, and as collateral security there went with each note common shares so purchased in the West Virginia company equal in par value to the amount named in the note. As additional collateral other stocks belonging to Nicholson and placed with the Bank of Commerce under the requirements of the contract were distributed among the lenders.</p> <p>Nicholson’s note given to the Bowling Green Trust Company for $250,000 was of date January 22, 1907, payable in six months, and the rights of the Bowling Green Trust Company (and appellee with which it was later merged) as pledgee of the 10,000 shares of common stock in the Iola Portland Cement Company of West Virginia, which it took as collateral security on its note, are the subjects of this litigation. The note was also signed by one Oockerill, who was at the time good for that amount, but he later became insolvent.</p> <p>Perry induced the Bowling Green Trust Company to make the loan; he went to New York for that purpose as a representative of appellant, with a letter of Introduction from Van Blarcom; and when the loan was promised Nicholson’s note and the collateral were forwarded by the appellant. Certificates for the shares put up with it stood in the name of Perry, as trustee.</p> <p>Renewals of the loan were made every six months through the request of appellant and without the personal participation of Nicholson, except, perhaps, the last one or two renewals in which he personally participated. Two payments of $50,000 each were made on the loan by the appellant, one in July, 1909, and one in July, 1910. The last renewal was of date July 25, 1910, for $150,000, and interest on that note has been paid up to July 1, 1911.</p> <p>The Bowling Green Trust Company was merged with the Equitable Trust Company, appellee, under New York statute in April, 1909, and the last three renewals were payable to the latter company.</p> <p>On February 6, 1908, a dividend of $6.25 per share was declared on the common stock of the West Virginia company, payable March 10, 1908, and on December 23, 1908, a further dividend on that stock of $12.50 a share was declared payable January 1, 1909. Eleven days prior to the declaration of the last dividend Perry appeared at the office of the Bowling Green Trust Company in New York and requested an exchange of collateral on the indebtedness of Nicholson to that company, and succeeded on that day in obtaining the consent of the trust company to surrender the 10,000 shares of common stock in the West Virginia company and to take in lieu thereof as collateral for that debt 14,000 shares ($25.00 each) of preferred stock in that company then held by appellant, which it had obtained in carrying out the deal under the contract of January 17, 1907, for the benefit of the parties thereto.</p> <p>Perry returned to St. Louis and on December 23rd, the day the dividend was declared, he transmitted in a letter, which he signed as vice president of appellant, the preferred shares to the Bowling Green Trust Company to be substituted for the 10,000 common shares which it held, and thereafter on December 26th, the trust company surrendered the common shares and sent them to Perry, lie acknowledging receipt thereof in a letter of date December 28th, as vice president of appellant.</p> <p>Van Blarcom’s letter of introduction which Perry carried with him to the Bowling Green Trust Company in January, 1907, ou his first visit there for the purpose of securing the loan to Nicholson, in referring to Perry’s mission, recited: “We intend to take a' large interest in the transaction ourselves and will advance the money on the same securities which he (Perry) will offer to you. Further details will,be explained by Mr. Perry.”</p> <p>During Perry’s negotiations with the trust company at that time he was asked by the representative of the trust company if the National Bank of Commerce, or some of its officers, would guarantee or endorse the Nicholson note, and he answered that they would not.</p> <p>The learned District Judge who heard the case below found as a fact that the trust company at the time it surrendered the 10,000 common shares had no knowledge or information that the dividends had been declared; and as there is testimony to support this finding we so accept it. The trust company did not ascertain that fact until long thereafter.</p> <p>.In January, 1907, officers, directors and employés of the bank were made directors of the cement company, and thereafter they constituted a majority of the board, and controlled and directed its affairs, and were members of said board when the dividends were declared. The dividends as declared went into the appellant bank in an account entitled “George E. Nicholson Trustee account,” and were checked out and used to apply on various indebtedness incurred in the deal, most all of which was gradually taken over by the bank, including its own original loan, as pressing circumstances in the judgment of the bank from time to time required.</p> <p>Sometime after appellant obtained the 10,000 shares of common stock from the trust company in exchange as above noted and had gotten all of the other 110,330 shares of common stock into its possession, it realized that it must be rid of them. This was doubtless due to requirements under the National Banking Act, and apparent approaching failure of the entire venture. It still held them as collateral on Nicholson’s large indebtedness, and probably also on the indebtedness of the cement company and its subsidiaries. It was able in December, 1909, to make contracts of sale, largely to those interested in the bank, of 73,552 shares at $8.15 per share; but by stipulation it was agreed that only $487,703.71 was realized thereon. The other shares, 36,778, it took over itself at that agreed price; but it was further stipulated that all of these shares so taken by it were later charged off as utterly worthless. The National Bank of Commerce had greatly extended its credit to Nicholson in addition to the original transaction in the purchase of the common stock, in taking up his indebtedness to Hamilton and associates of Youngstown, Ohio, and other claims against him; and had also extended large credits to the cement company and its two subsidiary companies, and later suffered very great losses in all of these transactions. Both Nicholson and the cement companies became wholly insolvent.</p> <p>The last renewal note given to appellee for $150,000 and interest thereon after July 1, 1911, has not been paid, and the appellee sought in this suit to recover from appellant the amounts of the two extra dividends of twenty-five per cent, and fifty per cent., also four semi-annual dividends of two per cent declared in 1907 and 1908 while the Bowling Green Trust Company held the 10,000 shares, and also the amount realized on those shares on sale of same by appellant, to the extent of its unpaid note and interest thereon. And in January, 1914, decree was entered below in favor of appellee for recovery of $172,800 and execution awarded.</p>

<p>1. Fraudulent Conveyances <&wkey;181 — Effect as to Creditors — Title to Property.</p> <p>As to creditors a fraudulent conveyance is wholly void, and the legal as well as the equitable title remains in the grantor.</p> <p>[Ed. Noto. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 554-559, 501-567; Dee. Dig. &wkey;181.]</p> <p>2. Executors and Administrators <&wkey;329, 388 — Effect of Decree Setting Astde Conveyance by Decedent — Jurisdiction of Probate Court.</p> <p>Under Rev. St. Mo. 1879, § 2360, which prohibited tbe issuance of execution against the property of a deceased person, but provided that a judgment or decree rendered against him in his lifetime should constitute a demand against his estate, to be proceeded on in tbe probate court, which by other statutory provisions was authorized to sell both personal and real property to pay debts generally, and also to order tbe sale of real estate on which judgments were liens for the payment of such judgments, where judgment creditors of a decedent obtained a decree setting aside a fraudulent conveyance made by him, the probate court bad jurisdiction to order the land sold to pay tbe judgments, and tbe administrator’s deed made on such sale conveyed a good title as against the fraudulent grantee and his heirs.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1052, 1059, 1342, 1850-1364, 1573-1582; Dec. Dig. &wkey;329, 388.</p> <p>Construction and operation of decree setting aside fraudulent conveyance, see note to Byrd v. Hall, 117 C. C. A. 573.]</p> <p>3. Adverse Possession <&wkey;86 — Payment of Taxes — Statutory Provisions.</p> <p>Under Rev. St. Mo. 1889, § 6770, which provides that 30 years’ lawful possession of real estate shall bar an action for its recovery by an adverse claimant who has not been in possession or paid any taxes thereon during that time, the actual payment of taxes only will defeat the bar of the statute, and an offer to pay is unavailing, when the taxes are in fact paid by the one in possession.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 504; Dec. Dig. <&wkey;86.]</p> <p>4. Adverse Possession &wkey;>68 — “Lawful Possession” — Color of Title.</p> <p>“Lawful possession,” under Rev. St. Mo. 1889, § 6770, which provides that 30 years’ lawful possession of real estate shall bar an action for its recovery, means under color of title.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. <&wkey;68.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Lawful Possession.]</p> <p>Sanborn, Circuit Judge, dissenting in part.</p>

Dyer, Judge. Action at law by Clyde F. Sugg and others against John Eskew and the Decatur Egg' Case Company. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from the District Court of the United States for the District of Utah; J. A. Marshall, Judge.</p> <p>Suit by George Wenlger against the Success Mining Company aiid others, wherein M. Kimball and others intervened. From the decree, plaintiff and interveners appeal.</p> <p>The appellants were the plaintiff and the interveners In a suit in equity against Jesse Knight, W. L. Mangum, Jacob Evans, and the Success Mining Company, a corporation, for the restoration to the Success Mining Company of certain stock of that corporation issued to Knight, and for the recovery by that company of the dividends that had been paid, thereon. The plaintiff was, prior to 1910, the owner of 4,000' shares of stock in the Success Mining Company, which that company in April, 1900, for a failure to pay the eighth assessment thereon, sold to C. E. Pearson, to whom it issued its stock certificate for this and other stock similarly situated. .The interveners comprise other owners of stock prior to 1900 and the assignees of such owners, whose stock the company attempted to sell and certify to Pearson in the same way, and the plaintiff and these interveners will henceforth be termed the complainants, and treated as though all of them were the original owners of this stock. The certificate of this stock issued to Pearson was dated April 14, 1900, and was for 84,925 shares. It was in the usual form, and certified that he was the owner of that number of shares of stock of the Success Mining Company. Complainants claim, and this will be conceded, that 64,925 of these shares were certified to Pearson on account of the attempted sale of complainants* stock, and that on account of the failure to prove compliance with all the legal requirements this sale was irregular and illegal. More than five years after this sale, and in 1908, Jesse Knight bought this stock of Pearson, Pearson’s certificate was assigned and surrendered to the company, and certificates for the stock, and for other stock which Knight had bought, sufficient in amount to make him the owner of the majority of the stock of the corporation, were issued to Knight. Thereafter, by proper corporate proceedings, he made himself, Mangum, and Evans directors of the Success Company, and by means of the votes of the stockholders and the subsequent action of these defendants as directors he caused the Success Company to sell all its property to the Colorado Mining Company, another corporation, in October, 1906, for 79,500 shares of the stock of the latter company, which was distributed as a stock dividend among the stockholders of the Success Company, so that the share thereof distributable to the stock in controversy went to Knight, and not to the owners of the stock before the attempted sale thereof for failure to pay the eighth assessment.</p> <p>The complainants commenced this suit on October 17, 1910. Thé theory of their complaint was that the attempted sale of their stock for failure to pay the eighth assessment was1 void, that before that sale all the stock of the Success Company had been issued, that they remained the owners of their stock notwithstanding the attempted sale, that the 84,925 shares issued to Pearson on account of the attempted sale under the eighth assessment constituted an overissue of stock and were void, that the Success Company, and Knight, Mangum, and Evans, as directors thereof, wrongfully distributed 17,205 shares of the Colorado Company’s stock, which was the share of the 79,500 shares received from that company on account of the sale of complainants’ stock to Pearson, to Knight, when they ought to have distributed it to the complainants, and they pray that “the Success Mining Company have judgment against Jesse Knight and his codefendant directors, that he return and restore to the treasury of said corporation all of the Colorado mining stock which he received as and for a dividend” on the stock of the Success Company issued to Pearson on account of the attempted sale of the complainants’ stock for failure to pay the eighth assessment, and bought pf Pearson by Knight, and for all the dividends thereon, or that the Success Company recover the value of such Colorado Company stock and the dividends thereon, so that the Success Company may distribute to the complainants the amount so recovered.</p> <p>The defendant answered, among other things, that the eighth assessment on the complainants’ stock was duly levied, that complainants were notified of it, that they failed to pay it, that their stock was thereupon sold on account of that failure to C. E. Pearson in April, 1900, that Knight was a stranger to the Success Company, without stock or interest in it, that in 1906 he bought the stock issued to Pearson in reliance upon the certificate Pearson held, and paid therefor about five cents a share, without any notice of- any overissue -of stock, or of any other defect in the title of the stock, or in the certificate which Pearson held, that thereupon Pearson’s certificate was assigned and surrendered to the company and certificates were issued to him, that it was not until after Knight had made and paid for this purchase that he, Man-gum, and Evans became officers or directors of the Success Company, and that their actions, as such were neither fraudulent nor wrongful, but lawful and just.</p> <p>A large amount of evidence was introduced, the case'was argued and submitted on final hearing, and the court below found for the defendants, and dismissed the suit on its merits.</p>

