Volume 228 — Federal Reporter

Meek, Judge. In the matter of C. A. Sewell, bankrupt; J. W. Powell, trustee. From, an order denying its petition for a lien on the proceeds of insurance policies, the J. M. Radford Grocery Company appeals, and also files petition to revise.

<p>1. CONTRACTS <@=>231 — BUILDING CONTRACTS — COMPENSATION—COMMISSIONS.</p> <p>Under a building contract, providing that the contractor- was to furnish all the material and perform all the work in erecting the building and was to be paid the cost of the labor and material necessary, and in addition 30 per cent, thereof as commissions, the contractor was not entitled to commissions on the profit made by a subcontractor on labor and material furnished by Muí.</p> <p>[Ed. Note. — Fdr other cases, see Contracts, Cent. Dig. §§ 1046, 1047, 1051, 1052; Doe. Dig. <©=>231.]</p> <p>2. Payment <§=>41 — Application—Unsecured Acoottnts.</p> <p>Where tlie owner of a building in the course of construction owed the contractor for items not used in, the construction of the building, payments without direction as to application were properly applied to such items instead of on the balance due on the building, since, where one has two accounts, one of wMeh is secured and the other unsecured, payments made without instructions as to application may be applied to the unsecured account.</p> <p>[Ed. Note. — For other eases, see Payment, Cent. Dig. §§ 115-129; Dec. Dig. <©=>41J .</p> <p>3. Mechanics’ Liens <@=»154t — Notice—Form—Sufficiency—Tenue.</p> <p>A mechanic’s lien notice, which does not in the caption of the affidavit on which the claim is based, nor in the body of the affidavit, show in what county it was taken, nor before what officer, and with the jurat signed only “H. F., Notary Public,” without stating the county or state, is not invalid, the statute providing that the affidavit shall be sufficient if in form and effect as therein required; it being presumed that the action of the official administering the oath was within his jurisdictional limits.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 261-267; Dec. Dig. <©=>154.]</p> <p>4. Mechanics’ Liens <©=>146 — Notice of Lien — Form—Date of Last Item.</p> <p>Code W. Va. 1913, c. 75, § 4 (sec. 3845), providing that every lien shall be discharged unless the lienor shall, within 60 days after he ceases to labor on or furnish material or machinery for the building or other structure, file with the clerk of the county court of the county in which the same is situate a just and true account of the amount due him, does not require a definite statement as to the date of the last items of material furnished or labor performed, so as to conclude him thereby.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 246-252; Dec. Dig. <@=>146.]</p> <p>5. Mechanics’ Liens <@=>2S1 — Notice of Lien — 'Time of Filing.</p> <p>On foreclosure of a mechanic’s lien, evidence held sufficient to sustain a finding that plaintiff furnished the last items of material within the 60 days allowed for filing the notice of lien.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 565-572; Dec. Dig. <@=>281.]</p> <p>6. Mechanics’ Liens <@=>291 — Decree of Sale — Place of Sale.</p> <p>A decree of sale under a mechanic’s lien foreclosure, merely directing the commissioner to sell the property “in the city of G.” to the highest and best bidder, is not erroneous, since it will be presumed that the commissioner will advertise and sell the property in pursuance of the federal statute requiring all sales under orders or decrees of any federal court to be made at the courthouse in the county where the property is located.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Hens, Cent. Dig. §§ 599-605, 607, 610; Dec. Dig. <@=>291.]</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. M. Smith, Judge.</p> <p>Action by B. J. Reagin against the Southern Express Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Taxation <&wkey;849 — Tax Titles — Peivity Between Holder of Tax Title ANT) FoiiMEB OWNEK.</p> <p>Under the laws of West Virginia, there can be no privity between the former owner of land and one who pays taxes under a tax deed thereto, even though such deed bo void.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1GG5; Dec. Dig. &wkey;849.]</p> <p>2. Judgment <&wkey;828 — Res Judicata — -State Judgment — Conclusiveness in FEDERAL COTTBT.</p> <p>Where owners of land who had forfeited it to the state for unpuid taxes exhausted all their remedies to avoid such forfeiture in the state courts, the .-judgments of the state courts in the former owners’ suits were conclusive upon the federal courts, so that the owners could not maintain a bill to remove the cloud from their title in such a court.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dec. Dig. <&wkey;>828.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. G. A. 468; Converse v. Stewart, 118 O. C. A. 215.]</p>

<p>Injunction <&wkey;145 — United States Courts — Issuance of Injunction on Affidavit — Rule of Court.</p> <p>Under Equity Rule 73 (198 Fed. xxxix, 115 C. C. A. xxxix), regulating' the matter of issuance of preliminary injunctions in the federal courts, and providing that no preliminary injunction shall be granted without notice, etc., and that no temporary restraining order shall be granted unless it shall appear from the verified bill or by affidavit that immediate and irreperable loss will result, where a District Court issued an injunction restraining plaintiff in an action in the state court from proceeding in such court merely upon an affidavit of defendant’s counsel in the state court, such issuance was improper, since the filing of a properly verified bill in the federal court is a necessary condition precedent to the issuance of an injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent Dig. §§ 318, 321; Dec. Dig. <@=»145.]</p>

<p>1. Patents <@=>72 — Anticipation—Prior Use.</p> <p>A prior structure, to constitute an' anticipation by prior use," must be clearly and unmistakably identified with the structure of the patent.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 86-91; Dec. Dig. <@=>72.]</p> <p>2. Patents <§=5157 — Construction.</p> <p>Unless it is unavoidable, a patent should not be given a construction that makes the patentee concede a broader and more explicit prior art than existed in fact.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 229-232; Dec. Dig. <@=>157.]</p> <p>3. Patents <@=>328 — Validity and Infringement — Electric Motor Regulation.</p> <p>The Pieper and Pieper patent, No. 704,099, for electric motor regulation for alternating current dental engines, was not anticipated, and discloses patentable invention; also held infringed.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur E. San-born, Judge.</p> <p>Suit in equity by the Economic Engineering & Construction Company against the Aurora, Elgin & Chicago Railway Company. Decree for complainant, and defendant appeals.</p> <p>Appellee filed its bill to restrain infringement of claims 1, 2, 3, 4, 5, G, and 8 of patent No. 851,054,.for a pneumatic conveyor, issued April 23, 1907, to E. M. Bassler. The device of the patent, while claimed to be eapabe of various uses, is mainly availed of for the removal and cooling of ashes from boilers. The defenses are invalidity and noninfringement. Claims 4, 5, 6, and 8 were sustained by the District Court, and injunctional relief accorded. The appeal involves only these four claims, which read as follows, viz.:</p> <p>“4. In a conveyor, the combination of a conduit provided with an admission opening or openings, a receptacle into which said conduit discharges, said receptacle comprising an expansion chamber and being provided with an air-discharge opening, means to create a current of air through said conduit, means in said expansion chamber to interrupt the blast from said conduit, and means to discharge water across said blast substantially at the point at which it is interrupted.</p> <p>“5. In a conveyor, the combination of a conduit provided with an admission opening or openings, a receptacle into which said conduit discharges, said receptacle comprising an expansion chamber and being" provided with an air-discharge opening, means to create a current of air through said conduit, a baffle in said expansion chamber against which the blast from said conduit is directed and means to discharge water along the face of said baffle and. across the blast from said conduit.</p> <p>“6. In a conveyor, the combination of a conduit provided with an admission opening or openings, a receptacle into which said conduit discharges, said receptado comprising an expansion chamber and being provided with an air-discharge opening, means to create a current of air through said conduit, a baffle in said expansion chamber between said conduit and said air-discharge opening against which the blast from said conduit is directed and means to discharge water along the face of said baffle and across the blast from said conduit.”</p> <p>“8. In a conveyor, the combination of a conduit provided with an admission opening or openings, a receptacle into which said conduit discharges, said receptacle comprising an expansion chamber and being provided with an air-discharge opening, a fan or blower applied to said discharge opening, a baffle within said expansion chamber located between said conduit and air-discharge opening against which the blast from said conduit is directed and means to discharge water along the face of said baffle and across the blast from said conduit.”</p> <p>Fig. 1 of the drawings is here reproduced:</p> <p> </p> <p>The conduit 1 has as many graded hopper-shaped openings as may he desired for the admission of ashes into it. Through this conduit the ashes are drawn by suction or other pneumatic propulsion into the upper part of tank 5. This tank has its top portion divided through the center by a baffle 9, against which the blast from the conduit is directed. The size of the tank is such that the face of the current of air, burdened with ashes, is rarified as it is discharged therein from conduit 1, whereby the solid.matter carried therein falls by gravity. Discharge opening 7 connects also with the top of tank 5. This, together with baffle 9, assists in arresting the force of the blast from the conduit, the baffle serving somewhat to retard the escape of the air through the opening. “My improved conveyer,” says the patentee, “also comprises means for wetting the material delivered into the receptacle 5 from the conduit 1. Thisi is preferably accomplished by introducing jets or streams of water into the blast from said conduit; but my invention contemplates any suitable means for this purpose.” Water pipe 10 extends across the top of baffle 9 on the side receiving the blast. Through openings or vents 11 therein water under pressure is discharged in jets “downwardly along the face of baffle 9 and across the blast from the conduit 1.” The water will serve to wash down the particles of ashes that may have lodged and extinguish any live coals. Velocity of current of air through the conduit can be regulated by “closing the gate or valve 16.” Ash discharge appliances from the tank are shown at 6,12, IS, H-, and 15. These are not in question. S is a fan or blower used in creating a vacuum in tank 5. This produces the suction in conduit 1.</p> <p>The drawing of the alleged infringing device is set out in the record as follows, viz.:</p> <p> </p> <p>Tilts conveyor ivas used by appellant at its x>ower plant at Batavia, Iowa. It has the conduit passing from the ash pit to a tank, an outlet conduit of larger size than the inlet conduit, which leads from the top of the tank to a £a.n or blower whereby the air is withdrawn from the tank, whereby the ashes are drawn up into the tank, and jiroper discharge devices. Defendant introduces wafer muter pressure to settle the dust and extinguish live coals at a point in tlie conduit thereof some 30 feet distant from the discharge end of the conduit or tank.' This end of the conduit is provided with what appellant calls a deflector projected beyond the end and directed into the line of the blast. This, appellant contends, serves to protect the walls of the tank from the injurious effect of the blast and ashes carried thereby. A dust collector is provided in the conduit, which, it is claimed, protects the fan from the projected ashes therethrough. The elbows of the conduit exposed to abrasion are made removable and of very durable material. The tank is provided with an automatic manhole, which lifts when the tank pressure grows excessive from gas generated by the hot ashes and water.</p> <p>The assignments of error go to the decree of the court in sustaining claims 4, 5, 6, and 8, and in granting the injunction and accounting. No relief is asked as to claims 1, 2, and 3.</p>

Morton, Jr., Judge. Suit in equity by the Independent Die Company and others against Orvis M. Savels and others. Decree for defendants, and complainants appeal.

In Equity. Suit by the Ennis-Brown Company against the Central Pacific Railway Company and the Southern Pacific Company, heard with 15 other cases against tlic same defendants. On motions to dismiss hills.

<p>1. Gas <©=>6 — Towers—Lease of Property.</p> <p>A lease by a gas company of its physical property for a term of years, the business to be carried on by the lessee, is not ultra vires, in the absence of anything in its charter or the laws of the state prohibiting it, although not expressly authorized by such charter or laws.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 1; Dec. Dig. <@=36.]</p> <p>2. Internal' Revenue <©=39 — Excise Tax on Corporations — “Carrying on or Doing Business.”</p> <p>A gas company, which has leased its plant and all other physical property for a term of years, the business for which it was incorporated being carried on by its lessee, is not “carrying on or doing business,” within the meaning of Corporation Tax Act Aug. 6, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, § 6300), and subject to the tax thereby imposed, although it retains its franchise and organization, and receives and disburses its income, and under the terms of the lease bears the expense of alterations, improvements, and additions to its plant made during the term, and also during the term has applied for and obtained from the Legislature amendments to its special charter.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <©=j9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Carrying on Business.]</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Wegman Piano Company. Petition by the trustee for an order to show cause, requiring the Commercial Credit Company of Baltimore, Md., and others, to establish their rights to property in the possession of the trustee.</p> <p>The trustee in bankruptcy has filed a petition in this matter, in which it is alleged that he has in his possession certain personal property, money, notes, and accounts which belong to and form a part of the estate and property of the bankrupt; also that other parties, especially Commercial Credit Company of Baltimore, Md., makes certain claim thereto and asserts certain rights therein. The object of the order to show cause granted thereon was to enable this court to ascertain and determine the claims of the parties and their rights In and to such property, alleged to be in the possession and under the control of such trustee appointed by this court; he being and residing in the Northern district of New York, where the Wegman Piano Company, the bankrupt, resided and had its principal place of business, and in which district it was adjudicated a bankrupt.</p> <p>On the return of the order to show cause, etc., the said Commercial Credit Company appeared specially and objected to the jurisdiction of this court on certain grounds specifically stated in writing and placed on file. Leave was asked to file further affidavits, etc., which was granted. Since that time, not waiving any right, but for the purpose, it is claimed, of showing that this court has no jurisdiction in the premises, the said Commercial Credit Company has filed an affidavit or statement, signed by A. E. Duncan, its president, taking issue with and denying many of the material allegations of the said petition of the trustee, and on the petition and such answer and objections demands that the petition be dismissed, that the order staying certain action in relation to such property heretofore granted by this court be vacated, and the trustee thereby remitted to a plenary action in the proper jurisdiction, which is' claimed to be the state of Maryland.</p>

<p>Navigable Waters <§=>26 — Action to Require Removal of Obstruction— Ownership oe Bridge.</p> <p>The United States held not entitled to a writ of mandamus to compel defendants to remove the remains of a bridge from a canal which now constitutes a navigable public waterway; it appearing from the evidence that neither of defendants has or ever h^d any title to or -interest in either the canal or the bridge.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 133-166; Dec. Dig. <§=>26.]</p>

In the matter of the application for extradition of Ignatius T. T. Lincoln. Hearing on writs of habeas corpus and certiorari after holding for extradition.

<p>1. Bankruptcy <&wkey;409 — 'Grounds por -Refusing Discharge — Failure to Keep Books.</p> <p>The natural result of the failure of a bankrupt to keep books showing his business transactions being to conceal his financial condition, such may be presumed, to have been liis intention; but the presumption is subject to rebuttal, and if the court is of the opinion, either from evidence or from the circumstances of the case, that he did not intend concealment, he should not be denied a discharge.</p> <p>LEd. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 739, 752-757; Dec. Dig. &wkey;409.]</p> <p>2. Bankruptcy <&wkey;414 — Grounds foe Refusing- Discharge — -Failure to Keep Books.</p> <p>A bankrupt -was engaged in business as a building contractor in a small way for six months, during which time he built three small buildings, on which he worked himself; the only indebtedness contracted in so doing being- to subcontractors, who were secured under the mechanic’s lien law. Held, that under such circumstances his failure to keep books did not evidence an intention to conceal his financial condition, which should deprive him of his ri^ht to a discharge.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. <&wkey;414.]</p>

Criminal prosecution by the United States against the Blair-Murdock Company, Ralph K. Blair, Thomas Addis, C. D. .Lawrence, Harry G. Lane, and Kenneth Croft. Judgment of conviction against defendants Blair and Addis, and of acquittal as to all other defendants.

<p>Petition by John P. White for a writ of habeas corpus.</p>

<p>Bankruptcy &wkey;>348 — Liens—Statutory Lien or Landlord.</p> <p>Under Civ. Code La. art. 2705, giving a landlord a lien for rent on the movable property of the lessee on the premises, which under subsequent articles is of higher privilege than wage claims, where the landlord of a bankrupt distrained for rent before the bankruptcy, the property being later turned over by the sheriff to the trustee, the latter took it subject to the lien, and only the surplus, if any, is subject to distribution and to the preferred claims of wage-earners.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536-; Dec. Dig. &wkey;>348.]</p>

<p>Public Lands <0=^138 — Suit iron Cancellation of Patent — Fraudulent Entry — Bona Fide Purchases.</p> <p>A tract of land was patented under an entry which was fraudulent, iu that it was supported by false affidavits that the land was unoccupied, unimproved, and not claimed adversely, whereas in fact it was then and had been for many years occupied under a conveyance from a railroad company as land passing under a grant and was highly improved. The affidavits that the land was unoccupied were required by the rules of the department, and the acceptance of the entry was based thereon. While under the later rulings of the Land Department the land did not pass under the grant because of a then subsisting valid pre-emption thereon, subsequently abandoned, the occupant under the deed from the railroad company was given by Act March 3, 1887, c. 376, § 5, 24 Stat. 557 (Comp. St. 1913, § 4899), a preferred right to purchase the same at the government price, but lie was not notified and given an opportunity to exercise such right on the holding that the land did not pass under the grant, as required by the rules of the department, because of the false affidavits that there was no adverse claim. Held, that defendant, who purchased the land under the entry, was not protected as a bona tide purchaser, but was charged by the adverse occupancy, and the recorded conveyances under which it was held, with notice ,of the fraudulent character of the entry, and that the United States was entitled to a cancellation of the patent.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 368; Dec. Dig. <>^>138.</p> <p>Cancellation of patent to public lands, see note to Hartman v. Warren, 22 C. O. A. 38.]</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Criminal prosecution by the United States against Frank Guinn and J. J. Beal. Judgment of conviction, and defendants bring error.</p>

Petition to Superintend and Revise from the District Court of the United States for the Eastern District of Texas; Gordon Russeli, Judge. In the matter of A. B. Andrews, bankrupt; R. E. Moulden, trustee. Petition by the Parlin & Orendorff Implement Company and others to revise an order allowing a homestead exemption to the bankrupt.

Sheppard, Judge. Action at law by M. Coppard, trustee in bankruptcy of Rachel Kaufman, against Ike Rosenman, individually and as a member of the firm of Ike Rosenman and Saul Rosenman, copartners doing business as the New York Jobbing House. Judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action at law by the Bison State Bank against B. J. Billington, E. B. Williams, and J. A. Dunn. Judgment lor defendants, and plaintiff brings error.</p>

Petition to Revise Order of, and Appeal from, the District Court of the United States for the Southern District of New York. In the matter of the New York Commercial Company, bankrupt. From an order denying the petition of Francis H. Robinson and Thomas A. Desmond to reclaim property, they appeal and file petition to revise.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>On petition for rehearing in Use and Occupation and Motor Proceedings.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Dump Car.</p> <p>The Ditchfield patent, No. 890,224, for a dump car, while for a slight improvement in an old art, was not anticipated, and discloses novelty and patentable invention; also 7leld infringed.</p>

<p>In Equity. Suit by Daniel O’Donnell, Incorporated, and the Nota-miss Spark Gap Company against tlie Riscal Manufacturing Company, a partnership composed of August S'alrn and John H. Richter, August Salm, John II. Richter, and George R. Meissner. On final hearing. Decree for complainants.</p>

<p>In Admiralty. Suit by Peter Beattie and John Beattie, Jr., executors of the estate of John Beattie, deceased, against the steam tug Enterprise. Decree for libelants.</p>

<p>In Bankruptcy. In the matter of Pilcher & Son, bankrupts. On petition of R. L. Towles and others for an order vacating order of referee.</p>

<p>1. Shipping <&wkey;154 — Carriage of Goods — Lien foe Freight.</p> <p>A ship has a lien for freight on the cargo rightfully aboard, whether or not she is under charter, and without regard to whether the owner or a charterer is entitled to the benefit of the lien.</p> <p>[Ed. Note. — Por other cases, see Shipping, Cent. Dig. §§ 226, 516-520; Dec. Dig. <&wkey;>154.]</p> <p>2. Shipping &wkey;>49 — Time Ghaetee — Reservation of Dien on Cargoes.</p> <p>Libelant, as owner, let a steamship by a time charter, which was not a demise of the vessel, but required libelant to man, victual and navigate her and keep her in effective condition and repair. The charter provided that the hire should be paid monthly in advance, gave the charterer the option to sublet, and authorized the charterer or subehar-terer to load with such cargo, at such rates of freight, and for such ports, within specified limits, as he saw fit, and to -require .the captain to sign bills of lading therefor. It further provided that “the owner shall have a lien on all, cargoes for freight or charter money due under this charter.” The charterer sublet by a similar time charter in which it was named as .“time charterer.” The subcharterer paid the charterer, but the latter did not pay the owner, who thereupon libeled a cargo being carried for hire by the subcharterer. Held,, that the charter left libel-ant in possession during the charter term, with the right to the benefit of the ship’s lien on all cargoes carried, whether or not the charterer had any interest therein; that, as against the subcharterer, which took subject to such right, the lien was enforceable, although the sub-charterer had paid in full under its own charter; but that, as against the owners of the cargo, the lien was enforceable only to the extent of unpaid freight.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. -Dig. §§ 187-200, 202; Dec. Dig. <&wkey;49J</p> <p>3. Shipping <&wkey;49 — Time Chabteb — Subcharteb.—Owner's Lien foe Charter Hire — “All Cargoes.”</p> <p>A time charter of a ship containing a provision giving the owner a lien on “all cargoes” for charter hire, with a further provision giving the charterer the right to sublet, has the effect of giving the owner the benefit of the ship’s maritime lien for freight on all cargoes, whether carried by the charterer or a subeharterer, although such right might otherwise be deemed to have been waived' by other provisions, such as one requiring payment of the charter hire at stated times in advance.</p> <p>[Ed. Note. — For other cases, see Shipping,. Cent. Dig. §§ 187-200, 202; Dec. Dig. <&wkey;49.]</p> <p>4. Shipping <&wkey;49 — Time Chabteb — Subcharter—Owner’s Lien for Charter Hire.</p> <p>Where such charter, however, authorizes the charterer or subcharterer to load the ship with such cargoes at such rates of freight as may be agreed upon with shippers, and to require the captain to sign bills of lading therefor, the owner’s lien is limited to the amount of freight so agreed upon and which remains unpaid by the shipper.</p> <p>'[Ed. Nóte. — For other cases, see Shipping, Cent. Dig. §§ 187-2Q0, 202; Dec. Dig. <&wkey;49.]</p>

<p>In Equity. Suit by Henry O. Marcy against the Guanajuato Development Company and the Securities Corporation, Limited. On final hearing. Decree for defendants.</p>

At Taw. Action by Henry A. Arnold and N. P. Christansen, executors of the will of Lois G. Stuart, deceased, against the Equitable Life Assurance Society of the United States, in which Belle J. Arnold and others intervened.

<p>1. Criminal Law ©=>13 — Indictment ajmd Information ©=>109 — Description of Offense.</p> <p>Statutes creating and defining crimes cannot be extended by implication or inioncLment, and an indictment under such, a statute must allege directly and with certainty every element essential to bring the offense within its terms.</p> <p>[Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 13, 14; Dec. Dig. ©=>13; Indictment and Information, Cent. Dig. §§ 286-288; Dec. Dig. ©=>109.1</p> <p>2. Indictment and Information ©=>111 — Description of Offense — Statute Containing Exceptions.</p> <p>Where a statute defining an offense contains an exception in the clause creating the offense, which is so incorporated with the language defining it that the offense cannot be accurately and clearly described, if the exception is omitted, the indictment must allege enough to show that the accused is not within the exception; but, if the language creating the offense is so completely separable from the exception that the essential ingredients of the offense may be accurately and clearly defined without any reference to the exception, it need not be negatived therein, but it is a matter of defense. . .</p> <p>[Ed. Note. — 'For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dee, Dig. ©=>111.]</p> <p>3. Poisons ©=>9^ — Anti-Narcotic Law — Indictment foe Violation.</p> <p>An indictment under Harrison Anti-Narcotic Act Dec. 17, 1914, c. 1, § 8, 38 Stat. 789, charging that defendant not having registered and paid the special tax required by section 1 of the act, had in his possession a quantity of morphine, is insufficient to charge an offense where it is not alleged that lie was engaged in a business which required him to register and pay such special tax.</p> <p>[Ed. Note. — For other cases, see Poisons, Cent. Dig. § 6; Dec. Dig. ©=>9J</p> <p>4. Indictment and Information ©=>111 — -Negativing Exceptions.</p> <p>Exemptions from liability for offenses created by acts of Congress are matters of defense; but matters excepted from the granting clause of the act are not within the terms of the act, and such matters must be negatived in the indictment or complaint.</p> <p>[Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. ©=>111.]</p>

<p>In Bankruptcy. In the matter of the Fitzhugh Hall Amusement Company, bankrupt. On review of order of referee directing sale of [property.</p>

Criminal prosecution by the United States against J. L. Hopkins & Co. On motion to strike out parts of plea and answer of defendant. Having been called upon to plead, defendant offers a written document, entitled “Plea and Answer,” whereupon the prosecution moves to quash (i. e., strike out) as irrelevant or improper most of said written instrument.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in admiralty by Joseph Sessich against the tugboat Gwynedd. From a decree dismissing the libel, libelant appeals.</p>

<p>1. Appeal and Error <5=3757 — Briefs—Statement of Questions Involved</p> <p>Under the express provisions of rule 24 of the Third circuit (224 Fed, xvii, 137 C. 0. A. xvii), the brief of plaintiff in error should contain a statement of the questions involved in the briefest and most genera] terms, without names, dates, amounts, or'particulars of any kind whatever. The statement pursuant to such rule in this case commended.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. <S=o757.]</p> <p>2. Master and Servant <@=288, 289 — Actions for Injuries — Questions fob Jury.</p> <p>Plaintiff, an electric craneman in defendant’s car factory, was injured when a steel wire rope on his crane broke as he was lifting steel car parts. The rope was new, but the proof showed that the ropes became unfit for use, even on, very brief service; that their life varied from an hour to a month, with an. average of life of five working days; that they had to bo inspected constantly, two or three times a day, and might become unsafe within ten minutes of being inspected. There was evidence that plaintiff saw the rope was tom, called the foreman’s attention to it, and that the foreman told him the rope was all right, and directed him to go ahead. Held, that, in view of the fact that the foreman regarded the rope as safe and directed its use; and that the services of experienced inspectors were required to determine the safety of such ropes, and that its incapacity to hold was a latent and not a patent defect, plaintiff did not as a matter of law assume the risk, and whether he was negligent was a question for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1090, 1092-3132; Dec. Dig. <§=>288, 289.]</p> <p>3. Appeal and. Ekboe <@==>1002 — Review—Questions of Fact.</p> <p>Where the only persons who saw an accident whereby an employé was injured were the injured employé and his foreman, and an action for injuries substantially narrowed to a question of credibility between them, an appellate court must accept a verdict for the employé as establishing his version of the facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. <@=>1002.]</p>

<p>1. PI.BDG35S <g=»19 — INABILITY SECURED — CONSTRUCT! ON OF CONTRACT.</p> <p>A corporation borrowed money on tbe guaranty of a surety company, and contracted to indemnify the latter against liability on the note and for all costs and expenses incurred iu connection therewith. It violated the terms of its agreement by drawing a part of the proceeds from, the bank without the assent of the surety company, and. being threatened with suit it agreed to replace the same, and to secure such agreement pledged certain notes as collateral. Held, that, construing the two agreements as one contract, the collateral secured also the repayment of the cost and expense incurred by the surety company.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 58-63; Dec. Dig. <§=>19.]</p> <p>2. Pledges <®=>9 — Consideration.</p> <p>The fact that the collateral was due at a future date, together with forbearance of suit, amounted to an agreement to forbear at least until maturity of the collateral notes, and constituted a good consideration for the pledge.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 20; Dec. Dig. <§=>9.]</p> <p>3. Bankruptcy <§==>323 — Proop op Notes by Pledgee — Amount Provable.</p> <p>A pledgee of notes of a bankrupt may prove for their full amount, although the debt secured is less, where necessary to cover its claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 503, 505, 513; Dec. Dig. <§=>323.]</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York.

Suit in admiralty by Thomas J. Howard and others against the steam tugs Wyomissing and Bern; the Philadelphia & Reading Railway Company, claimant. Decree for claimant, and libelants appeal.

<p>1. Master and Servant <&wkey;286 — Actions for Injuries — Questions foe Jury.</p> <p>Where, in an employé’s action for injuries, there was substantial evidence tending to show defendant’s negligence, defendant’s motion to direct a verdict was properly denied.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <&wkey;286.]</p> <p>2. Courts <&wkey;405 — Circuit Court of Appeals — Assignments of Error — Suf-</p> <p>ficiency.</p> <p>Rule 11 of the Sixth Circuit (150 Fed. xxvii, 79 C. C. A. xxvii) provides that, when the error alleged is to the charge of the court, the assignment of error shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused, and that errors not assigned according to that rule will be disregarded, but that the court at its option may notice a plain error not assigned. Seld that the proviso re-' lates only to errors which are obvious upon inspection and of a controlling character, and where in an employe’s action for injuries there was substantial evidence of defendant’s negligence in one respect, requiring the submission of the case to the jury and making a recovery at least fairly possible on that ground, an error in the charge as to another ground was not of a controlling character, and its consideration was not necessary to prevent a miscarriage of justice, and hence an assignment that the court erred in its charge to the jury would not be considered.</p> <p>[Ed. Note. — For other cases, see Courts," Cent. Dig. §§ 1097-1099, 1101, 1103; Dec. Dig. <&wkey;405.] ■</p>

<p>Fraud <&wkey;20 — B'battdxtltsnt Representations — Action for Damages.</p> <p>A representation in an agreement for the sale of a process that it is secret and unpatented is one of fact, and if fraudulently or recklessly made, and the intending purchaser incurs expense in reliance thereon, affords basis for an action for damages.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. <&wkey;20.]</p>

Sanford, Judge. Action by T. S. Eortner against the Ducktown Sulphur, Copper & Iron Company, Limited, for personal injuries caused by the sudden lowering or falling of an elevator or cage raised and lowered in the shaft of a mine by means of an engine. Judgment for plaintiff, and defendant brings error.

<p>CERTIORARI <&wkey;5-NATURE AND GROUNDS-EXISTENCE OF REMEDY BY APPEAL.</p> <p>Certiorari will not lie to review the action of a District Court or judge in granting or refusing an injunction, which, is reviewable by appeal.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 5, 6; Dec. Dig. <&wkey;5.]</p>

<p>1. Patents <&wkey;>211 — License Contracts — Construction.</p> <p>Contracts relating to the granting of licenses under patents held valid and operative, and also construed, and the rights of the parties thereunder determined.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 304-311; Dec. Dig. <&wkey;211.]</p> <p>2. Estoppel i&wkey;3 — Estoppel by Pleading — Denial ojp Contract.</p> <p>Where defendants alleged a contract between the parties as the one by which their rights were to be determined, in which they were sustained by the court, the fact that complainant denied the contract does not deprive him in a court of equity of the right to its benefits, nor relieve defendants from its obligations.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 2-5, 7; Dec. Dig. <&wkey;3.]</p> <p>3. Equity <&wkey;87 — Iamtcations—Statute GOVERNING — Application.</p> <p>Where, in the execution of a contract in suit between a corporation and others, intended by the parties to be under seal, mere scrolls were used, which were valid as seals in the state where the contract was made and expected to be performed and in the state of suit, the fact that they were ineffective to make the contract a sealed instrument in the state where the company was incorporated does not require a court of equity to apply the statute of limitations governing suits on unsealed instruments.</p> <p>[Ed. Note. — For other cases, see Equity, Gent. Dig. §§ 242-244, 395; Dec. Dig. <&wkey;87.]</p>

In Equity. Suit by the Diamond Expansion Bolt Company against the Parker Supply Company, Hyman Rosenberg, and Albert Blum-lein. On final hearing. Decree for defendants. This is the usual bill in equity for infringement of patent to John H. Cook, No. 685,820, issued on November 5, 1901.

<p>1. Courts <&wkey;274 — Anti-Trust Acts — Suit Against Corporation por Violation — District op Suit.</p> <p>Clayton Anti-Trust Act Oct. 15, 1014, c. 323, §§ 4, 12, 38 Stat. 731, 73(5, in providing that a suit lor violation of the anti-trust laws may be brought in any district in which the defendant resides, or is found, or has an agent, and that, if a corporation suit may be brought not only in the district whereof it is an inhabitant, but also in any district wherein it ma,y be found or transacts business, and that in such cases process may be served in the district of which it is an inhabitant, does not authorize a suit against a corporation in any district in which an agent may be found, unless he is there in his representative capacity, and the defendant is more or less regularly, through him, transacting business therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. <@=274.]</p> <p>2. Courts @=>274 — Anti-Trust Acts — Suit Against Corporation por Violation — District op Suit — Transacting Business in District.</p> <p>Defendant, a foreign packing company, had agents soliciting orders for its products in Maryland, chiefly from jobbing houses, and for the purpose of promptly filling such orders kept a supply of its goods with a storage company, which delivered the same on orders from defendant’s officers in other states. Held, that defendant was transacting business in Maryland, within the meaning of Clayton. Anti-Trust Act Oct. 15, 1914, c. 323, "§ 12, 38 Stat. 736, that a suit for a. violation of the anti-trust laws could be maintained against it in that district, and that it might be brought into court by process served upon it in the state of its incorporation, as provided in said section.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. <@=>274.]</p>

<p>Copyrights &wkey;>87 — Suit foe Infringement — Profits Recoverable.</p> <p>Report of special master as to profits recoverable for infringement of copyrights reviewed.</p> <p>• [Efi. Note. — Eor other cases, see Copyrights, Cent. Dig. § 81; Dec. Dig. &wkey;87.]</p>

<p>1, CosstrnmoKAi Law &wkey;>68 — Judicial Powers — Republican Form of Government.</p> <p>An act of a state Legislature cannot be beld invalid by the courts on the ground that the state has not a republican form of government as guaranteed by article 4, § 4, of the federal Constitution; that being a matter as to which the decision of Congress is conclusive.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig, §§ 125-127; Dec. Dig. <&wkey;68.]</p> <p>2. CONSTITUTIONAL LAW <&wkey;284-DUE PROCESS OE LAW-TAXATION-PENNSYLVANIA School Code.</p> <p>School Code Pa. Act May 18, 1911 (P. L. S09), in authorizing the levy of taxes by officers of school districts, held not unconstitutional as depriving property owners of their property without due process by law.</p> <p>' [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 893-896; Dec. Dig. <&wkey;284.]</p>

Criminal prosecution by the United States against Baron Kugene Francois Oppenheim, Howard G. Rogers, and Richard Murphy. On motion for new trial and in arrest o£ judgment after conviction, on exceptions to remarks to the jury by the court on the jury coming in for further instructions after having been out for at least 24 hours.

<p>1. Courts <&wkey;322 — Jurisdiction of Federal Court — Pleading—Allegation oe Citizenship.</p> <p>An allegation in a complaint that defendant is a corporation duly organized and existing- under tbe laws of a certain state is a sufficient allegation that it is a citizen of such state for the purpose of showing jurisdiction of a federal court.</p> <p>[Ed. Note. — Eor other cases, see 'Courts, Cent. Dig. §§ 876-881, 887; Dec. Dig. &wkey;>322.]</p> <p>2. Master and Servant <&wkey;250%, New-, vol. 116 ICey-No. Series — Master’s Liability eor Death oe Servant — Construction oe Statutes.</p> <p>The New Jersey Workmen’s Compensation Act of April 4, 1911 (P. L. 1911, p. 134), provides two methods of compensation for the injury or death of an employe; that ■ provided by section 1 being by an action for damages for negligence, its provisions being expressly made applicable to actions brought under the Death Act of March 3, 1848 (P. L. p. 151), while section 2 provides for an elective compensation in accordance with a schedule contained therein. Under such section the liability of the employer is fixed, regardless of his fault or negligence, and it is expressly provided that section 1 shall not apply where section 2 becomes operative, and that every contract of hiring shall be presumed to have been made with reference to section 2, and shall be governed thereby, unless otherwise provided in the contract, or a notice to that effect shall have been given by one party to the other. It is further provided that compensation thereunder shall not apply to alien dependents not residents of the United States. Helé that, on the death of an employs, where nothing had been done to prevent the application of section 2, his administrator could not maintain an action against the employer under the Death Act, nor, where his only dependents were nonresident aliens, could he recover under the Compensation Act; the right being purely statutory.</p> <p>3. Treaties <&wkey;8 — Construction—Right oe Action eor Wrongful Death.</p> <p>Article 3 of the Treaty between the United States and the kingdom of Italy, proclaimed November 23, 1871 (17 Stat. 845), which provides that the citizens of each country shall receive in the states and territories of the other “the most constant protection and security for their persons and property and shall enjoy in tiffs respect the same rights and privileges as are or shall be granted to the natives,” does not confer on the nonresident alien relatives of a citizen of Italy a right of action for his death under the laws of a state which give such right of action to native relatives, but expressly deny it to nonresident aliens.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 18; Dee. Dig. <&wkey;>8.]</p> <p>4. Treaties <&wkey;10 — Amendment—Time oe Taking Eeeect.</p> <p>An amendment to a treaty is not retroactive, and cannot revive a right of action which was expressly taken away by a state statute prior to its proclamation, although the statute, if enacted afterward, would have been in conflict with the amended treaty.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 10; Dec. Dig. <&wkey;>10.]</p>

<p>1. Habeas Corpus <&wkey;45 — United States Courts — Detention in Violation of Federal Constitution.</p> <p>Under Rev. St. § 753 (Comp. St. 1913, § 1281), providing that the writ of habeas corpus shall not extend to a prisoner in jail, except in certain cases including the case of a prisoner in custody in violation of the federal Constitution, one in custody by reason of a conviction upon a criminal charge before a state court having jurisdiction over the subject-matter of the offense, the place where it was committed and the person of the prisoner cannot have relief on habeas c’orpus from a federal court.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.]</p> <p>2. Habeas Corpus <&wkey;30 — United States Courts — Detention in Violation of Federal Constitution.</p> <p>The writ of habeas corpus cannot be employed as a substitute for a writ of error, and mere errors of law, however serious, committed by a court in the exercise of its jurisdiction, cannot be reviewed by habeas corpus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. &wkey;>3<4]</p> <p>3. Constitutional Law &wkey;>257 — “Due Process of Law” — Criminal Prosecution.</p> <p>A criminal prosecution in a state court, based on a law not repugnant to the federal Constitution and conducted according to the settled course of proceedings under the law of the state, constitutes “due process of law” in the constitutional sense, so long as it includes notice and a hearing and an opportunity to be heard before a court of competent jurisdiction according to established modes of procedure.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 746, 747, 749; Dec. Dig. &wkey;257.]</p> <p>4. Habeas Corpus <&wkey;45 — United States Courts — Detention in Violation of Federal Constitution.</p> <p>Habeas corpus will lie in a federal court on behalf of one convicted in a state court only where the judgment is absolutely void, either because the court had no jurisdiction in tne beginning or lost such jurisdiction in the course of the proceedings.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.]</p> <p>5. Habeas Corpus <&wkey;45 — United States Courts — Detention in Violation ’ of Federal Constitution.</p> <p>In determining on habeas corpus whether one convicted in a state court has been deprived of liberty in violation of the federal Constitution, the proceedings in the state appellate tribunal as well as in the trial court are to be regarded as part of the process of law.</p> <p>[Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.]</p> <p>6. Habeas Corpus <&wkey;45 — United States Courts — Detention in Violation of Federal Constitution.</p> <p>The question whether a state is depriving a prisoner of liberty without due process of law, under a law not violative of the federal Constitution, cannot be determined ordinarily with fairness to the state until the conclusion of the course of justice in the state courts, as the prohibition of the Fourteenth Amendment is addressed to the state itself, tad if a violation be threatened by one agency of the state, but prevented by another agency of higher authority, there is no violation by the state.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.1</p> <p>7, Habeas Coepus &wkey;>45 — United States Courts — Detention in Violation op Federal Constitution.</p> <p>On habeas corpus, a prisoner in custody pursuant to the final judgment of a state court may have a judicial inquiry in the federal courts into the very truth and substance of the causes of his detention, and the court, if necessary, may look beyond the record of the conviction sufficiently to test the jurisdiction of the state court, but should take into consideration the entire course of the proceedings in the state court and not merely a single step in such proceedings.</p> <p>[Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.1</p> <p>8. Habeas Corpus <&wkey;45 — United States Courts — Detention in Violation of Federal Constitution.</p> <p>A person convicted in a state court, and petitioning a federal court for a writ of habeas corpus, contended that the state court lost jurisdiction because, in his absence and without the permission or presence of the court, the jury viewed certain premises about which he testified. It appeared that he not only exhausted his legal remedies in the trial court, but in the state Supreme Court, where he was heard on the question respecting such view, and that, the judgment of that court being adverse to him, he made three separate applications to judges of the United States Supreme Court for a writ of error,, which were denied. Heidi, that it must be presumed that, if his application for a writ of error had presented a cause of deprivation of liberty without duo process of law, the writ would have been awarded, and the petition for habeas corpus would therefore be denied.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. <&wkey;45; Courts, Cent. Dig. §§ 804, 805.1</p>

<p>1. Pleading <&wkey;8 — Conclusions—Corporate Excise Tax — Actions to Recover Tax.</p> <p>In an action to recover a corporate excise tax paid under protest, on. tbe ground that tbe corporation was not engaged in business, allegations-in tbe affidavit of defense that plaintiff bad not in fact gone out of business, in connection with its property, nor disqualified itself from any activities under its charter in respect thereto, and was still actually en-, gaged in the doing of business within the meaning of the statute, and in the capacity necessary to mate it subject thereto, were too general to ■ avail the pleader, and were expressive of conclusions which must be ascertained from specific facts alleged.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. <&wkey;8.]</p> <p>2. INTERNAL REVENUE &wkey;>9 — CORPORATE EXCISE TAX — CORPORATION’S Liability — “Doing Business.”</p> <p>A railway company leased its mines, railroads, and other property, but thereafter maintained an office for the transaction of business, maintained its corporate existence and organization by the annual election of officers, and received an income in the shape of rental and distributed dividends to its stockholders. It held itself in readiness to resume the operation of its properties if the leases should be violated by the lessees, and in such leases it reserved the rigid; to develop the forests on its land, to remove timber, and to mine everything underlying its properties except coal. It paid interest on a mortgage indebtedness assumed by it, and was preparing to liquidate and settle such indebtedness. It guaranteed to defend idle lessees at its own expense in the enjoyment of the property. It made animal returns of its income, and kept and maintained stockbooks for the transfer of its capital stock and the transaction of other business. Held, that these acts did not constitute a “doing of business,” so as to subject the corporation to the corporate excise tax, as it is not the power to act, but actual activities in certain directions, which constitute a “doing of business,” and the corporation was not doing business as a common carrier, which was the prime object of its incorporation.</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>3. Internal Revenue <&wkey;28 — Suits to Rbcoveb Taxes Paid Under Protest — Limitations.</p> <p>Rev. St. § 3226 (Comp. St. 1913, § 5919), provides that no suit shall be maintained for the recovery of any internal tax erroneously or illegally assessed or collected until appeal shall have been duly made to the Commissioner of Internal Revenue. Section 3227 (section. 5950) provides that no such suit or proceeding shall be maintained unless brought within two years after the cause of action accrued. Section 3228 (section 5951) provides that all claims for the refunding of any such tax must be presented to the Commissioner of Internal Revenue within two years after the cause of action accrues. Held that, where a claim for refund of a corporate excise tax paid under protest was before the Commissioner within the time required, and rejected by him within two years before suit was brought, the action was not barred by limitations.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. <&wkey;28.]</p> <p>4. Internal Revenue &wkey;>28 — Corporate Excise Tax — Recovery Back — Interest.</p> <p>In a suit against a collector of internal revenue to recover moneys illegally exacted as taxes and paid under protest, interest is recoverable without any statute to that effect.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. &wkey;>28.]</p>

<p>1. Poisons <&wkey;4 — Parties to Oeeenses — “Principal.”</p> <p>Penal Code (Act March 4, 1909, c. 321) § 332, 35 Stat. 1152 (Comp. St. 1913, § 10506), provides that whoever directly commits any act constituting an offense, or aids, abets, commands, induces, or procures its commission, Is a principal. Harrison Narcotic Law Dec. 17, 1911, c. 1, § 4, 3B Stat. 788, makes it unlawful for any person who has not registered and paid the special tax as required by that act to send any of the drugs to which that act relates from one state to another, but provides that this shall not apply to common carriers and certain other persons. Held that, where M., who had not registered and paid the special tax and was not one of the persons exempted under the proviso, shipped opium prepared for smoking from New Orleans to Memphis on defendant’s order, defendant was guilty as a principal.</p> <p>[Ed. Note. — -For other cases, see Poisons, Cent. Dig. § -2; Dec. Dig. ©=1.]</p> <p>2. Customs Duties <&wkey;134 — Importation oe Opium: — Criminal Prosecutions — Bubden op Pbooe.</p> <p>Act Cong. Jan. 17, 1914, c. 9, § 2, 38 Stat. 276, makes it an offense to receive, conceal, or buy opium, knowing it to have been imported contrary to law, and provides that on trial for a violation thereof whenever defendant is shown to have had possession of such opium, such possession shall be deemed sufficient evidence to authorize a conviction, unless the defendant shall explain such possession to the satisfaction of the jury. Section 31 provides that on and after July 1, 1913, all smoking opium or opium prepared for smoking found within the United States shall be presumed to have been imported after April 1, 1909, and the burden of proof shall be on accused to rebut such presumption. On a trial for unlawfully receiving, concealing, and buying opium, knowing it to have been unlawfully imported, defendant testified that he was addicted to opium smoking, and requested and induced a friend in New Orleans to procure a quantity of smoking opium and ship it to. Mm. Held, that the more possession of opium after July 1, 19.13, constitutes an offense, unless the party indicted rebuts the presumption of importation as required by the statute, regardless of the purposes for which he may have had it in his possession, and, while the purpose of defendant’s possession seemed to be sufficiently explained, this did not rebut the presumption of importation contrary to law.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 336-339; Dec. Dig. &wkey;>134.]</p>

<p>In Equity. Suit by the Postal Telegraph Company against the City of Portland. On motion to dismiss bill.</p>

<p>1. Master and Servant &wkey;>278 — Actions for Death— Sufficiency of Evidence.</p> <p>Wliere, .in an action for the death of a railroad fireman, there was evidence to show that he was hilled by coming in contact with a bridge only 15% feet above the track, that the top of the tender was 11% feet above the track, and the coal therein was piled somewhat higher, and it was not contended that he would have been outside the line of his duties, had he gone upon the coal in the tender, the jury might have found the railroad company negligent in permitting the tender so loaded to be run beneath so low a bridge.</p> <p>|Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 956-958, 969-909, 971, 972, 977; Dec. Dig. &wkey;278J</p> <p>2. Master and Servant <&wkey;270 — Railroad Tracks — Bridges—Statutory Provisions.</p> <p>In an action for the death of a railroad fireman, caused by contact with a low bridge over the railroad track, St. Mass. 1874, c. 372, § 87, providing that no bridge should thereafter be constructed over any railroad at a height less than 18 feet above the track, except by the consent in writing of the Board of Railroad Commissioners, was offered in evidence, and it was shown that the board had taken no action regarding the bridge. The evidence showed, that the bridge was in existence in 1850, and the only evidence tending to show a subsequent rebuilding or reconstruction was the testimony of a civil engineer that the planking of such a bridge had to be renewed every 10 or 12 years, that the stringers would wear two or three times as long, and that in most cases the superstructure would have to be renewed in a period of 40 years. Held, that the mere renewal of the planking, the stringers, or the superstructure was not such a reconstruction of the bridge as would violate the statute, and, conceding that the evidence would have been admissible in connection with further evidence tending to show reconstruction, the evidence should have been stricken out, or the jury told to disregard it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913- 927, 932; Dec. Dig. &wkey;270J</p> <p>3. M ASTER AND SERVANT >&wkey;J278, 293-ACTIONS TOR DEATH — -QUESTIONS FOR Jury- — Negligence of Defendant.</p> <p>In an action for the death of a railway fireman, caused by coming in contact with a low bridge, it nppeared that no one saw him'after leaving the cab of: the locomotive, and it was contended that he went upon the coal in the tender and was struck by the bridge. There was evidence that a fire hook was found in the coal pile, that the person coaling the engine usually placed this in some out of the way place, and it was plaintiffs theory that deceased went on the coal for the purpose of getting this hook, and that if he had been given sufficient time to prepare the engine before leaving the terminal this would not have been necessary. There was evidence that one hour had been agreed upon between defendant and its employes as the time for getting an engine from the roundhouse to its connection with its train, that the engine originally assigned to take out the train in question could not be made ready in time, because a pipe sent out to be brazed did not arrive as expected, and another engine was substituted, so that only 20 minutes was available to make it ready. The engineer testified that he thought the fire would have to be refreshed “most any place along there,” referring to the time the fireman left the cab. Held that, if this evidence was admissible to show what deceased probably did after he left the cab and how the injury was sustained, it was not in itself evidence of negligence which could be regarded as the sole or a contributing cause of the injury, and the court erred in charging that if deceased was not given time to prepare his engine, and was obliged to go on the tender after the train started, the jury might find the want of sufficient time to prepare the engine evidence of negligence on defendant’s part, since the nonarrival of the pipe and the consequent impossibility of using the originally assigned engine did not of themselves warrant a conclusion of negligence, and, even if they did, it was not a natural and probable consequence of such negligence reasonably to be anticipated that the hook would be misplaced, and be wanted, and found missing just before reaching the bridge, and that this would lead the fireman to go upon the coal at a time when he would incur the danger of being struck by the bridge.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977, 1148-1156, 1158-1160; Dee. Dig. &wkey;278, 293.]</p>

the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Action at law by William R. McConnell against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>In Error to' tbe District Court of the United States for the Eastern- District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by Catherine Boyle, administratrix of the estate of Thomas Boyle, deceased, against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Appeals from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge. Suit by the Rathbun-Jones Engineering Company against the People's Eight Company.

<p>1. Appeal and Error <@=>171 — Review—Change of Theory.</p> <p>Where, in an action on contracts claimed to violate the state antitrust laws, plaintiff sued on the contracts as contracts of consignment, but by the court’s ruling that they were contracts of sale was compelled to proceed as if they were contracts of sale, this enforced change of attitude did not preclude an appellate court from regarding the contracts in their true light as contracts of consignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063; Dec. Dig. <&=171.]</p> <p>2. Contracts <@=>153 — Validity—Adopting Construction Upholding Contract.</p> <p>If contracts between a manufacturer of motor cars and a dealer, claimed to violate the anti-trust laws of the state, were open to two reasonable interpretations, one defeating the manufacturer’s claim for a balance due and the other enforcing it, the court would be at liberty to adopt the latter interpretation. ,</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 734; Dec. Dig. <@=>153d</p> <p>3. Commerce <@=>8 — Interstate Commerce — Application of State Laws.</p> <p>Contracts between u manufacturer of motor cars and a dealer, designated as a distributor, provided that cars would be invoiced to the distributor, at the regular catalogue price, subject to certain discounts constituting his profits; that he should have the exclusive right to sell the manufacturer’s cars in certain designated territory, within the state of Texas, and not elsewhere; that remittances for all cars shipped to him would be made the same day ears were sold; that, when cars were shipped direct to his agents, sight drafts would be drawn and a check mailed by the manufacturer on Monday of each week, covering commissions due on shipments for which payments had been received during the previous week; that the distributor would keep- the cars insured in the manufacturer’s name until sold and paid for; that if the contract was canceled the manufacturer would take over any new cars then on the distributor’s show floor at the invoice price with carload freight added; and that if the distributor canceled the contract he would take and pay for all cars on hand or in transit. The contract was made in Indiana, and the cars were to be shipped from Indiana f. o. b. to the distributor in Texas. Held, that the transaction was a consignment, and not a sale, and the contract was an interstate one, the validity of which was governed by the federal anti-trust laws (Act July 2, 1890, c. 647, 26 Stat. 209), and not by the anti-trust laws of Texas (Vernon’s Sayles’ Ann. Oiv. St. 1914, § 7796 et seq.).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <@=>8.]</p> <p>4. Monopolies <@=>17 — Contracts—Validity—Restraint of Trade.</p> <p>The contract was valid under the anti-trust laws, both of the United States and'of Texas, as it in no way restrained competition or-trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <g=>17.]</p>

Whitaker Thompson, Judge. Suits in admiralty by Charles L. Walker, managing owner of the tug Lizzie Crawford, and by John P. Murray, master of the tug Delaware, against the barge Neshaminy; Philadelphia & Reading Railway Company, claimant. Decrees for libelants, and claimant appeals.

<p>In Error to the District Court of the United States for the District oí New Jersey; Win. H. Hunt, Judge.</p> <p>Action by Martin A. Rose against the North British & Mercantile Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error <©=>750 — Assignment of Errors — Sufficiency.</p> <p>As the object of the rule requiring an assignment of errors is to enable the court and the opposing counsel to know on what points the counsel for plaintiff in error intends to ask a reversal and to limit the discussion to these points, it is a commendable practice to assign only such rulings as are complained of as reversible error, and. where plaintiff in error , relied on the overruling of a demurrer to the petition for a reversal and assigned such ruling as error, the writ of error would not be dismissed, because of his failure to assign: as error the rendition of the judgment adverse to him, especially in view of rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), which provides that the court at its option may notice a plain error not assigned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074r-3083; Dee. Dig. <@=>750.]</p> <p>2. Pleading <@=>126 — Negative Pregnant.</p> <p>In an action against a collector of internal revenue to recover back a part of the excise tax collected from a corporation on the ground that the corporation was not doing business during a part of the year for which the tax was collected, allegations of the petition that there were no earnings of the corporation from March 18th to December 31st, “subject to tax” on account of a lease of the corporation’s property, apd on account of its property being turned over to the lessee, was a negative pregnant, from which it was to be implied that the corporation did receive an unnamed amount of income, but that in the opinion of the pleader, such amount should be excluded from consideration in computing the amount of the tax.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 261-263; Dec. Dig. <@=>126.]</p> <p>3. Internal Revenue <@=>9 — Corporate Excise Tax — Validity.</p> <p>The tax imposed by Comp. St. 1913, § 6309 et seq., on corporations organized for profit and engaged in business equivalent to 1 per cent, on the net income above §5,009 is valid as an excise on the privilege of doing .business in a corporate capacity.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <@=>9.]</p> <p>4. Internal Revenue <@=>9 — Corporate Excise Tax — Corporations Liable.</p> <p>A corporation subjects itself to the tax imposed by Comp. St. 1913, § 6300 et seq., by exercising the privilege of carrying on or doing business for any part of the year for which the tax is imposed.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <@=>9.]</p> <p>5. Internal Revenue <@=>9 — Corporate Excise Tax — Computation.</p> <p>Comp. St. 1913, § 6309, provides that every corporation organized for profit and having a capital stock represented by shares and engaged in business shall pay annually a special excise tax with respect to the carrying on or doing business by it equivalent to 1 per cent, upon its entire net income from all sources during the year above $5,000. Section 6301 provides that such net income shall be ascertained by making certain deductions from the gross income received within the year from all sources. Section 6302 provides that there shall be deducted from the net income, the sum of $5,000, that the tax shall be computed upon the remainder of such income for the year ending December 31, 1909, and for each calendar' year thereafter, and that on or before the first day of March in each year a true and accurate return, setting forth the gross amount of income received during the year, etc., shall he made by corporations subject thereto. Hold, that the amount of the tax is measured by the corporation’s income during the entire calendar year in which the privilege of doing business is exercised, and not by its income during tlie part of the year that the privilege is exercised if the corporation does not carry on or do business during the entire year, as the proscribed tax is a single and indivisible one, and but one way of measuring the amount to be paid is provided.</p> <p>[Ed. 'Note. — For other cases, see Internal Kevenue, Cent. Dig. §§ 13-28; Dec. Dig. <§^9.J</p>

McCall, Judge. Suit by the receiver of the Buscli-Grace Produce Company against the Commercial Trust & Savings Bank and others. Erom a decree for complainant, defendants appeal.

Suit in equity by United States, on the relation of the Proctor Manufacturing Company, against the Illinois Surety Company, impleaded. Decree for complainant and intervening creditors, and defendant appeals. This cause conies here upon appeal from a decree of the District Court, Northern District, of New York. The decree adjudged that the defendant Surety Company was liable on one of its bonds to the Proctor Manufacturing Company and certain intervening creditors.

<p>1. Appeal asd Errob <§=31001 — Review—Verdict.</p> <p>Where, in an action for the death of an employd the jury has found that defendant was negligent, their verdict can be reviewed by an. appellate court only to ascertain whether there is any evidence to sustain it.</p> <p>[Ed. Note. — -For other cases, see Appeal and, Error, Cent. Dig. §§ 8922, 3928-3934; Dec. Dig. <§=>1001.]</p> <p>2. Master and Servant <§=>278 — Action for Death of Mink E-Upeoyíi — Sufficiency of Evidence.</p> <p>In an action for the death of a coal miner, who was killed by the falling of the roof of the room in which he was working after the firing of a shot, there was uncontradicted testimony that the room was examined the night before by a licensed mine examiner, as required by the state statute, and that he found the roof safe; also that it was examined in the morning by the decedent before going to work. Held, that there was no evidence of any negligence on the part of the mining company which rendered it liable for the death of decedent.</p> <p>, [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. @=>278.]</p>

Wright, Judge. Action at law by J. H. Walsh, administrator of the estate of Lorenzo Nanni, alias Nanna, deceased, against the W. P. Rend Collieries Company. Judgment for defendant, and plaintiff brings error. Decedent of plaintiff in error, termed plaintiff hereinafter, was killed by falling slate and coal in the mine of defendant in error, hereinafter called defendant, in the latter’s coal mine at Rend City, Franklin county, state of Illinois, on July 17, 1911.

<p>1. Aliexs <&wkey;i>4 — Detention and Return of Immigrants — Determination of Bight to Enter.</p> <p>Immigration Act Feb. 20, 1907, e. 1131, 34 Stat. 900, § 24 (Comp. St. 191B, § 4273), provides that every alien, not appearing to the examining immigrant inspector to be clearly and beyond a doubt entitled to land shall be detained for examination by a board of special inquiry. Section 17 (section 4205) provides that tlie physical and mental examination of arriving, aliens shall be made by medical- officers of the Public Health and Marine Hospital Service, who shall certify for the information of the immigration officers and boards of special inquiry alj. physical and mental defects or diseases observed by them. Section 10 (section 4235), provides that the decision of a board of special inquiry, based upon the certificate of the examining medical officer, shall be final as to the rejection of aliens affected with tuberculosis, or with a loathsome or dangerous contagious disease, or with any mental or physical disability bringing the alien within any of the classes excluded from admission to the United States. Meld,, that a board of special inquiry has no right to base its decision on the right of an alien t.o admission on the certificate of the inspecting medical officer, without exercising its own judgment, after considering, not only the certificate, but whatever other evidence there may be touching the alien’s right to enter.</p> <p>fR(l. Note. — -For other cases, see Aliens, Gent. Dig. § 112; Doc. Dig. <&wkey;54.]</p> <p>2. Aliens <&wkey;54 — Deportation—Hearing.</p> <p>Under Immigration Act 1807, § 21 (Comp. St. 1913, § 4270), providing that, in ease the Secretary of Labor shall be satisfied that an alien has been found in the United States in violation of that act, or that an alien is subject to deportation, he shall cause such alien, within three years after landing or entry, to be taken into custody and returned to the country whence lie came, where an alien excluded by a board of special inquiry was by mistake released from custody, and subsequently arrested on a departmental warrant, a hearing to enable him to show cause why he should not he deported was aulhorized by the statute, and lie could not have been lawfully deported without such an opportunity to be heard.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <®=>51.]</p> <p>3. Aliens <&wkey;54 — -Deportation—Hearing.</p> <p>An alien, arrested on the warrant of the Secretary of Labor for deportation, was denied a fair hearing where the immigration officers did not exercise their own judgment as to whether he should be deported, but considered themselves bound by the decision of a medical examiner and the report of a medical board that he was feeble-minded.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <®=o54.]</p> <p>4. Habeas Corpus (&wkey;lll — Discharge—Condition.</p> <p>In a habeas corpus proceeding, by an alien not given a fair hearing before being ordered deported, the court properly discharged him from custody; but the order discharging him should have been conditional, and to be effective only in case the immigration officer should fail to give him a fair hearing within a reasonable time:</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 100; Dec. Dig. <&wkey;lll.] i</p>

Suits in admiralty by the United States against the steam tug J. Rich Steers and scow No. 8 H. S. Inc., Henry Steers, Incorporated, claimant, and against steam tug Princess, Peter Cahill claimant, and scow Guiding Star, John G. Mulligan claimant. Decrees for respondents, and libelant appeals.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by Ellen Connelley, administratrix, against the Pennsylvania Railroad Company. Judgment for defendant (221 Fed. 508), and plaintiff brings error.</p>

Appeal, from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. ■Suit in admiralty by the Hazelwood Dock Company against Hugh J. Palmer and Marian G. Palmer. Decree for respondents, and libelant appeals.