Dietrich, Judge. Bill by J. Paul Thompson against the Emmett Irrigation District and W. H. Shane and others, as directors, and R. B. Shaw, as treasurer. From an order dismissing the bill, complainant appeals. Order set aside, with direction to proceed with the case on the equity side of the court. This is an appeal from an order of the District Court dismissing appellant’s bill of complaint in equity. The appellant was plaintiff in the court below.

<p>Bills and Notes <&wkey;310 — Construction—Part Performance.</p> <p>Pending an action by plaintiff on a note, plaintiff and defendant entered into a contract reciting that, in consideration of the total sum of $9,000, plaintiff “contracts to sell” to defendant the notes and a collateral contract and lien; that $500 was paid in cash and $8,500 was payable on or before a named date; that “in consideration of the payment of said $500, and the agreement to pay said sum of $8,500” plaintiff agreed to stipulate for a continuance of the pending suit until after the payment became due. On the next day an escrow agreement was made, by which the note and collateral contract, with an assignment thereof, were deposited with a bank, to be delivered to defendant on payment of the $8,500, the agreement -providing that in case it was not paid at maturity plaintiff should “have the option” to withdraw the papers and retain any payments made as liquidated damages. Defendant having made default, plaintiff brought action on the contract to' recoVer $8,500 and interest, alleging that it had stipulated for continuance of the prior action as provided therein and that the papers were still with the bank subject to the escrow agreement. Seld, that the complaint stated a cause of action; that the contract was not one merely granting an option, nor one providing liquidated damages for its breach, but one of bargain and sale, binding on both parties, which by continuance of the pending action plaintiff had performed, so far as it .was to be performed by it prior to payment by defendant.</p> <p>[Ed. Note. — For other cases, see Bills and Notes,' Cent. Dig. §§ 742, 743; Dec. Dig. <&wkey;310.]</p> <p>Elliott, District Judge, dissenting.</p>

Petition for Review from the District Court of the United States, for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge. In the matter of the Nonpareil Consolidated Copper Company, bankrupt, with W. P. Sanderson as trustee. From an order dismissing their petitions to vacate the adjudication, N. Rudebeck, R. PI. Ramsay, and Dora A. Ramsay petition lor review.

Petition for Revision of, and Appeal from, an Order of the District Court of the United States for the District of Oregon, in Bankruptcy; Robert S. Bean, Judge. In the matter óf D. Sondheim, bankrupt, with R. L. Sabin, as trustee. Petition to revise and appeal by Scandinavian-American Bank from an order denying its claim to a lien.

Mack, judge. Otoman Zar Adusht Hanish was convicted, and brings error. Defendant was convicted on three counts of sending by express from Chicago to Brookfield, Mo., on February 24, 1912, an obscene book, directed to Miss J. B. Gardner, and on three other counts of sending by express the same book March 22, 1009, to Julia 15. Gardner, at the same place. There is no such person as Miss J. B. Gardner or Julia B. Gardner.

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.</p> <p>Suit in equity by the Hall Manufacturing Company against the Western S'teel & Iron Works and Robert T. Jenny. Decree for defendants, and complainant appeals.</p>

<p>Maritime Liens <&wkey;65 — Statutory Liens for Repairs — Reliance on Credit of Vessel.</p> <p>Under Rem. & Bal. Code Wasb. § 1182, which, gives a lien on a vessel for repairs made at the request of the owner, agent, etc., conceding that there must be some evidence that the repairs were furnished on the credit of the vessel, such evidence need be only slight; and the uncontradicted evidence of the repairer that he relied on the credit of the vessel, and that he had previously made repairs for the same owner, charged the same to the vessel direct, and rendered the bills to the owner, is sufficient.</p> <p>LEd. Note. — For other cases, see Maritime Liens, Cent. Dig. § 103; Dec. Dig. t&wkey;65.</p> <p>Maritime lien for supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]</p>

<p>Bankruptcy <&wkey;164 — --Voidable Peeeekenof — Checks Given Bank in Payment of Notes.</p> <p>Payments of notes to a bank In good faith by a mercantile company, within four months prior to its bankruptcy and when insolvent, by cheek» drawn on its ordinary deposit account kept in such bank in the usual course of business, do not constitute voidable preferences, recoverable by its trustee.</p> <p>[Eel. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 267; Dec. Dig. <&wkey;164.]</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.</p> <p>Suit in equity by the Cross Paper Feeder Company against the United Printing Machinery Company. Decree for complainant, and defendant appeals.</p>

<p>1. Patents <&wkey;312 — Stitt rob Infringement — Burden of Proof.</p> <p>While it is the general rule that one who attacks the validity of a patent issued to another must make out his case by proof beyond a reasonable doubt, such rule does not apply to the question of priority of invention, whore at the time the patent in suit was issued defendant had an application pending for the same invention, and the patent was therefore issued inadvertently, instead of being' put in interference, as required by Rev. St. § 4904 (Comp. St. 1913, § 9149).</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 544-549; Dec. Dig. &wkey;312.]</p> <p>2. Patents <&wkey;G2 — Suit rob Infringement — Priority of Invention.</p> <p>Evidence considered, and held to show that defendant, and not complainant, was the original inventor of the device of the patent in suit, for which defendant had an application pending at the time such patent'was issued.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 78; Dec. Dig. &wkey;>62.]</p> <p>3. Patents <&wkey;328 — Priority of Invention — Under-Reamer.</p> <p>The device of patent No. 1,080,136, for an under-reamer for oil wells, granted to R. E. Bole December 2, 1913, held to have been the invention of Elihu C. Wilson, and not of the patentee.</p>

<p>In Equity. Suit by the Cheatham Electric Switching Device Company against the Brooklyn Rapid Transit Company, the Brooklyn Heights Railroad Company, the Nassau Electric Railroad Company, the Brooklyn, Queens County & Suburban Railroad Company, and the Transit Development Company. On final hearing.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Process fob Devulcanizing Rubber Waste.</p> <p>The Ma'rks patent, No. 635,141, tor a process for devulcanization of vulcanized rubber waste, is void for lack of novelty and invention in view of the prior art, and also for indefmiteness in stating the degree of heat to be applied during the process and the time during which it should be continued; also h old not infringed, if valid.</p>

<p>In Equity. Suit by the National Chemical Company against_ Llewellyn & Doyle.</p>

<p>In Equity. Suit by Clarence Joseph McCarthy against L. Adler Bros. & Co.</p>

In Admiralty. Suits for salvage by the Merchants’ & Miners’ Transportation Company, and by Rufus S. Salas and Thomas B. Starratt, against the steamship Alcazar; the Inter-American Steamship Company, Limited, claimant. Libels were filed by the Merchants’ & Miners’ Transportation Company, owners of the Dorchéster and the Merrimac, and Rufus S. Salas, owner of the steam tug Columbia, and Thos. B. Starratt, master, against the steamship Alcazar, for salvage service.

<p>1. Corporations <&wkey;>320 — Management of Corporate Business — Power of Courts to Review — Rights of Minority Stockholders.</p> <p>While, in general, a court is without authority to interfere with the management of the business of a corporation by a majority of its stockholders, yet their action in a matter in which their personal interests are opposed to the interests of the corporation is subject to review by the courts at the instance of minority stockholders.</p> <p>LEd. Note. — For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. &wkey;320.]</p> <p>2. Corporations <&wkey;>820 — Management by Directors — Kxoessive Salaries —Rights of Minority Stockholders.</p> <p>A stockholder, who owned one-third of the stock of a corporation, field entitled to relief in equity against the action of the president, secretary-treasurer, and a selling agent, who were all members of the same family, owned a majority of the stock, and constituted a majority of the board of directors, in fixing their own salaries as officers at amounts which were unreasonably high, in view of the business and earnings of the corporation, and Largely in excess of the value of the services rendered to the corporation, and this, although the same salaries had been in effect for a number of years, during the time when the business was more prosperous.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1426-1431, 1433-1439; Dec. Dig. <&wkey;320J</p>

<p>1. Perpetuities &wkey;>4 — Vesting of Remainder — Rule Against Perpetuities.</p> <p>The will of a testator made devises of real estate in trust for each of his children in the same language. Each child was given a life estate, with remainder to his or her children, or their issue. A further provision was as follows: “In case of the death of my said son without leaving him surviving any child or children, or the issue of any deceased child or children, then in trust for my other children, share aud share alike, and the issue of any deceased child (said issue taking always by representation). Said net rents, proiits and income to be paid to my said children for and during their respective natural lives, and upon the death of any such child his or her share of the same shall be paid to his or her children then living and the issue of any deceased child then living (such issue taking always by representation) until the arrival at majority of such child, or if more than one of the youngest of such children, and upon such arrival then in trust to convey the share of its or their parent to such child or children absolutely.” Held that, construing the will in its entirety in the light of the testator’s general intention and purpose to make an equal division between his children and their issue by representation, the, words “child” and “children” should be given their plain, ordinary meaning, by which they denoted children only, and not “issue,” and that as so construed the ultimate remainder in fee vested in any event within the period of a life or lives in being and 21 years thereafter, and the will was not in violation of the rule against perpetuities.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Gent. Dig. §§ 4-44; Dec. Dig. <&wkey;4.]</p> <p>2. Wills <&wkey;449, 456 — Construction—General Rules.</p> <p>In construing a will, it is to be presumed that the terms were used in their plain, ordinary sense, and the whole will is to be construed in such manner as to avoid creating an intestacy, if it can be done without doing violence to the language used.</p> <p>[Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 965, 974; Dec. Dig. t&wkey;449, 456.]</p>