Action at law by Elsie G. Robinson against the Carbon Steel Company. Judgment of nonsuit, and plaintiff brings error. This cause comes here upon writ of error by the plaintiff to review a judgment of the District Court, Southern District of New York. The1 plaintiff sues as assignee of. Frank B. Robinson under a certain contract alleged to have been entered into by Robinson with the defendant.

■ Receivership action against the Walpole Tire & Rubber Company, in which Geoffrey T. Clarkson filed a claim, which was opposed by Robert C. Fisher and others. From, a decree disallowing the claim, said claimant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in equity by D. Henry Cardozo, Jr., trustee in bankruptcy of A. W. Blanchard, Incorporated, against the Brooklyn Trust Company, trustee under a will for John and Howard Gibb. Decree for complainant, and defendant appeals.</p> <p>The following is the opinion of Veeder, District Judge, in the court below:</p> <p>[1] In this suit the trustee in bankruptcy of A. W. Blanchard, Incorporated, seeks to recover from the defendant, as trustee of the estates of John and Howard Gibb, a payment made in alleged violation of section 66 of the New York Stock Corporation Law. I see no reason why the complainant should not maintain this suit under the state statute. The evidence leaves no doubt in my mind, moreover, that A. W. Blanchard, Incorporated, “was insolvent, or its insolvency was imminent,” within the terms of the statute, at the time of, the transaction in question. It is equally plain that the trust company was not “a purchaser for a valuable consideration without notice,” within the exception of the statute.</p> <p>[2] The remaining issue is whether the transaction in question was “with the intent of giving a preference to any particular creditor over other creditors of the corporation.” The statute refers to the intent of the debtor, without regard to the creditor’s intent or to his knowledge of the insolvency of the debtor. Wright v. Gansevoort Bank, 118 App. Div. 281, 103 N. Y. Supp. 548; Wright v. Williams Skinner Mfg. Co., 162 Fed. 315, 89 O. C. A. 23; Irish v. Citizens’ Trust Co. (D. C.) 163 Fed. 880; Munson v. Genesee Iron & Brass Works, 37 App-. Div. 203, 56 N. Y. Supp. 1391; Kingsley v. First National Bank, 31 Hun, 335. But this intent to prefer is essential. Dill & Collins v. Morison, 159 App. Div. 583, 144 N. Y. Supp. 894. The statute so provides. The mere fact, therefore, that a corporation is shown to be unable to pay all its debts, does not necessarily render a payment or transfer by it in the usual course of business ineffectual or require it to suspend. Keiley v. Mechanics’ & Traders’ Bant, 15 N. X. Supp. 173.</p> <p>What, then, is the meaning of “intent to prefer” as used in the statute? In the sense that a person is said to intend the natural consequences of his acts, it may be argued that any payment to one creditor at a time when a corporation is unable to pay all creditors manifests an intention to prefer the creditor who is actually paid. But this is obviously not the meaning of the statutory requirement of an intent to prefer in addition to insolvency, for such a construction would render the required intent superfluous and virtually eliminate it from the statute. It seems to me that the true meaning is that, to constitute a preference, the corporation or its officers making.a payment must have known or expected that it would have that effect. Irish v. Citizens’ Trust Co. (D. C.) 163 Fed. 880. The statute is meant to apply when the corporation is confronted with the problem: How are the assets of the corporation to be used, not in carrying on its business, but in meeting its obligations. Olney v. Baird, 7 App. Div. 95,110, 40 N. Y. Supp. 202. In other words, the question is whether the payment was made in contemplation of insolvency and winding-up as an impending fact, or in contemplation of continuing business in good faith. And this question must be determined, of course, as an inference from the surrounding facts. The statute is undoubtedly drastic, but the state courts have shown no disposition to construe it narrowly. Cole v. Millerton Iron Co., 133 N. Y. 164, 30 N. E. 847, 28 Am. St. Rep. 615; Mun-son v. Genesee Iron & Brass Works, 37 App. Div. 203, 56 N. Y. Supp. 139.</p> <p>When- the Blanchard Company sublet to Stringer, and sold to him its machinery, tools, and furniture, it parted with all its live assets, and stripped itself of the capacity for carrying on a garage business. Realizing on this transaction .only $500 in cash, Blanchard rented an office at his former place of business in Liberty street, and sought (apparently without success) to conduct, not a garage, but an automobile sales agency, and it is not entirely clear whether this was his own business or the company’s business. He took with him from the Flatbush avenue garage three old automobiles of little or no value (to only one of which he had title), various automobile sundries and supplies, the cost price of which was $3,000, and book accounts, aggregating “between $10,000 and $15,000.” Before the sundries and supplies were removed, Stringer bought for $400 all, it is a fair inference, that were of any real value. The remainder were stored at Liberty street, and there is no proof that anything was ever realized upon them. Blanchard’s estimate that 90 per cent, of the book accounts were good and collectible is preposterous, in view of the situation. The company had been in dire financial straits for four months, and it is fair to infer that every possible effort had been made to realize upon outstanding accounts. There is no proof of what, if any, amount has ever been collected. If may be said, therefore, with substantial accuracy, that this transaction stripped the company of all its assets. In view of the further fact that the business in which it had been engaged was then and there actually discontinued, I am of opinion that the payment to the defendant was made in contemplation of insolvency and with intent to prefer.it over other creditors, although the final collapse was avoided for some nine months thereafter.</p> <p>Decree for complainant.</p>

<p>1. Pleading <&wkey;37 — Presumption as to Facts Not Pleaded.</p> <p>In an action against a carrier for services in the wharfage and handling of goods, where neither the petition nor the agreed statement of facts, which was adopted as defendant’s answer, showed that plaintiff was not the owner or shipper of the goods, it would be presumed that it was the shipper.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 87, 88; Dec. Dig. <&wkey;37J</p> <p>2. Carriers <&wkey;32 — Charges—Discrimination—Allowances.</p> <p>Under Comp. St. 1913, § 8569, requiring carriers subject thereto to file with the Interstate Commerce Commission, and print and keep open to public inspection, schedules showing all rates, fares, and charges, and stating all privileges or facilities granted or allowed, and all rules or regulations changing or affecting such rates, fares, and charges, a carrier cannot pay a shipper for the shipper’s services in the wharfage and handling of goods, unless the charges therefor are specified in a duly published schedule or tariff.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. <&wkey;32.]</p> <p>3. Carriers <&wkey;30 — Charges—Schedules—Cancellation by Interstate Commerce Commission.</p> <p>Where a schedule filed by a carrier and specifying certain allowances for wharfage and handling was directed by the Interstate Commerce Commission, in a proceeding before it, to be canceled, the commission’s decision eliminated such allowances from the filed tariff.</p> <p>[Ed. Note. — For .other cases, see Carriers, Cent. Dig. § 81; Dee. Dig. <&wkey;30.]</p> <p>4. Carriers <&wkey;32 — Charges—Actions—Right to Recover.</p> <p>Where, under a carrier’s duly published schedule or tariff, it would have been a violation of law for it to voluntarily pay a shipper for the shipper’s services in the wharfage.and handling of goods, the shipper was not entitled to a judgment requiring the carrier to pay for such services.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-85; Dec. Dig. &wkey;32.]</p> <p>Pardee, Circuit Judge, dissenting.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Criminal prosecution by the United States against- Herman Seidler. Judgment of conviction, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On motion by defendant to recall and amend mandate.</p>

<p>1. Bankruptcy ¡§=>288 — Collection op Assets — Summary Jurisdiction.</p> <p>In a bankruptcy proceeding, the trustee applied for a summary order requiring the bankrupt’s wife to surrender to him an insurance policy, naming her as beneficiary, but reserving to the bankrupt the right to change the beneficiary. The wife claimed to own the policy by assignment from the husband in consideration of the payment of premiums. Pending the proceeding the bankrupt died, the policy was paid, 'and a sum equal to its cash surrender value was deposited to await the outcome of the controversy. Held, that the exercise of summary jurisdiction over the wife could not. be justified on the theory that she never had possession of the money representing the cash surrender value, as it was the policy, and not such money, the surrender of which was originally sought, and, moreover, there was no money representing the cash surrender value, as the policy was never surrendered, and the only money was the face of the policy, which was payable to the beneficiary.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <g=288J</p> <p>2. Bankruptcy @=»143 — Property Passing to Trustee — Insurance Policies.</p> <p>Under the law of Pennsylvania (Act April Í5, 1868 [P. L. 108, § 1]), providing that insurance taken ont on the life of a husband for the benefit of, or bona fide assigned to, his wife or other dependent relative, is'immune from the attack of creditors, such a contract of insurance does not pass to the husband’s trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. <8=»143.]</p> <p>3. Bankruptcy <§=>143 — Property Passing to Trustee — Insurance Policies.</p> <p>If an insurance policy authorizes insured to change the beneficiary at Will, the ancillary or collateral contract giving him the right to surrender the policy and receivé the surrender value passes to his trustee in bankruptcy, unless there has been a bona fide assignment of the whole policy, including the right to the cash surrender value.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. <§=>143.]</p> <p>4. Bankruptcy <@=>288 — Collection oe Assets — Summary Jurisdiction.</p> <p>Where third persons interfere with property in the hands of the bankruptcy court because in the actual custody and possession of the trustee, or where the bankrupt has possession of property which he is unjustly withholding, the court will issue summary orders.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <©=>288.]</p> <p>5. Bankruptcy <@=>28S — Collection op Assets — Summary Jurisdiction.</p> <p>Where a third person under a claim of ownership is in possession of property claimed to belong to a bankrupt, the bankrupt’s right thereto must be established in a plenary action, though the claim of right must be a real one, and not a mere pretense, especially in view of Bankr. Act July 1, 1898, c. 541, § 23, 30 Stat. 5o2 (Comp. St. 1913, § 9607), giving Circuit Courts jurisdiction of controversies at law and in equity, as distinguished from proceedings in bankruptcy between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, In the same manner and to the same extent as though bankruptcy proceedings had not been instituted, and such controversies had been between the bankrupts and such adverse claimants.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <S=^288.]</p> <p>6. Bankruptcy <®^302 — Collection op Assets — Summary Jurisdiction.</p> <p>Where the summary process of a bankruptcy court is invoked against a third person, and jurisdiction is made to appear by an averment of want of title in such third person, or that the title asserted is merely col-orable, and the third person sets up title, the averments as to his want of title, or that the title asserted is merely colorable, must be made good by the proofs.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 456, 457; Dec. Dig. <@=a302.]</p> <p>7. Bankruptcy <@=^293 — Collection op Assets — Summary Jurisdiction.</p> <p>Where, in a summary proceeding to compel the wife of a bankrupt to turn over to the trustee a policy naming her as beneficiary, which she claimed had been assigned to her in consideration of the payment of premiums, she did not consent to the exercise of summary jurisdiction over her, but persistently challenged such jurisdiction, the proceeding must be dismissed, as she had a right to insist upon her claim of title being passed upon in a plenary action, if she so desired.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 4X1, 417; Dec. Dig. <®=»293.]</p>

In Equity. Suit by Catharine P. Mathieson and her husband against Thomas J. Craven, as executor of and trustee under the will of Thomas Jamison, deceased, and others.

<p>1. Bankruptcy <®=o16 — Jurisdiction of Courts of Bankruptcy — Principal Place of Business.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2 (1), 80 Stat. 545 (Comp. St. 1913, § 9586), providing that courts of bankruptcy shall have jurisdiction to adjudge persons bankrupt who have had their principal business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months or the greater portion thereof, where a corporation had offices in several cities, neither its articles of incorporation nor the fact that the larger amount of its property was located in one of such cities was conclusive as to its principal place of business, and this was an open question, to be determined by the facts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 29; Dec. Dig. <§=>16.]</p> <p>2. Bankruptcy <@=o47 — Voluntary Proceedings — Objections by Creditors.</p> <p>While creditors may contest any petition in involuntary bankruptcy, no provision is made for contesting a voluntary petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 41, 42 ; Dec. Dig. <@=»47.]</p> <p>3. Bankruptcy t§=»18 — Jurisdiction of Courts of Bankruptcy — Proper District for Proceedings.</p> <p>A corporation, whose articles of incorporation showed that its domicile and place of residence was in O., in the Western district of Kentucky, had offices in different cities. Certain creditors filed a petition in involuntary bankruptcy in Indiana, but before the return day the corporation filed a voluntary petition in the Western district of Kentucky. Held, tliat the mere filing oí the involuntary petition did not give jurisdiction to the Indiana court, and the burden oil proof was on the petitioning creditors to show to the satisfaction of the Kentucky court that the corporation’s principal place of business was in Indiana, and where they failed to do this the court for the Western district of Kentucky would take jurisdiction, especially as the jurisdiction of that court, depending upon domicile or residence, was clearly established, while the location of the corporation’s place of business was doubtful, and moreover it would seem that a voluntary proceeding takes precedence over an involuntary proceeding, unless the involuntary proceeding is first heard or has gone to an adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 22; Dec. Dig. <S=»18J</p>

<p>In Equity. Suit by the Postal Telegraph-Cable Company against William M. Ingraham and others. Decree for complainant.</p>

<p>1. Removal or Causes <§=>107 — Motions to Remand — Speaking Motions.</p> <p>A. motion to remand a case always raises some question of law arising upon the record, and a “speaking” motion is improper.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 178, 225-232, 234; Dec. Dig. <§=>107.1</p> <p>2. Removal or Causes <§=>86 — Petition for Removal — Verification—Amendment.</p> <p>In an action by a citizen of Kentucky against a citizen of Tennessee and a corporation which was a citizen of Alabama, the petition showed the citizenship of plaintiff and the corporation, and that the amount in controversy exceeded $3,000, and the citizenship of the individual defendant was shown by his petition to remove to the federal court, verified by his attorney. Held that, as his citizenship was easily within the attorney’s knowledge, it would seem that the attorney’s verification was sufficient under Judicial Code (Act March 3, 1911, e. 231) § 29, 36 Stat. 1095 (Comp. St. 1913, § 1011), requiring petitions for removal to be duly verified, and that the state statutes respecting the verification of pleadings would not apply, but if there were any defects in the verification they might be cured by the filing of an amended affidavit.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 132, 100-179; Dec. Dig. <®=>86.]</p> <p>3. Courts <§=3-340 — United States Courts — Conformity to State Practice.</p> <p>Conformity Act June 1, 1872, c. 255, § 5, 17 Stat. 197 (Comp. St. 1913, § 1537), applies only in the absence of direct legislation upon a subject by Congress.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 900; Dec. Dig. <§=>340j</p>

Habeas corpus by the United States, on relation of Fong On, against Thomas D. McCarthy. Judgment against petitioner. The proceeding comes up on return to a writ of habeas corpus issued to the marshal of the district, who holds the relator on an order of deportation to China issued by the United States commissioner for the Southern district of New York.

At Raw. Two actions by Matthew Papernow and Louis Papernow against the Standard Oil Company of New York. Verdict for defendant, and plaintiffs petition for a new trial.

<p>1. Master and Servant <©=5832 — -Injuries to Third Persons — Existence oe Relationship — Questions eor Jury.</p> <p>Defendant, whose family consisted of himself, his wife, four sons, and a daughter, all living at home, owned an automobile, which was used, not only in tailing him and his sons to and from their places of business and for some other business purposes, but also for purposes of pleasure and recreation for the family on weekdays and also on Sundays, and was more or less in constant use. It was usually driven by one of the sons, and principally by the son W., about 20 years old. On a Sunday, when the father and mother were away from home, all of the children, accompanied by a family friend, went on an automobile trip; the car being driven by W. The automobile, while so driven by W., struck and injured plaintiff. Held, that it was competent for the jury to infer that there was at least an implied authority in W. to drive the car, and that such driving was in the service of the father in providing recreation for the family, especially in view of the fact that all the members of the family at home were participating at the time in the use of the car.</p> <p>[Kd. Note. — For other cases, see. Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. <3=332.]</p> <p>2. Master and Servant <3=3801, 302 — Injuries to Third Persons — Existence oe Relationship.</p> <p>The owner of an automobile is not liable for the negligence of his son in driving the automobile because of the relationship of father and son, nor because of his ownership of the car, and his liability must rest upon the relationship of principal and agent, or that of master and servant, and the act complained of must be done within the scope of the son’s employment in conducting the father’s business.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1219-1217, 1221, 1223, 1229; Dec. Dig. <©=>301, 302.]</p> <p>3. Master and Servant <3=301 — Injuries to Third Persons — Existence of Relationship.</p> <p>The authority of the son of an automobile owner to represent his father in driving the automobile need not be expressed in words, but may be implied from the precedent course of conduct.</p> <p>[Kd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. <©=>301.]</p> <p>4. Master and Servant <3=301 — Injuries to Third Persons — Existence oe Relationship.</p> <p>The son of an automobile owner, through whose negligence a third party is injured, need not bo a hired chauffeur in order to make his relation to Ms father an employment by the father.</p> <p>¡Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. <3=301.]</p> <p>5. Master and Servant <3=302 — Injuries to Third Persons — Scope oe 11m:- • PLOYMENT.</p> <p>Where a father provides an automobile for the purpose of furnishing members of his family with outdoor recreation, the use of the car for such purpose by a member of the family is within the scope of the father’s business, and the application of this rule is not altered by the fact that the car is used during business hours for business purposes.</p> <p>riid. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217, 1221, 1225, 1229; Dec. Dig. <3=302.]</p> <p>6. Master and Servant <§=>332 — Injuries to Third Persons — Existence of Relationship.</p> <p>In an action for injuries to a person struck by defendant’s automobile while driven by bis son, evidence 7leld not to show conclusively that the son bad no right to use the car without his father’s express permission, and that he was using it surreptitiously, but at most to make a question of fact. '</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1274^-1277; Dec. Dig. <§=>332.]</p> <p>7. Master and Servant <§=>301 — Injuries to Third Persons — Existence of Relationship.</p> <p>That an automobile trip, participated in by all members of defendant’s family who were at home, was suggested and promoted by the son, who was driving the car when it struck plaintiff, did not necessarily deprive the trip of its distinctive character as for the pleasure and recreation of the entire family, so far as at home.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. <§=>301.]</p> <p>8. Master and Servant <§=>332 — Injuries to Third Persons — Existence of Relationship — Questions for Jury.</p> <p>In an action for injuries to a person struck by defendant’s automobile driven by his son, evidence held, not to' show conclusively that plaintiff was negligent, but at most to make a question for the Jury.</p> <p>[E'd. Note. — For other cases, ° see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. <§=>332.]</p> <p>9. Appeal and Error '<§=>1064 — Harmless Error — Instructions.</p> <p>In an action for injuries to a person struck by defendant’s automobile while crossing, the roadway adjoining the public square in the city of Cleveland, the court charged that a statute limiting automobiles to a speed of 8 miles an hour in business and closely built-up portions of the city applied to the place where the accident occurred. One of the occupants of the car, who was riding with the driver, testified that they had been going only 6 miles an hour, and had not been going faster than that at any time through the congested district, and that he knew the law allowed them to run 8 miles an hour, and knew that if they were going more than that they were breaking the law. Held, that, in view of the apparent nature of the district where the accident occurred, the instruction, if erroneous, as invading the function of the Jury, was obviously nonprejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <§=>1064.]</p> <p>10. Appeal and Error <§=>263 — Reservation of Grounds of Review — Necessity of Exceptions.</p> <p>A criticism in the brief and oral argument of an instruction to which no exception was taken must be disregarded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <§=>263.]</p> <p>11. Appeal and Error <§=>274 — Reservation of Grounds of Review — Sufficiency of Exceptions.</p> <p>In an action for injuries to a person struck by an automobile, the court charged that under a statute the driver was negligent if the automobile was running more than eight miles an hour.. Defendant excepted to “that portion of the court’s charge in which he stated that a violation of the state law is negligence per se, without calling attention to the fact that such negligence contributed to the accident or was the proximate cause thereof.” Rule 10 of the Sixth Circuit (150 Fed. xxvii, 79 C. C. A. xxvii) requires exceptions to the charge to state distinctly the several matters of law to which exception is taken. Held,, that an alleged error in the instruction, as charging that the violation of the statute was negligence per se, Instead of merely evidence of negligence, was not roviewable, as the natural interpretation of the exception would be that it was intended to call attention to a supposed lack of instruction that the negligence, to be actionable, must be the proximate cause of the accident.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. &wkey;274.]</p> <p>12. Negligence <&wkey;140 — Proximate Cause — Inrtructiohs.</p> <p>Where, in an action for injuries to a person struck by an automobile, the court charged that the burden was on plaintiff to show that the driver's negligence proximately or directly produced the Injuries, it was not bound to separately apply this requirement to each specific ground of negligence relied on.</p> <p>[Ild. Note. — For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. <&wkey;>140.]</p> <p>13. APPEAL AND ERROR <&wkey;1064 — HARMLESS ERROR — INSTRUCTIONS.</p> <p>In an action for injuries to a person struck by an automobile, the court charged that under a statute the driver was negligent if the automobile was running more than 8 miles an hour. The driver’s testimony indicated that, after seeing plaintiff and her daughter in the street at a distance of 25 to 50 feet, and seeing one of them stop, he took it for granted that both would stop, and did not again look until within 5 to 8 feet of plaintiff. Held, that the instruction, if erroneous, as charging that violation of the statute was negligence, instead of evidence of negligence, was harmless, as the driver’s own testimony would naturally lead to a finding that lie was negligent.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. <&wkey;X064.]</p>

<p>1. Criminal Law <&wkey;>48 — Responsibility fob Crime — “Insanity.’*</p> <p>Insanity, to be available as a defense to a criminal prosecution, must reach the degree of failure to understand the difference between right and wrong.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. &wkey;>48.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Insanity.]</p> <p>2. Cktminal Law <&wkey;48 — Responsibility fob Drugs — Drunkenness or Intoxication prom Drugs.</p> <p>Drunkenness or intoxication or delirium from a drug used with knowledge that it is likely to produce intoxication or delirium is not an excuse for crime.</p> <p>[Ed. Note. — Dor other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <&wkey;48.]</p> <p>3. Criminal Law &wkey;>57 — Responsibility for Crime — Insanity Resulting from Drugs.</p> <p>The long-continued use of alcohol or other drugs, though voluntary, may produce delirium tremens, or other mental derangement violent enough to amount to insanity, and make its victim not responsible under the law for offenses committed by him.</p> <p>[Ed. Note. — Dor other cases, see Criminal Law, Cent. Dig. §§ 65, 69, 70; Dec. Dig. <3&wkey;57.]</p> <p>4. Criminal Law <&wkey;48 — Responsibility for Crime — Insanity Resulting from Drugs.</p> <p>A person committing a homicide while in a frenzy, produced by an overdose of chloral prescribed by a physician, was guilty of murder or manslaughter, according to the circumstances, if the physician’s prescription, or the realized effect of a former dose, or both together, warned him before he had lost control of himself that he might be thrown into an uncontrollable frenzy, as though a patient is not presumed to know that a physician’s prescription may produce a dangerous frenzy, he is bound to take notice of the warning appearing on a prescription, especially if he reads the prescription.</p> <p>[Ed. Note. — Dor other cases, see Criminal Law, Cent. Dig. §§ 53-58; Dec. Dig. <&wkey;48.]</p> <p>5. Criminal Law <&wkey;48 — Responsibility for Crime — Insanity Resulting from Drugs.</p> <p>If defendant had good reason to infer from the terms of a physician's prescription, or the oral instructions of the physician, or from the effect of a former dose of the chloral prescribed, or from all these together, that a larger dose would produce unconsciousness, he was not legally responsible for acts committed in a violent frenzy, produced by such largor dose, and which he had no reason to anticipate.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 53 -58; Dec. Dig. <&wkey;48.]</p> <p>•6. Criminal Law &wkey;>48 — Responsibility for- Crime — Insanity Resulting from Drugs.</p> <p>If defendant was so frenzied by a dose of chloral innocently taken under the direction of a physician as to be thrown into a mental state placing him beyond his own control and beyond the realization of what might bo the ill effect of an overdose, he was not legally responsible for acts committed in a frenzy produced by such overdose.</p> <p>LEd. Note. — Dor other cases, see Criminal Law, Cent. Dig. §§ 53-58; Deo. Dig. <@^>48J</p> <p>7. Homicide <&wkey;309- — Questions for Jury — “Manslaughter”—“Voluntary Manslaughter” — -“Involuntary Manslaughter.”</p> <p>Penal Code, Act March 4, 1909, c. 321, § 274, 35 Stat. 1143 (Comp. St. 1913, § 10447), provides that “manslaughter” is the unlawful killing of a human being without malice; that it is of two .kinds “voluntary,” upon a sudden quarrel or heat of passion, and “involuntary,” in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Defendant, while a passenger on' a steamship, appeared in the saloon insufficiently clothed, and when told by the master to return to his room and put on other apparel, fired his pistol, without notice and without provocation, until every chamber was empty, killing another passenger and wounding the master. • The defense was insanity, caused by an excessive use of alcohol and an overdose of chloral. Heidi, that the court did not err in refusing to submit involuntary manslaughter, as the term “involuntary” implies absence of intention to kill, and if defendant was chargeable as a sane man with any intention at all, the firing of the pistol showed an intention to kill.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <§=>309.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Involuntary Manslaughter; Manslaughter; Voluntary Manslaughter.]</p> <p>8. Homicide <&wkey;294 — Instructions—Insanity as Defense.</p> <p>On a trial for homicide, in which the defense was insanity caused by indulgence in alcohol and drugs, the court charged that insanity1 must proceed from disease of the mind in some way, or from an act of the providence of God'; that it must be an involuntary insanity on the part of the human being; that it must be an insanity produced by disease, whether the disease was temporary or permanent, proceeding as diseases did from an act of God, so that he was incapable at the time of understanding what he was doing, and that he was committing an infraction of the law, but that at the time he was, by something beyond his- personal . voluntary control, put in that condition. Heidi, that the distinction, thus broadly stated, between insanity produced by disease, coming as an act of God, and that produced by man’s own .voluntary act was not sound, as actual mental disease, amounting to insanity as distinguished from ordinary intoxication, excuses even when brought about by voluntary dissipation or other vices.</p> <p>■ [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 605; Dec. Dig. <&wkey;294.]</p> <p>9. Criminal Law <&wkey;1172 — Homicide <&wkey;294 — Instructions—Insanity as - Defense — Harmless Error.</p> <p>On a trial for homicide in which the defense was insanity, a physician, whom defendant- consulted shortly before the homicide, testified that from defendant’s description of his symptoms he feared that defendant might be on the verge of delirium tremens, and that he prescribed chloral as a sedative for defendant’s nerves. Defendant testified that he had been drinking more than usual, and after this increase was having frightful visions and hallucinations before he took the chloral, and that the chloral resulted in greatly increased terror and hallucinations. Physicians testified that the prescribed dose of chloral might produce a condition of delirium like that produced by drinking. Held,, that it was erroneous and prejudicial to charge that there was no evidence of delirium tremens except the testimony of the physician that the symptoms described by defendant made him think defendant was on the verge of delirium tremens, as evidence that he had symptoms indicative of the approach of delirium tremens, and that he afterwards acted as if he did have it, was evidence thereof additional to the apprehensions of the doctor.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3164^-3157, 3159-3163, 3169; Dee. Dig. &wkey;1172; Homicide, Cent. Dig. § 605; Dec. Dig. &wkey;294.]</p> <p>10. Criminal Law <&wkey;48 — Responsibility for Crime — Insanity Resulting! from Drugs.</p> <p>If delirium amounting to insanity was produced by a dose of chloral, taken in good faith in accordance with’a doctor’s prescription under the belief that it would be a sedative, and in that state of delirium defendant committed a homicide, he was guilty of no legal offense, though the chloral might have been harmless but for a settled state of mental disorder produced by habitual drinking.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 53-58; Dec. Dig. <&wkey;48.]</p> <p>11. Criminal Law <&wkey;785 — Weight and Sufficiency of Evidence — Expert Evidence.</p> <p>Tlie testimony of experts is admitted as valuable because based on their special knowledge, derived not only from experience, but from the experiments and reasoning of others, communicated by personal association or through books or other sources, and while it is more or less valuable, according to the source from which it comes, the general proposition that it is of low value unless based on personal experience is not sound, and it was error to charge in effect that the testimony of medical experts, not based on personal experience, was of low value.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1774, 1776-1781, 1889--ISO4; Doc. Dig. &wkey;785J</p> <p>12. Criminal Law &wkey;>1172 — -Appeal—Harmless Error — Instruct tons.</p> <p>On a trial for homicide in which the defense was insanity caused by taking an overdose of chloral, while an instruction that defendant was presumed to know what effect chloral had was not correct as a general proposition, it was harmless, where defendant had express warning from the prescription of the physician who prescribed chloral not to take more than a certain quantity, and knew that it was a drug that would affect the nerves, and was notified by the terms of the prescription that serious results would follow an overdose.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. &wkey;1172.]</p> <p>13. Criminal Law <&wkey;412 — Evibence—Declarations of Accused — Admissibility.</p> <p>On a trial for homicide, where the defense was insanity caused by excessive drinking, and an overdose of chloral prescribed by a physician, the physician’s testimony as to defendant’s description of his symptoms from which he feared that defendant was on the verge of delirium tremens, was admissible, since wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 891-917, 919-935; Dec. Dig. <&wkey;412.]</p> <p>14. Criminal Law <&wkey;.1.170 — Appeal—Harmless Error — Admission of Evidence.</p> <p>On trial for homicide where the defense was insanity, the exclusion of a physician’s testimony as to defendant’s description of his symptoms was not prejudicial, where, the substance of his complaints to the physician was afterwards admitted.</p> <p>rifd. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. &wkey;1170.]</p> <p>15. Criminal Law &wkey;>1172 — Appeal—Harmless Error — Instructions.</p> <p>On a trial for homicide, in which the defense was insanity, while it would have been better to refrain from alluding by way of illustration in the charge to the Thaw Case, such allusion was not sufficiently prejudicial to warrant a reversal, if there had boon no other error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 315-1-3157, 3159-3163, 3109; Dec. Dig. &wkey;U72.]</p> <p>16. Criminal Law <&wkey;762 —Instructions—Expression op Opinion as to Guilt.</p> <p>In the federal courts, the trial judge is allowed a large latitude in expressing his opinion as to defendant’s guilt, so long as he leaves the ultimate issue of guilt or innocence to the jury.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1731, 1750, 1751, 1758, 1759, 1769; Dec. Dig. &wkey;762.]</p>

<p>Appeal from' the District Court of the United States for the District of Utah; John A. Marshall, Judge.</p> <p>Suit by the United States against Arthur A. Sweet, who died before decree. From a decree for plaintiff, Frederick A. Sweet, as administrator, appeals.</p>

A. Marshall, Judge. Suit in equity by the United States against Truth A. Milner, executrix of the will of Stanley B. Milner, deceased, and others. Decree for the United States, and defendants appeal.

<p>In Error to the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Judge.</p> <p>Action by Eva Rafalko against the Boston '& Maine Railroad. Judgment for plaintiff, and defendant brings error.</p>

Sanford, Judge. Suit in equity by the United States Fidelity & Guaranty Company against the Union Bank & Trust Company and others. Decree for defendants, and complainant appeals. Rainey was a clerk of the courts at Nashville, and the Fidelity & Guaranty Company (hereafter called the guaranty company) was surety on his official bonds.

<p>1. Evidence <@==>555 — Facts ok Conclusions — Inferences from Collective Facts.</p> <p>A paving contract named the city engineer as the representative and agent of the city charged with the duty of seeing that the contractor lived up to his agreement, and authorized him to reject materials, compel the contractor to take out and replace work, and even order the discharge of employés disregarding his directions or found to be incompetent. The specifications were numerous and complicated, and some of them distinctly technical. In an action on the contract, the engineer testified that he examined and inspected the work alter it was completed and accepted it as a compliance with the contract. He was thereupon asked whether in his opinion as an engineer, and from his knowledge of the specifications and contract and his personal observations of the work, it was in compliance with the contract, and was permitted to answer over objection. Held, that this was not error, as the question did not, except in a qualified sense, call for expert opinion, but rather for his knowledge and professional judgment respecting the subject of inquiry, and a comparison having been made by him as the work progressed, it was competent for him to state the results of the comparison without confining himself to a detailed recital of what. the contractor did and a minute comparison of each item with the specifications.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. § 2376; Dec. Dig. <@=5o5.j</p> <p>2. Contracts <©=>324, 346 — Actions—Form—Action on Quantum Meruit.</p> <p>Where a contract has been completed, suit may be brought upon the contract itself and also in assumpsit, though in the latter case a recovery will bo limited to the contract price, and hence, where the complaint in' an action on a paving contract set up causes of action on the written contract and for work done and accepted of the value alleged, evidence as to the value of the work done was properly admitted.</p> <p>[Ed. Note.- — For other cases, see Contracts, Cent. Dig. §§ 1549-1557, 1714, 1718-1751; Dec. Dig. <©=>324, 346.]</p> <p>3. Appeal and Error <©=>1053 — Harmless Error — Admission of Evidence.</p> <p>Where, in such action, the court submitted as the issue for determination the quesiion as to the amount, if anything, which plaintiff was entitled to recover “under the terms of the contract,” and told the jury that the question for them to determine was whether or not the pavement came up to the standard provided and stipulated in the contract, and entirely left out of account the right to recover upon a quantum meruit, the proof of value was immaterial, and its admission was harmless.</p> <p>[Ed. Note. — For oilier cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <©=>1053; Damages, Cent. Dig. § 561.]</p> <p>4. Appeal and Error <©=>1056 — Harmless Error — Admission op Evidence.</p> <p>In an action on a paving contract, where the city counterclaimed for breach of guaranty for a period of five years, contained in a different paving contract, and the jury found that the city was entitled to recover nothing on its counterclaim, the exclusion of evidence as to the cost to the city of making repairs claimed to be necessary was harmless, as the jury must have found that the contractor fulfilled its obligation to keep the pavement in serviceable condition during the five-year period.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. <©=>1056.]</p> <p>5. Appeal and Error <©=>1053 — Harmless Error — Admission of Evidence.</p> <p>In an action on a paving contract, M., a property owner assessed for the pavement, testified concerning the imperfect quality of the work, and further stated that he had not paid his assessment because in his opinion they got a rotten pavement. In rebuttal, the city engineer was allowed to testify that M. told him he wanted a cheap class of pavement, something to get them out of the mud and not more expensive than necessary to be fairly permanent. Held, that while this testimony did not tend to contradict M. on a material issue, and its admission was technically erroneous, it was so inconsequential as not to require a reversal, especially as it was deprived of any possible harm by tho court’s explicit charge that the fact that the pavement may have been of inferior kind or class had no status in the case, provided it was of the kind and class contracted for.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. <@=>1053.]</p> <p>6. Appeal and Error <@=>273 — Reservation of Grounds of Review — Exceptions Bad in Part.</p> <p>Where a charge excepted to included some correct statements of law, the exception was insufficient to sustain an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1620-1623; Dec. Dig. <@=>273; Trial, Cent. Dig. § 604.]</p> <p>7. Municipal Corporations <@=3358 — Street Improvement Contracts — Performance — Burden of Proof.</p> <p>Where a street paving contract named the city engineer as the city’s representative and agent in charge of the work', and provided for payment of any balance due within 30 days after the final completion and acceptance of the work by the engineer and executive board, as evidenced by the final estimate and certificate of completion and acceptance, the action of the city engineer in passing upon and accepting the work made a prima facie case that the specifications and requirements of the contract had been complied with, and the burden was upon the city, by the weight of the testimony, to show that the contractor had failed and to what extent.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 890; Dec. Dig. <@=>358.]</p> <p>8. Appeal and Error <@=>173 — Review—Questions Not Raised Below.</p> <p>In an action on a street paving contract, an, objection that the complaint did not allege presentation of,the claim to the proper municipal authorities as required by statute could not be raised for the first time on appeal, as the failure to comply with a condition precedent to the right to sue must be raised in the trial court, so that plaintiff may have an opportunity to avoid or remove the objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079' 1089, 1091-1093, 1095^1098, 1101-1120; Dec. Dig. <@=>173.]</p> <p>9. Municipal Corporations <@=>374 — Contracts—Actions—Waiver of Defenses.-</p> <p>Where a street paving contract provided for payment of any balance remaining due within 30 days after the final completion and acceptance of the work by the city engineer and executive board, the fact that there had been no acceptance by the executive board was a matter of defense to be set up by plea in abatement in an action on the contract, and was waived by denying liability in any event and trying, the case on the merits without a preliminary disposition of the question of acceptance, as matters in abatement must be separately pleaded and tried, and are waived by setting up defenses on the merits and in bar of plaintiff’s claim, and especially by going to trial upon such defenses.</p> <p><[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dee. Dig. <@=>374.]</p>

Petition to Revise Order of and Appeal from the District Court of the United States for the Southern District of New York. In the matter of Van Schaick & Co., a copartnership, bankrupts. On appeal by Samuel H, Lyon from an order denying him a lien. The following is the report of referee as special master!

Pollock, Judge. In the matter of the Badders Clothing Company, bankrupt. To review proceedings resulting in its adjudication on petition of Burnham-Mumger-Root Dry Goods Company and others, the bankrupt brings error; and from certain orders therein, it appeals. A petition to revise in matter of law is also filed.

<p>Appeal from the District Court of the United S’tates for the Eastern Division of the Northern District of Ohio; William L. Day, Judge.</p> <p>Suit by Ohio C. Barber against the Columbia Chemical Company. From a decree in favor of defendant, plaintiff appeals.</p>

<p>Appeal from the District Court of the United S'tates for the Northern District of Ohio; William L. Day, Judge.</p> <p>Suit in admiralty by the L. P. & J. A. Smith Company, owner of Dredge No. 8, against the steamer E. M. Peck; the Calumet Transit Company, claimant. Decree for libelant, and claimant appeals.</p> <p>Prior to January, 1904, the steamer Peck, a wooden barge, 250 feet long, and 40 feet beam, without cargo, and owned by the appellant, was moored for the winter on the west bank of Black river, at Lorain, Ohio, in charge of an experienced caretaker. Thirteen other vessels were moored in the river at that point, lying both ahead and astern of the Peck, and also on the opposite shore. The Peck’s moorings originally consisted of a regular size 1%-inch anchor chain, 75 to 100 feet long, leading forward from the starboard side to a mooring pile planted in solid ground, 12 to 15 feet back from the edge of the water. This pile was of sound white oak, 14 or 15 inches in diameter, and one of a series of like piles placed along the shore for mooring purposes about two years prior to January, 1904. The chain was sunk a foot to 18 inches below the ground and shackled. A second chain led from the stern of the steamer to the shore and made fast.</p> <p>About 75 or 100 feet astern of the Peck, somewhat around a bend in the river, Dredge No. 8, owned by the appellee, was moored. She was 90 feet long, 80 feet wide, and drew 5 feet of water. Her forward end was sanare ;■ her aft end had something of a fan tail. Upon her forward end a large der- ■ rick projected. No criticism is made of her moorings.</p> <p>The steamer Steinbrenner lay just ahead of the Peels, but somewhat around a bend in the river, thus placing! the Peek between Dredge No. 8 and the Steinbrenner, and approximately on a segment of a circle passing through the three vessels. The Nickel Plate railroad bridge is located above where the vessels were moored.</p> <p>It had been very cold, and the river was frozen over; the ice being from 1 to 2 feet thick. Shortly prior to January 22, 1904, a thaw had set in, with rain. An experienced mariner, who was the acting harbor master, anticipating trouble, went along the river front advising ship keepers to prepare for a possible flood and assisting them to put out additional lines. Two or three additional lines were put out from the dredge and five additional 6-inch lines from the Peck, and made fast to. the shore. After the additional lines were put out, the ice above the bridge began to move, carrying with it some scows and dredges. The latter caught upon the bridge; the ice passing under it forming a gorge abreast of the Steinbrenner, and ahead of the Peck.' The ice continued to pile up against the scows and dredges that caught against the bridge, until between 8 and 9 o’clock, when they tore away a part of the bridge and passed down the river into the gorge abreast of the Steinbrenner. This gorge soon thereafter began to move down the river, forcing the ice ahead of it and against the bow of the Peck. The additional strain, thus placed on the Peck, came first on her lines, and they parted, thus leaving the strain on the forward chain, ■ which caused the compressor, to which the chain was made fast on the steamer, to slip once or twice, permitting the vessel to surge astern.</p> <p>At this time the caretaker, who was on the deck of the Peck, adjusting the lines in an effort to equalize the strain, ran below and jumped ón the lever, which controlled the compressor and held it fast. With the next pressure of the gorge on the bow of the Peck, the pile to which the forward chain was fastened broke off, and her bow swung out into the river, and she was carried down stream. As she passed the dredge, the after-end of her cabin came in contact with the end of the crane on the dredge, breaking through the Peck’s cabin stanchions and throwing a yawl boat resting on a cradle to the» deck. The ice gorge, which tore tire Peck from her moorings and carried her along, again formed below the bridge at Erie street near the mouth of the river.</p> <p>When the Peck came in contact with the dredge’s crane, the water was not more than 2 feet above normal height; but after the gorge again formed at the mouth of the river, the water above rose rapidly until it was about 6 feet above normal height and upon the embankment above the river. As the water rose, the dredge rose with it. Along the shore, abreast of the dredge, there was a row of old piling, projecting a few feet above the ground, which, originally supported a wharf. The water rose above them. When the water began to recede, it was found that the after-end of the starboard side of the dredge was fast upon a pile, throwing her port bow forward into the river, and as the water continued to recede the dredge continued to.hang on the pile. There, was a hole in the hull of the dredge, and her weight was increased by water which flowed in both through the hole, and also by running over her port bow, until the weight became so great that her lines parted, and she slid into the river and sank. This was between 1 and 2 o’clock in the afternoon, about five hours after the Peck'had passed down with the gorge.</p> <p>Of the 14 or 15 other vessels that were moored in the harbor of Dorain, none escaped damage, except the Steinbrenner. Nine of them were either cast ashore, or torn from their moorings, and carried down the river; all being either destroyed or greatly damaged.</p>

<p>1. Post Office <&wkey;48 — Criminal Offenses — Eeaudtjlent Use of Mails — Indictment.</p> <p>An indictment charged that defendants and their associates, having devised a scheme to defraud, for the purpose of executing it, caused a letter to be deposited in a post oflice. It described the scheme as involving the use of a pretended pool room, in which the victims were induced to make wagers on races, and having put up checks, instead -of cash, were required to leave them for collection as an assurance of good faith, though announced as winners of the wagers. The indictment did not, as part of the description of the scheme to defraud, directly allege an intent to convert the proceeds of the checks to defendants’ own use, but instead charged that in carrying out such scheme in manner and form as contemplated by them in devising it they received a check from one of their victims, and for the purpose of having it presented and collected for their use and benefit caused a bank to forward it for collection for the account of one of the defendants. Held, that while a general averment that defendants devised a scheme to defraud is not of itself sufficient, without descriptive details showing the character of the scheme, and that it was reasonably calculated to effect the wrongful design, and while the details in descriptive form in the indictment fell short, the direct averment of what defendants and their associates did and intended were fairly ascribablo to and explanatory of the scheme to defraud, and the scheme was sufficiently charged and described.</p> <p>[Ed. Note. — For other eases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <&wkey;48.]</p> <p>2. Post Office <&wkey;35 — Oeiminal Offenses — Feaudulent Use of Mails— Elements.</p> <p>Criminal Code (Act March 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 1913, § 10385), provides that whoever, having devised any scheme to defraud, shall for1 the purpose of executing it, or attempting so to do, place or cause to he placed any letter, etc., in any post office, shall be punished as therein provided. Defendants, having obtained a check from a victim of their scheme to defraud, caused a bank to forward it by mail for collection for them. Held, that the fact that the bank which deposited the letter in the mail was an innocent agency and ignorant of the scheme to defraud did not defeat defendant’s responsibility.</p> <p>[Eil. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <&wkey;>85.]</p> <p>3. CRIMINAL Law <&wkey;789 — Instructions—Reasonable Doubt.</p> <p>On a trial for using the mails for the purpose of executing or attempting to execute a scheme to defraud, the court charged that it was not necessary for the jury to be satisfied beyond a reasonable doubt of the proof of every material allegation in the indictment, but that if, taking all the evidence together upon the whole question, they were satisfied beyond a reasonable doubt that defendant was guilty, their verdict should be guilty. Held, that this instruction was misleading, as tending to induce the jury, if impressed by the evil character of some part of the- transaction, to overlook a lack of proof of a yital factor of the offense and find guilt in a general sense, since while each averment of descriptive detail, or each evidentiary fact or circumstance, need not be proved beyond a reasonable doubt, the essential, constituent elements of the offense, such as the contriving of a scheme to defraud and the use of the mails, must be so proved.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. &wkey;789.]</p>

<p>Commerce <&wkey;27 — Injury to Servant — Employtsrs’ Liability Act — “Interstate Commerce.”</p> <p>Plaintiffs intestate was an engine hostler in railway jTU-ds. A machinist was directed to take a yoke from a disused clam shell bucket and ship it to Bergen, and, being unable to remove the yoke In the then position of the bucket, applied for help to the engineer of a hoist used in lifting coal from a coal car and dumping it in the tenders of standing engines. Deceased left an engine, which had come in for hostiing, walked some 150 feet to the place wheie the bucket was being hoisted, and was killed when it suddenly fell. Mclüi that, assuming that he was engaged in interstate commerce while acting as hostler, the machinist, in attempting to remove the yoke, was not employed in interstate commerce, the hoist was not, while moving the bucket, an instrumentality used in such commerce, and deceased, in assisting with the bucket, was not assisting the machinist in interstate commerce, within Employers’ Liability Act April 22, 1908, c. 149, 85 Stat. 65 (Comp. St. 1913, §§ 8657-8665), making carriers liable for injury or death suffered by employes while employed in Interstate commerce.</p> <p>[Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <§^27.</p> <p>■ Eor other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>1. Bankruptcy <S==>68™ Involuntary Proceedings — Persons Who May be Adjudged Bankrupts.</p> <p>Under Bankruptcy Act (July 1, 1898, c. 541, § 4b, 30 Stat. 547 (Comp. St. 1913, § 9588), providing that any natural person except a wage-earner or a person engaged chiefly in farming or the tillage of the soil may be adjudged an involuntary bankrupt, the question whether an insolvent is exempt depends upon his status as to occupation at the time the acts of bankruptcy were committed.</p> <p>[Ed. Note.' — For other cases, see Bankruptcy, Cent. Dig. §§ 18, 8G, 87; Dec. Dig. <S=>68.]</p> <p>2. Bankruptcy <S=?Q8 — Persons Who May be Adjudged Bankrupts — Occupation or Business.</p> <p>S. was the owner of a gristmill which was formerly a fairly up-to-date mill, but which was never profitable under S.’s management, and the business of which had dwindled to a comparatively small volume. S. was unable to meet Ms obligations, and was also embarrassed by a suit against him for a large amount which he was charged With converting, and in July, 1914, while such action was pending, lie confessed judgment to practically all of his creditors except those subsequently filing an involuntary petition in bankruptcy, and also committed other acts of bankruptcy. On the hearing on the petition lie claimed that he was a wage-earner and introduced a written contract of employment, showing that the term of service thereunder was to begin August 1, 1914. He testified without corroboration that by verbal agreement he commenced work May 1st on the same terms, but it appeared that he was still proprietor of the mill which was operated in his name by his sons and a “representative,” that the mill was running with considerable regularity, grinding such com as customers brought, supplying S.’s family and making small sales, and the facts also indicated that he must have- been more or less occupied with the proceedings In the suit mentioned, and in meeting Ms financial difficulties. Held that, while the burden of proving that he was not a wage-earner was on the petitioning creditors, the facts sustained this burden and showed that he had not become a bona Me wage-earner when he committed the acts of bankruptcy-charged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 18, 86, 87; Dec. Dig. <@=68.1</p> <p>3. Bankruptcy <@=>68 — Persons Who May be Adjudged Bankrupts — Occupation or Business — “Wage-Earner.”</p> <p>' While under Bankruptcy Act, § 4b, a farmer is exempt from involuntary proceedings whatever his other interests, if farming is his chief occupation, a wage-earner is exempt only when he actually pursues the calling which that term prescribes, and a “wage-earner” is an employé, and this implies service for another which is substantially exclusive.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 18, 86, 87; Dec. Dig. <@==>68.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Wage-Earner.]</p>

Action at law by Charles Hansen against the General Lighterage Company. Judgment for plaintiff, and defendant brings error. This cause comes here upon appeal from a judgment of the District Court, Southern District of New York, in favor of defendant in error who was plaintiff below. The action was brought to recover damages for persbnal injuries; the Employer’s Liability Statute is not involved, the action being at common law. The jury brought in a verdict for the plaintiff.

<p>1. Bankruptcy <§=>461 — Review of Proceedings — Appeals—Time por Taking Appeal.</p> <p>Under Bankr. Act July 1,1898, c. 541, § 25a, 30 Stat. 553 (Comp. St. 1913, § 9609), requiring appeals in bankruptcy proceedings to be taken within 10 days after the judgment appealed from is rendered, where the petition for an appeal accompanied by an assignment of errors was filed in the District Court within 10 days from the date of the decree and was promptly presented to a judge having authority to allow the appeal, the allowance of the appeal three days after such presentation and after the expiration of the 10 days related back to the date of the application, and the appeal was taken in time.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 920-923; Dec. Dig. <@==5461.]</p> <p>2. Usury <@==60 — Usurious Contracts and Transactions — Stipulations as to Payment op Taxes.</p> <p>Code Ala. 1907, § 2082, subd. 7, provides that no mortgage on real or personal property to secure the payment of any debt shall be received for record unless a privilege tax equal to 15 cents on each $100 or portion thereof has been paid upon such instrument before it shall be offered for record, such taxes to be paid by the lender. Helé, that a provision in a mortgage that such privilege tax shall be paid by the mortgagor does not render the contract usurious, as such an agreement does not enable the mortgagee to get more than legal interest.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 133; Dec. Dig. <@=>60.]</p>

<p>1. Criminal Law @=>789 — Instructions—Reasonable Doubt.</p> <p>On a criminal trial, it was error to charge that it was not necessary for the government to prove every material allegation beyond a reasonable doubt, that it must prove them by evidence satisfactory to the jury, but that upon the whole evidence, before the jury could And defendants guilty, they must be satisfied of their guilt beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904^-1922, I960, 1967; Dec. Dig. @=5789.]</p> <p>2. Criminal Law @=3059 — Appeal—Reservation or Grounds op Review— Exceptions.</p> <p>Where the court charged that the government need not prove every material allegation beyond a reasonable doubt, that it must prove them by evidence satisfactory to tbe jury, but that upon the whole evidence, before the jury could find defendants guilty, they must be satisfied of their guilt beyond a reasonable doubt, an exception to that part of the charge “which dispenses with the proof beyond a reasonable doubt of every material allegation” was a sufficient exception.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. @=>1059.]</p> <p>S. Criminal Law @=>1086 — Appeal—Record—Matters Presented for Review.</p> <p>The record in a criminal case showed in progressive recitals the usual and ordinary course of a trial. Immediately following the charge appeared a colloquy, in which the court inquired about exceptions, and in response counsel for the defense stated that he took an exception to a specified part of the charge. Further along the record recited that “thereupon the jury, after retiring, returned a verdict of guilty.” Held, that it sufficiently appeared that the exception in question was taken at the trial, and while the jury were still in the box.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2770, 2772, 2794; Dec. Dig. @=>1086.]</p>

<p>Internal Bevenue <3=>9 — Excise Tax on Corporations — Net Income</p> <p>Two civil engineers formed a corporation for the prosecution of their business, with which they entered into a contract to devote their services to the business for stated salaries and providing that the net surplus profits should also be divided between them on the basis of their stock-holding. Held, that the amount so divided could not be considered as compensation for services and as such deducted from the income of the corporation as an expense of the business, but that it constituted net profits of the corporation subject to the excise tax imposed by Act Aug. 5, 1909, e. 6, § 38, 36 Stat. 112 (Comp. St. 1913, § 6300).</p> <p>[Ed. Note. — For other cases, see Internal Bevenue, Cent. Dig. §§ 13-28; Dee. Dig. <S=>9.]</p>

<p>1. Bankruptcy <§=>191 — Rights op Trustee — Application of State Law.</p> <p>The rule applied that the validity of a lien for rent reserved in an unrecorded lease, as against a trustee in bankruptcy, is governed by the local law.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Cent. Dig. §§ 286, 2S7, 290, 351; Dec. Dig. <§=>191.]</p> <p>2. Bankruptcy <§=>191 — Liens—Validity—Registration Within ' Pour Months Before Bankruptcy.</p> <p>Under the laws of Rhode Island, a lien for rent reserved in a lease is good as against creditors, though the lease is not registered, and hence, under the provision of Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, as amended by Act June 25, 1910, c. 412, 36 Stat. 838, invalidating transfers recorded or registered within four months before bankruptcy, if. by law recording or registering is required, such a lien is good as against the trustee in bankruptcy, though, the lease is not registered until shortly before bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 286, 287, 290, S51; Dee. Dig. <5=3-1.91.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston, in Bankruptcy; Henry A. Middleton Smith, Judge.</p> <p>Action by Robert S. Owens, trustee in bankruptcy of the estate of the Abbeville Dumber Company, against the Farmers’ Bank of Abbe-ville. From a decree for defendant, plaintiff appeals.</p>

Suit in equity by the O’Rourke Engineering Construction Company against the Foundation Company. Decree for complainant, and defendant appeals. On appeal from a decree of the District Court for the Southern District of New York holding valid and infringed claim 2 of Fetters Patent No. 678,581 granted July 16, 1901, to John E. O’Rourke for improvements in subterranean or subaqueous dam or foundation construction.

<p>Appeal from the District Court of the United States for the Northern District of New York.'</p> <p>Suit in equity by the Klauder-Weldon Dyeing Machine Company against John H. Giles and another. From an order granting a preliminary injunction, defendants appeal.</p> <p>This cause comes here upon appeal granting, preliminary injunction in a suit for the alleged infringement of two letters patent. The pat-cuts are No. 645,698 granted March 20, 1900, to Leonard Weldon for an apparatus for mercerizing, etc.; and No. 659,906, granted October 16, 1900, to the same patentee for a yarn-dyeing machine: The opinion of Judge Ray will be found in 224 Fed. 515.</p>

Suit in equity by the Foundation Company against the O’Rourke Engineering Construction Company, Decree for complainant, and defendant appeals. On appeal from a decree which held valid and infringed claims, 1 and 6 of patent No. 759,388 granted to D. E. Moran, May 10, 19Ó4, for improvements in pneumatic caissons, and claims 2, 4, 6, 7, and 9 of patent No. 759,389, granted to the same inventor for similar improvements.

<p>1. Coup orations <g=»482 — Mortgages—Foreclosure—Amount of Indebtedness.</p> <p>The trustee under a corporate deed of trust securing bonds is not entitled to foreclose the deed of trust for the full amount of the bonds certified by it, where all of the bonds have not been put into circulation, as a bond does not become an obligation of a debtor until it is issued.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. <S=>482.]</p> <p>2. Corporations <@=^470 — Bonds—Liability—“Issued.”</p> <p>A corporate bond is “issued,” so as to become an obligation of the company, only when a third party acquires some right or interest therein, and, while there need not be an absolute sale, and the bond is issued when put out as collateral, there must be an alienation of some interest therein, or the creation of some lion thereon.</p> <p>[Ed. Note. — Por other cases, see Corporations, Dec. Dig. <@=>470.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Issue.]</p> <p>3. Corporations <§=>482 — Mortgages—Foreclosure—Burden oe Pbooe.</p> <p>While a trustee, suing to foreclose a corporate deed of trust securing an issue of bonds, need not show to whom bonds have been issued or by whom they are held, he has the burden of showing how many have been issued and are outstanding.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. <§=>482.]</p> <p>4. Corporations <§=>482 — Mortgages—Foreclosure-—Issue.</p> <p>While it would seem that, in a suit to foreclose a corporate deed of ■ trust, the question whether bondholders are the absolute owners thereof or hold them as collateral may be raised and litigated prior to the decree of foreclosure and sale, where the corporation was making no defense, and, being insolvent, had no expectation of avoiding a sale or causing a redemption to be made therefrom, this question would be reserved until the distribution of the proceeds of the sale; appropriate qualifications and provisions guarding against injustice and against prejudice to rights which might otherwise be foreclosed being included in the decree.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. <§=>482.]</p> <p>5. Corporations <§=>482 — Mortgages—Foreclosure—Distribution oe .Proceeds.</p> <p>On the distribution of the proceeds of a sale upon the foreclosure of a corporate deed of trust, one holding secured bonds as collateral security cannot demand an amount in excess of the actual indebtedness due him.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1870, Í877--1888; Dec. Dig. <§=>482.]</p> <p>6. Corporations <§=>482 — Mortgages—Bight oe General Creditors to Attack Mortgage.</p> <p>While a general creditor without an interest in or a lien upon mortgaged property of a corporation cannot intervene in a foreclosure suit or challenge the sufficiency of the mortgage, whore, in a creditor’s suit brought long before the institution of the foreclosure suit, a receiver was appointed of the mortgagor’s property and the claims of general creditors were offered, allowed, and filed as valid, subsisting claims, such creditors could intervene and challenge the validity of the mortgage, as the appointment of the receiver placed the property in the custody of the law and prevented them from acquiring specific liens by means of attachment or execution.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. <@=>482.]</p> <p>7. Corporations <^=477 — Mortgages-—Chattel Mortgages — Statutory Provisions — “Personal Property.”</p> <p>The property of a public service corporation devoted to the public service, such as the franchises and water rights of a power company, its generators, dynamos, switchboards, and other articles of equipment constituting essential parts of its generating, transmitting, and distributing system, as well as tools, implements, materials, teams, and conveyances necessary for the maintenance, repair, and operation of its system, are not to be regarded as “personal property” within chattel mortgage statutes but as constituting part of a single indissoluble unit; and hence a mortgage covering such property and the real estate of the corporation was not ineffective as to such property because of noncomplianco with Rev. Codes Idaho, § 3408, making mortgages of personal property void unless accompanied by an affidavit of good faith.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent Dig. §§ 1857-1863, 1865-1869; Dec. Dig. <§=477.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Personal Property.]</p> <p>8. Corporations <§=477 — Mortgages — Chattel Mortgages — Statutory Provisions.</p> <p>Supplies, materials, and tools in excess of the 'corporation’s present needs, bills or accounts receivable, cash' on hand or in bank, stocks of merchandise intended for sale to the public in the ordinary course of retail business, the capital stock of another corporation, a public ferry, and such articles of personalty as did not form constituent parts of the system and were not presently necessary to its maintenance and operation, were not within the operation, of this rule, and where Rev. Codes Idaho, § 3408, was not complied with the mortgage was ineffective as to such property as against other creditors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1857-1863, 1865-1869; Dec. Dig. <§=477.]</p>

In Equity. .Suit by W. I. Howard and others against the Linnhaven Orchard Company and others. On order to show cause why receiver should not be appointed and on motion to dismiss the complaint.