<p>1. Banks and Banking <§=^>254 — National Banks — Action by Receiver to Enforce Liability of Directors.</p> <p>The receiver of an insolvent national bank may maintain a suit for the benefit of its creditors and stockholders to recover from its directors for •losses alleged to have been sustained in various ways by reason of their illegal, fraudulent, and negligent acts in the management of its business, and such suit is cognizable in equity.</p> <p>[Ed. Note.. — For other cases, see Banks and Banking, Cent. Dig. §§ 950-957; Dec. Dig. <&wkey;254.]</p> <p>2. Banks and Banking <&wkey;254 — National Banks — Suit by Receiver Against Directors — Pleading.</p> <p>Various exceptions to a bill by the receiver of an insolvent national bank against its directors to enforce their liability for losses sustained through their negligent and fraudulent acts considered.</p> <p>[Ed. Note.. — For other cases, see Banks and Banking, Cent. Dig. §§ 950-957; Dec. Dig. &wkey;254J</p>

<p>In Equity. Suit by Rensselaer L. Curtis against the Walpole Tire & Rubber Company. On receivers’ motion to dismiss petition by Coal & Iron National Bank for allowance of claim, filed June 12,1915.</p>

<p>In Equity. Suit by B. Gildner against Amy E. Hall.</p>

<p>Courts <&wkey;>508 — Federal Courts — Enjoining Rates Established by State Commission.</p> <p>The California Public Utilities Act (St. Cal. 1911 [Ex. Sess.] p. 18), gives to the state Railroad Commission power to fix rates to be charged by public utilities, and provides (section 66) that after any order fixing rates any party affected may apply to the Commission for a rehearing, and that no cause of action arising out of any such order shall accrue in any court unless application for a rehearing shall have been made before the time'for the order to become effective. It also empowers the Commission to suspend the order pending the rehearing if necessary. Held, that a federal court will not entertain a suit to enjoin enforcement of such an order, on the ground that it violates constitutional rights, until the complainant has exhausted the legislative remedy provided by the state by an application for a rehearing.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1418-1423, 1425-1430; Dec. Dig. <&wkey;508.]</p>

<p>In Bankruptcy. In the matter of Charles E. Reeves, bankrupt. On review of an order of the referee directing the return to the claimant, Paul E. Wirt, by the trustee in bankruptcy, of certain property of the value of about $4, and the payment of the sum of $23.70, the value of certain other property in the possession of the bankrupt, and which came into the hands of the trustee with the property owned by said bankrupt. The referee also directed that the trustee pay the claimant $10 costs and disbursements in establishing his right and title.</p>

<p>1. Banks and Banking <&wkey;117 — Representation of Bank by Officer — Individual Interest of Officer.</p> <p>Where a third person deals with an officer of a bank in a matter in which the officer is personally interested, the officer acts in a dual and inconsistent capacity, and his acts are not binding upon the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dec. Dig. <&wkey;>117.]</p> <p>2. Banks and Banking <&wkey;117 — Representation of Bank by Officers — Individual Interest of Officer.</p> <p>. Where the holder of a certificate of stock in a bank as collateral security for a debt of its cashier sent such certificate to the bank itself, with a request that smaller cei-tifieates be issued in lieu thereof and returned, which the bank undertook to do, it was responsible for the proper execution and return of the new certificates, and is liable for the action of its cashier in raising certain of the certificates after they were signed, sending the raised certificates, and retaining .others equal to the difference.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 288; Dee. Dig. <&wkey;117.]</p> <p>3. Corporations <&wkey;123 — Stock—Conversion—Action by Pledgee — Allegation of Damages.</p> <p>In an action by a holder of stock as collateral security to recover damages for conversion of a portion of the stock, plaintiff, as a basis for damages, must allege the amount of the debt secured.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. &wkey;123.]</p>

In Equity. Suit by Carl J. ¡Sauer, suing on behalf of himself and all other holders of bonds issued under and secured by a certain mortgage or deed of trust, against the Florida Railway Company, the Columbia Trust Company, individually and as trustee, the Suwannee & ¡San Pedro Railroad Company, the Live Oak & Gulf Railway Company, the St. Marys, Suwannee & Gulf Railway Company, the' Florida Construction & Realty Company, and the Union Trust Company of Florida, individually…

A. Marshall, Judge. Suits by Joseph L. Wilson and by Joseph U. Wilson and another against the Colorado Mining Company. From decrees for defendant, plaintiffs appeal. The appellants were plaintiffs below, where these cases, which related to stock originally owned by Joseph L. Wilson, were heard and decided together.

Criminal prosecution by the United States against Albert Freeman. Judgment of conviction, and defendant brings error. This cause comes here on writ of error to the United States District Court for the Southern District of New York. The questions raised relate to the indictments, trial, verdict, sentence, and bill of exceptions in the prosecution by the United States against Albert Freeman, who was indict,ed and inod witu William .1.

<p> (Syllabus by the Court.) </p> <p>1. Public Bands <&wkey;138— Avoidance of Patent — Title of Purchaser</p> <p>The title of a bona fide purchaser of land subsequent to the issue of the patent is superior to the equitable claim of the United States to avoid it for fraud or error in the issue of it.</p> <p>[Ed. Note. — For other cases, see Public Bands, Cent. Dig. § 3G8; Dec. Dig. <8=3138.]</p> <p>2. Equity <&wkey;138 — Complaint—Pbayer in Alternative for Inconsistent</p> <p>Belief.</p> <p>It is not a valid objection to a complaint in equity, or to a grant of the relief warranted by the proof, that the plaintiff prayed, in the alternative, for inconsistent relief as for the avoidance for fraud or error of a patent to and a deed of his property, and if, on account of the bona fide purchase of it by another in reliance upon the patent and deed, that relief should be impossible, for the value or the proceeds of the property.</p> <p>[Ed. Note. — For other cases, see' Equity, Cent. Dig. §§ 319-321; Dec. Dig. <&wkey;>138.]</p> <p>3. Indians <&wkey;27 — Indian Lands — Suit to Set Aside Patent and Deed-</p> <p>Parties.</p> <p>The United States may maintain a suit in equity to set aside for fraud or error of law a patent in fee simple under Act May 8, 1906, c. 2348, 34 Stat. 182, 183, and a deed by the Indian allottee, whereby the restriction upon the alienation of the land of the Indian under the care of the United States is violated or evaded, and the Indian is not a necessary party to such a suit.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 19, 20; Dec. Dig. <&wkey;27.]</p> <p>4. Indians <&wkey;3 5 — Indian Lands — Alienation—Competency of Allottee—</p> <p>“Incompetent and Incapable.”</p> <p>An Indian 77 years of age, who has never had any property except that issued to him by the United States, who has never had any business or experience in selling land or disposing of the proceeds thereof, or in handling any other property except that issued to him by the government, who has no property except 320 acres of land held by the United States in trust for him, without power in him to convey it, who has drawn his monthly rations from the government for 20 years and is still doing so, who is an old-style Indian, who cannot read, or write, or speak the English language, cannot count money, and does not know how many cents there are in a dollar, is “incompetent and incapable” to manage his own affairs within the meaning of the first proviso of the amended section in Act Miay 8, 1906, c. 2348, 34 Stat. 182, 183, and especially is he</p> <p>incompetent to sell and convey Ills land and manage and dispose of the proceeds thereof.</p> <p>It is indispensable to that competency and capability to manage his affairs which conditions the right of the secretary to issue a patent in fee simple 1o an Indian under this proviso that he shall at least have sufficient ability, knowledge, experience, and judgment to enable him to conduct the negotiations for the sale of his land, and to care for, manage, invest, or dispose of its proceeds with such a reasonable degree of prudence and wisdom as will be likely to prevent him from losing the benefit of his property or its proceeds.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. &wkey;>15.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Incompetent.]</p> <p>5. Public Lands &wkey;>109 — Issuance or Patent — Question or Fact — Equitable Kelier.</p> <p>Whether or not there is, at the close of a final trial or hearing before the Secretary of the Interior of a crucial question in reference to the issue of a patent to public lands, any substantial evidence to sustain a claim or a finding of fact determinative of the issue is in his, and in every judicial and quasi, judicial, tribunal a question of law, and an injurious error of the Secretary in finally deciding that question presents good cause for relief in a court of equity.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 307; Dec. Dig. <&wkey;>109.]</p> <p>6. Indians <&wkey;15, 27 — Indian Lands — Patent and Deed — Avoidance in E quity — Keliee.</p> <p>One who, with knowledge of the ineompeteney of an Indian for whom the United States holds his land in trust, without the power in him to alienate it, induces him to sell the land to himself and apply for and obtain a patent in fee simple for it, and then to convey it to him, wrongfully appropriates the land to himself, becomes a trustee de son tort thereof and of its proceeds for the benefit of the Indian, and the United States may maintain a suit in equity to set aside, as against him, the patent and the deed, and in case the title has passed to an innocent subsequent purchaser, to recover of the appropriator the amount he realized from the land above the amount he paid for it to the Indian.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 19, 20, 29, 34, 37^4á ; Dec. Dig. <&wkey;l,5, 27.]</p>

<p>Appeal from the District Court of the United States for the District of South Dakota; Jas. D. Elliott, Judge.</p> <p>Suit in equity 'by the United States against E. J. Debell, William H. Eynn, and Royal Mutual Rife Insurance Company. Decree for defendants, and complainant appeals.</p>

<p>1. Indians <&wkey;15 — Lands—Fraudulent Procurement from Allottee.</p> <p>Evidence considered, and held to show that a fee-simple patent for an incompetent. Indian woman allottee was fraudulently procured by the Indian agent and another, for the purpose of obtaining her land, but that the deed from her was executed before the issuance of the patent, while she still held under the trust deed with restrictions against alienation, and was therefore void.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. &wkey;15.]</p> <p>2. Indians <&wkey;15 — Sutt to Cancel Conveyance by Allottee — Conditions to Grant of Belike.</p> <p>Although the land was still owned by the fraudulent purchaser, the action of the Department in granting the application for the foe-simple deed without due investigation at least contributed to the illegal transaction, and before the United States is entitled to a cancellation of the patent and deed, it should be required to refund the money paid for the land by such purchaser.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44 ; Dec. Dig. @=»15.]</p> <p>8. United States <&wkey;144 — Suits in Equity by — Conditions to Grant of Belief.</p> <p>A court of equity may condition its grant of relief to the United States by such requirements as may be just and equitable, although those requirements may not bo enforceable in any other way.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 142; Dec. Dig. <&wkey;144.j</p>

Cushman, Judge. Action at law by the Columbia Digger Company against M. R. Sparks and C. A. Blurbck. Judgment for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Thomas Isbell was convicted of unlawfully introducing liquor into what was formerly the Indian Territory, and brings error.</p>

<p>1. Mandamus <&wkey;41 — Prohibition <&wkey;10 — Absence oe Jurisdiction.</p> <p>In an action against nonresident executors, individually and as executors, in which the court had jurisdiction over defendants in both capacities, it was stipulated that the action was dismissed as to the defendants personally, and that any judgment for plaintiff should be entered against the defendants as executors. A judgment for plaintiff against the defendants as executors was reversed, on the ground that they could not bind the estate by the contract sued on. The District Court vacated the stipulation and ordered that the case stand against defendants in both capacities. 17eld, that there was no clear absence of jurisdiction, authorizing a writ of prohibition or mandamus, since, whether or not the court in vacating the stipulation was technically right, the effect of its action was no more than would have resulted from an amendment as to the character or capacity of the defendants, and the court, under the power as to amendments and the making of additional parties, could allow such an amendment.</p> <p>I Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 86; Dec. ■ Dig. <&wkey;41; Prohibition, Cent. Dig. §§ 37-56; Dec. Dig. <&wkey;10.]</p> <p>2. Stipulations <&wkey;14 — Dismissal—Operation and Eeeeot.</p> <p>Assuming that the stipulation and the subsequent proceedings against the defendants solely as executors amounted to a dismissal of the defendants as individuals, though no order or judgment of dismissal was made, the dismissal was one without prejudice, and not a final adjudication in their favor; there having been no determination of the controversy between plaintiff and the defendants as individuals.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 2A-37: Dec. Dig. &wkey;>14.]</p> <p>3. Stipulations <&wkey;>14 — Stipulations to Dismiss.</p> <p>The stipulation did not show a contract of settlement and satisfaction of plaintiff’s demand against the defendants as individuals.</p> <p>[Ed. Note. — For other cases,' see Stipulations, Cent. Dig. §§ 24 — 37; Dec. Dig. <&wkey;14.]</p> <p>4. Parties <&wkey;65 — Bringing in Parties After Dismissal as Against Them.</p> <p>Where some of the defendants are dismissed from a case without prejudice, without a judicial determination or settlement of the cause of action against them, they may be brought back with leave of court, when justice requires, either at the same or a subsequent term, upon sufficient notice or process.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 100-107; Dec. Dig. &wkey;05.]</p>

<p>1. Banks and Banking <&wkey;257 — National Banks — Criminal Prosecutions —Indictment.</p> <p>An indictment charged in substance that accused, while president of a national bank and by the use of the authority of. Ms position, loaned its funds to a mill company, which was known by him and not known by the bank or its directors to he hopelessly insolvent, under circumstances naturally leading to the loss of the money loaned and so resulting, all with intent to injure and defraud the bank. Held, that this, with the details set forth, sufficiently stated an offense under Rev. St. § 5209 (Comp. St. 1913, § 9772), providing that every president of a national banking association, who willfully misapplies any of the moneys, funds, or credits of the association, shall be punished as therein provided.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 965, 966, 970-976; Dec. Dig. &wkey;257.]</p> <p>2. Criminal Law <&wkey;1159 — Appeal—Questions oe Fact.</p> <p>On appeal in a criminal case, the question is whether the verdict was supported by substantial evidence, and not whether the proof of guilt was made beyond a reasonable doubt; that being a question for the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey;1159.]</p> <p>3. Criminal Law <&wkey;811 — Instructions—Singling out Testimony.</p> <p>When an instruction in a criminal case proceeds upon a recital of facts and circumstances of which evidence has been received, and a deduction is drawn from them wMeh, if adopted by the court, would be practically1 a direction to acquit, the recital should be full and comprehensive and not a mere sidelight on the case; and hence instructions singling out a part of the proof adduced as being insufficient to show guilt or criminal intent were properly, refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dee. Dig. &wkey;811.J</p> <p>4. Criminal Law <@=>829 — Instructions Covered by Those Given.</p> <p>Whore the charge contained a definite statement of the offense set forth in the indictment, and told the jury that accused could not be convicted of something else, an instruction that accused was not on trial for various defaults or misconducts which were enumerated was unnecessary, and properly refused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829.]</p> <p>5. Criminal Law <&wkey;822 — Instructions—Construction oe Charge as a Whole.</p> <p>Portions of the charge claimed to be objectionable should be viewed in their proper context.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. .Dig. &wkey;822.]</p> <p>6. Banks and Banking <&wkey;256 — Criminal Offenses — Defenses.</p> <p>Where, though the directors of a national bank know that loans were being made to a mill company upon so-called bills of exchange, with, wheat tickets attached indicating the amount of wheat purchased by the mill company, there was evidence that it was accused, the president of the bank, and not the directors, who established this custom, that he alone knew the mill company was insolvent and was not keeping the wheat or the flour product as security for the lóans, and that in fact the loans were wholly unsecured, that he purposely refrained from informing the directors of the true condition, and in some instances expressly misrepresented it to them, the knowledge of the directors of the custom and the apparent form of the loans, and their reliance upon the semblance of security which did not in fact exist, did not relieve accused of liability for misapplying the funds of the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 958-964, 967; Dec. Dig. <&wkey;256.]</p> <p>7. Criminal Law <{&wkey;830 — Instructions—Failure of Accused to Testify.</p> <p>Act March 16, 1878, c. 37, 20 Stat. 30 (Comp. St. 1913, § 1465), provides that a person charged with crime shall at his own request, but not otherwise, be a competent witness, and that his failure to make such request shall not create any presumption against him. On a trial on which there had been no wrongful comment on defendant’s failure to testify requiring correction by the court on its own motion, defendant requested an instruction that he had seen fit to rest his case upon the government’s evidence, including such testimony as might have been elicited upon cross-examination of the government’s witnesses, that he had a perfect right to do this, and that this fact must in no wise prejudice the jury against him, but that they should take into consideration the entire evidence introduced, etc. Held, that the refusal of such instruction was not error, as the claim of immunity or protection was broader than the statute, since, while there should be no hurtful presumption from the failure of defendant to testify personally, this does not necessarily exclude a prejudice resulting from an entire absence of affirmative evidence in defense, nor inferences from a failure to produce evidence peculiarly within defendant’s knowledge or control, not requiring personal disclosures or his presence upon the witness stand, and moreover the court might well have understood that the.purpose of the instruction was to assail the sufficiency of the government’s evidence, rather than to claim the immunity afforded by the statute.</p> <p>[Ed. Note. — For other cases, see Criminal Law; Cent. Dig. §§ 2012, 2017; Dec. Dig. <&wkey;830.]</p> <p>8. Criminal Law <&wkey;.656, 721 — Trial—Comments on Failure of Accused to Testify.</p> <p>Act March 16, 1878, c. 37, 20 Stat. 30 (Comp. St. 1913, § 1465), restrains both court and counsel from commenting upon the failure of accused to ' testify.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524r-1533, 1672; Dec. Dig. &wkey;656, 721.</p> <p>Comments of counsel'and instructions on failure of accused to testify, see note to McKnight v. United States, 54 C. C. A. 373.]</p> <p>9. Criminal Law &wkey;>827 — Instructions—Failure of Accused to Testify.</p> <p>If requested, defendant is entitled to an affirmative instruction that his failure to testify shall not create any presumption against him, even in the absence of wrongful comment; but the instruction requested, if not in the language of the statute, should fairly express its thought, so the court may be apprised of what is desired.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2006; Dec. Dig. &wkey;>827.]</p> <p>10. Criminal Law <&wkey;857 — Impeaching Verdict — Misconduct of Jury.</p> <p>A verdict in a criminal case cannot be impeached by showing that the jurors discussed defendant’s failure to testify, where there was no outside improper influence upon the jury, and whatever occurred was in the jury room among the jurors alone. ,</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. <&wkey;857.]</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Action by the H. N. Strait Manufacturing Company against the Crescent Milling Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.</p> <p>Action by Helen Elizabeth Patton, as administratrix of Erank A. Patton, deceased,, against the Public Service Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Insurance <&wkey;185 — Fire Policies — Mistake in Description.</p> <p>Where a fire policy, which described the insured property as located on the southwest quarter of section 22, declared that insured’s title to the land was under a homestead claim against the government, to be perfected, the true location of .the homestead, which was located on the northwest quarter of such section, may, in an action on the policy, he shown to correct the description.</p> <p>[Ed. Note. — For other cases, sec Insurance, Cent. Dig. § 351; Doc. Dig. <§=^>165.1</p> <p>2. Insurance <&wkey;561 — Fire Policies — Actions—Prooes oe Loss — Waiver.</p> <p>Where the insurer received and retained proofs of loss, sent nearly a month after the fire, and dispatched an adjuster, who examined the insured under oath, the provision, of the policy requiring insured to give immediate notice of loss was waived.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1400, 1407, 1409; Dec. Dig. <S&wkey;501J</p> <p>3. Insurance <&wkey;668 — Fire Policies — Actions—Juey Question.</p> <p>The question whether insured misrepresented the value of the property, and thus avoided the policy, under a clause declaring that concealment or misrepresentation should invalidate it, held, under the evidence, for the jury.</p> <p>[Ed; Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. &wkey;>668.]</p> <p>4. Evidence &wkey;>318 — Trial &wkey;>48 — Hearsay—Admissibility.</p> <p>Property located on a homestead claim was insured against Are. Proofs of homestea'd, consisting of affidavits, one by insured and two by others, which set up the destruction of the property before the policy was issued; were offered in an action on the fire policy. Held, that such affidavits were inadmissible; all having been offered together, and insured not having been shown to have been present when the affidavits of the other affiants were made.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent'. Dig. §§ 1193-1200; Dec. Dig. &wkey;>318; Trial, Cent. Dig. § 120; Dec. Dig. &wkey;»48.]</p> <p>5. Insurance <&wkey;668 — Fire Policies — Actions—Jury Question.</p> <p>As the credibility of witnesses is for the jury, the question whether the property was destroyed before the policy was issued is for the jury, where there was testimony of admissions by insured to that effect, though he contradicted it, and another witness testified the fire occurred, after the policy was written.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent.'Dig. §§ 1556, 1732-1770; Dec. Dig. <&wkey;668.]</p> <p>6. Evidence <&wkey;359 — Photograph—Premises Insured.</p> <p>A photograph of the burned house, not objected to by insured, who-merely claimed it did not correctly show the fireplace, is admissible, as-throwing light on the value of the premises, which the insurer contended was misrepresented.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. <&wkey;359.]</p>

<p>In Error to the District Court of the United States for the District of New Mexico; W. H. Pope, Judge.</p> <p>Phillip Estes was convicted of an offense, and he brings error.</p>