<p>1. Corporations @=>398 — Who may Represent — Disputed Election op Directors.</p> <p>Directors of a corporation, whose election was duly certified and who are in actual control of its affairs, although the validity of their election is disputed, must, until the question has been adjudicated by a competent tribunal, be recognized as its directors for the purposes of a removal of a suit brought against it in a state court.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1592-1594; Dec. Dig. @=>398.]</p> <p>2. Removal op Causes @=>42 — Actions Removable — Local Suits.</p> <p>A suit in a state court by stockholders against a foreign mining corporation, whose-property is situated within the state and federal district, in which plaintiffs allege the invalidity of the election of the acting directors and seek to take the property out of their control through the appointing of a receiver, and which is in effect one to determine rights between rival groups of stockholders, is a suit to enforce a claim to property, of which the federal court isi given jurisdiction by Judicial Code (Act March 3, 1911, c. 231) § 57, 36 Stat. 1102 (Comp. St. 1913, § 1039), where the other jurisdictional facts are present, and is removable by the defendant corporation.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § .85; Dec. Dig. @=>42.]</p>

<p>1. Courts <S=>317 — Federal Courts — Pleading—Demurrers.</p> <p>Demurrers in equity casos are abolished by the now equity rulos, and moreover are inappropriate to the various steps in bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <@=>347.]</p> <p>2. Bankruptcy <@=>400 — Exemptions—Setting Apart.</p> <p>The setting apart of exempt property to the bankrupt, and the sale of real estate in which a homestead is claimed, if indivisible, should always be promptly attended to by the trustee, and the referee should see that this is done.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 670-675; Dec. Dig. <@=>400.]</p> <p>3. Bankruptcy <@=>34-2 — Allowance op Claims — Petitions for Reconsideration — With drawal.</p> <p>The claim of a mortgagee was allowed by a referee in bankruptcy asa secured debt, and the trustee filed a petition for a reconsideration and dis-allowance of such claim. The matter was brought to trial, such testimony as was offered was heard, and after argument the referee announced Ms judgment and conclusions, and thereafter entered a decree denying the trustee’s petition. Before the decree was entered, but after his announcement of his decision, the trustee moved to dismiss his petition without prejudice. Held, that it was within the discretion of the referee at this stage of the proceeding to refuse to permit such dismissal, especially as the trustee desired such dismissal in order that he might litigate with the bankrupt questions concerning the bankrupt’s claim of homestead in property covered by the mortgage, a matter with which he had no concern.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525, 529; Dec. Dig. <@=342.]</p> <p>4. Courts <@=335 — United States Courts — Conformity to State Practice.</p> <p>While the state practice governs largely in common-law cases, it does not govern or control in equity cases.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 902-907% 5 Dec. Dig. <§=335.]</p> <p>5. Bankruptcy <$=400 — Exemptions—Setting Apart.</p> <p>• The bankruptcy court can do nothing more than set apart to the bankrupt property exempted by the state law, and whether any creditor has a superior right in or to the exempt property is a question to be litigated in the state courts, and not in the bankruptcy courts, though a bankrupt’s discharge may be delayed for a reasonable time to enable the state court to settle such questions.</p> <p>[Ed. Note. — For other cases, see. Bankruptcy, Gent. Dig. §§ 670-675; Dec. Dig. <@=400.]</p> <p>6. Bankruptcy <@=400 — Exempt Property — Rights op Trustee.</p> <p>A trustee in bankruptcy has nothing to do with exempt property, and, while creditors may litigate in the state courts the question of their superior-right in such property, the trustee cannot do so.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 670-675; Dec. Dig. <@=400.]</p> <p>'7. Bankruptcy <@=184 — Recording—Necessity as Against Creditors.</p> <p>Under the Kentucky recording statute, a mortgage executed by a bankrupt, though unrecorded, has priority over creditors who have not in the meantime attached the land.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 275-277; Dec. Dig. <@=184.]</p>

<p>1. Statutes <&wkey;184 — Construction—Effectuating General Purpose.</p> <p>If, on applying the Uniform Partnership Act to the varying rules found in different states, obscurity in language appears, the meaning of doubtful parts should, if possible, be gathered from its general purpose, as shown by its language; and when this general purpose is found, and is plain and unmistakable, particular words may be ignored, if out of harmony with the general purpose, unless they were used by way of proviso or exception, or,indicate a positive intent inconsistent with the general spirit.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. § 262; Dec. Dig. <&wkey;184.]</p> <p>2. Exemptions &wkey;>61 — Persons Entitled — Members op Partnership — “Attach” — “Attachment Proceedings” — “Partner's Interest in the Partnership.”</p> <p>Uniform Partnership Act (Laws Wis. 1915, c. 358) § 1724m21, provides that the property rights of a partner are his rights in specific partnership property, his interest in the partnership, and his right to participate in the management; that the partners are co-owners of specific partnership property, holding as tenants in, partnership; that a partner has an equal right with his partners to possess such property for partnership purposes, but not for other purposes; that his right in such property is not assignable, or subject to attachment or execution, except on a claim against the partnership; that, when partnership property is “attached” for a partnership debt, the partners cannot claim any right under home-' stead or exemption laws; that a surviving partner has no right to possess the partnership property for any but a partnership purpose; and that a partner’s right therein is not subject to dower, etc. Section 1724m24, dealing with the claims of individual creditors, provides that nothing therein shall deprive a partner of his right under exemption laws as regards his interest in the partnership; and section 1724m22 defines a “partner’s interest in the partnership” as his share of the profits and surplus. Held, that a partner no longer has the right to an exemption out of the partnership’s stock in trade in case of its seizure on execution or attachment, dr any other mesne or final process, as prior to that act, since, while “attachment proceedings” indicate a seizure on mesne process, the verb “attach” has a broad meaning, and indicates any seizure of property for the purpose of bringing it within the custody of the court, and there is nothing in the act requiring the word to be taken in the restricted meaning of seizure on mesne process.</p> <p>[Ed. Note. — For other eases, see Exemptions, Gent. Dig. §§ 83-87; Dec. Dig. <&wkey;61.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Attach; Attachment; Partner’s Interest.]</p>

<p>1. CORPORATIONS &wkey;>544-PREFERENTIAL TRANSFERS-STATUTORY PROVISIONS.</p> <p>Stock Corporation Law N. Y. (Consol. Laws, e. 59) § 66, provides tliat no corporation, which shall have refused to pay any of its notes or other obligations when due, shall transfer any of its property to any officer, director, or stockholder; that no conveyance or transfer of any property of any such corporation, nor any payment made by it when the corporation is insolvent, or its insolvency is imminent, with the intent of giving a preference to any particular creditor, shall be valid; and that every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. Held that, in determining whether the payment of a note before maturity was with intent to give a preference, the transfer must be viewed in the light of the situation as it existed at the time of the transaction, and the transaction could not be regarded as invalid because discredited by after events.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 2162-2169; Dec. Dig. <&wkey;>544.]</p> <p>2, Corporations <&wkey;544 — Preferential Transfers — Sufficiency of Evi-' dence.</p> <p>In an action by the receiver of a corporation against a bank, evidence held to show that when the corporation, before maturity and shortly before the appointment-of a receiver, took up a note, held by the bank and indorsed by individuals in control of the corporation, and gave a new noto for a smaller amount, paying the difference, there was no intent to give a preference.</p> <p>piel. Note. — For other cases, see Corporations, Cent. Dig. §§ 2162-2160; Doe. Dig. <&wkey;o44J</p> <p>3. CORPORATIONS <&wkey;543 — PREFERENTIAL TRANSFERS-BONA FlDE TRANSFEREES.</p> <p>Stock Corporation Law N. Y. § 66, prohibits preferential transfers by corporations while insolvent, or when insolvency is imminent, and. provides that no such transfer shall be void in the hands of a purchaser for a valuable consideration without notice. A corporation before the maturity of a note indorsed by individuals in control of the corporation took up the note, paid part of the indebtedness, and gave a new note tor the balance with the same indorsers. Held, that the holder of the note gave a valuable consideration for the part payment.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 2161; Deo. Dig. <&wkey;>543J</p>

<p>1. Cbiminai. Law &wkey;>242 — Removal of Accused to Another Dxsthict for Trial — “Offense Acainst the United States.”</p> <p>Rev. St. § 1014 (Coinp. St. 1913. § 1674), provides that for any crime or offense against the United States the offender may be arrested and imprisoned for trial, and that, where an offender is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where he is imprisoned to issue, and of the marshal to execute, a warrant for Ms removal to the district where tho trial is to be had. Comp. Laws Alaska 1913, § 2099, adopts the common law of England, as adopted and understood in the United ¡átales, except as modified thereby, and section 2502 makes provision for extraditing persons charged with felony in the district of Alaska and fleeing from justice. Comp. Laws Alaska 1913, § 410 (Act Cong. Aug. 24, 1932, c. 387, § 3, 37 Stat. 512), provides that all laws of the United States establishing- the executive and judicial departments in Alaska shall continue in full torco and effect until amended or repealed by act of Congress, and that except as therein provided all laws in force in Alaska shall continue in force until altered, amended, or repealed by Congress or the territorial Legislature, provided that the authority of the Legislature to alter, amend, and repeal laws shall not extend to the customs, internal revenue, postal, or other general laws of the United States. Held,, that the crime of kidnapping, denounced by Comp. Laws Alaska 1913, § 1907, is not an “offense against tbe United States,” and, though such offense is triable before the United States District Court for Alaska, the offender may not be removed from another district to' Alaska under Rev. St. § 1014, especially as the Compiled Laws indicate that Congress distinguished between local laws affecting the territory of Alaska and laws affecting generally all of the states and territories.</p> <p>[Ed. Noto.. — -For other cases, see Criminal Law, Cent. Dig. §§ 509, 510; Dec. Dig. <&wkey;242.</p> <p>For other definitions, see Words and Phrases, Second Series, Offense Against the United States.]</p> <p>2. Extradition <&wkey;25 — Authority and Duty to Demand Fugitives — -jTerritorial Governors.</p> <p>Under Rev. St. § 5278 (Comp. St. 1913, § 10126), providing that, whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment or affidavit, etc., it shall be the duty of the executive authority of the state or territory to which such person has fled to cause Min to be arrested and delivered to the agent of the executive authority making the demand, the executive of a territory has the same rights and bears the same duties as the Governor of a state.</p> <p>[Ed. Noto. — For other cases, see Extradition, Cent. Dig. § 29; Dec. Dig. <&wkey;>2DJ</p> <p>8. Statutes <&wkey;54 — 1Territorial Legislation — Legislative Power of Congress — ÜDERATION AMI EFFECT OF STATUTES.</p> <p>Congress, in adopting the Alaska Code, exercised its power as a local Legislature, rather than its power as a general government of the United States, and tiie Compiled Laws of Alaska have no greater force than a law enacted by a territorial Legislature subject to congressional approval.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 52; Dec. Dig. &wkey;54.]</p>

In Equity. Bill by James F. Broach, trustee of B. L. Harrell, bankrupt, against C. N.-Mullís, Sheriff, and another, to enjoin a sale of real estate of the bankrupt, levied undér state court process.

<p>Aliens &wkey;>5& — Alien Contract Labor Law — Violation.</p> <p>A section foreman of defendant railroad company was indebted to an alien, who had formerly worked under him, but had later returned to his own country, and gone from there to Canada. Being unable to pay the debt when requested, the foreman sent his creditor sufficient of his own money to pay traveling expenses and offered to re-employ him if he would return to this country, which offer was accepted. The foreman was authorized by defendant to employ men when needed on his section, if they applied or could be obtained in the immediate vicinity, but not otherwise. Held, that, under such facts, defendant was not chargeable with violation of Alien Contract Labor Law (Act Eeb. 20, 1907, c. 1134) § 4, 34 Stat. 900 (Comp. St. 1913, § 4248); it not appearing that any officer- or other agent knew of the transaction.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 108-110; Dec. Dig. <&wkey;50i]</p>

In Admiralty. Suits by James Carruthers & Co., limited, against the steamship Athanasios, N. D. Lykiardopulo, claimant, and Bowring & Co., and against N. D. Lykiardopulo, as owner of said steamship, in personam. On October 16, Í915, at,New York, the Greek steamship Athanasios was chartered to James Carruthers & Co., a Canadian corporation, to carry a cargo of grain from a port in the United States to a port in Europe.

<p>Action for penalties by the United States against the Oregon Short Line Railroad Company. On motion for judgment on the pleadings.</p>

In the matter of Hansley & Adams, a copartnership, bankrupt. On motion to vacate the adjudication and counter motion to adjudicate the members of the partnership bankrupt nunc pro tunc.

<p>BANKRUPTCY <&wkey;207 — HOMESTEAD—PRESERVATION OF ATTACHMENT LlEN— Power op Court.</p> <p>Where an attachment was levied on real estate in Idaho occupied by the debtor as a homestead, but prior to his filing a declaration of homestead, which was necessary under the state law to protect it from the levy, on his subsequent bankruptcy, within four months, the referee had power under Bankr. Act July. 1, 1898, c. 541, § 67f, 30 Stat. 564 (Comp. St. 1913, § 9651), to order the lien of the attachment preserved for the benefit of the estate as against the homestead claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;207.]</p>

<p>1. BANKRUPTCY <&wkey;407-DISCHARGE — MAKING FALSE STATEMENT TO OBTAIN Credit.</p> <p>A statement made by a partnership to a mercantile agency concerning its financial condition was the statement of the partnership within Bankr. Act July 1, 1898, c. 541, § 14 (3), 30 Stat. 550, as amended by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (Comp. St. 1913, § 9598), relative to denying a discharge where money or property is obtained on credit upon a materially false statement made for the purpose of obtaining credit, though the statement was made by the firm’s bookkeeper and not on the personal investigation’ of either copartner.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. &wkey;407.]</p> <p>2. Bankruptcy <&wkey;407 — Discharge—Making “False Statement to Obtain Credit.”</p> <p>Bankr. Act, § 14 (3), as amended by Act June 25, 1910, § 6, provides for the denial of a discharge if the bankrupt has obtained money or'property on credit upon a materially false statement in writing made by him to any person or representative for the purpose of obtaining credit from such person. Meld, that a false statement made to a mercantile agency by a debtor seeking credit with intent that the statement shall go to some one who will extend credit bars a discharge, as the agency is to be regarded as the representative of the debtor and his agent for the purpose of obtaining credit by means of exhibiting the false statement.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. &wkey;407.]</p> <p>3. Bankruptcy <&wkey;407 — Discharge—Making False Statement to Obtain Credit.</p> <p>To bar a discharge under Bankr. Act, § 14 (3), as amended by Act June 25, 1910, § 6, a statement made to obtain credit must not only be untrue, but must be willful or intentionally misleading.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751. 758, 760, 761; Dec. Dig. &wkey;407.]</p> <p>4. Bankruptcy <&wkey;407 — Discharge—Making False Statement to Obtain Credit.</p> <p>A firm which subsequently became bankrupt made a financial statement to a mercantile agency in which it was stated that the open accounts for merchandise at the date of the statement amounted to $3,0,-839.89. The unpaid open accounts for merchandise at that time in fact exceeded $14,000. A creditor’s credit manager obtained this statement from the agency, and, relying thereon, and believing it to be true, ■ the creditor sold merchandise to the bankrupt. Held, that the bankrupt obtained property on credit upon a materially false statement in writing made for the purpose of obtaining credit; and a discharge will be denied under Bankr. Act, § 14 (3), as amended by Act June 25, 1910, § 6.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. &wkey;407.]</p>

<p>Bankruptcy (&wkey;378 — Composition's—Amount op Dkposit.</p> <p>Bankruptcy Act July 1, 1898, c. 541, § 12b, 30 Stat. 549 (Comp. St. 1913, § 9598), provides that an application lor the confirmation oí a •composition may be filed alter acceptance in writing by a majority in number of all creditors whose claims have been allowed, which number must represent a majority in amount of such daims, and after the consideration to be paid creditors and the money necessary to pay all debts having priority and the cost of the proceedings have been deposited in such place as shall be designated by the judge. Section 57n (Comp. St. 1913, § 9841) provides that claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication with certain immaterial exceptions. Held, that section 57n does not apply to compositions, and, where on offer of a composition was made within one year after the adjudication, all scheduled creditors were included in the offer, though they failed to prove their claims within the year, and the deposit must be sufficient to cover the agreed dividend to such creditors.</p> <p>|Ed. Note. — For other eases, see Bankruptcy, Cent Dig. § 001; Dec. Dig. <&wkey;>878.]</p>

<p>Bankruptcy <&wkey;81 — Involuntary Petitions — Amendment—“Act op Bankruptcy.”</p> <p>Bankr. Act July 1, 1898, c. 541, § 3a, 30 Stat. 546 (Comp. St. 1913, § 9587), provides that acts of bankruptcy by a person shall consist of his having (1) conveyed, etc., property with intent to hinder, delay, or defraud creditors; or (2) transferred while insolvent any portion of his property to creditors with intent to prefer them; or (3) suffered or permitted while insolvent any creditor to obtain a preference through legal proceedings, and not having, at least Eve days before a sale or final disposition of any property affected by such preference, vacated or discharged such preference. A petition to have a person adjudicated a bankrupt on the ground that he confessed judgment to his wife in an amount equal to the value of his real estate, his only disclosed asset, alleged this to be an act of bankruptcy under clause 3, and the petitioning creditors asked leave to amend to allego acts of bankruptcy under clauses 1 and 2. Helé, that leave to file an amended petition alleging any act of bankruptcy within the general scope of the facts set forth in the original petition would be granted.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig. <&wkey;84.</p> <p>Ifor other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p>

<p>In Bankruptcy. In the matter of Abraham Graboyes, bankrupt. On petition for review or order of referee.</p>

In the matter of William M. Amer, Thomas W. Barnes, Adam B. Long, Jacob H. Bomberger, "and Tobias R. Kreider, bankrupts. On exceptions of the Bendersville National Bank to report of referee as special master recommending discharge of bankrupts. Reargument on question of taxation of costs.

<p>1. Coubts <&wkey;424 — United States Courts — Form of Actions — Law or Equity.</p> <p>Act Aug. 13, 1894, c. 280, 28 Stat. 278, as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1913, § 6923), requires contractors with the United States to give a bond, with the additional obligation that the contractor shall promptly pay all persons supplying labor and materials in the prosecution of the work, and provides that any person, etc., furnishing labor or materials “used in the construction or repair of any public building or public work,” may intervene in an action instituted by the United States on such bond; that, if no suit shall be brought by the United States, any person supplying labor and materials may sue thereon in the name of the United States; that, where suit is instituted by any such creditor, only one action shall bo brought, and any other creditor may file his claim therein and be made a party thereto; and that, if the recovery on the bond is inadequate to pay the amounts found due, judgment shall be given to each creditor pro rata. Held, that while there is force in the argument that a court of equity is the appropriate tribunal when such action is brought by a creditor, the District Court had jurisdiction of such an action, though brought on the law side of the court, especially as Judicial Code, § 274a, as added by Act March 3, '1915, c. 90, 38 Stat. 956, provides that when a suit at law should have been brought in equity, or a suit in equity at law, the court shall order any amendments to the pleadings necessary to conform them to the proper practice, and that any party may at any stage of the cause amend his pleadings, so as to obviate the objection that the suit was not brought on the right side of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1119, 1125-1129; Dec. Dig. &wkey;424.]</p> <p>2. United States <&wkey;67 — Contractors’ Bonds — Claims Secured.</p> <p>In determining what claims are secured by the bond of a contractor with the United States, given pursuant to Act Aug. 13, 1894, as amended by Act Feb. 24, 1905, the provision of the statute authorizing only the one furnishing labor and materials “used in the construction or repair” of any public building or public work to intervene in any suit on the bond by the United States must be given due force.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <&wkey;67.]</p> <p>3. United States &wkey;>67 — Contractors’ Bonds — Claims Secured — “Laroe B’urnisiied or Materials Used in Construction of the Work.”</p> <p>Groceries and provisions, furnished to a hoarding house of a contractor with the United States, and consumed by his laborers, did not constitute “labor furnished or materials used in construction of the work,” and payment therefor was not secured by the contractor’s bond, given pursuant to Act Aug. 13, 1894, as amended by Act Feb. 24, 1905, and it was immaterial that the character of the country where the work was done made it necessary for the contractor to board its men on the job.</p> <p>[lid. Note. — For other cases, see United States, Cent. Dig. § 50; Dee. Dig. ¡&wkey;>67.</p> <p>For other definitions, see Words and Phrases, Second Series, Labor and Material.]</p> <p>1. United States <®~>67 — Contractors’ Bonds — Claims Secured.</p> <p>The bond of a contractor with the United States did not 'secure payment for machinery and appliances intended to be used in one location after another until worn out, though, because of the length of the job they were so much or so badly used upon the particular contract as to become worn out.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <&wkey;67.] '</p> <p>5. United States <&wkey;67- — Contractors’ Bond's — Claims Secured — “Construction of The Work.”</p> <p>Supplies furnished a contractor with the United States, which were specifically intendéd for current consumption directly on the work, such as drills and material for drills used in drilling machines, and made to be used up currently, and in fact used up in direct and immediate contact with rock removed as part of the contract, were covered by the eontraetor’s bond; the removal of such rock being a part of the “construction of the work.” ;</p> <p>[Ed. Note. — Fbr other cases, see United States, Cent. Dig. § 50; Dec. Dig. <&wkey;67. •</p> <p>For other definitions, see Words and Phrases, First and Second Series, Construction.]</p> <p>6. United States <&wkey;67 — Contractors’ Bonds — Claims Secured.</p> <p>The bond of a public contractor engaged in deepening the channel of a river did not secure payment for ordinary and current repairs on the contractor’s machinery, and miscellaneous, articles used in the operation of the boats and dredges, constituting additions to the contractor’s working outfit, or intended to maintain the existing outfit in as good order as possible against wear and depreciation.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <§^>67.]</p> <p>7. Appeal and Error <&wkey;1172 — Disposition of Cause — Reversal in Part.</p> <p>In a creditor's action pn a contractor’s bond given pursuant to Act Aug. 13, 1894, as amended by Act Feb. 24, 1905, where the judgment in favor .of a ’numbbr of claimants was iff the form of a single entry, there was no insuperable difficulty in allowing part to stand, though the judgment was reversed as to other claims, as the judgment could be treated as separate judgments in favor of each of the successful claimants.</p> <p>[Kd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4555-4561; Dec. Dig. &wkey;1172.]</p>

I. Grubb, Judge. In the matter of S. E. Wilbourne, bankrupt. From a decree confirming an order of the referee and allowing the claim of the United States Fidelity & Guaranty Company, J. M. Kilpatrick, trustee, appeals. The report of Referee Alex C. Birch, mentioned in the opinion, was as follows: In January, 1913, E. O. Kinney filed a suit in the circuit court of Cullman county, Ala., against S. 10.

<p>1. Husband and Wife <@=^98 — National Banks — Liabilities of Stockholders.</p> <p>Notwithstanding the disabilities of married women under the laws of Florida, a married woman, acquiring stock in a national bank by gift from her husband and collecting the dividends thereon, became, like other stockholders, liable for the debts of the bank which it failed to pay to the extent of her holdings, under Rev. St. § 5151, making the shareholders of national b'anking associations individually responsible equally and ratably, and not one for another, for all debts of the association to the extent of the amount of their stock in addition to the amount invested in such shares.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 128%; Dec. Dig. <^>98.]</p> <p>2. I!;\-:;.\xt> and Wive ©=>242 — Liability oe Makbieb Women — Execution Against Separate Propebty.</p> <p>Const. 1'la. art. 11. § 1, provides that all property oí a wife, owned by her before marriage or lawfully acquired afterwards by gift, devise, bequest, descent, or purchase, shall be her separate property, and shall not be liable for the debts of her husband without her consent, given by some instrument in writing executed according to the law respecting conveyances by married women. Section. 2 provides that a manied woman's separate real or personal property may be charged in equity and sold, or the rents and profits sequestrated, for the purchase money thereof,_ for money or thing due upon any agreement by her in writing for the benefit oilier separate property, or for the price of any property purchased by her, or labor and material used with her knowledge or assent in the construction of buildings, or repairs or improvements upon her property, or for agricultural or other labor thereon with her knowledge and consent. Section 3 provides that the Legislature shall enact such laws as shall bo necessary to carry that article Into effect. Gen. St. Fla. 1906, § 1000, niakes judgments a lien upon the real estate of the defendant in the county where rendered ; and section 1618 provides that lands, etc., shall be subject to levy and sale under execution. Held, that article 11, § 2, merely provides for the enforcement of certain obligations in a court of equity, and does not prohibit the enforcement of other obligations, and where a valid judgment is recovered against a married woman in a common-law action, such as a judgment on her statutory liability as a stockholder in a national bank, the judgment is enforceable by execution upon her separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 505; Dec. Dig. ©=>242.]</p>

<p>1. Bums and Notes &wkey;>149 — Negotiable Instruments — Natuke and Poem— “Commercial Paper.”</p> <p>A telegraph company which transmitted money by telegraph, for its convenience, would issue to the sendee of money so transmitted a draft drawn on its money transfer department, and directing payment to the order of such sendee of the sum therein named, reciting that this was the sum placed to his credit by the sender, and that the receipt thereof on the conditions under which it had been transmitted was acknowledged by indorsement thereon. The drafts directed that the amount be charged to tlie account of money transfers, and bore a statement that it would be cashed by a named bank. Held, that these drafts were “commercial paper” within the Negotiable Instruments Act of New Jersey (P. L. 1902, p. 5S5), and were governed by the rules applicable to that class of instruments.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 296, 373; Dec. Dig. &wkey;>149.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Commercial Paper.]</p> <p>2. Bii.es and Notes <®=^345 — Bona Fide Holders — “Notice.”</p> <p>Negotiable Instruments Act N. J. (P. L. 1902, p. 593) § 56, provides that to constitute notice of an infirmity in an instrument or a defect in the title of the person negotiating it, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. A clerk in the money transfer department of a telegraph company obtained blank forms of drafts issued by its agents to the sendees of money transferred by telegraph, forged the; signature of an agent thereto, and the indorsement thereon of the apparent payee, and deposited them in a bank in the small town of N., where he lived. He had resided there for some years, was only 20 years old, of slender means, and living on his salary, and N. was not the place where the drafts were drawn or were to bo paid, or where the payee resided. The bank knew some of these facts, but it further appeared that its teller asked such clerk what ho was doing with the money, and was told that he was acting as paymaster and forwarding the money to meet the pay roll of a man who was extending the line, that the teller suggested calling up the company, and tile clerk acquiesced, but that this inquiry was not made, and that though the forgeries extended over several months, the drafts were paiil by the company without objection. Held, that under section 56 the mere fact that the circumstances were suspicious did not put the bank upon “notice” and charge it with the duty of inquiry; the jury having found that it did not act in bad faith.</p> <p>[Ed. Noto. — For other cases, see Bills and Notes, Gent. Dig. §§ 849-852; Dec. Dig. <j&wkey;345.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Notice.]</p> <p>3. Bills and Notes e&wkey;377 — Rights or Bona Fide Holders.</p> <p>Where a bank took title to forged drafts in good faith and they were subsequently paid by the drawee, it had a right to retain the proceeds.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 952; Dec. Dig. <&wkey;377J</p> <p>4. Appeal and Error <&wkey;690 — Reservation oe Grounds op Review — Exclusion op Evidence.</p> <p>In an action against a bank, the exclusion of a question as to what the bank’s .cashier told the witness about a matter in controversy would not be reviewed, where there was no statement of what the witness was expected to prove, and it did not appear what the answer would have been, or whether it would have been favorable to the party asking the question.</p> <p>• [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. &wkey;690.]</p>

<p>T. Bankruptcy i&wkey;350 — Claims—Priorities Under State Laws.</p> <p>Ky. St. § 2487, formerly provided that when the property of any public improvement company, or owner or operator of any manufacturing establishment, should be assigned for the benefit of creditors, come into the hands of any receiver, trustee, or assignee for. creditors, or in any wise come to be distributed among creditors, employes and persons furnishing materials, or supplies for the carrying on of the business, should have a lien on property involved in the business. Section 248S provides that such lien shall be superior to the lien of any mortgage or other in-cumbranee thereafter created, and section 2490 provides that when any such company, owner, or operator shall sell or transfer such business, or when the property engaged in such business shall be taken in attachment or execution, the lien shall attach as fully as is provided in section 2487, and may be enforced by proceedings in equity. In 1914, section 2487 was amended, without any saving clause, by eliminating the provision as to persons furnishing materials or supplies. Held, that in a bankruptcy proceeding a party furnishing materials to the bankrupt prior to the amendment was entitled to a preference in distribution, since a retrospective operation will not be given a statute which interferes with, antecedent rights, unless such be the unequivocal and inflexible effect of its terms and the manifest intention of the Legislature, and the statute did not create a mere right of priority on distribution, but a right between the equitable consequences of which and of a full technical lien no very solid distinction can be drawn.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. <&wkey;350J</p> <p>2. Bankeuptcy <&wkey;350 — Claims—Priorities under State Laws.</p> <p>The rule that where a statute creates merely an additional remedy for the enforcement of a debt, leaving unimpaired all ordinary remedies, a repeal of the statute without a saving clause prevents the enforcement of the additional remedy did not apply, at least where the property was being distributed in bankruptcy, as by the construction placed upon the statute prior to its amendment by the federal courts, the lien had become and was a part of the bankruptcy law, and this priority was therefore given by the same law which provided for a discharge of the indebtedness and so destroyed all ordinary remedies.</p> <p>[Ed. Note.-- -ifor other cases, see Bankruptcy, Cent. Rig. § 537; Dec. Dig. <&wkey;350J</p> <p>3. Bankruptcy <&wkey;850 — Claims—Priorities under State Laws.</p> <p>No preference or lien existed for goods shipped after the amendment, though earlier contracted for, as the vendor at the time of the amendment had nothing but a right to get in the future an inchoate lien if in the future it should ship the goods.</p> <p>i Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. <8=^350.]</p>

<p>1. CONTRACTS <&wkey;101 — Actions—Law Governing — .Public Policy.</p> <p>A contract, though valid under the law of the place where it was made, will not be enforced in a jurisdiction where to so enforce it would involve a disregard of the established public policy of that jurisdiction.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 455-460; Dec. Dig. <@=3l01.]</p> <p>2.'Husband and Wife <&wkey;87 — Liability of Married Women on Contracts —Contracts of Suretyship — “Another.”</p> <p>Rev. St. Tex. 1911,- art. 4621, as amended by Act March 21, 1913 (Acts 33d Leg. c. 32), provides that neither the separate property of the wife, nor the rents from her real estate, nor the interest on bonds and notes belonging to her, nor fier personal earnings, sháll be subject to the payment of debts contracted by the husband. Article 4624, as amended by the same act, after providing that the separate property of the husband and-certain community property shall not be subject to the payment of debts contracted by the wife, except for necessaries, contains a proviso that the wife shall never be the joint maker of a note, or a surety on any bond or obligation of another, without the joinder of her husband with her in making such contract. Meld, that a contract made by the wife alone, by which she undertakes to become a surety on a bond or obligation on which her husband is a principal, is forbidden by the statute, as the word “another” cannot reasonably be given such a meaning as would prevent the husband from being regarded as “another” than his wife, and the wife may not become a surety on bonds and obligations in which the husband cannot join.</p> <p>[Tid. Note. — IPor other cases, see Husband and Wife, Cent. Dig. §§ 316-353, 708; Dee. Dig. <&wkey;>87.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Another.]</p> <p>3. Contracts <&wkey;101 — Law Govkrning — Public Policy.</p> <p>Act Tex. March 21, 1913 (Acts 33d Deg. c. 32), amending Rev. St. 1011, aris. 4621, 4622, 4624, governing a married woman’s liability on contracts, evidences the establishment, or the continuance, with the modifications thereby made, of a well-defined public policy of preventing the diminution of the estates of married women by unauthorized transfers or conveyances, or by subjecting them to the payment of forbidden obligations; and a contract made in Illinois by a married woman residing in Texas, whereby she became a surety for her husband, being contrary to this public policy, cannot be enforced in the courts of Texas, or in courts administering the laws of Texas.</p> <p>[Fd. Note. — For other cases, see Contracts, Cent. Dig. §§ 456-460; Dec. Dig. <&wkey;101.]</p>