<p>1. Master and Servant &wkey;>23S— Master's Liability for Injury to Servant ■ -Contributory Negligence.</p> <p>An employe is not required, always and under all circumstances to adopt the less dangerous oí two methods of doing his work; but the test in all cases is whether, in view of all the facts and circumstances of the case, it would be the exercise of reasonable prudence to do the work as done, even if it were perhaps a more dangerous way tlnm one which might have been chosen.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ C81, 748-7-18; Dec. Dig. &wkey;238J</p> <p>2. Master and Servant <&wkey;235 — Master’s Liability for Injury to Servant</p> <p>—Contri butory Nmg liu lnce.</p> <p>A primary duty is imposed upon the master to use reasonable care to furnish the servant a reasonably safe place to work in and reasonably safe appliances to work with, and the servant may rely upon the performance of such duty, and is not required at the outset to make a personal inspection, or to exercise any degree of diligence to affirmatively ascertain whether it has been performed.</p> <p>[Ed. Note. — For oilier eases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. &wkey;>235.J</p> <p>3. Master and Servant &wkey;>204 — Action for Injury to Servant — Defenses</p> <p>—Assumption of Risk.</p> <p>Under Iowa Code Supp. 1907 and 1913, § 4999a2, which requires the owner of any manufacturing or other establishment where machinery is used to properly guard all cogs, gearing, etc., as construed by the Supreme Court of the state, an owner who has failed to comply with such requirement cannot invoke the doctrine of assumption of risk against an employe injured in such machinery.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 544-54Ó; Dec. Dig. &wkey;>201.</p> <p>Assumption oí risk incident to employment, see note to Chesapeake & O. It. Co. v. Hennessey, 38 C. O. A. 314.]</p> <p>4. Courts <&wkey;366 — Federal Courts — Following State Decisions. .</p> <p>Where the highest judicial tribunal of a state has placed a construction upon its statutes, the federal courts must follow that construction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 934-057, 9(10-908; Dec. Dig. <i&wkey;3(S6.</p> <p>Oonclusiveness of judgment between federal and state courts, see not os to Kansas City, Ft. S. & M. It. Co. v. Morgan, 21 C. C. A. ±78; Union & Planters’ Bank of City of Memphis, -19 C. C. A. 408; Con verse v. Stewart, 118 O. C. A. 215.J</p>

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit in equity by the United States against Lee Wilson & Co. Decree for the United States, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>C. E. Fielder and Tom Ford were convicted of introducing liquor from without the state of Oklahoma into that part of the state which was formerly the Indian Territory, and they bring error.</p>

<p>In Error to the District Court oí the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by the Glen Brook Coal Company against Maurice Allaun and -others. Judgment for plaintiff, and defendants bring error.</p>

<p>In Error to the District^ Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by D. H. Thullen against the Triumph Electric Company. There was a judgment for defendant, and plaintiff brings error.</p>

Petition to Superintend and Revise from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton,' Judge. In the matter of M. B. Campbell, bankrupt; George Stuart, trustee. On petition by Charles D. Porter to revise an order of the District Court.

<p>1. Bankruptcy <&wkey;89 — Involuntary Proceedings — Admission or Inability —Answer.</p> <p>While solvency of the debtor is no ground for creditors opposing an adjudication in involuntary bankruptcy, where the act of bankruptcy relied on by the petitioning creditors is the written admission, referred to in the statute (Act July 1, 1898, c. 541, 30 Stat. 544), by the debtor of his inability to pay Ms debts and of his willingness to be adjudged bankrupt on that ground, yet they may set up that the proceedings are the result of fraud and collusion between the debtor and petitioners.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 120-122; Dec. Dig. &wkey;>89.1,</p> <p>2. Bankruptcy <&wkey;89 — Involuntary Proceedings — Answer—Fraud.</p> <p>The answer of opposing creditors to petition in involuntary bankruptcy, based on the debtor’s written admission of inability to pay debts and consent to adjudication on that ground, held not to sufficiently aver fraud and collusion between the debtor and petitioning creditors, of which the proceedings were the result, but to confuse a collusive scheme to benefit by the act (a subject outside the statute) and an unlawful devise in violation of the act, and by its charges, even if sufficiently specified, to do no more than set forth an offense against the bankruptcy law itself, concealment of goods and preferences, with which the trustee is especially equipped to deal.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 120-122; Dec. Dig. &wkey;>89.]</p>

Maxey, Judge. Action at law by C. E. Lowry, trustee of the estate of J. Q. Wheeler & Son, bankrupts, against the First State Bank of Kerrville, Tex. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge.</p> <p>Flabeas corpus by' Yep Dung Gon, on behalf of Yep Kim Yuen, against Samuel W. Backus, as Commissioner of Immigration at the Port of San Francisco. From an adverse order, respondent appeals.</p> <p>The petitioner, Yep Lung Gon, alleges that he was born in the United States and is a citizen thereof; that such citizenship has been judicially determined by a judgment of the District Court of the United States for the District of California, in the matter of Yep Lung Gon (No. 90,071), made and entered on the 9th day of January, 1890; that Yep Kim Yuen, in whose behalf the petition is made, is the minor son of petitioner, and is a citizen of the United States; that he is unlawfully imprisoned and restrained of his liberty by the Commissioner of Immigration at the port of San Francisco, and is about to be deported from the United States to China; that he arrived at the port of San Francisco by steamer from China in the month of September, 1913, and made application to the Commissioner of Immigration to be admitted into the United States as a citizen thereof, and as the minor son of the petitioner; that he was given a hearing by the immigration authorities touching his right to enter the United States as a citizen thereof, and as the minor son of petitioner; that upon said hearing testimony was submitted bearing on the question of his parentage, and testimony and documentary evidence were submitted bearing upon the question of his citizenship; that thereupon the Commissioner found that the appellee was not the son of petitioner, and was not a citizen of the United States by reason of such alleged paternity of petitioner. Upon such finding the Commissioner of Immigration denied Yep Kim Yuen the right of admission into the United States; that thereupon an appeal on behalf of Yep Kim Yuen was taken to the Secretary of Commerce and Labor; the petition alleges, on information and belief, that the Secretary of Commerce and Labor reversed the decision of the Commissioner of Immigration in the finding that Yep Kim Yuen was not the son of petitioner, and instructed the Commissioner to investigate the identity of the petitioner, Yep Lung Gon, and find out and determine whether he was the same person who was judicially determined by the judgment of the District Court to be a citizen of the United States; that thereupon the Commissioner of Immigration did investigate the identity of the petitioner, and did find and determine that he was the same person who had been judicially determined to be a citizen of the United States, and said Commissioner reduced such investigation to writing and forwarded the record of the same to the Secretary of Labor (who had become, under the law, the successor of the Secretary of Commerce and Labor); that said record clearly established the right of Yep Kim Yuen to enter the United States and to reside therein; that the petitioner is informed and believes,''and therefore alleges the fact to be, that the Secretary of Labor refused, failed, and neglected to consider the testimony and the evidence contained in such record and the findings and determination of said Commissioner of Immigration, but did without reason consider other matters which wore never incorporated in any record made or produced at the port of San Francisco, the exact nature of which matters is unknown to the petitioner and to said Yep Kim Yuen, and that neither of them had or were given an opportunity to rebut, deny, explain, or overcome such matters; that thereafter the Secretary of Labor denied the said Yep Kim Yuen the right to enter the United States, and ordered the said Commissioner to deport tile said Yep Kim Yuen to China; that, the said petitioner and Yep Kim Yuen having exhausted their said remedies before the Secretary of the Department of .Labor, the petitioner, on behalf of the said Yep Kim Yuen, applied to the District Court of the United States for the writ of habeas corpus involved in this opinion. To the petition for the writ the go\ eminent interposed a demurrer, on the ground that the petition did not state facts sufficient to entitle the petitioner to the writ. There was a hearing before the court on the demurrer on April 1, 1914, and on that date the demurrer was overruled, and the writ of habeas corpus was issued as prayed for. Thereafter, on April 14, 1915, Yep Kim Yuen was produced in court, but no return was made to the writ by the officer having him in custody, and no answer by way of traverse, denial, or otherwise was made with respect to the allegations of the petition. Thereupon the court discharged Yep Kim Yuen from the custody, and the government took the present appeal.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis and John A.' Riner, Judges.</p> <p>Bill by Edwin D. Fishel against the Fishel Real Estate Company, Gilbert B. Fishel, and Arthur A. Fishel. Gilbert B. Fishel filed a cross-bill, which was answered by Arthur A. Fishel alone. From the decree, Gilbert B. Fishel appeals.</p>

<p>In Error to the Supreme Court of the Territory of New Mexico.</p> <p>Jim Walker was convicted of larceny, and, the conviction being affirmed by the Supreme Court of the territory, he brings error.</p>

Petition for Revision of Order of the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. In the matter of John AY. Pechin,. bankrupt. Petition by bankrupt to revise order of the District Court (225 Fed. 798).

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Arch Wright was convicted of introducing liquor into the Eastern district of Oklahoma and brings error.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Sewing Machine.</p> <p>- The Woodward patent No. 890,582, for a sewing machine adapted for sewing the heel seams of shoes, which makes both a straight-away and a zigzag or overedge seam, with means for shifting from one to the other at the will of the operator while the machine is in motion, but having a stop mechanism carried by a moving part 0‡ the machine, which'prevents the complete movement of the shifting mechanism until the needle has reached a predetermined position above the leather, where it will not be injured by the change in direction of the movément, discloses invention of merit, and with the exception of one claim is not limited to mechanism which -stops the shifting movement when the needle is at a particular designated point; also held infringed by the machine of the Gray patent, No. 933,032.</p>

Appeals from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. Suits in equity by the -United States Hame Company against the Star Hame Manufacturing Company and against the Julius J. Bantlin Company, respectively. Decrees for complainant, and defendants appeal.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur U. Brown, Judge.</p> <p>Suit in equity by the National Metal Molding Company against the Tubular Woven Fabric Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Ferdinand A. Geiger, Judge.</p> <p>Suit in equity by John E. Courson against Martin A. O’Connor, W. IT. Miner, and the W. TI. Miner Company, Incorporated.</p>

<p>In Equity. Suit by the De Mayo Coaling Company against the Micheuer Stowage Company. On final hearing.</p>

In Equity. Suit by James MacDonnell against the Voorhees Rubber Manufacturing Company for infringement of letters patent No. 981,208, for a pneumatic tire, granted to complainant January 10, 1911. On final hearing.