<p>1. Carriers ¡&wkey;32 — Rates—Discrimination—Carriage of Carrier’s Property.</p> <p>Conceding that a carrier has no right to enter the field of general business and transport the articles and commodities used and sold therein at less than the regular published rates available to the general public, it has the right to provide eating houses for its passengers and employés at points on its line, and may transport the articles and commodities for the use of such eating houses at less than the full published rate.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 83-85; Dec. Dig. &wkey;32J</p> <p>2. Commerce <&wkey;85 — Interstate Commerce Commission — Powers and Functions. . »'</p> <p>The' establishment by carriers of eating houses for passengers and employés, and the transportation of articles and commodities therefor at less than the published rate, are administrative practices, and the ultimate primary judgment and discretion which govern and condition them is lodged in the Interstate Commerce Commission, to be exercised on request and after due investigation and consideration of the public interest concerned, and in view of the preference and discrimination clauses of the statute.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 138; Dec. Dig. &wkey;85.]</p> <p>3. Commerce <&wkey;92 — Interstate Commerce Commission — Powers op Courts.</p> <p>Courts have no power to fix rates or establish practices for carriers, .and cannot interfere with those fixed and established by the Interstate Commerce Commission, except where the orders are void.</p> <p>[Ed. Note.' — For other cases, see Commerce, Cent. Dig. § 142; Dec. Dig. &wkey;s92.]</p> <p>4. Carriers &wkey;>36 — Interstate Commerce — Actions por Damages — Pleading.</p> <p>The Interstate Commerce Commission adopted a rule that carriers might provide eating houses for passengers and employés, and that property therefor might be regarded as necessary and intended for the use of such carriers in the conduct of their business, but that such eating houses must not serve the general public with food prepared from commodities carried at less than the published rate; and that no utensils, etc., employed in serving others than passengers and employés should be carried at less than tariff rates. In a restaurant proprietor’s action for damages, it was alleged that a railroad company had opened a restaurant in connection with a station, and operated it for the accommodation of passengers and employés; that it also served the general public; that it shipped on its trains free of charge most of the commodities and supplies used in such business, while plaintiff for like shipments was required to pay the regular published rates; that by reason thereof it was able to. sell at prices below those at which plaintiff .could make a profit; that, prior to the establishment of defendant’s restaurant, plaintiff’s daily receipts exceeded §100 a day, and Ms net profits $25 a day; that defendant’s competition liad caused a decrease in tlie daily receipts to less than $50 a day and a decrease in the profits to practically notMng; that plaintiff had been damaged by loss of profits in a sum therein specified; and that there had always been ample facility at plaintiff’s restaurant and other eating houses for the accommodation of the general public, including defendant’s employes. Held, that no cause of action was stated, and the case presented was one requiring determination by the Interstate Commerce Commission as to whether the establishment of an eating house at the point in question was proper, as the petition did not show that all supplies were carried free of charge, nor that the general public was served with food prepared from commodities so carried, but did squarely challenge defendant’s right to establish an eating house at that point, and, moreover, it did not appear that plaintiff’s loss of business was not due to causes not chargeable to defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. <i&wkey;36.]</p>

<p>1. CORPORATIONS &wkey;>642-FOREIGN CORPORATIONS-"DOING BUSINESS” IN State.</p> <p>Complainant, a Delaware corporation, formed for the purpose of promoting corporations to operate hotels in different parts of the United States, entered into a contract in New York with defendant, which was the owner of a hotel in Pennsylvania, by which it undertook to form a corporation to lease and operate defendant’s hotel on terms stated in the contract, which it fully performed. Held, that complainant was not doing business in Pennsylvania, within the meaning of Act Pa. April 22, 1871 (P. L. 108), requiring such corporations to register, maintain an office in the state, etc., and that the contract was valid, although it did not register thereunder.</p> <p>[.It'd. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2327; Dec. Dig. &wkey;>642.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>2. Appeal and Error <&wkey;1008 — Review—Findings op Fact.</p> <p>Where a general judgment for plaintiff is rendered by a federal court, its findings of fact as to special items, like the verdict of a jury, are not subject to review by an appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8955-3960, 3962-3969; Dec. Dig. &wkey;1008J</p>

<p>1. Appeal and Et:eob @^>272 — Reservation of Grounds of Review — Exceptions to Charge.</p> <p>Rev. St. § 918 (Comp. St. 1913, | 1541), authorizes District Courts to-adopt rules regulating their own practice. Pursuant thereto a District Court adopted a rule that points upon which the opinion of the court was desired should be presented at the close of the evidence and before the commencement of the summing up, or that the court might In its discretion refuse to charge upon the points proposed. Held that, where defendant neither conformed to this rule by presenting a point at the close of the evidence, nor appealed to the court to suspend the rule and permit the point to be presented at the close of the charge, but merely noted an exception at the close of the charge to the omission of an instruction on such point, such omission could not be reviewed, as the refusal to give instructions upon points presented after the close of the charge is not subject to exception, and the omission to charge upon a point of law is not open to exception when the desired instruction is not requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1611-1619; Dec. Dig. <S=»272J</p> <p>2. Railroads <©=>327 — Crossing Accidents — Contributory Negligence — - Duty to Stop, Look, and Listen.</p> <p>While it Is the positive and unbending rule in Pennsylvania that one approaching a railroad mast stop, look, and listen, aifd while the law requires a traveler to continue to look and to observe the precautions which the danger of the situation requires, his subsequent conduct, after once stopping, looking, and listening, is not determined by a positive rule of law, but by tbe circumstances of tbe particular case.</p> <p>[Ed. Note. — Bor other cases, see Railroads, Cent. Dig'. §§ 1043-1056; Dec. Dig. <©=>327. ]</p> <p>3. Trial <©=>252 — Crossing Accidents — Instructions—Conformity to Evidence.</p> <p>In an action for damages to a motor truck, struck by a train, where the entire controversy respecting the contributory negligence of the driver of the truck related to his conduct in stopping, looking, and listening at a particular place, and whether that was a proper place at which to stop, look, and listen, and whether ¿t that place he could and must have seen the approaching train and heard the warnings given, and there was no controversy as to his subsequent conduct, and no evidence as to what he did after starting from the place at which he stopped, or whether he continued to look and listen, an instruction that it was his duty to look and listen, as he drove on and across the track from the point where he stopped, would not have been applicable, and the omission thereof was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec.Dig. <©=^252.]</p>

<p>Appeal from the District Court of the United States for the District of Colorado; John A. Riner, Judge.</p> <p>Suit by Duncan L. Jacoway against Charles A. Young and others. From a decree dismissing the bill, complainant appeals.</p>

<p>In Error to -the district Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by E. Lee Trinlde, administrator of A. F. Friend, deceased, against the Lenoir Car Works. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Eastern District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by J. R. Oliphant against the Casey-Hedges Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by Albert Childers against Meers & Dayton. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Carriers <5=3318 — -Actions fob Injuries to Passengers — Sufficiency of Evidence.</p> <p>In an action for the death of a person, struck by a train while at a railroad station for the purpose of faking passage on a train, an admission in the answer that he was struck by one of defendant’s trains, and a stipulation that he was carrying mileage and was a passenger, made a prima facie case for plaintiff.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1270, 1807-1314; Dec. Dig. ©=3818.]</p> <p>2. Carriers ©=>320, 347 — Actions fob Injuries to Passengers — Question for Jury.</p> <p>Tn an action for the death of a person, who went upon planking bp-tween east-bound and west-bound railroad tracks for the pxirpose of taking passage on an approaching west-bound train, though an east-bound train was approaching at the same time, evidence held to make questions for the jury as to defendant’s negligence and plaintiff’s contributory negligence, and as to whether the company, in the exercise of the care required of it, could have seen him and prevented the injury, notwithstanding his negligence.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325, 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. <§==>320, 347.]</p> <p>3. Courts <§=>338 — Jurisdiction—Actions rob Death.</p> <p>Though, under a statute of Illinois, actions for death occurring outside the state of Illinois cannot be brought in the courts of that state, it was not error for the District Court for the District of Minnesota to take jurisdiction of an action for death occurring in Illinois, as it would have been contrary to the public policy of Minnesota to decline jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §' 901; Dec. Dig. <§=>338.]'</p>

<p>.1- Post Office <&wkey;35 — Criminal Offenses — Fraudulent Use of Mails— Elements.</p> <p>Penal Code, § 215 (Comp. St. 1913, § 10385), provides that whoever, having devised any scheme to defraud, shall for the purpose of executing it, or attempting so to do, place or cause to be placed, any letter in any post office, or take or receive therefrom any such letter, shall be punished as therein provided. Held, that the fact that a letter defendants were charged with receiving, from the post office was mailed by their agent did not prevent their act constituting the offense.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent Dig. § 55; Dec. Dig. &wkey;>35.]</p> <p>2. Post Office &wkey;>48 — Fraudulent Use of Mails — Indictment—Sufficiency.</p> <p>An indictment charged the use of the mails for the purpose of executing a scheme to defraud, describfed therein as embracing the purchase and platting into lots of a track of rough and rocky land, devoid of merchantable timber, unfit for cultivation, and some distance from any railroad, town, or hamlet, the printing and distribution of circulars extolling by indirection the value of the lots and the rare opportunity for investment, and the pretended giving away of certain of the lots for the cost of abstracts of title and deeds to induce immigration. It alleged that the lots were of no value whatever for the purposes represented. Held, that the indictment was not defective because of the possibility of a value of the lots for some other purpose, which might save the purchasers from loss, especially as the purchasers were led to believe that they were buying town lots, and not remote little pieces of ground, valueless as such.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <&wkey;>48.]</p> <p>3. Post Office <&wkey;49 — Fraudulent Use of Mails — Evidence.</p> <p>Where a letter defendants were charged with taking from the post office in aid of- such scheme was written to one of' the defendants by a local agent, intrusted with the delivery of abstracts and deeds and the collection of the price from the purchasers, and contained a remittance on account of collections, and mentioned other deeds not delivered, and asked for a plat, it did not, as claimed, show on its face that the scheme had been fully executed.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. t&wkey;49.]</p> <p>4. Criminal Law <&wkey;371 — Evidence—Othijr Offenses.</p> <p>On a trial for using the mails in aid of a scheme to defraud, evidence of a different, but similar, venture by defendants, was properly received as bearing on the question of fraudulent intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. &wkey;>371.]</p> <p>5. Criminal Law <&wkey;402 — Evidence—Best and Secondary Evidence — Letters.</p> <p>On a trial for taking letters from the post office for the purpose of executing or attempting to execute a scheme to defraud, proved copies of letters mailed to accused were admissible, without otherwise accounting for the absence of the originals.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 887, 888; Dec. Dig. <&wkey;402.]</p> <p>6. Post Office <&wkey;35 — ^Fbaubtoekt Use of Mates — Elements of Offense.</p> <p>Penal Code, § 215, provides that whoever, having devised any scheme to defraud, shall for the purpose of executing it, or attempting so to do, place or cause to be placed any letter, etc., in any post office, or shall take or receive any letter therefrom, shall be punished as therein provided. Held that, to constitute the offense, it is sufficient that, having devised a scheme to defraud, the mails are actually used in effecting it, and a purpose to use the mails is not an essentia] element of the scheme devised.</p> <p>[Ed. Note. — Por other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <S&wkey;.‘i5.]</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge. In the matter of J. H. Virgin, bankrupt.’ From an order allowing as a secured claim the claim of the Commercial National Bank of Macon, Ga., but denying it priority over certain other claims, W. E. Martin, Jr., trustee, and others appeal, and tire claimant cross-appeals.

<p>1. Texal <&wkey;136 — Province or Court and Jury — Construction or Contract.</p> <p>In an action' on an indemnity bond, the duty of construing the bond was primarily for the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 318, 320, 321, 323- • 327; Dec. Dig. &wkey;136.]</p> <p>2. Insurance <&wkey;150 — Indemnity Insurance — Risks Assumed.</p> <p>A. bond indemnifying plaintiff against loss on sales of merchandise to parties given specified ratings by a named mercantile agency provided that the term of the bond should he from March 18, 1012, to March 17, 1913, Inclusive, hut that the bond did not cover any loss occurring prior to April 4, 1012, the date of the payment of the premium, though the bond might have been delivered. The application for the bond was made on March 18th, and was accompanied by notes for the premium, with interest from that das'. A rider attached to the bond extended the term back from March 17, 1912, and provided for indemnity against losses occurring during the term of the bond, but after April 4th, on goods sold, shipped, and delivered between December 18, 1011, and March 17, 1012, inclusive. Another rider provided that the notes for the premium should be the same in effect, if paid at maturity, as if the premium had been paid by cheek, and that ali oilier terms and provisions of the bond should remain in full force and effect. It did not appear that the small amount of interest accruing on the notes between the date of the application and the date of the bond was intended to work any change in the bond. I/eM, that the riders did not affect the application of the provision that the bond should not cover any loss prior to April 4th, and such provision was operative, and hence, where sales were made, a loss occurred, and the rating of. the purchaser was detrimentally changed during the term of the bond, but prior to April 4th, there could be no recovery.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 305-307; Dec. Dig. <&wkey;150.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Action by J. A. Earbre and another against E. E. Hood. Decree in favor of defendant (214 Eed. 473), and plaintiffs appeal.</p>

<p>1. Brokees &wkey;58 — Right to Compensation — Procuring Loan.</p> <p>Plaintiff was a building contractor, who sometimes financed building operations by procuring loans sufficient to carry them through. There was evidence tending to show that defendant authorized him, as a broker, to solicit a building- loan; that he rendered services in that regard; that he agreed that, if he secured a building contract from defendant, iie would not make any separate charge for his services in getting the loan; that he did not get such building contract, but that defendant availed itself of his services in negotiating for the loan by effecting it with the company with which he had been negotiating. Heidi that, if this loan was in continuation of the negotiations originally opened up by plaintiff as defendant’s broker, and was not an entirely independent transaction, plaintiff could recover on a quantum meruit.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 74; Dec. Dig. <&wkey;5o.]</p> <p>2. Appeal and Error <&wkey;1001 — Review-—Questions oe Fact.</p> <p>The verdict of a jury, sustained by evidence, is conclusive on appeal, where there are no errors in the charge, or in the admission or exclusion of testimony.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 8928-3934; Dec. Dig. &wkey;1001.]</p> <p>3. Courts <&wkey;356 — Review—Denial oe New Trial.</p> <p>The denial of a motion for a new trial is not reviewable in the federal' courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig.. <&wkey;356.]</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Action .by V. Goode against J. A. Edwards and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from the District Court of the United- States for the Northern District of Georgia; Wm. T. Newman, Judge.</p> <p>Suit by W. A. Carlisle against C. Elmer Smith and others. From a decree dismissing the bill without prejudice (224 Fed. 231), defendants appeal.</p>

Petition to Revise Order of the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge. In the matter of William J. Parmeter, bankrupt. On petition of Roy Butler, trustee, and others, an order of the referee was set aside by the District Court (In re Parmeter’s Estate, 211 Fed. 757), and the bankrupt files a petition to revise.

<p>Bankruptcy <®=>140 — Assets Passing to Trustee — Sales.</p> <p>Before bankruptcy D. & Co. had contracted to deliver cotton to defendants, had selected and set aside certain cotton as being of the required grade, and had weighed, marked, and shipped it to a steamship for the account of defendants. Held, that this constituted an appropriation and delivery in law, and the cotton had therefore entirely passed beyond the control of the bankrupt before the date of bankruptcy, whether a bill of lading for the cotton obtained by defendants was obtained before or after the bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. <&wkey;140.]</p>

D. Day, Judge. Suit in admiralty by the Australia Transit Company? owner of the steamer Polynesia, against the steam tugs Charnley and Mosher; the Dunham Towing & Wrecking Company, claimant. Decree for libel-ant, and claimant appeals.

<p>Shipping <&wkey;t(> — Regulation op Steam Vessels — Suit foe Violation op Regulations.</p> <p>A libel by the United States against the owner of a steam vessel to recover the penalty imposed for violation, of Rev. St. § 4463, by failing to have on board on a voyage a licensed mate, considered and held sufficient.</p> <p>[Ed. Note. — Ear other cases, see Shipping, Cent. Dig. §§ 30-44; Dec. Dig. <&wkey;16j</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 Pittsburgh Water Heater Company against the Beler Water Heater Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <&wkey;328 — -Validity—Apparatus for Making Water Gas.</p> <p>The Rusby patent, No. 857,760, for a water gas apparatus, the principal feature of which is an ajutage indicating to the operator the rate and quantity of flow of air into the generator, held void on the ground that the relation of the ajutage to the other parts of the apparatus is that between the items of an aggregation, and not that between the elements of a combination.</p> <p>2. Patents &wkey;s26 — Validity—Combination or Aggregation.</p> <p>A patentable mechanical combination, cannot exist when the product delivered by one device is, by the attendant workman, carried over and used on another machine, and it is not controlling, whether he does this carrying over in his hand or in his head, as by observing a gauge and acting at a time determined thereby.</p> <p>[Ed. Note. — For other casesj see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <&wkey;26.]</p> <p>3. Patents <&wkey;26 — Validity—Combination or Aggregation.</p> <p>A mere measuring device, which does nothing and can do nothing except to give the operator information as to how much material is going into a machine, is no part of a true combination of the operative elements of the machine.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. &wkey;j26.]</p>

<p>1. Patents <&wkey;51 — Anticipation—“That Which Infringes nr Latee,” Etc.</p> <p>Although an invention is made for use in a particular business, yet, if the claims are not limited thereto, the field of prior art must be as broad as the field of infringement, and anticipations or limitations may be looked for in any art within the scope of the invention as fixed by the claim.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. §§ 66-69, 72, 74; Dec. Dig. <&wkey;51.]</p> <p>2. Patents <&wkey;26 — Invention—Problems Peculiar to One Use.</p> <p>Even though claims may not be limited to one application of a device, the problems peculiar to that application may bear on the existence of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. - Dig. §§ 27-30; Dee. Dig. &wkey;26.]</p> <p>3. Patents <&wkey;328 — Invention—Aggregation—Validity and Infringement —Staple Machine.</p> <p>The Hoxie patent, No. 879,965, for a staple forming and discharging mechanism, held, to involve invention, not aggregation. Claims 2, 3, 7, and 12 held infringed.</p> <p>4. Patents &wkey;>167 — Validity—Sufficiency oe Specification.</p> <p>A patentee is entitled to the benefit of every function within the scope of the claims and actually possessed by his mechanism, even if he does not know of it at the time of patenting, and it is not necessary that he should enumerate its advantages.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dec. Dig. &wkey;>187.]</p> <p>5. Patents &wkey;>101 — Claims—Functional.</p> <p>A claim is not invalid, because functional, if it is not beyond the broadest equivalency of which the real invention permits.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 141; Dec. Dig. &wkey;>101.]</p>

<p>Appeal from the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p> <p>Suit in equity by the American Sulphite Pulp Company against the Munising Paper Company, Dimited. Decree for complainant, and defendant appeals.</p>

<p>Patents <&wkey;328 — Validity and Infringement — ’Electric Railway Signaling System.</p> <p>The Stmble patent, No. 819,322, for an electric signaling system for use on electric railways, in view of the prior art, and especially of the Spang- patent, No. 168,059, for an electrical railway signaling apparatus, does not cover a broad or generic Invention, but must be limited to the specific construction shown. As so construed, held not infringed.</p>

<p>Patents ®^>328 — Validity and Infringement — Design fob Pencil Clip.</p> <p>Tile Byers design patent, No. 45,102, for a design for a pen or pencil clip in the form of a serpent, to avoid anticipation by the prior art, must be limited to the special configuration shown, and, as so construed, held not infringed.</p>

<p>In Equity. Suit by the Metal Products Corporation against the R. E. Thornton Company. On final hearing. Decree for defendant.</p>

<p>In Admiralty. Action by the Berwind-White Coal Mining Company against the Eastern Steamship Corporation. On motion by the receiver of the defendant to modify an order giving leave for the commencement of actions at law against the receiver.</p>

At Law. Action by Frank Takacs against the Philadelphia & Reading Railway Company. On motion to set aside the service of the summons and complaint. The plaintiff alleges that at the time of the commencement of this action he was and still is a resident of the state of New York, Southern district of New York, and that on June 30, 1914, at Port Reading, in the state of New Jersey, he was injured through the fault of defendant.

<p>At Raw. Action by Johnson & Higgins, a corporation, against the Harper Transportation Company. Judgment for plaintiff.</p>

<p>In Equity. Bill by Joseph M. Dreyer, trustee in bankruptcy of tire Perkins Lumber Company, against W. T. Kicklighter. Decree for complainant.</p> <p>In the first part of the year 1912, certain creditors of the Perkins Lumber Company, a corporation of this district, obtained judgments against that company in the justice court of the 1607th district, G. M., of Tattnall county, and executions were duly issued on these judgments. These executions were turned over to the constable of the 401st district, G. M., and they were by him on the 9th day of April, 1912, levied upon a certain skidder as the property of the defendant company, and on the third Saturday in April, 1912, to wit, April 20, 1912, said skidder was sold at public outcry by the constable and bought by one Dr. Ellabee acting as agent for the defendant, W. T. Kicklighter, at the price of $200. Subsequently on May 4, 1912, a petition in involuntary bankruptcy was filed ágainst the Perkins Lumber Company and an order of adjudication was entered on May 24, 1912, and thereafter Mr. A. E. Moyuelo was appointed trustee for the bankrupt, and on the 26th day of June, 1912, the trustee brought a bill in equity against the defendant, Kicklighter, for the recovery of said skidder or its value, which was claimed to be $1,000. Moyuelo died while the suit was pending, and Mr. Joseph M. Dreyer was elected trustee in his stead, and the bill proceeded in his name. Complainant alleged that the bankrupt was hopelessly insolvent for many months preceding its adjudication, and that during this time its business was shut down and its affairs were in the hands of a committee of creditors, and that these facts were well known to the defendant, Kicklighter, and that the judgments were rendered and the sale occurred within four months of the filing of the petition in bankruptcy; that the property was not exposed at the place of sale when sold by the constable; that the defendant, Kick-lighter, conspired with the constable and with the plaintiffs in fi. fa. in having the sale made secretly and without notice to the Perkins Lumber Company or any of its officers or agents or attorneys; that the property was bid off at the inadequáte price of $200. whereas as a matter of fact it was worth $1,000; and that for this and other reasons the said defendant was not a bona fide purchaser for value, and that the sale was void. The trustee prayed that the sale be declared null and void and that he be allowed to recover the property or its value for administration as a part of the estate of the bankrupt. The defendant demurred to the petition, and the demurrer was overruled, and thereupon the case proceeded to a trial upon its merits.</p>

<p>In Equity. Suit by Knox & Lewis, receivers of the Hilton & Dodge Lumber Company, against William Alwood and others. On plea to jurisdiction and of res judicata.</p> <p>This is a bill brought by the receivers of the Hilton & Dodge Lumber Company to enjoin respondents from cutting timber on certain lands. Both of the parties in this case derived their title to the timber in dispute from a common grantor. It appears that B. L. Lane once owned the land upon which said timber is located, together with the timber, and that by item 3 of his will, which was probated on April 1, 1895, he devised said land to his son, George W. C. Lane,- “for and during his natural life, with remainder to his living children at the time of his death.” The twelfth item of his will is as follows: “It is my will that my children whom I have hereinbefore given life estates in the lands of this will given, shall have the full power and authority to sell and dispose of the timber on all said lands, and shall have the full use and enjoyment of said lands, without impeachment of waste. Said Emma S. Lane, as trustee for Lucinda V. Lane, shall have the same power and authority in the disposition of the timber on the lands given herein to said Lucinda V. Lane, applying all money arising from such disposition of said timber to the support and maintenance of the said Lucinda V. Lane.” On February 6, 1902, George W. C. Lane sold and conveyed, by deed with warranty of title, to the Hilton & Dodge Lumber Company, “all the cypress timber and trees of every sort and description” on the land which had been devised to him by the third item of said will. The deed contained the following covenant: “It is agreed that the time limit of this conveyance as above set forth shall be 20 years from the date of this conveyance, but the first parties agree that the said time limit may be extended from year to year thereafter, not exceeding 10 years’ extension, upon the payment by the second party, its successors, or assigns, of interest on the original purchase price at the rate of 6 per cent, per annum.”</p> <p>The defendants, William Alwood et al., derived title by mesne conveyances from the remaindermen under the will of B. L. Lane, and entered upon the lands in question and began to cut the timber therefrom. Thereupon the Hil- ■ ton & Dodge Lumber Company filed a petition in the superior court of Jenkins county on July 22, 1913, against said William Alwood et al., praying for an injunction. The state court heard the petition upon the application for temporary injunction and granted an order temporarily enjoining both parties, and this order was carried to the Supreme Court of Georgia and reversed, as may be seen by reference to the opinion of the court set out in 141 Ga. 653, 81 S. E. 1119.</p> <p>, Thereafter a bill was filed against the Hilton & Dodge Lumber Company in the District Court of the United States for the Southern District of Georgia, and receivers were appointed for said corporation, and this court thereupon took charge of the assets of said company and is administering same. .Said receivers dismissed the action in the state court, and have, brought this bill in this court, praying for an injunction against the defendants as to the timber in question. The respondents have filed a plea to the jurisdiction of this court on the ground that there is no diversity of citizenship or federal question involved; and they also file a plea of res judicata, claiming that all questions here involved have been concluded by the litigation in the state court.</p>

<p>1. Sales <§=>474 — Conditional Sales — Building Contracts — Rights or Subcontractors.</p> <p>Plaintiff supplied certain electrical apparatus to general contractors working on a construction contract, reserving title tliereto. Payment was not made, tlie general contractors became insolvent, and the contract was completed by their receivers. Sufficient money was due from the owner’to pay for the apparatus, and plaintiff sued to require payment thereof to it, on the theory that an equitable lien or trust was impressed thereon in its favor. The owner had made substantial payments to the general contractors, on architects’ estimates of the total work done, without notice of any equities of plaintiff, and the receivers had completed the contract at considerable expense on the faith of the situation as it appeared to he. It was admitted that under the law of Pennsylvania condi-tionol sales were void as against bona fide purchasers and. execution creditors, and that the receivers had the standing of creditors, field, that plaintiff had neither a legal right nor an equity to the balance due; it being a principle of the common law that a transfer of chattels under circumstances implying a sale passes title clear of secret Hons and unaffected by any secret verbal retention of title, except as against those who are in the secret.</p> <p>fUd. Note. — For other cases, see Sales, Cent. Dig. §§ 1391-1402; Dec Dig. ©=3474.1</p> <p>2. Courts ©=5367 — United Status Courts — State Laws as Hules of Decision.</p> <p>The contract being a Pennsylvania contract, the law of that state was a rule of property, to be applied as such in the courts of the United States in any controversy over the right of property, whether the right was invoked in an action at law or in proceedings in equity.</p> <p>[Kd. Note. — For other cases, see Courts, Cent Dig. §§ 938, 959; I>ec. Dig. <8=>3C7.]</p>

<p>In Equity. Suit by the Triumph Electric Company against Louis H. Thullen. On trial hearing on bill, answer, and proofs.</p>

<p>In Bankruptcy. In the matter of the Associated Trust Hotels, Incorporated, bankrupt. On review of two orders of the referee.</p>

<p>1. Bankruptcy C=>474 — Costs and Fees — Liability op Secured Creditors.</p> <p>An insolvent firm, whose property was covered by valid mortgages executed more than four months prior thereto, executed a deed of trust or assignment directing a sale of the property, the payment of the mortgages, and the payment of any balance to general creditors, whereupon unsecured creditors filed a petition in bankruptcy, and upon demand the assignee surrendered the property to tile trustee, who sold it for less than the secured indebtedness. There were practically no other assets. The mortgagees took no action, except to assert their right to the proceeds of the property, and did not ask the aid of the bankruptcy court to foreclose their mortgages. /I old, that the cost of the bankruptcy proceeding, including the trustee’s commissions and the 1 allowance to the counsel for the petitioning creditors, equal to 15 per cent, of the proceeds of the properly, could not be paid from such proceeds, as neither the execution of the deed of assignment, the surrender of possession by the assignee, nor the failure to oppose an adjudication affected or imposed any liability upon the property of the mortgagees, and their rights could not be affected by the existence or nonexistence of other assets.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 878-884 ; Dec. Dig. <©=>474.1</p> <p>2. Bankruptcy @=>58 — Act of Bankruptcy — Assignments for Benefit of Creditors.</p> <p>Where an insolvent firm, whose property was covered by valid mortgages executed a deed of trust or assignment of the property directing a sale thereof, the payment of the mortgages and the payment of the balance to general creditors, this constituted an act of bankruptcy within Bankr. Act July 1, 1898, c. 541, § 3a (4), 30' Stat. 5-16 (Comp. St. 1913, § 9587), specifying as an act of bankruptcy the making of a general assignment for the benefit of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 57, 72-79, 83; Dec. Dig. <5=>58.]</p> <p>3. Bankruptcy <S=>258 — Administration of Estate — Incumbered Property.</p> <p>When property of a bankrupt is subject to valid liens or mortgages, the trustee may, if in his judgment the equity is of value and will yield any benefit to the estate for unsecured creditors, take possession and sell it free from the mortgage liens, in which event the lien will attach to the proceeds in his hands, or he may sell the equity of redemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 358, 359, 362; Dec. Dig. <§=>258.]</p> <p>4. Bankruptcy <§=>178 — Property Passing to Trustee — Avoidance of Assignments for Creditors.</p> <p>Where an insolvent firm, whose property- was covered by mortgages, executed an assignment directing a sale of the property, the payment of the mortgages, and the payment of any balance to general creditors, whereupon a petition in bankruptcy was filed, the adjudication in bankruptcy avoided the assignment, and tide property, subject to tbe mortgages passed to tbe trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 221, 264-274, 283, 284; Dec. Dig. <©=178.1</p> <p>5. Bankruptcy <@=247 — Duties op Tbustee — Incumbered Peopeety — Requesting Instructions.</p> <p>When a trustee finds that a bankrupt owns property subject to liens, he should petition the court for instructions as to the course which he should pursue.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 346; Dec. Dig. <@=247.]</p> <p>6. Bankruptcy <@=231 — Meetings op Ceeditoes — Purposes.</p> <p>Under Bankr. Act, § 55d (Comp. St. 1913, § 9639), providing that a meeting of creditors- subsequent to the first one may be held at any time and place, when all creditors who have secured the allowance of their claims sign a written consent, and section 55e, providing that the court shall call a meeting of creditors whenever one-fourth or more in number of those who have proven their claims shall file a written request to that effect, the referee, if in his judgment it is advisable, may call a meeting of the creditors in order, that they may be heard before any action is taken with respect to property subject to liens, subjecting the estate to possible cost and expense.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 541; Dec. Dig. <@=231.]</p>