<p>1. Patents <&wkey;]27 — Surr to Cancel Interfering Patent — Pleading.</p> <p>In a suit for cancellation of a patent, allegations in the answer of a decision of certain questions in issue in a prior suit not between the same parties are irrelevant and impertinent.</p> <p>[Ed. Noto. — For other cases, see Parents, Cent. Dig. §§ 179, 180; Dec. Dig. &wkey;>127.1</p> <p>2. Patents <&wkey;127 — Suit Between Interfering Patentees — Issues.</p> <p>A suit under Bev. St. § 4918 (Comp. St. 1913, § 9463), for cancellation of an interfering patent, involves tile validity of both patents, and the answer may allege any ground of invalidity of complainant’s patent.</p> <p>[Ed. Note. — For other cases, see Patents. Cent. Dig. §§ 179, ISO; Dec. Dig. <S=»127.]</p>

<p>1. Injunction &wkey;>137 — Preliminary Injunction — Grounds for Denial.</p> <p>An injunction pendente lite is always of grace and not of right, and will not be granted where it would be prejudicial to public or governmental interests.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 307-309; Dec. Dig. t&wkey;137.]</p> <p>2. Patents <&wkey;287 — Appropriation of License by United States — Contrac-</p> <p>■ tor for Making Device for Government — Liability for Infringement.</p> <p>Act June 25, 1910, c. 423, 36 Stat. 851 (Comp. St. 1913, § 9465), which provides that the owner of a patent covering an invention which shall be used by the United States without license may recover reasonable compensation for such use by suit in the Court of Claims, in effect provides for the appropriation by the government, by right of eminent domain, of a license to use any patented invention, which includes also the right to make the patented device; and, having such right, the government may contract for the making of all or any part of the same, and the contractor is protected against liability for infringement, the owner of the patent being limitéd to the remedy provided by the statute.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 457-459; Dec. Dig. <&wkey;287.]</p>

In Equity. Petitions by the Pennsylvania Railroad Company against the United States and the Crew-Levick Company, and against the United… Held: and the following order made: “It is ordered, that, the Pennsylvania Railroad Company be, and it is hereby, notified and- required to cease and desist on or before August 15, 1915, and thereafter to abstain, from refusing upon reasonable request and reasonable notice therefor to provide and furnish tank cars to the complainants…

At Law. Action by N. B. Williams, administrator of George G. Chasse, deceased, against the William B. Scaife & Sons Company, On motion to strike out the second, fourth, and fifth defenses of defendant’s answer.

<p>In Equity. Suit by the Southern Pacific Company against John M. Eshelman and others, constituting the Railroad Commission of California, and others.</p>

<p>1. Sales <&wkey;359 — Action fob Price — Title of Seller — Evidence.</p> <p>That plaintiff had possession of the picture, which he sold tó defendant, and testified that he owned it, having bought it abroad, is sufficient to go to the jury, in an action 1'or its price, on the issue of his title, though being requested, on cross-examination, to spell the name of the owner, he gave that of F.; the jury being directed to determine what he meant thereby, whether that F. was then the owner, or merely that he was the man from whom plaintiff had obtained it.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. <&wkey;359.]</p> <p>2. Trial <@=3251 — -Action fob Price — Issues—Instructions.</p> <p>The jury are properly instructed, in an action for the price of a picture as sold and delivered, not to consider the questions of its genuineness or commercial value; both parties denying a warranty, and defendant admitting the price, but asserting that he was given the right of inspection before purchase, and that after inspection he refused to purchase.</p> <p>[Ed. Note. — -For other cases, see Trial, Cent. Dig. §§ 587-595; Dee. Dig. &wkey;>251.]</p> <p>3. Sales <&wkey;360 — Executed Contract — Measure of Recovery.</p> <p>The measure of recovery in case of sale and delivery is the price notwithstanding an attempted return of the article by the buyer, refused by the seller; the difference between the price and the value being the measure only in case of breach of an executory contract.</p> <p>[Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 1060-1062; Dec. t>ig. <&wkey;360.]</p>

<p>At Law. Assumpsit by the United States against Simon Rubin and Jacob Fleischman. On rule-for judgment for want of a sufficient affidavit of defense.</p>

<p>Corporations &wkey;>565 — Insolvency Proceedings — Provable Claims.</p> <p>Creditors of a defunct corporation, whose property and assets bad been informally taken over by a new corporation having to a large extent the same stockholders, by entering into an agreement by which they accepted stock of the new company for the amount of their debts, thereby by ratification waived the right to avoid the transfer of the property of the old corporation as fraudulent, and also the right to claim that the new company had assumed their debts, and cannot prove as creditors in insolvency proceedings against the new company.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2281, 22S2; Dec. Dig. &wkey;>565.]</p>

<p>Equity &wkey;>179 — Pleading—Answer.</p> <p>While a defendant in equity may not be required to make discovery in his answer, if the discovery will tend to incriminate hm, or subject him to a penalty or forfeiture, he will not, on that ground, be relieved from answering, but must answer or take the consequences of his default.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 415; Dec. Dig. &wkey;179.]</p>

<p>In Admiralty. Suit by the New York & Bermudez Company against Johannes Ludwig Mowinckei, with the Hamburg-American Line impleaded. On motion for discovery.</p>

At Law. Action by Paul Tomljanovich against the Victor American Fuel Company. There was a verdict for plaintiff, and defendant moved for a new trial.

<p>In Admiralty. Suit by Amos Birdsall, Jr., against the Germain Company. On motion to vacate attachment.</p>

<p>In Equity. Suits by Harry C. Fischer and by the Wheeler Syndicate, Incorporated, against the Star Company. On motions by defendant to dismiss, and by complainants to remand to state court.</p>

<p>In Equity. Suit by the J. H. White Manufacturing Company against Samuel Shapiro.</p>

<p>In Admiralty. Suit by Bernard McLain against the steamship Dwinsk and steam tug Energetic. On appeal from clerk’s taxation of costs.</p>

<p>Abatement and Revival <&wkey;73 — Death of Defendant^-Revival Against Foreign Executors.</p> <p>A suit in a federal court cannot be revived against the foreign executors of a deceased defendant, wbo are not authorized by the laws of the state of their appointment and residence to sue or be sued beyond its own jurisdiction.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Gent. Dig. §§ 403 — 411, 417-428; Dec. Dig. &wkey;73.J</p>

<p>1. Criminal Law &wkey;>697 — 1Tbial-Bulings on Admission or Evidence — Exceptions.</p> <p>Exceptions to rulings on the admission of evidence in a criminal case, taken after the evidence has been closed on both sides, are too late.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. |§ 1645-1650; Dec. Dig. <&wkey;697.]</p> <p>2. Criminal Law <&wkey;670 — Trial—Evidence..</p> <p>The exclusion by the court in a criminal case of all of the books, checks, letters, and other papers pertaining to a business, offered by defendants in a mass, without specifying, any part which might be material, held not error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 757, 1593-1596; Dec. Dig. &wkey;670.</p>

<p>Appeal from the District Court of the United States for the District of Indiana; Albert B. Anderson, Judge.</p> <p>Suit in equity by the Alpha Portland Cement Company and Fannie B. Gerstell, as administratrix, against Elbert Walker Shirk, with cross-bill by defendant. From a decree dismissing both bill and cross-bill, both parties appeal.</p> <p>Appellants filed their bill seeking to establish and foreclose a vendee’s lien against certain premises situate in Lawrence and Jackson counties, Ind., constituting a cement manufacturing plant, but not then in operation. The bill alleges that, influenced by representations as to the title and material conditions of said premises as suitable for the purpose of a cement manufacturing plant, appellants, through the individual appellant’s decedent, one A. F. Gerstell, entered into a contract in willing, dated December 18, 1911, to purchase said plant for the sum of £150,000 from appellee, who represented himself as the owner thereof. By the terms of the contract appellants were to pay $25,000 down and the balance as therein provided. The property in Lawrence county, appellee claimed, consisted of 312 acres containing limestone, and that in Jackson county consisting of 30 acres, more or less, containing shale — both limestone and shale being required in the manufacture of Portland cement. The balance of the plant contracted for consisted of all the implements, machinery, and appurtenances of every description used in connection with the operation of a cement factory. The contract also covered all desired existing contracts inuring to the benefit of appellants, not including claims for moneys or damages. The foregoing property was to he free from all liens, claims, or incumbrances of any kind whatsoever arising either in law or equity. Gerstell was therein given time until March 1, 1912, to examine title and contents of the said lands to ascertain whether appellee’s title was good and merchantable, and whether the limestone was of the quality, conditions, and extent thereinafter set out.</p> <p>Clause 7 of the contract, so far as material here, reads as follows, viz.: “It is also understood and agreed between the parties that unless the tract, of land in Jackson county, Ind., described in paragraph 2 above named, shall contain a deposit of shale suitable for the manufacture of cement, sufficient to supply the requisite amount of shale for a cement mill with a capacity of 2,000 barrels of cement per day for a period of 50 years; and unless the quality of limestone deposit contained on the land named in paragraph 1 above shall average at least 90 per cent, carbonate of lime, and unless the strata of dolomite or magnesia stone contained in said stone deposit shall together average an aggregate thickness of less than 3 feet, and unless the burden of clay or material lying above the limestone shall average in height not over 8 per cent, of the total height of the quarry from the present bottom level thereof to the extreme upper surface of the land, and unless the limestone is approximately coextensive in area with all that portion of said premises which lies on a level above the present bottom of the present quarry as it now exists, the party of the second part may, at his option, by written notice to said first party, slating wherein the premises fail to meet the requirements in this paragraph 7 contained, but only at any time before March 1, 1912, refuse to accept the property named in this agreement and the sum of $25,009 shall thereupon be repaid by said first party to said second party. It is understood that the character and extent of the formation of the limestone is to be determined by drilling, that the cost of said drilling is to be paid by the party of the second part, and that the party of the first part agrees to permit the party of the second part, his agents and representatives, to go upon the premises at any time, and at all times, up to March 1, 1912, for the purpose of inspecting the same or any of the property located thereon, and for making drillings thereon. It is understood, however, that the party of the first part is entitled to be notified of such drilling, so that he may Inspect all the cores and materials removed from all the drillings and take samples thereof. And the party of the first part hereby covenants and agrees, upon, payment to him of the consideration hereinbefore named, to convey the property described in paragraphs 1 and 2 hereof, to the party of the second part, in fee simple, clear of all incumbrances whatsoever, by a good and sufficient warranty deed, and also to execute such bills of sale or other conveyances or assignments of the personal property named in paragraphs 3 and 4 hereof as the said second party shall reasonably require. The party of the first part is to furnish to the party of the second part, within 10 days from the date hereof, good and sufficient abstracts of the title to the lands hereinbefore named, at his own expense, brought down to date, which shall show a good and merchantable title in the party of the first part.”</p> <p>Gerstell, it is further stipulated, promised, subject to the foregoing agreement, that if the title to the property, real and personal, was in appellee free and clear of all incumbrances whatsoever, he would complete the payment of the purchase price. On such payments being made, appellee agreed to deliver to Gerstell good and sufficient deeds, bills of sale, and assignments of said property. In case of material defects or objections to the title to the said lands, appellee had 60 days to cure the same after written notice thereof. If these were not cured in 60 days, Gerstell might elect to take the title as it was, or require repayment of the $25,000 and reimbursement for reasonable expenses incurred in the inspection and examination of the property and the title thereto, whereupon appellee should be released from liability under the contract. Time was made the essence of the contract. Provision was also made for the forfeiture of the $25,000 in case Gerstell failed to carry out his payments as agreed.</p> <p>The said bill thereupon alleges that Gerstell, acting for coloration appellant, paid the $25,000 in pursuance of the contract “on account of the purchase price of said land”; that appellee furnished abstracts of title, but that these did not show good and merchantable title to said lands in himself; that an examination of the record title, in addition to what was shown by the abstracts, made at large expense and in various places, disclosed that appellee, did not have good and merchantable titles to said lands free from all liens and incumbrances, or that the same aggregated 312 acres in Lawrence county, but only 267.45 acres, or that the said shale tract aggregated 30 acres, but only 26 acres; that by reason ¡of the fact that, at the time of the conveyance to it of a portion of said premises, one of the parties, through whom the title thereto came being a foreign corporation, viz., the Midland Portland Cement Company, had not complied with the Indiana law authorizing it to do business or own real estate in that state, the title to said portion had escheated; that certain other portions of said land did not appear to have been properly conveyed from the government, for the reason that the patent was not properly executed; that the title to a portion thereof derived through one Wm. Humston, is at best only an equitable title; that certain preferred stockholders of the Midland Portland Cement Company, through whom appellee’s title comes, have outstanding liens of record against said Lawrence county lands; that as to a portion of said lands, there appears of record doubt as to whether one John Borland, through whom appellee claims, conveyed a good title by his deed to one Mallott; that the title to a 16-foot strip along the western boundary of a éertain 19.3-aere tract of said land, excepted from the conveyance by one Day .to one Glover, was still outstanding in Elizabeth Day; that the title to a portion of said premises comes through one John Borland, who devised it to Matthew Borland, who never conveyed it; that the record shows that the several lots or tracts of said land were mortgaged by one Richard Evans to the state of Indiana, and later conveyed by the state of Indiana to William M. Humston through partition proceedings of whose land appellee claims, but no record appears of conveyance of the fee by Evans; that there exists in favor of certain Rariden heirs an expressly reserved vendor’s lien taken as an indemnity on May 31, 1906, against liens resting upon lands taken in part payment of the purchase price of said premises by the United States Cement Company, through whom appellee claims title, which liens are not shown to be released of record; that the sale of said premises, except the Rariden tract, by the Midland Portland Cement Company to the United States Cement Company in May, 1904, was made without the consent of owners of 3,435% shares of the common stock of the company, giving their names; that the sale was ineffective against such stockholders, said sale being án attempted dissolution of said company and illegal; that one Walls, wife of H. H. Walls, has a one-third interest in certain of the tracts of land covered by the contract, not having joined her husband in his deed as trustee to one Prank Day, dated March 17, 1892, no cestui que trust being disclosed, whereby it is charged Walls individually owned said premises; that said Jackson county land was the property of one James Hamilton, who devised the same to his children; the will was probated, but no executor was appointed; it was not shown of record that his widow’s rights have been released in said premises, she having a statutory right to one-third thereof on renouncing the terms of the will; that there was outstanding on said Jackson county land a mortgage to secure $4,000, given by the United States Cement Company to one Andrew P. Robertson on February 5, 1909; that there was no means of access to said Jackson county lands; that one Robertson, who conveyed said Jackson county lands to appellee’s predecessors in title reserved and still held the right to all the growing timber on said land, of which there is a large amount, and to enter thereon for the purpose of removing it. For all of which reasons, the bill alleges, the appellee had not a good and merchantable title, free from all Hens and incumbrances, to said premises covered by said contraed;; that appellee waived his right to correct the title to said land, and agreed to refund said .$25,000 and expenses, but lias failed to do so.</p> <p>Appellee, by way of answer to appellants’ objections to said title, admits that the Lawrence county tract contains only 267.45 acres, but insists that fact is immaterial, since the contract covers the cement plant by references to oilier conveyances, etc., and that the same is substantially true of the .Tack-son county land; charges that the Midland Portland Cement Company had the right under the statute of Indiana to own land for purposes of its business and to convey the same, and denies that title to said land escheated; alleges more than 20, and in some instances more than 80 years’ adverse possession of said Lawrence county lands under said alleged defective Cnited Stn tea patent; that he and his grantors have been in open and adverse possession of the Humston tracts since the year 1810. The answer denies that he was bound by the terms of his purchase to protect or pay any lien of said preferred stockholders of said Midland Portland Cement Company, or that they held a lien; charges that the same were cut off by mortgage foreclosure; that appellants can protect themselves as to the balance duo upon these alleged liens out of the balance due on the present contract; that “defendant is now and always has been ready and willing that said unpaid purchase money to the amount necessary may be applied by plaintiffs to the satisfaction of said lien”; that the apparent outstanding title in John Borland grew out of a mistake in description; that he was about to procure a deed for said 16-foot strip when appellants notified him they would not take the title, irrespective of said strip; that he now owns said strip, and is ready to convoy it to appellants; that he and those through whom he claims have been in open and notorious adverse possession of that part of said premises acquired through Thomas .7. Francis and William O. Mitchell ever since the year 1852, and that Matthew Borland never had possession thereof, or of any part of it; that the apparent outstanding title in Richard Evans grew out of a misdescription; that appellee’s title came through Humston, who, in 1837, was in possession; that Lavinia Humston took possession of said premises under partition decree in 1872, and so remained until 1882, when she conveyed to one under whom appellee claims by mesne conveyances, and that those under whom he claims have had open and adverse possession thereof for more than 4.0 years; that appellee admits the facts of the Rariden vendee’s lien, but that appellants are fully protected by the balance of $425,000 duo on tbe contract, which he is ready and willing to have applied to extinguish those liabilities; that the mortgage to the Security Trust Company of Indianapolis, on January 1, 1002, to secure $500,000 bonds, by the Midland Portland Cement Company, was foreclosed, and appellee acquired title by purchase at that sale, and not exclusively through purchase from the Midland Portland Cement Company’s deed; denies that the widow of H. H. Walls has any interest in said premises; sa,ys that he has procured a deed from her; that he could have procured it sooner, had appellants’ rejection of said title and premises by reason of the quality of stone, etc., not made it unavailing, but is now ready and willing to convoy the same to appellants. The answer charges that Rebecca Hamilton has no interest in said premises in Jackson county, because under the then existing statute of Indiana it was her duty to affirmatively elect to take under the statute, instead of under the will, which she did not do; that said land was subject to a $4,000 mortgage to Andrew F. Robertson, which still is a liability to the amount of $2,000, which he would have paid, had appellants not rejected said title, and that he is now ready to discharge the same; that appellants have access to said Jackson county land, all that is required in removing the shale; that the timber reserved by Robertson is small, and only good for firewood, and was an obstruction to the mining and removal of the shale. Appellee thereupon says he was at the time of executing said contract and still is vested with a good and merchantable title in fee simple to said land.</p> <p>The foregoing is a statement, in substance, of the allegations of the bill and answer as to the several claims of the parties hereto with reference to the title of said premises. The bill thereupon proceeds as follows in reference to the quantity and quality of the IJortland Cement material contained upon said premises, viz., that by paragraph 7 of said contract it was agreed that the carbonate of lime in said limestone rock on said premises in Lawrence county would upon inspection be found to average 90 per cent., whereas it does not average more than 86 per cent., whereby the value of said property for cement manufacturing purposes is greatly reduced; that appellee was duly notified when appellants began drilling cores in said limestone rock and otherwise making examinations of said limestone, and at all times during the progress of said work, so that he might be present or represented for the purpose of verifying such tests; that appellants used due diligence in making said tests and in preserving and making chemical analyses, etc., and in ascertaining the average'of carbonate of lime to be not more than 86 per cent.; that they were therefore not bound to proceed with the said purchase; that said property was the only property of appellee liable to execution in said district; that appellants have a lien thereon for the $25,000 paid on account and for expenses incurred, and amounting to $5,039.16, or a total of $30,039.16, with interest, for the enforcement of which appellants pray the decree of the court.</p> <p>■To this portion of the bill appellee answers that appellants did not at first claim that the quantity or quality of limestone suitable, or of dolomite unsuitable, for the manufacture of Portland cement contained in the Lawrence county land, was in any way otherwise than or different from that warranted by the terms of the contract in respect thereto, nor did they make any objection thereto provided the objections to the title were adjusted within the time allowed; that while appellee was remedying such defects as were material, appellants raised the objection to the quantity and quality of the stone and refused to perform; that appellee had advised appellants theretofore that all material defects of title objected to would be cured within the time limited in the contract; that appellants, on February 19, 1912, refused in writing to accept the property and perform said contract and demanded payment of said sum; that the core drill holes were not located with his knowledge and approval; that appellants made no adequate examination of said lands by drilling as required by the contract, or that he was notified of the time and place of the drillings made; that limestone averaged as stated in the contract; that only two holes were drilled, and these at opposite extremities of said Lawrence county land; that whatever was shown by said drillings would not indicate the average thickness of the dolomite or magnesia strata or limestone; that the tests of all kinds were not such as to give a fair average; that the average aggregate thickness of the strata of dolomite was not in excess of 30 feet, or more than 3 feet, and charges that the stone was as represented in the contract; that the carbonate of lime averages 97 per cent.; that appellants did not use due diligence in accumulating and preserving samples of rock and in making analyses; alleges appellee’s ability and willingness to perform, and prays that appellants be decreed to specifically perform said contract.</p> <p>To this answer and cross-bill appellants made reply, denying that appellee ■ ever notified them that he had cured said defects of title and was ready to convey, except in his said answer, and that said defects were not remedied within the time limited in the contract or extension thereof. Appellants introduced various exhibits in support of the allegations of their said bill, which, in the main, support the statements of the bill as to the condition of said title. The abstracts of title in several cases fail to show title in appellee, notably where title is claimed by prescription and adverse possession. Experts were introduced who had analyzed the cores to ascertain the quality of the limestone. These witnesses testified that the carbonate of lime averaged less than 96 per cent. A topographical map of the premises was admitted in evidence. Appellants did not confine their examinations to drillings. Trenches were dug, outcroppings exposed at various locations on said Lawrence county land were examined and analyzed, and the abandoned quarry was examined, as well as the present quarry. The experts for both parties agreed that, allowing for a dip of 1 per cent, known to exist in the stone strata of that region, the tops of the large bodies of magnesia stone as shown in the two drill holes were at the proper elevations to indicate a continuance of the same bed. Samples were produced off the face of the present quarry, which showed a strata of magnesia stone averaging between 2 and 3 feet in thickness, which seems to have been the Basis for the covenant as to the limit of thickness of dolomite. This strata corresponded in elevation with a band of dolomite of the same thickness shown in drill hole No. 3, which fact served to corroborate the evidence as to the extent of the bed of dolomite. Examinations showed that (he beds of magnesia which were discovered constituted about 65 per cent, in thickness of the limestone deposit above the present top of the quarry. A number of witnesses were examined on the thickness of the dolomite deposit, and the evidence is voluminous, too much so to admit of recapitulation in detail hero. The District Court was of the opinion that the evidence, under the terms of the contract, should be confined to the drillings, and admitted the other evidence offered ns to the quality and quantity of the limestone simply that this court might have it before them, declining to consider the same himself.</p> <p>It was shown by experts that it was essential to make surface and other tests and to take into consideration other facts in order to calculate the disclosures made by drilling, as, for instance, the established scientific facts with regard to the limestone deposit including the sedimentary origin — the dip of the different strata of rocks, the topography of the land, its elevations with, regard to the exposed quarry face, which was in the Mitchell strata, and not the oolitic, and all other data which would assist in making calculations. Appellee introduced certain experts and others who testified that the amount of dolomite and the quantity and quality of limestone could only be arrived at by a large number of drillings, from 60 to 100, which would have cost about $1,000 per hole. While it is denied, the evidence seems to establish as a fact that appellee was advised of -the methods pursued in making examinations and not to have objected thereto. It appears that the Mitchell formation of stone lies on top of the oolitic and above the level of the floor of the present quarry. Thus it appears that the entire deposit here involved was the Mitchell formation; i. e., 180 acres out of 204 acres of limestone. Several of appellee’s witnesses were building stone quarrymen, and were experienced only in oolitic stone and their testimony must be read in the light of this fact. The former state geologist of Indiana, after testifying for appellee that the extent of the strata shown at drill holes was not demonstrated by the sinking of the two drill holes, conceded that, assuming the elevation and levels to be as testified by appellants’ witnesses, the 30-foot band of dolomite or magnesia as shown in the two drill holes probably was continuous between the two holes, or about 2,600 feet. The said drilling tests wore made on land 60 feet or more above the top of the present quarry, viz., 110 feet above the land of that quarry floor, which body contains strata of magnesia limestone over 30 feet thick on the average, it is claimed. It appears that appellee, when advised in writing of the rejection of said property, made no protest as to sufficiency of the tests, but suggested another proposition and agreed to refund the $25,000. Two witnesses testified to this as against the testimony of appellee. This evidence is supported by the correspondence. A telegram is in evidence in which appellee advised Gerstell that he had found rock adjacent to the quarry and was arranging to test it.</p> <p>The court dismissed both the bill and cross-bill for want of equity. Appellants present a number of assignments of error which go to the action of the court, upon the facts stated. Appellee assigns as error the dismissal of his counterclaim.</p>