<p>In Equity. Suit by the Rome Railway & Eight Company against Eloyd County, Ga., and the Board of Commissioners of Roads and Revenues oí Bloyd County, to wit, J. G. Pollock, J. S. Davis, C. I,. Conn, C. M. Young, P. C. Griffin, and W. IE Horton. Decree for defendants.</p>

<p>1. New TRIAL <&wkey;14 — ScorE or Motion — Change or Theory.</p> <p>Wiiere plaintiff elected to try a case on one of two theories upon which he might have asked for a verdict, and the ease was in consequence so submitted to the jury, it was too late on a motion for a new trial to try it otherwise.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 20; Dec. Dig. <S=»14.]</p> <p>2. Bankruptcy @=»140t — 'Voidable Preferences — Sales—Reclamation of Property.</p> <p>As claimed by defendant, he sold cows at public vendue, the conditions of which were that there was no sale until the amount bid was paid. The bankrupt was a bidder, and made a deposit on his bid, but did not make payment in full, and the cows were driven to a public house, and were not to become the property of the bankrupt until payment was completed. The bankrupt, however, took the cows to his farm, and defendant, fearing loss of Ms money, reclaimed them, and agreed to and did resell them on the bankrupt’s account. Held that, if these were the facts, defendant was not liable to the trustee in bankruptcy for the value of the cows, though they were reclaimed within four, months before bankruptcy and at a time when defendant was charged with notice of the bankrupt’s insolvency, as neither the-bankrupt nor the trustee ever had title, and defendant retained title, except as against bona fide purchasers for value or creditors.</p> <p>[Eel. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 2.19, 225; Dec. Dig. <&wkey;140.]</p> <p>3. Courts <&wkey;107 — Precedents—Force and Effect.</p> <p>A judicial opinion is to be read in the light of the facts of the case.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 360; Dec. Dig. &wkey;107J</p> <p>4. Bankruptcy <&wkey;303 — Preferences—Actions—Evidence.</p> <p>In an action by a trustee in bankruptcy for the value of property claimed to have been sold to the bankrupt and retaken by defendant within four months before bankruptcy, thus securing an unlawful advantage, where defendant claimed that there was to be no sale until payment, evidence as to former dealings between* the parties had no relevant bearing upon the ease, as the transaction involved was based upon a special and specific arrangement. ,</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 1155-1158, 1161; Dee. Dig. &wkey;303.]</p> <p>5. Witnesses <&wkey;262 — Examination—Recall.</p> <p>Tlie recall of a witness, who had already testified fully, was a matter within the discretion of the trial judge.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 797, 899, 904, 1165; Dee. Dig. <&wkey;>262.]</p>

<p>Limitation of Actions &wkey;>85 — Limitations Applicable — Actions on Penal Statute.</p> <p>Sherman Anti-Trust Act July 2, 1890, c. 617, § 7, 26 Stat. 210 (Comp. St. 1913, § 8829), provides that any person who shall he injured in his business or property by any other person or corporation, by anything forbidden or declared to be unlawful by that act, may sue therefor and recover threefold the damages by him sustained, with costs and a reasonable attorney’s fee. Rem. & Bal. Code Wash. § 159, subd. 2, requires an action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the per-sou or rights of another not thereinafter enumerated to be brought within three years. Subdivision 6 requires an action upon a statute for a penalty or forfeiture, where an action is given to the party aggrieved, or to such party and the state, to be brought within three years, except when the statute imposing it prescribes a different limitation. Section 165 provides that an action for relief not thereinbefore provided for shall bo commenced within two years. Held, that an action for damages under the Sherman Act is properly brought within three years, as the statute upon which recovery is predicated is penal, while the right of recovery under section 7 is private and remedial, and under any view of the provisions of section 159 the two-year limitation does not apply.</p> <p>[Ed. Note. — For other cases, see "Limitation of Actions, Gent. Dig. §§ 109, 158-167; Dec. Dig. &wkey;>35.]</p>

<p>Proceeding to punish the Indepehdent Publishing Company and another for contempt.</p>

<p>At Law. Action by the Maine Northwestern Development Company against the Northwestern Commercial Company. On motion for a nonsuit.</p>

<p>i. Bankruptcy <&wkey;409 — Discharge—Grounds for Denial — Failure to Keep-Books.</p> <p>Bankr. Act July 1, 1898, c. 541, § 14b (2), 30 Stat. 550, as amended, by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (Comp. St. 1913, § 9598) provides for the denial of a discharge where the bankrupt with intent to conceal his financial condition has destroyed, concealed, or failed to keep books of account or records from which such condition might be ascertained. A bankrupt in business for three years in a large commercial center, who owed about $7,500, and whose goods on hand were inventoried at $4,000, and who had a bank deposit and drew checks, kept no sales book, cash book, or expense book, and turned over to the trustee no books whatever, except a check book, a pass book, and some canceled checks and bills outstanding, and some bills collectible. His only explanation of his financial troubles and the disposition made of the goods purchased, or the proceeds of their sale, was that he had gambled, and had lost several hundred dollars gambling. Held, that the conclusion was natural, and almost irre-sistiblo, that his failure to keep books was with intent to conceal his financial condition, especially as a man is presumed to intend the logical and inevitable results of his conduct.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §1 73!), 752-757; Dec. Dig. &wkey;10i>.]</p> <p>2. Bankruptcy &wkey;>414 — Discharge—Objections-—Burden or Brook.</p> <p>On objections to a bankrupt’s discharge on the ground that he has destroyed, concealed, or failed to keep books of account or records from which his financial condition might bo ascertained with intent to conceal such condition, the objecting creditor has the burden of establishing the unlawful intent.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. |§ 720-722; Dec. Dig. &wkey;>114.]</p> <p>8. Bankruptcy <&wkey;414 — Discharge—Objections—Evidence.</p> <p>On objections to a bankrupt’s discharge, the intent with which he failed to keep books may be shown by resorting to the same methods of proof as for any other fact; and, being a fact peculiarly and, so far as direct evidence goes, exclusively within the knowledge and keeping of the bankrupt, the court may resort to inferences from conceded or established facts.</p> <p>fEd. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 720-722; Dec. Dig. <&wkey;114.'J</p> <p>4. Bankruptcy <&wkey;400 — Exemptions—Setting Apart.</p> <p>Bankr. Act July 1, 1898, § 6 (Comp. St. 1913, § 9590), provides that that act shall not affect the allowance to bankrupts of exemptions prescribed by the state laws. Section 47 (section 9831) requires trustees to set apart the bankrupt’s exemptions and report the items and estimated value to the court as soon ¡is practicable after their appointment. General Order 17 (8!) Fed. xix, 32 O. O. A. xix) requires the trustee, within 20 days after receiving notice of his appointment, to make a report of the articles set off to the bankrupt. Hold, that the bankrupt’s exemptions should have been set apart to him from his property, instead of paying the amount iheteof to him in cash from the proceeds of a sale of the property at about 25 nor cent, of its inventoried value.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 670-6*75; Dec. Dig. <&wkey;400J</p> <p>5. Bankruptcy &wkey;>115 — Application por Discharge — Certification to J huge — Delay.</p> <p>Under the provision of the Bankruptcy Act requiring every step in the administration and closing of the estate to be taken with all reasonable dispatch, a delay of several months in certifying 1 o the judge an application for a discharge to which a creditor filed objections was unreasonable,</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 698-708, 719, 723,724,726,728; Dec. Dig. <&wkey;4i5.j</p>

<p>1. Bankruptcy <&wkey;288 — Common-Daw Assignee — Account—Summary Proceedings.</p> <p>Where a common-law assignee carried on. the business of a bankrupt for several days after the petition was filed, and then closed out the business by selling all of the assets, and paid over to the trustee the amount claimed by him. to be due after deducting payments made after the institution of the bankruptcy proceedings, the bankruptcy court had power to settle his account with the trustee in summary proceedings, as a common-law assignee is to. be regarded as an adverse claimant, and not amenable to summary process, only as to payments or dispositions of property made by him in good faith before the institution of the bankruptcy proceedings and as to liens in his favor which accrued prior to that time. 1</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <&wkey;>288.]</p> <p>'2. Bankruptcy <&wkey;186 — Common-Baw Assignee — Interference with Prop- ■ erty — Liability.</p> <p>After the filing of a petition in bankruptcy, a common-law assignee acts at his peril in carrying on the bankrupt’s business, selling it out, and winding it up, or in doing anything beyond what is necessary to preserve the property in his hands when the petition is filed, as Bankr. Act July 1, 1898, c. 541, 80 Stat. 544, gives creditors the right to have the assignment superseded and set aside, and the filing of the petition is notice that the petitioning creditors object- to the assignment and oppose liquidation of the bankrupt’s affairs thereunder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 285, 319; Dec. Dig. <&wkey;>18G.]</p> <p>■3. Bankruptcy &wkey;>186, 803 — Common-Daw Assignment — Validity of As-signee’s Acts.</p> <p>Common-law assignments are not outlawed by the Bankruptcy Act, and where creditors allow the assignee to continue in possession and operate the business, the assignee is not necessarily to be charged with a resulting loss, whether occurring before or after the filing of the petition in bankruptcy. The burden is upon a bankrupt’s assignee to satisfy the bankruptcy court that in carrying on the business after the Institution of bankruptcy proceedings he acted in good faith and with sound business judgment.</p> <p>¡Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 285, 319, 458-102; Dec. Dig. &wkey;»18G, 303.]</p> <p>i. Bankruptcy &wkey;>18(¡- -Common-Law Assignee’s Diauility for Losses mom Carrying on Business.</p> <p>A bankrupt’s assignee was liable for a loss incurred by him in .currying on the bankrupt’s business, where there was no finding that it was good judgment on his part to cominue the business, and he did not show what part of the loss was incurred before and what part after the filing of the petition in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 2S5, 319; Dec. Dig. &wkey;186J</p>

<p>At Law. Action by the City of Memphis, Tenn., against the Board of Directors of St. Francis Levee District and others. On plea in abatement by the defendant named.</p>

<p>1. Courts <&wkey;489 — Federal Courts — Jurisdiction.</p> <p>A federal court has jurisdiction of a suit to enjoin the enforcement of a state statute which is in violation, of the federal Constitution.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 404, 1324-1330, 1333-1341, 1372-1374; Dee. Dig. &wkey;i8!).]</p> <p>2. Commerce <&wkey;60 — Interstate Commerce — Interference by State.</p> <p>The Michigan “Blue Sky Law” of 1915 (P. A. Mich. 1915, No. 46), which prohibits the sale in the state of the stock or securities of any investment company until it shall have obtained the approval oJ: the State Securities Commission, which is authorized to make any examination it may see fit of the business and property of the company at the company’s expense, and to withhold its approval if it finds that the proposed plan of business of the company, or its proposed contracts, stock, bonds, or other securities, are fraudulent, or are of such, a nature that their sale “would in the opinion of said commission work a fraud upon the purchaser,” held void, as imposing a direct burden upon interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. <&wkey;G0.]</p>

<p>1. United States <&wkey;67 — Contbactobs’ Bonds — Liability.</p> <p>A dredging contract with the United States required the contractor to dredge to a depth of 35 feet, entitled him to be paid for material dredged to a depth of 36 feet, provided that for material taken from below that depth he should not be paid, and specified the manner of making deductions for dredging below that depth, but .did not forbid dredging below such depth. It expressly gave the United States the right to recover from the contractor in certain cases, but contained no such provision in regard to possible overpayments. Held, that neither overdredging nor a failure to repay payments made by mistake for dredging done below a depth of' 36 feet constituted a breach of the contract, within a bond conditioned for the performance by the contractor of all covenants, conditions, and agrees ments agreed to be performed by him, and while the United States might have a claim against the contractor in the nature of an action for money had and received, it had no cause of action on the bond.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <&wkey;67.]</p> <p>2. United States <&wkey;67 — Oonteaotob’s Bonds — Liability.</p> <p>Sums expended by the United States for inspection and supervision, after the time when by the terms of a contract the contractor was to have completed tbe work, were caused by the contractor’s breach of the contract, and were recoverable on a bond conditioned for performance of the contract by the contractor.</p> <p>| Ed. Note. — .For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <&wkey;>67.]</p> <p>3. Bonds <&wkey;124 — Actions—Deolabation—Requisites and Sufficiency.</p> <p>Rev. Daws Mass. c. 173, § 6, cl. 11, provides relative to declarations that the condition of a bond or oilier conditional obligation, contract, or grant declared on shall be set forth, that the breaches relied on shall be assigned, and that the, performance of conditions precedent to the right of the plaintiff to maintain his action shall be averred, or that his reason for nonperformance thereof shall be stated. Relé that, in an action on a bond, the breaches relied upon should have been assigned and so separated that it would be possible to make a proper order upon a demurrer as to each.</p> <p>[Ed. Note. — For other cases, see Bonds, Cent. Dig. §§ 98, 157-179; Dec. Dig. <&wkey;124.]</p>

<p>1. INJUNCTION <&wkey;118-ENJOINING ACTION AT LAW-PLEADING.</p> <p>A contract was made between P. and W. on tha one side, and the Signaling Company on 'the other, whereby the company agreed to pay F. and W. ^300,000 out of profits and to do certain other specified things. F., alleging that lie acted under W.’s consent, modified this contract by a subsequent agreement with the Signaling Company, under which the rights formerly secured to F. and W. ran to F. alone. F. brought suit on the modified contract. W. filed this bill to enjoin prosecution of that suit, upon the ground that W. never consented to the modification of the contract. On motion to dismiss, held, that a cause of action was stated.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Big. <&wkey;118.]</p> <p>2. Injunction <&wkey;26 — Enjoining Proceedings at Law — Jurisdiction.</p> <p>F. and W. were joint parties to a contract, and it liad been held that any claim under the contract must be made by both jointly. As claimed by W., F.. without W.’s consent, agreed to a modification of the contract, and without Ms consent brought an action at law on the modified contract, and W. sued to enjoin the further prosecution of such action by F. Held that, as any claim under the original contract must be made jointly, anything which would defeat an action thereon by F. would defeat an action altogether, and a judgment in his favor on the modified contract would bar any action on the original contract, and W.’s rights were thus involved in the pending action, and hence W.’s petition for an injunction involved a settlement of rights between joint tenants or joint owners of property and was within the jurisdiction of equity.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24^49, 5-1-61; Dee. Dig. <&wkey;26.]</p>

<p>In Equity. Suit by the Providence Building Company against the Atlantic National Bank and another. On defendants’ demurrers to the declaration, and on plaintiff’s motion to remand.</p>

<p>In Equity. Suit by the Wayne County Securities Company against Marvin Hughitt, Jr., and others, partners, doing business as the Chicago Car Lumber Company.</p>

<p>1. PARENT AND CHILD <&wkey;G-JRrGHT TO CHILD’S SERVICES AND EARNINGS — EVIDENCE.</p> <p>The presumption is that a father is entitled to the wages of a minor child, hut the presumption is easily overcome by evidence that the child has been emancipated or given the earnings in question.</p> <p>[Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 77-85; Dee. Dig. <&wkey;6.]</p> <p>2. Bankruptcy <&wkey;331 — Proofs op Claims — Persons by Whom Made.</p> <p>Proof of a claim, against a bankrupt estate for labor performed by a minor was properly made by the minor’s father, where there was no evidence that the minor had been emancipated or given the earnings in question.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 520; Dec. Dig. &wkey;>331.j</p> <p>3. Bankruptcy <&wkey;828 — Proofs of Claims — Time for Filing — Correction.</p> <p>Where a claim against a bankrupt estate was seasonably delivered to the referee, but lacked a statement of the official character of the officer signing the jurat, and the referee therefore returned it to the creditor’s attorney for correction, and it was not redelivered to the referee for about two years, the claim was properly allowed, as it was sufficient as originally filed to form the foundation for a good proof of claim by perfecting amendments, and the referee had no right to refuse to receive and file it when first tendered.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. &wkey;j;>28J</p> <p>4. Bankruptcy i&wkey;330 — Proofs of Claims — Sufficiency.</p> <p>Where the proof of a claim against a bankrupt estate on a judgment for labor performed incorporated a copy of the judgment, which showed all facts necessary to ascertain the true character of the claim, and also made a statement as to the date of the services, it was largely for the referee to determine what further particularity of details should be required; and where neither the trustee nor other creditors were misled or hindered by lack of information as to the precise nature of the claim, the referee did not exceed his powers in treating the proof as adequate, though it was claimed that it was not properly itemized.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 517, 519, 521; Dec. Dig. <&wkey;33(k]</p> <p>5. Bankruptcy <&wkey;348 — Priority of Claims — Effect of Judgment.</p> <p>The priority given a claim for wages earned within three months by Bankr. Act July 1, 1898, c. 541, § 04, 30 Stat. 563 (Comp. St. 1913, § 9018), is not lost by reducing the claim to judgment before the institution of bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 536; Dee. Dig. <&wkey;>318.]</p>

<p>At Law. Trespass by Mary R. Leister against George C. Hulick. On rule to set aside service of summons.</p>

<p>At Law. Trespass by Mary R. Feister against J. W. Mills. On rule to set aside service of writ of summons.</p>

<p>At Law. Two actions, by T. C. Trana and wife and by W. D. -Marston, as administrator of Alice Jessie Marston, deceased, against the Chicago, Milwaukee & Puget Sound Railway Company and another. On petition for rehearing of motion to remand.</p>

<p>1. Action &wkey;>30 — Joinder of Causes — Parties and Interests involved.</p> <p>Under Rem. & Bal. Code Wash. § 102, providing that persons severally liable upon the same obligations or instruments, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of plaintiff, parties involved in the same transaction as maker of a note and guarantor under a separate instrument may be sued jointly.</p> <p>[Ed. Note. — For other cases, see Action, Cent Dig. §§ 511-547; Dec. Dig. <&wkey;50.]</p> <p>2. Removal of Causes <&wkey;49 — 'Separable Controversies — Joint or Several Causes of Action.</p> <p>Rem. & Bal. Code Wash. § 192, authorizes plaintiff to sue all or any of the persons severally liable upon the same obligation or instrument in the same action. Judicial Code (Act March 3, 1911, c. 231) § 28, 36 Stat. 1091 (Comp. St. 1913, § 1010), provides that when, in any suit mentioned in that section, there shall be a eontrovei’sy which is wholly between citizens of different states and which can be fully determined as between them, any defendant actually interested in such controversy ma.y remove such suit into the District Court of the United States. Plaintiff loaned money to a gas company on its note, and a surety company by separate instrument guaranteed payment of the note. Held, that an action against both companies to recover the amount due on the note involved no separable controversy and was not removable, as the complaint stated but a single cause of action, and though the defendants ma.y have had separate defenses, this did not create a separable .controversy.</p> <p>[Ed. Note. — For other eases, see Removal of Causes, Cent. Dig. §§ 95-99; Dee. Dig. <&wkey;49.'I</p> <p>3. Removal of Causes <&wkey;49 — Separable Controversies — Joint or Several Causes of Action.</p> <p>Where plaintiff elects to sue defendants jointly, the fact that he might have sued them separately does not give a defendant the right to say that the action shall be several for the purposes of removal.</p> <p>[Ifld. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 95-99; Dec. Dig. &wkey;49J</p>

<p>1. Trade-Masks and Trade-Names <&wkey;3 — Names Subject to Appropriation —Dekcbipttve Words.</p> <p>Sueli words as “norub” or “nodust” cannot be registered as a trademark, when merely descriptive, and not constituting a fanciful title.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names,-Cent. Dig. |§ 4-7; Dec. Dig. <&wkey;3.]</p> <p>2. Trade-Marks and Trade-Names <&wkey;60, 70 — Unfair CoMPETrjTON- — AcT8 Constituting.</p> <p>Plaintiffs sold a laundry washing aid known as “Norub” under a registered trade-mark consisting of a shield inclosing certain words, the name of the article being outside the shield. Defendant sold a powder used as a germicide and cleanser in sweeping in cans bearing the word “Nodust” and other words inclosed in a shield similar to plaintiffs’ shield, the word “Nodust” being made prominent. The shield was with difficulty distinguished from the general lines or rulings upon the design of the can itself. Held that, while there was no infringement of the registered trademark, the association of a shield of the particular shape with the name of defendant’s article was unfair competition, and would be enjoined, in view of the fact that both articles were for household use and intended for the same general class of customers.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 73, 74-, 81; Dee. Dig. &wkey;60, 70.]</p>

<p>In Bankruptcy. In the matter of the Mt. Winans Lumber Company, bankrupt. On review of an order of the referee granting the petition of Joseph Thomas & Son.</p>

The plaintiff below is a citizen of the state of New York, and brings this action as assignee of the Duluth Dog Company, a corporation organized and existing under the laws of the state of Minnesota. The El Dia Insurance Company is a corporation organized and existing under the laws of the kingdom of Spain, having its principal office in the city of Madrid.

<p>1. Court§ <@=>367 — Federal Courts — Authority of State Decisions.</p> <p>Upon the question of the sufficiency of a title to real estate, the decisions of the Supreme Court of the state fix a rule of property which the federal courts will follow.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. <@=>367.]</p> <p>2. Vendor and Purchaser <@=>102 — Rights of Parties to Contract — Rescission by Vendor.</p> <p>Where by reason of an outstanding mortgage a vendor could not malte the clear title required by his contract and the purchaser refused to make payment, an immediate declaration pf forfeiture by the vendor, on discharging the mortgage, without previous notice to the purchaser, was ineffective; but the commencement of an action for damages by the purchaser for breach of contract operated as an acceptance of the tendered forfeiture and rendered it effective from that date.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 175-177; Dec.. Dig. <@=*102.]</p> <p>3. Vendor and Purchaser <@=>130 — Title oe Vendor — Eeeect of Condition</p> <p>Subsequent in Prior Conveyance — “Incumbrance”—“Marketable Title.”</p> <p>A deed containing an express condition' that “said premises shall never be occupied or used by or in any trade or business such as, if launched or started in localities in cities already thickly populated and devoted to first-class residences, are held to be nuisances,” upon violation of which the title should revert, creates a condition subsequent, which under the law of Michigan constitutes ah apparent or prima facie incumbrance, and renders the title of the grantee nonmarketable.</p> <p>[Ed. Note. — For. other eases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. <§==>130.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Incumbrance; Marketable Title.]</p> <p>4. Vendor and Purchaser <§=>130 — Title of Vendor — Effect of Condition Subsequent in Prior Conveyance.</p> <p>Such condition, if in force, would clearly render the title nonmarketable as between a vendor and a purchaser who desired the property, as was known to the vendor, for a use which would constitute a nuisance in a locality “devoted to first-class residences.”</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 245-247; Dec. Dig. <§=>130.'l</p> <p>5. Deeds <§=>166 — Conditions Subsequent — Discharge by Subsequent Conveyance by Grantee.</p> <p>The rule that the right of re-entry for breach of a condition subsequent is extinguished, if the grantor afterward and before the breach conveys to another, has relation only to a conveyance of the very property transferred by the deed carrying the condition.</p> <p>TEd. Note. — For other cases, see Deeds, Cent. Dig. §§ 522-525; Dec. Dig. <§=>166.]</p> <p>6. Deeds <§=>156 — Conditions Subsequent — Persons Entitled to Enforce —“Condition Merely Nominal.”</p> <p>Where the owner of a tract of land subdivided it into blocks and lots, a large number of which he sold and conveyed by deeds containing a condition subsequent, the grantees acquired the right to enforce the condition as to any other lot in their vicinity, and the fact that the original grantor disposed of all his interest did not render the condition “merely nominal,” within the meaning of Comp. Laws Mich. 1897, §~ 8828, which provides that such conditions may be disregarded.</p> <p>LEd. Note. — For other cases, see Deeds, Cent. Dig. §§ 496^199; Doc. Dig. <C=>156.]</p> <p>7. Deeds <§==166 — Conditions Subsequent — Release or Waiver — Questions of Fact.</p> <p>Whether a use of property was in violation of a condition subsequent in a prior deed, and whether, if so, the continuance of such use for the statutory period would bar all persons entitled to enforce such condition, as well as whether the condition had been waived and abandoned by everybody concerned, all held questions of fact, not to be determined as matter of law.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 522-525; Dec. Dig. <§=>166.]</p> <p>8. Deeds <§=>166 — Conditions Subsequent — Discharge or Doss of Rights.</p> <p>A grantee, who accepts a deed carrying a condition subsequent, cannot free the estate by omitting the condition when ho deeds it away, although its omission from so many subsequent deeds as to be general or common may have a bearing on the question of fact whether there has been an abandonment of the condition by those interested in its benefits.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 522-525; Dec. Dig. <§=>166.]</p> <p>9. Deeds <§=149 — Conditions Subsequent — Validity.</p> <p>A state statute against perpetuities does not affect the validity of a condition subsequent in a deed as to the use of the premises, which runs with the land, but which can be released at any time by the joinder of all persons entitled to its benefits.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 451, 479; Dee. Dig. <S=j149.]</p> <p>10. Courts <§=3493 — Priority op Jurisdiction — Legal and Equitable Jurisdiction.</p> <p>Complainant contracted to sell to defendants certain real estate, for which defendants refused to complete payment on the ground that the title was not such as required by the contract. Complainant declared a forfeiture and re-entered, .whereupon defendants brought an action at law for damages for breach of the contract by failure of complainant to furnish good title. Pending such action, complainant brought suit in equity to cancel the contract, which was of record, as a cloud upon his title. ' The rights of the parties depended upon whether complainant had tendered a marketable title, which involved questions of both law and fact. Held that, while the court of equity acquired jurisdiction so far as related to the cancellation of the contract, such jurisdiction extended only to an incident of the main controversy which involved questions of title and damages propér to be tried by a jury, and that it should have awaited the trial of such issues in the court of law which first acquired jurisdiction, instead of assuming to determine the entire controversy.</p> <p>[Ed. Note. — -For other cases, see Courts, Cent. Dig. §§ 1346-1352; Dec. Dig. <@=3493.]</p>

<p>1. Landlord and Tenant <8=>86 — Leases-—Covenants por Renewal — Conditions Precedent — Waiver.</p> <p>A railway company leased land to C. for 10 years, with the right of renewal ; the lease requiring the lessee to erect a two-story brick warehouse on the land, and providing that, as a condition precedent to a renewal, the lessee should serve notice of his election to renew 90 days prior to the expiration of the term. C. sublet the premises, with the railway company’s consent, for a period extending 14 months beyond the 10-year term, and organized a corporation to take over his business, which corporation executed a mortgage on the leasehold interest to secure an issue of bonds when the lease had only 2 years to run. The railway company’s consent to the sublease and to the assignment and execution of the mortgage, however, was expressly made subject to the terms and provisions of the lease. By inadvertence, notice of the lessee’s election to renew was not given until 60 days before the expiration of the 10 years. The railway company delayed answering for about 5 weeks, and then replied, explicitly promising to renew the lease upon the lessee writing a more formal letter on the subject to its vice president and general manager, which letter was written. Held that, the railway company’s consent having been expressly made subject to the terms of the lease, the subletting and the assignment to the corporation and execution by it of the mortgage and the erection by the lessee of the warehouse contemplated by the lease were not sufficient in themselves to constitute evidence of waiver of the provision requiring notice of the election to renew to be given 90 days before the expiration of the term.</p> <p>[ltd. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dee. Dig. ®=?S6,]</p> <p>2. Landlord and Tenant <@=»86 — Leases—Covenants t?or Renewal — Conditions Precedent — Waiver.</p> <p>That the railway company allowed the lessee to remain in possession and pay rent and taxes after the expiration of the term pending negotiations for an adjustment of the differences between the parties was not in itself evidence of waiver, since, while continuance in possession by a tenant with the payment of rent will usually be regarded as a renewal of the lease, the acceptance of the rent being considered a waiver of any right to notice of intention to renew, this rule does not apply where the possession is retained and the rent paid pending negotiations with respect to a renewal of the lease.</p> <p>[Ed. Note. — Por other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <g^>86.]</p> <p>3. Landlord and Tenant <§=>86 — Leases—Covenants fob Renewal — Conditions Precedent — Waiver.</p> <p>The sublease running beyond the term of the original lease, the formation of the corporation, the assignment of the lease to it, and the mortgage of the leasehold indicated to the lessor the intention of the lessee to renew the lease, and in view of the embarrassing business situation which would be brought about by the loss through inadvertence of the premises, equity and good conscience required the lessor to promptly reject the notice of the lessee’s election to renew, if it intended to stand on its right to 90 days’ notice.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <§==>86.]</p> <p>4. Landlord and Tenant <§=^86 — Leases—Covenants por Renewal — Conditions Precedent — Waiver.</p> <p>The promise by the railway company to renew the lease, having become effective by the writing of the formal letter requested, amounted to a waiver of the 90 days’ notice, and acceptance of the 60 days’ notice as sufficient, and an agreement to renew on the notice given.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <§=p86.]</p> <p>5. Landlord and Tenant @=^86 — Leases—Covenants for Renewal — Conditions Precedent — Waiver.</p> <p>Where the letter from the corporation containing the promise to renew specifically referred to the contracts between the parties, setting out the dates showing that the officer who wrote it had the lease before him, it could not be inferred that the promise to renew was made inadvertently, and that the officer writing it had lost sight of the condition contained in the lease merely because in a subsequent letter from the vice president of the railway company it was stated that he had discovered such condition on examination of the lease; the railway company and all of its officers concerned with the matter having presumptive knowledge of the contract to which it was a party and which was in its possession.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <®=>86.]</p> <p>6. Landlord and Tenant <@^S6 — Leases—Covenants for Renewal — Conditions Precedent — Waiver.</p> <p>Assuming that the railway company’s agreement to renew was due to inadvertence, such company had no equity to ask that it be relieved from its promise, as the lessee’s failure to give 90 days’ notice was also an inadvertence, and the denial of a renewal would result in great loss and hardship to it, -^hUe the railway company had suffered no loss or detriment from the failure to give the notice earlier.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dee. Dig. <©=86.]</p> <p>7. Landlord and Tenant '<$=>86 — Leases—Covenants for Renewal — Conditions Precedent — Waiver.</p> <p>Negotiations between the railway company and the lessee subsequent to the letter containing the promise to renew, in which the lessee assented to the statement that it had lost the right to a renewal by failure to give the 90 days’ notice, and agreed to make a new lease on different terms, was not conclusive that there was no waiver of the 90 days’ notice; no new lease having in fact been made. ■</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <§=^86.]</p> <p>8. Words and Phrases — “Waiver.”</p> <p>“Waiver” is the intentional relinquishment of a known right, with both knowledge of its existence and intention to relinquish it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Waiver.]</p> <p>9. Landeobd Airn Tenant c=»S6 — Leases—Covenants eoe Renewal — Conditions Pkecedent — Waiver.</p> <p>In a proceeding involving a question as to a lessee’s right to a renewal of a lease, providing that, as a condition precedent to a renewal, the lessee should give 90 days’ .notice of its election to renew, whether the lessor relinquished its right to refuse to renew, where such notice was not given, was a question of fact</p> <p>fEd. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. <ñv»86.]</p>

Court of the United States for the Western District of New York. The Huron Iron Mining Company is a corporation organized and existing under the laws of the state of Minnesota and is a citizen of that state. It has its principal place of business in the Western district of Michigan. The defendant is a citizen of the state of New York and resides in the Western district.