<p> (Syllabus by the Court.) </p> <p>3. Bankruptcy <&wkey;199 — Avoidance of Liens — Insolvency of Debtor.</p> <p>Insolvency oí Die persons against whom the judgments, attachments, or other liens specified, in section 67f (Act July 1, 1898, c. 541, 30 Stat. 564, as amended by Act Feb. 5, 1903, c. 487, § 16, 32 ¿tat. 800, and Act June 25, 1910, c. 412, § 12, 36 Slat. 842 [Comp. fc>c. 1913, § 96511), are obtained at the respective times they are secured is indispensable to their avoidance under that section, and to the jurisdiction of the court of bankruptcy to order conveyance or make other orders to that effect thereunder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;l99.J</p> <p>2. Bankruptcy &wkey;303--LiEN — -Insolvency—Burden of Proof.</p> <p>The burden is on him who claims a lien is void under section 67f to plead and prove the insolvency of the person against whom it was obtained at the time it was secured.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-162; Dec. Dig. <&wkey;303J</p> <p>3. Bankruptcy <&wkey;288 — Rights of Execution Creditor — Summary Pro-</p> <p>ceeding.</p> <p>An execution creditor, whose execution was levied by the sheriff on the right of the defendant to recover a debt of a bank to it eight days before the petition in bankruptcy was filed against such defendant, to whom the sheriff paid the moneys collected under that levy after the filing of the petition, in the absence of any injunction order or process of the court of bankruptcy against him, or the sheriff, making either of them a party or otherwise, and in the absence of any demand or notice by any agent or officer of that court regarding- the matter before the money was collected and paid over, has a substantial claim for the money he has thus received, is an adverse claimant thereof, and in the absence of any pleading or proof of the insolvency of the execution debtor at the time of the levy of the execution may not be compelled to pay the money over to the trustee of the bankrupt’s estate in a summary proceeding in the court of bankruptcy, but has the right to an opportunity to defend Ms claim to the money in a plenary suit according to the course of the common law. Reference is made to the opinion in In re Rathman, 188 Fed. 913,106 O. O. A. 253, for the rules and test for determining what claimants are adverse claimants, entitled to an opportunity to prosecute or defend their claims in plenary suits.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Doc. Dig. <&wkey;288.]</p>

<p>Petition to Revise Order of the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>In the matter of William J. Thompson, bankrupt; Henry J. West, trustee. Petition by the First National Bank of Woodbury to revise an order denying its petition for leave to file a claim.</p>

<p>1. Wills <&wkey;436 — Construction—Designation of Legatees — Words of Relationship.</p> <p>By item second of a will the testator made a bequest “to each of my relatives and kindred by blood of the first and second degree,” and by item third made a different bequest to an uncle, “he to receive nothing under item second hereof.” By the civil law there was but one person, a half-sister, who came within the terms of item second, and under the ■ laws of the state, in case of intestacy, she would have inherited the entire estate, while, on the other hand, there were a number of persons, including the uncle mentioned, who were blood relatives of the first and second degrees by the canonical law. Held, that the testator evidently had in mind the latter law, and intended that it should govern in ascertaining the legatees.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 947-950; Dee.. Dig. <®=»436.)</p> <p>2. Wills <&wkey;440 — Construction—General Rules.</p> <p>The cardinal principle in the construction of wills is to ascertain the intention of the testator from the language of the entire instrument.</p> <p>[Ed. Note. — For other cases, see Wills, Gent. Dig. § 956; Dec. Dig. <&wkey; 440.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Coffield Motor Washer Company against the Wayne Manufacturing Company and the American Washer Company. Decree for complainant, and defendants appeal.</p>

<p>In Equity. Suit by the Vacuum Cleaner Company against the American Rotary Valve Company for infringement of claims 1, 2, 3, and 4 of United States letters patent No. 847,947, dated March 19, 1907, application filed November 29, 1901, and the single claim of United States letters patent No. 847,948, application filed March 16, 1903, each for “apparatus for removing dust.” For convenience, the patents will be called the first patent and the second patent. On final hearing.</p>

In Equity. Suit by the Iowa Washing Machine Company against Montgomery Ward & Co. for infringement of reissue letters patent No. 12,733, for a washing machine, granted to Bert A. Stocking and Hiram Mendenhall. On final hearing.

<p>Patents <&wkey;325 — Accounting fob Infringement — Costs.</p> <p>On an accounting for infringement, as the hearing proceeds, each party should in the first instance pay the costs and expenses made by himself, including fees of the master and stenographer, leaving the question of their final payment to be determined when the decree is entered.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 607-612; Dec. Dig. <&wkey;>325.]</p>

<p>In Equity. Suit by William A. Tilden and others, receivers, against Ohio C. Barber and others. On motion to dismiss amended bill.</p>

<p>1. Bankruptcy <&wkey;417 — Discharge—Right to Attack — “Party in Interest.”</p> <p>A creditor, whose claim is entirely wiped out by bankrupt’s discharge, but who would have the right to proceed against the debtor if the discharge were revoked, is within Bankr. Act July 1, 1898, c. 541, § 15, 3T Stat. 550 (Comp. St. 1913, § 0599), permitting any “party in interest,” not guilty of undue laches, to ask to have the discharge revoked for fraud.</p> <p>LEd.'Note. — B’or other cases, see Bankruptcy, Cent. Dig. §§ 807-871; Dec. Dig. <&wkey;417.]</p> <p>2. Bankruptcy <&wkey;152 — Assets—Life Policy — Assignment—Interest of</p> <p>Trustee.</p> <p>If, after death of bankrupt, his discharge be set aside, and the assignment of policies on his life be successfully attacked, their status, for the purpose of determining the interest of the trustee, would be as of the date of the adjudication of bankruptcy.</p> <p>[Ed. Note. — H'or other cases, see Bankruptcy, Cent. Dig. §§ 194; Dec. Dig. &wkey;>152.]</p> <p>3. Bankruptcy &wkey;143 — Assignment of Life Policy — Setting Astue- Re-</p> <p>demption.</p> <p>If an assignment by bankrupt and his wife of policies on his life was void, their return after his death would give his wife the right to redeem them within 30 days after determination of the surrender value, as of the date of the adjudication, as provided by Bankr. Act, § 70, subd. 5 (Comp. St. 1913, § 9654).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. &wkey;143.]</p> <p>4. Bankruptcy <&wkey;146 — Concealment of Assets — Assignment of Life Policy-Interest of Trustee.</p> <p>That the schedules made no mention of bankrupt having assigned policies on his life would not entitle the trustee, after bankrupt’s death, to the entire amount of insurance, as concealed property and increment thereof; the assignment having been in good faith, and the parties under a mistaken idea of his right to make it, and to leave out of the schedules the details thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 193; Dec. Dig. &wkey;>146.]</p> <p>5. Bankruptcy <&wkey;417 — Discharge—Attack—Laches.</p> <p>A creditor is not barred by laches from attacking, under Bankr. Act, § 15, the discharge, having acted in a month after ascertaining the facts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 867-S71; Dec. Dig. <&wkey;417.]</p> <p>6. Bankruptcy <&wkey;417 — Discharge—Revocation—Fraud.</p> <p>The cash surrender value, at the time of the adjudication, to which only the estate was entitled, of life policies assigned by bankrupt, being only $17, in which the objecting creditor, because not having filed a claim, would have no interest, and it having, been the evident intent of the parties merely to protect the policies from lapsing, and thus save the benefit to the beneficiary of the past insurance, the transfer will not be held a fraud on creditors, as ground for setting aside, under Bankr. Act, § 15, the discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 867-871; Dec. Dig. <&wkey;417.]</p>

<p>In Error to the District Court of the United States for the Southern District of Texas;</p>

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

<p>In Error to the District Court of the United States for "tlie Eastern District of Oklahoma.</p>

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

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

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

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

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

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

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

<p>Apjpeal from the District Court of the United States for the Western District of Arkansas.</p>

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

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

<p>Petition for Revision from the District Court- of the United States for the Eastern District of Michigan.</p>

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

<p>Appeal and Cross-Appeal from the District Court of the United States for the Eastern District of Oklahoma.</p>

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

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

<p>In Error to the District Court of the United States for the Northern District of New York. On motion to enlarge or to reduce bail.</p>

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

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

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

<p>In Error to the District Court of the United States for th§ Northern District of New York. On motion to enlarge on bail.</p>

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

<p>In Error to the District Court of the United States for the Southern District of New York. On motion to dismiss writ of error.</p>

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

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

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

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

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

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

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. Use and Occupation Proceeding. Motors Proceeding. On rehearing.</p>

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

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

<p>In Error to the District Court of the United States for the Western District of Texas;</p>

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

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding a certain patent valid and infringed. The patent is No. 880,410, granted February 25, 1908, to Joseph B. Singer for a combined carton and display device. The opinion of the District Court, which will be found in 227 Fed. 462, holds that claims 2, 3, and 4 are infringed by defendant’s device.

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. On motion for leave to move in the District Court to reopen.</p>

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

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

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

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