In Error, to the District Court of the United States for the Southern District of New York. "Action at law by'Pantelis T. Goumis, administrator of the estate of Sarantos Andreas Vlemmas, deceased, against James A. Ramsdell, Henry P. Ramsdell, and Homer -S. Ramsdell. Judgment for plaintiff, and defendants bring error.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Habeas corpus by Jeung Bow against the United States. From an order dismissing tire writ, petitioner appeals.</p> <p>This cause comes here on an appeal from the District Court of the United States for the Western District of New York, dismissing a writ of habeas corpus.</p>

<p>In Error to tbe District Court of the United States for the District of New Mexico; Wm. H. Pope, Judge.</p> <p>Action by David E. Cartwright against the Atchison, Topeka & Santa Eé Railway Company. From a judgment on a directed verdict for defendant, plaintiff brings error.</p>

<p>1. CARRIERS <&wkey;320 — Passenger’s Action for Injuries — Questions for Jury.</p> <p>In an action for injuries, where it appeared that plaintiff was. a passenger on a train of defendant which collided with another train, and there was evidence that she sustained injuries of a permanent nature, a motion by defendant to dismiss the complaint was properly denied.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. &wkey;320.]</p> <p>2. Appeal and Error <&wkey;1004 — Scope of Review — Excessiveness op Damages.</p> <p>In an action for personal injuries, the alleged excessiveness of the damages cannot be reviewed by a federal appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. &wkey;1004.]</p> <p>3. Trial <&wkey;296 — Instructions—Cure by Other Instructions.</p> <p>In a passenger’s action for injuries alleged to have been sustained in a collision, the court charged that, as defendant offered no explanation of the collision which it admitted took place, and as there was no evidence of contributory negligence, plaintiff was entitled to a verdict. It further charged, however, that if the jury found that plaintiff was entitled to any damages because of defendant’s negligence, they might give her reasonable compensation, and that the question came down to a question of the extent of her injuries, whether she suffered any injuries of a serious character, or whether she did or did not exaggerate her injuries. Reid that, if the instruction first mentioned was not strictly correct, standing alone, it was cured by what followed, as the charge, as a whole, could not have misled the jury into thinking that plaintiff could recover unless she sustained some injury, and where the charge, as a whole, presents the question fully and fairly to the jury, so as not to mislead them, exceptions to detached portions of the charge will not be sustained.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dee. Dig. &wkey;296.]</p> <p>4. Appeal and Error &wkey;>1050 — Harmless Error — Admission op Evidence.</p> <p>In an action for injuries, in which plaintiff’s case rested largely upon the testimony of D., a physician, another physician was allowed to testify that D.’s reputation was very good, and that he was one of the most capable men in New York City. D.’s reputation had not been attacked, and neither his profession nor general character had been assailed on cross-examination. Reid, that, while the admission of this testimony was a doubtful propriety, since evidence is not admissible, as a general rule, to sustain the credibility of an unimpeached witness, its admission was not sufficient to justify a reversal, as it was not probable that the jury, who saw and observed D. while under direct and cross examination, attached undue weight to the opinion of the other physician as to his standing and ability.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068,“ 1069, 4153-4157, 4166; Dec. Dig. &wkey;1050.]</p> <p>5. Appeal and Error &wkey;M048 — Harmless Error — Admission op Evidence.</p> <p>In an action for injuries, • though no damages to plaintiff’s eyesight were claimed in the complaint, the admission of a question to plaintiff as to whether anything was the matter with her eyes after the accident was harmless, where she answered that she did not know.</p> <p>[13d. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158, 4160; Dec. Dig. &wkey;!048.]</p>

the District Court of the United States for the Southern District of New York. Action by George Kluchnik against the Eehigh Valley Coal Company. On the death of plaintiff, Mary Kluchnik and Robert C. Eipman separately moved to revive the action, which motions were denied.

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry G. Connor, Judge.</p> <p>Suit by John C. Bethea, Clerk of Court, as administrator of John H. Bethea, deceased, against Sarah S. Wellman, in her own right and as widow of Ora E. Wellman, deceased. Decree for complainant, and defendant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Florence; Henry A. Middleton. Smith, Judge.</p> <p>Action by Mrs. Sophia Hughes against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

In the matter of Moses Drapkin, bankrupt. Suit by Max Aronin, trustee in bankruptcy, against the Security. Bank of New York. Decree for complainant, made and entered March 8, 1915, and defendant appeals.

Foster, Judge. Tn the matter of A. Ee More & Co. and others, bankrupts. The dismissal of a rule to compel Frederic Camors and others, trustees, to convey real estate to George J. Untereiner, the highest bidder at an auction sale, was sustained by an order of the District Court, and said Untereiner appeals and files a petition to revise.

<p>In Error to the District Court of the United States for the Northern District of Georgia; Wm. T. Newman, Judge.</p> <p>Franklin Huff and. others were convicted of an offense, and they bring error.</p>

<p>Appeal and Error <@=^>866, 1010 — Review—Motion bt Both Pasties foe Directed Yeedict.</p> <p>Where both parties asked the court to instruct a verdict, they necessarily requested the court to find the facts, and were concluded by its finding upon which the resulting instruction of law was given, and a reviewing court was limited to a consideration of the correctness of the finding on the law, and must affirm, if there Was any evidence in support thereof.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475, 3979-3982, 4024; Dec. Dig. <S=S66, 1010.]</p>

<p>1. Patents <3=327 — Suits fob Inítiingemgnt — Following Decisions in Other Circuits.</p> <p>A Circuit Court of Appeals, in doubtful cases involving the validity of patents, will conform to a decision in another circuit; but where it is convinced that the conclusion reached was wrong, it is not at liberty to surrender its own judgment for the purpose of securing uniformity of decision.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 02CM325; Dec. Dig. <3=327.]</p> <p>2. Patents <3=328 — Validity of Reissue — Infringement—Miner’s Acetylene Gas Lamp.</p> <p>Tile Baldwin reissue patent, No. 13,542 (original No. 821,580), for an acetylene gas generating lamp, principally for miner’s use, claim 4, was not anticipated and is not invalid, as broadening the same claim in the original patent, but discloses patentable invention and is valid; also held infringed.</p> <p>3. Patents <3=324 — Suit for Infringement — Record on Appeal — Printing Exin mts.</p> <p>To render effective a stipulation in an infringement suit that prior art patents introduced in evidence need not he printed in the record on appeal, but that the original exhibits may be used, the approval of the Circuit Court of Appeals is necessary.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 600-608; Dec. Dig. <3=32-1.]</p>

Suit in equity by Andrew Thonia and others against Angelo Perri and others to obtain the issuance of a patent, under Rev. St. ,§ 4915 (Comp. St. 1913, § 9460). Decree for defendants and complainants appeal.

<p>1. Patents <5=3.128 — Construction—Infringement—Improvement in Concrete Arches.</p> <p>The Thacher patent, No. 617,615, for an improvement in concrete arches consisting of a combination, with abutments and a concrete arch spanning the intervening space, of a series of metal bars, in pairs, held, limited by the prior art, the proceedings in the Patent Office, and the self-imposed limitations in the patent and the claims, to a combination in which the bars of each pair are physically and mechanically independent of each other, and, as so limited, not infringed.</p> <p>2. Patents ©=3112 — Conct.usiveness of Patent. v</p> <p>As patents are procured ex parte the public is not bound by them, but the patentees are.</p> <p>| Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. ©=>112.]</p> <p>3. Patents ©=>112 — Proceedings in Patent Office — Conclusiveness.</p> <p>Where the Patent Office repeatedly rejected the claims in an application for a patent on the ground that they conflicted with a prior patent unless limited, and the applicant, instead of appealing from the decision of the examiner rejecting the application, amended the claims to contain the necessary limitation, he was bound by such decision, whether it was right or wrong.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. §§ 162-165; Dec. Dig. ©=>112.]</p> <p>4. Patents ©=>165 — Limitation of Claims — Operation and- Effect of Claims.</p> <p>Self-imposed limitations in the claims of a patent preclude the patentee from showing that the invention is broader than his claims, and if it is broader he is deemed to have surrendered the surplus to the public.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. ©=>165.]</p>

<p>1. Patents <@=>328 — Validity and Infringement — Track—Torpedo.</p> <p>The Jackson patent, No. 824,019, lor a track torpedo, claims 2 and 3, held void for lack of invention; also held not infringed.</p> <p>2, Patents <@=>328 — Validity and Infringement — Railway Torpedo.</p> <p>The Beckwith reissue patent, No. 12,396 (original No. 790,879), for railway torpedo, claims 2, 8, and 9, held not infringed.</p>

<p>Dismissal and Nonsuit <$=>30 — Want ot Pkosecution — Plainto-f’s Duty.</p> <p>Alter an action against a steamship company for damages for its failure to receive and transport a shipment of grain in accordance with a contract made by it was at issue, and an auditor was appointed by consent of the parties, no action was taken therein for 15 years,_ except that it was continued from term to term, by the clerk as a routine matter. In the meantime the leading counsel lor each party had died. No reason was given for the failure to prosecute, except that the case was overlooked by counsel, and plaintiff’s neglect to follow up his case was wholly unexplained. Hela that, though there was no specific evidence that any of defendant’s witnesses had died, or that its ability to maintain its defense had been impaired, this must necessarily be so, and the action would be dismissed, though, by reason of limitations having run, the dismissal would amount to a final judgment.</p> <p>I Ed. Note. — For other eases, see Dismissal and Nonsuit, Cent. Dig. §§ 140-152; Dec. Dig. <®=>6(X]</p>

<p>Action for statutory penalties by the United States against the Boston & Maine Railroad. Judgment for defendant.</p>

<p>in Bankruptcy. Ancillary proceedings in the matter of the Patterson Lumber Company, bankrupt. On petition for an order on the Belmont Trust Company, mortgagee trustee.</p>

<p>Proceeding' by the United States against Rudolph Butilcofer to cancel a certificate of citizenship.</p>

<p>Petition by John Mondelli for naturalization.</p>

<p>1. Bankruptcy <§=127 — Review of Referee’s Actions.</p> <p>The administration of bankrupt estates is left largely to referees, and their acts in administrative matters, such as the election of trustees, will not be disturbed, unless a plain and injurious error of law or abuse of discretion is shown.</p> <p>[Ed. Note. — For other cases, sea Bankruptcy, Cent. Dig. § 183; Dee. Dig. <@=127.1</p> <p>2. Bankruptcy <3=23:1 — Creditors’ Meetings- — Continuance—Discretion of Referee.</p> <p>An order continuing a meeting of creditors of a bankrupt estate was a matter of discretion with the referee.</p> <p>[Ed. Note. — For other cases, seo Bankruptcy, Cent. Dig. § 541; Dec. Dig. <2=231.]</p> <p>3. Bankruptcy <@=123- — Proceedings by Referee — Discretion.</p> <p>At the first meeting of creditors of a bankrupt estate it became evident that a contest was imminent over the election of a trustee, and a continuance for a few hours was requested, in order that other claims might be presented and allowed. The postponement was granted over the protest of objecting creditors, whose counsel stated that objection would be made to the allowance of such claims, and asked for a continuance of the meeting in order that evidence might be taken respecting the allowance of such claims. The meeting was accordingly adjourned, and hearings were held, and one of such claims was allowed and voted at the adjourned meeting, resulting in a tie vote. Held, that the referee neither abused his discretion, nor erred, as a matter of law, in continuing the first meeting and proceeding with hearings on such claims.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 171-179; Dec. Dig. <3=123.]</p> <p>4. Bankruptcy <@=228 — Proceedings by Referee — Discretion.</p> <p>Where, before the election of a trustee of a bankrupt estate, objections wore made to a claim, it was for the referee to determine whether he would disfranchise the claim upon the! mere filing of objections, or go forward and ascertain in a summary manner whether or not the claim ought to be voted upon, and his decision would not be set aside, unless so plainly unjust as to amount to an abuse of discretion.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. ©=228.]</p> <p>5. Bankruptcy ©==>127 — Election of Trustee — Practice on Objected Claims — Review of Orders.</p> <p>On review of an order of the referee appointing a trustee because of a tie rote, where a creditor, whose disputed claim was so voted as to cause a tie, was not a party to the proceeding, the court would not determine, as a strict matter of law and fact, whether such creditor had received a preference or hot, but would merely determine whether the referee’s decision was so plainly wrong as to render the election manifestly unfair.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 183; Dec. Dig. ©=>127.]</p> <p>6. Bankruptcy ©=123 — Election of Trustee — Objections to Voting Claims —Determination Thereof.</p> <p>The first meeting of creditors of a bankrupt estate was continued to permit the proof of certain claims, and two claims were presented, to which objection was made. The referee heard evidence as to these claims, and allowed one of them, which was so voted as to cause a tie. The other claim was not passed upon by him, and would have been so voted as not to affect the result. Held, that, as a decision with respect to such claim was not essential, the referee was not called upon to pass upon it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 171-179; Dec. Dig. ©=123.]</p>

<p>1. Bankruptcy <§=»126 — Emotion of Trustees — Review.</p> <p>The election of trustees in bankruptcy is part of the administrative work which is left largely to the referees, and their decisions in reference thereto will not be set aside, unless an unjust and injurious abuse,oí discretion, or a clear mistake of law, is shown.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 182, 184, 187; Dec. Dig. <S^126.]</p> <p>2. Bankruptcy <§=»126 — Election of Trustees — Review.</p> <p>Where, at the stated time for the election of a trustee in bankruptcy, a majority in number of the creditors were ready to proceed with the election and opposed delay, and objecting creditors presented no good excuse for their failure to be ready, the referee did not abuse his discretion in refusing to postpone the election for an hour, in order that other claims favorable to the candidate of the objecting creditors might be presented and voted upon.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 182, 184, 187 ; Dec. Dig. <S=»126.] ,</p>

<p>Bankruptcy <@=>288 — Collection of Assets — Summary Proceedings.</p> <p>Tlie wife of a bankrupt claimed to own a motor truck, asserting that it was purchased by the bankrupt with money furnished by her before her marriage, and that instead of taking title in her name, as was agreed, the bankrupt took title in his own name. It appeared without contradiction that the truck was kept in a garage in the wife’s name, and it also appeared that the wife did furnish the husband with a considerable sum of money for some purpose. Held, that the wife was entitled to retain possession until it was determined in a plenary action that she was not entitled thereto, and her claim, not being merely colorable, could not be determined in a summary proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <@=>288.]</p>

<p>1. ALIENS @=»24-IMMIGRANTS EXCLUDED — STATUTORY PROVISIONS.</p> <p>Act March 3, 1891, c. 551, § 1, 26 Stat. 1084, excluding certain classes of aliens from admission into the United States, and providing that they shall be so excluded “in accordance with the existing acts regulating immigration other than those! concerning Chinese laborers,” did not place Chinese laborers outside the excluded classes, but merely provided that the exclusion should be in the maimer provided in the existing laws regulating immigration other than the Chinese Exclusion Acts.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 76-78; Dec. Dig. &=>24.J</p> <p>2. Aliens <®=»32 — Exclusion and Deportation of Chinese — Statutory Provisions.</p> <p>Act Feb. 20, .1.907, c. 1134, § 2, 84 Stat. 898, as amended by Act March 26, 1910, c. 128, § 1, 36 Stat. 263 (.Comp. St. 1913, § 4244), provides that the classes of aliens therein specified shall be excluded from admission into the United States. Section 20 (section 4269) provides that any alien who shall enter the United States in violation of law shall, upon the warrant of the Secretary of Commerce and Labor, be taken into custody and deported to the country whence he came at any time within three years. Section 21 (section 4270) provides that in case the Secretary of Commerce and Labor shall be satisfied that an alien has been found in the United States in violation of that act, or that an alien is subject to deportation under the provisions of that act “or of any law of the United States” he shall cause such alien, within three years after landing or entry, to be taken into custody and returned to the country whence he came. Section 43 (section 4289) repeals iirevious laws regarding immigration, but provides that that act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons or persons of Chinese descent. Mold that, considered in the light of prior legislation, the quoted clause of section 21 does not authorize the immigration authorities to deport a Chinese laborer in the United States in violation of the Chínese Exclusion Acts, and such laborers must be deported by the Judicial Department of the government, as provided in such Exclusion Laws, as such a construction of this clause would be out of harmony with the spirit of the act, which has to do with all aliens alike, without regard to their specific alienage, and such clause refers to laws of the United States which, like the act of 1907, deal with all aliens, without regard to their specific alienage, and, moreover, section 20 has never been construed as authorizing such deportation of Chinese laborers, though such a laborer, entering the United States in violation of the Chinese Exclusion Laws, would be in the United States in violation of law within that section.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent Dig. §§ 84, 92-95; Dec. Dig. <3=32J</p> <p>3. Aliens <3=532 — Exclusion and Deportation of Chinese — Statutory Provisions — “Alter”—“Amend.”</p> <p>To construe Act Feb. 20, 1907, § 21, as authorizing the deportation of Chinese laborers in the United States in. violation of the Chinese Exclusion Laws by the immigration authorities, would bring such section into conflict with section 43,.providing that that act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese persons, as the words “amend” and “alter” are each sufficiently broad to cover a mere addition to those laws, and such section, as so construed, would add to those laws a provision not contained in such laws.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <3=532.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Alter; Amend.]</p> <p>4. Aliens <3=32 — Exclusion and Deportation of Chinese — Statutory Provisions.</p> <p>The rule of construction that every sentence, clause, and word in a statute, if possible, must be given some effect, does not require that Act Feb. 20, 1907, § 21, be construed as authorizing the deportation by the immigration authorities of Chinese laborers in the United States in violation of the Chinese Exclusion Acts, as statutes cannot always be construed on the assumption that the language has been used logically and with discrimination, and the provision for such deportation of persons found in the United States in violation of any law of the United States may have been intended to apply to immigration laws, if any,' omitted by inadvertence from the act of 1907, or 'may have been intended to apply to future immigration laws.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent Dig. §§ 84, 92-95; Dec. Dig. <3=32.]</p> <p>5. Aliens <3=32 — Exclusion and Deportation Oe Chinese — Statutory Provisions — “Judicial Hearing.”</p> <p>Under Act Feb. 20, 1907, § 21, there is at least sufficient doubt as to the power of the immigration authorities to deport Chinese laborers in the United States in violation of the Chinese Exclusion Laws to require that such doubt should be resolved against the existence of such power, as the right to a judicial hearing provided by the Exclusion Laws is a valuable right, and an executive hearing is not its equivalent, and such judicial hearing should not be taken away by doubtful language.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <3=32.]</p>

<p>1. Shipping i&wkey;115 — Authority and Duties of Master — Nondelivery of Shipment.</p> <p>On July 28, 1914, a German steamship sailed from New York for Brem-erhaven, Germany, via Plymouth, England. On the evening of July 31st, when about 1,000 miles from Plymouth it changed its course and returned to an American port. The master had knowledge of such historical facts, conceded to have preceded the outbreak of the European war, as occurred before the sailing of the steamer, and of facts thereafter occurring, indicating that his country was upon the verge of war with Russia, France, and England, and just before changing his course received a wireless message from the steamship company stating that war had broken out and directing him to return to New York. War had not in fact been declared at that time. Held,, that he was justified, and acted with a due regard for the safety of his ship, passengers, and cargo, and his deviation from the direct course of his voyage was not a breach of the contract with a shipper, though it was claimed that the steamship could have reached Plymouth, to which the shipment was consigned, before war was declared.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 433; Dec. Dig. <S=»115.]</p> <p>2. Shipping <&wkey;115 — Authority and Duties of Master — Nondelivery of Shipment.</p> <p>As the master acted in accordance with the dictates of his own prudence and sagacity, the fact that what he did was with the approval of the shipowners and in concurrence with their views did not prejudice him or the ship.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 433; Dec. Dig. &wkey;>115.]</p> <p>3. Shipping <&wkey;115 — Authority and Duties of Master.</p> <p>So far as .shippers and passengers are concerned, the master of a ship was bound to act upon his own judgment, to be exercised in good faith on their behalf, in determining whether to abandon a voyage because of information that war was imminent, -and instructions from the shipowners would not protect him.</p> <p>[Ed. Note. — F(jr other cases, see Shipping, Cent. Dig. §§ 226, 433; Dec: Dig. &wkey;>115.]</p> <p>4. Shipping <&wkey;115 — Nondelivery of Shipment — Outbreak of War.</p> <p>On July 31, 1914, the directors of a German steamship company learned that a declaration of a state of war would be made public at once, and later on the same day such declaration was brought to their knowledge. From information as to a steamship’s supply of coal, it was considered necessary to decide that afternoon whether the steamship should be direetecl to abandon its voyage from'New York to Bremerliaven, and, though war had not actually been declared, a wireless message was sent to the master, informing him that war had broken out with England, France, and Russia, and directing him to return to New York. The message was sent in this form upon the idea that a mere statement announcing that a state of war had been proclaimed might not convey the full import of the actual imminence of war to the captain. Held that, under the circumstances, the message was not an untruthful one, or one calculated to deceive, or to cause the captain to take action which he ought not to have taken, and was justified.</p> <p>Llld. Note. — For other cases, see Shipping,. Cent. Dig. §§ 226, 438; Dec. Dig. <&wkey;>115.]</p>

<p>In Admiralty. Libel by Charles W. Rantoul, Jr., against the steamship Kronprinzessin Cecilie, claimed by the North German Lloyd.</p>

<p>In Admiralty. Libel by Maurice Hanssens against the steamship Kron-prinzessin Cecilie, claimed by the North German Lloyd.</p>

<p>In Admiralty. Libel by the National City Bank against the Kronprinzessin Cecilie, claimed by the North Gorman Lloyd.</p>

<p>1. Contracts <&wkey;237~ — Modification—Necessity of Consideration.</p> <p>Under a contract between T., a cruiser and examiner of timber lands, and M., a dealer in timber and timber lands, T. was to examine and purchase timber lands in M.’s name, and have a one-fourth interest in the net profits, or at his option an undivided one-fourth interest in the lands and timber. The contract did not specify or limit the quantity or acreage of land contemplated to be acquired. Held that, as to each parcel of land purchased in accordance with the contract, the contract became on T.’s part an executed contract the moment title was acquired, and the contract was no longer executory, and could not be changed or modified as to T.’s rights without adequate consideration.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1119-1122; Dec. Dig. &wkey;237.]</p> <p>2. Contracts &wkey;>247 — Consideration — Presumptions and Burden of Proof.</p> <p>Under a contract between. T. and M., T. was to examine and purchase timber lands, for which M. was to pay, .and was to receive a salary of $150 a month, and in addition a one-fourth interest in the net profits, or at his option a one-fourth interest in the lands and the timber. A subsequent contract purported to cancel the first contract, and, after reciting that M. was the owner of about 10,000 acres of land, provided that he agreed to give T. 5 per cent, of the actual amount received up on sales of the timber; that T. had no interest in the timber or the lands; that, if the profit from the sale of the timber should not amount to 25 per cent., the 5 per cent, tp be received by T. should be reduced accordingly; that T. should have no interest in any other lands which had been or might be purchased by M.; and that T. should receive no salary, but only actual expenses in looking at timber and paying other parties for estimating such timber. I-Ield, that, while the writing imported a consideration, the disparity between the provisions oí the two contracts as to T.’s compensation and the lack of any sufficient reason for T.’s.execution of the second contract, by which he’ gave up a large interest in profits and a right to salary, and continued performing services for it. for which it was claimed that he was entitled to no compensation, overcame the presumption of consideration arising from the writing, and shifted- to those relying on the second contract the burden of proving a consideration therefor.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1139, 17S7; Dec. Dig. &wkey;>247.]</p> <p>3. Contracts &wkey;>176 — Construction—Questions of Daw or Fact. ></p> <p>T.’s right to compensation for services rendered by him under the second contract was not a question of fact, but one of law, dependent upon the construction to be put upon the terms of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1825; Dec. Dig. &wkey;176.]</p>

In Equity. Suit by the Westinghouse Electric & Manufacturing Company against the Idaho Railway, Light & Power Company. On claim of the Guaranty Trust Company of New York, mortgage trustee, to share in distribution of general assets of defendant.

<p>Albino Lombardo was indicted for an offense. On demurrer to tire indictment.</p>

<p>In Bankruptcy. In the matter of the San Antonio Rand & Irrigation Company, Limited, bankrupt. On review of a master’s report.</p>

<p>In Equity. Suit by the Brunswick-Balke-C'ollander Company against</p> <p>Walter H. Evans and others for an injunction.</p>

<p>Petition for writ-of habeas corpus by John Hammon, Sr., against D. R. Hill, Superintendent of the Allegheny County Home and Hospital for the Insane.</p>

<p>1. Bankruptcy ©=>229 — Contempts—Resistance of Orders of Referee— "Resist.”</p> <p>Banlcr. Act July 1, 1898, c. 541, § 41, 30 Stat. 556 (Comp. St. 1913, § 9025), provides that a person shall not, in proceedings Before a referee, disobey or resist any lawful order, process, or writ, and that the referee shall certify the facts to the judge, if any person shall do any of tins things thereby forbidden, and the judge shall thereupon in a summary manner hear the evidence as io the acts complained oí, and; if it warrants him in so doing, punish such person as for a contempt committed before the court of bankruptcy. Held that, where a referee orders the trustee to sell property at private sale, the act of inducing a person who has bid upon the property to withdraw his bi.d before the sale is closed for a secret consideration, in order that the property may be bid in at a lower price by another, is a resistance to such order, as distinguished from a direct disobedience, and is punishable as a contempt, since it defeats the order of tho referee pro tanto, and frustrates its primary purpose of having the property sold to the highest bidder, and “resist” means to withstand; oppose, passively or actively; antagonize; act against; or exert physical or moral force in opposition to.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. ©=>229.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Resist.]</p> <p>2. Bankruptcy <5=229 — Contempts—-Purging by Oath.</p> <p>Bankr. Act, § 41, providing that, upon a certificate by the referee that any person has done any of the things thereby forbidden, the judge shall in a summary maimer hear the evidence ‘as to the acts complained of, requires a hearing as to the facts, and by necessary implication excludes any inference that the alleged contemnor is to be purged merely by denial upon oath.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. ©=229.]</p> <p>3. Bankruptcy ©=229 — Contempts—Punishment.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 268, 36 Stat. 1163 (Comp. St. 1913, § 1245), provides that courts of the United States have power to punish by fine or imprisonment contempts of their authority. A ’referee in bankruptcy having ordered a private sale of the bankrupt’s property, the bankrupt and a member of a firm of creditors consciously and deliberately participated in tho act of inducing a bidder to withdraw his bid, in consideration of §200 to be paid him, to enable such firm of creditors to buy the property at a lower price, primarily for the benefit of the bankrupt, and secondarily for the benefit of such creditors. Held that, in view of the lack of general knowledge in the community that conduct of this kind constituted contempt, the ends of justice would be sufficiently met'by the imposition of a suitable fine, and the offenders would each be fined 8109, together with all incidental costs.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. ©=229.]</p>

In Admiralty. Suits by I. W. Haywood, administrator of the estate of George W. Haywood, deceased, against H. C. Burdick, owner of the gasoline motorboat Alóla, and against said vessel. Decree for respondent in first suit, and for libelant in second suit.

<p>Chattel Mortgages <®=G3 — Statutory Affidavits — Requisites and Sufficiency.</p> <p>1 Comp. St. N. J. 1910, p. 468, § 4, makes chattel mortgages void as against subsequent purchasers and mortgagees in good faith, unless the mortgage is recorded and has annexed thereto an affidavit or affirmation by the holder of the mortgage stating the consideration thereof and as nearly as possible the amount due and to grow due. A chattel mortgage was dated' June 17th, and an affidavit, sworn to June 20th, stated that the consideration was that the deponent had that day loaned to the mortgagor a specified sum for one year, with interest, that the mortgage was given to secure the payment thereof, and that there was due and to grow due thereon the sum specified, with interest from June 17th. The loan was in fact made by parties other than the mortgagee, to whom he assigned the mortgage; but the money was advanced in the form of checks, which were delivered to the mortgagee and by him indorsed to the mortgagor. No money had been loaned, however, on June 20th, and there was then only an agreement to loan. The money was subsequently advanced in different amounts on June 21st, 22d, and 29th, and September 19th. Held that, while the statement that the loan was by thei mortgagee was, strictly speaking, true, the statement that the consideration was money that day loaned was not even substantially true and the .mortgage was void as to creditors as the affidavit wholly misstated the true consideration.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 125-135; Dec. Dig. ®=»63J</p>

<p>At Raw. Action by W. H. Rountree and another against the Mi. Hood Railroad Company and another. On motion to remand to the state court.</p>

<p>In Admiralty. Three libels by William Eedwitch and others, by Enoch Spratley, and by R. D. Smith, administrator of William Byrd, deceased, against the British steamship Anglo-Patagonian. Decree for the libelants.</p>

<p>In Bankruptcy. In the matter of Herman Murphy, bankrupt. On demurrer to petition for adjudication. Heard on report of the referee.</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana: Rufus E. Foster, Judge.</p>

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

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. Action at law by Henry Gamble against the Cleveland-Cliffs Iron Company. Judgment for plaintiff, and defendant brings error. Affirmed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Illinois; Francis M. Wright, Judge.</p>

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

<p>Appeal from the District Court of the United States for tho Southern District of New York. Appeal from decree dismissing hill for alleged .infringement of copyright.</p>

<p>In Error to the District Court of tho United States for the Southern District of Mississippi; Henry C. Niles, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas; Gordon Bussell, Judge.</p>

<p>Appeal from the District Court cf the United States for the District of Maryland, at Baltimore; John C. Bose, Judge.</p>

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

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

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

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