Volume 229 — Federal Reporter

In Error, to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Mandamus by the United States, on the relation of William G. Fisher and others, against the Board of Directors of the Public Schools, Parish of Orleans. The writ was denied, and the relators bring error.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of-Mississippi; Henry C. Niles, Judge. - .</p> <p>Suit by the Alabama Great Southern Railway Company and others against the American Cotton Oil Company. From a judgment denying an application fqr a temporary injunction, complainants appeal.</p> <p>From the record before the court it appears that the American Cotton Oil Company, appellee, a corporation and citizen of the state of Ohio, brought its declaration in the circuit court of Warren county, Miss., against the appellants. They are the Alabama Great Southern Railway Company, a corporation and citizen of Alabama, and the Alabama & Vicksburg Railway Company, a corporation and citizen of Mississippi. For convenience, these will be termed the Alabama and Mississippi Railways. These railways are engaged in interstate commerce and transportation.. In this capacity, at Vicksburg, the Mississippi Railway, on March 25, 1914, received a tank car of cotton seed oil. This oil was intended for the American Cotton Oil Company at Cincinnati, Ohio. The Mississippi Railway was the initial carrier, and the bill of lading indicated that the car was to be delivered at Meridian to the Alabama Railway, which was to transport it to Chattanooga, and deliver it) to the Queen & Crescent Line, by which it was to ,be conveyed to Cincinnati.</p> <p>The declaration in the state court alleged that this was an “interstate shipment, without exception,” and that this was made plain by the bill of lading. This had attached a draft of the Colwell Oil Company in favor of the First National Bank of Vicksburg, Miss., for $3,538.08, drawn on the American Cotton Oil Company at Cincinnati, Ohio. The draft was paid. It was further alleged in the declaration that the car containing the oil was moved out of Vicksburg and delivered by the Mississippi Railway to the Alabama Railway at Meridian, in good condition and without exception, and, further, that after the car was thus received by the Alabama Railway it moved from Meridian, en route to Cincinnati, over the lines of the Alabama Railway, but never reached its point of destination, and the oil in question was lost or wasted en route and never delivered. An amicable demand was made upon these railways for payment of the value of the oil, but this was refused. The Colwell Cotton Oil Company then assigned to the American Cotton Oil Company all its right, title, and interest to the oil, and to its. complaint against the railways for their failure to deliver the same according to the contract. They refusing and continuing to refuse payment, the declaration setting forth .the Oil Company’s cause of action was filed.</p> <p>Having been served with process on January 9, 1915, the railways filed a ' plea of general issue, and on the 16th of January, the same year, the railways notified the attorneys of record for the Oil Company that they would, on the day to which the in’ocess was made returnable, move the state court for an order removing the case to the District Court of the United States for the Western Division of the Southern District of Mississippi. This motion was ■made, and its technical requisites were complied with. The motion came on for a hearing before the state court, to wit, the circuit court of Warren county, Miss., which adjudged that the cause was not removable. To this ruling the railways excepted, and then caused a certified copy of the declaration, and exhibits, notice of motion to remove, petitions, and bonds, and the order ofi the state court, and all the proceedings taken therein, to be filed in the District Court of the United States. This was done on the 13th day of February, lf)l 5, and in that court the railways again filed their plea of general Issue. It further appears that, notwithstanding the action of the railways in filing a transcript of the record in the District Court of the United States and further complying with the requisites of the statute providing for removal of causes from the state court thereto, the plaintiff, namely, the American Cotton Oil Company, insisted upon proceeding with the trial in the state court. Pursuant to this, that court, by order, required the railways to plead on or before, the 3d day of May, 1915.</p> <p>In this state of the record, the railways brought in the District Court of the United States, in which the transcript had been filed, a bill in equity against the American Cotton Oil Company. The bill recited the facts hereinbefore stated, and set out the act of Congress of June 29, 1906, amendatory of the Interstate Commerce Act, and termed the Carmack Amendment. This amendment provides: “That any common carrier, railroad, or transportation company receiving property for transportation from a point In one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed. Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.” The bill further averred that the action was instituted by virtue of the act of Congress thus amended; that the declaration in the state court alleges that the Mississippi Kailway was the initial carrier; that the oil was received as an interstate shipment, and that it was delivered to the Alabama Kailway at Meridian, Miss.; that the latter operates a railroad line from Meridian, through the state of Alabama, to Chattanooga, in Tennessee; that the oil was consigned to Cincinnati, Ohio, and that it was not possible for either of the complainants to transport the oil to its destination without the assistance of connecting lines. Because of these facts, it was the purpose of the Oil Company to enforce the provisions of the Carmack Amendment in the state court; that indeed the Alabama Railway had no domicile in the county of Warren and could not have been sued separately therein, but could bo so sued in connection with the initial carrier only because of the Carmack Amendment.</p> <p>Averring that the District Court of the United States had original jurisdiction of all such suits of a civil nature, at common law, or in, equity, which arise under the Constitution or laws of the United States, or statutes made or which shall be made under their authority, and further that because of such original jurisdiction such suits when brought in the state court may bo removed by the defendant or defendants therein to the District Court of the Uuited States for the proper district, the complainants further averred that this is a suit of that character, and that they had the right to have the same removed from the circuit court of Warren county, Miss., to the District Court having jurisdiction. Averring that the notice of petition to remove, together with copies of the petitions and bonds, were made and filed in time, they further aver that the state court where the declaration was filed, in view of the record thus made, had no right or authority to retain jurisdiction, that its order declining to remove the cause was illegal, and that the cause had been legally and properly removed to the United States court, and is now pending therein. Invoking the assistance of the District Court to prevent the American Cotton Oil Company from harassing the complainants by attempting to proceed with the suit in the state court, they pray for a wzit of injunction directed to the Oil Company and its attorneys enjoining and commanding them' absolutely to refrain from attempting to further proceed with the suit in the circuit court of Warren, county, and requiring them to prosecute the same in the Western division of the Southern district of Mississippi. Calling attention to the fact that the order of the state court required complainants to plead on or before the 3d day of May, 1915, that being the first Monday of the month of May, and that the District Court of the United States to which the cause was removed could not finally dispose of the controversy prior to that time, they ask for a temporary restraining order against the Oil Company and its counsel from further prosecution of the suit in the state court pending the hearing of the questions presented by the bill.</p> <p>When the bill in equity came on to be heard before the District Court of the United States, the counsel for the Oil Company moved to dismiss the same for the assigned reasons that there is no equity in the bill; that it presents no ground for the granting of an injunction, no federal question for the determination of a federal court, and no facts which would authorize the removal of the suit pending in the state court to the federal court; that the alleged grounds for removal are shown not to exist as a matter of law ,on the face of the pleadings of the defendant, the plaintiff in the suit pending in the state court; and because the federal court for the Western division of the Southern district of Mississippi is without jurisdiction, because the questions related as constituting a federal question have been decided and settled by the Supreme Court of the United States, and therefore no federal question now exists as to the construction of the law involved in this case, etc. The application for temporary injunction sought in the bill was heard, and on the 19th day of May, 1915, it was by the court denied. This appeal was then sought and allowed.</p> <p>The assignments of error are as follows: Mrst, because the court erred in not decreeing that the application of complainants for temporary injunction be allowed; second, the court erred in refusing to grant the temporary injunction as prayed for in complainants’ bill.</p>

Cross-Appeals from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. Suit by the American Piano Company against the Knabe Bros. Company. From the decree, defendant appeals, and plaintiff cross-appeals.

<p>1. Fraudulent Conveyances <§=>170 — Transfers Between Husband and Wife — Payment of Pre-existing Indebtedness.</p> <p>A husband in failing circumstances was indebted to his wife, and also to complainants, who had brought suit on their debt. The wife knew of such suit, and that the husband was in failing circumstances, and both, she and the husband knew that he could not discharge both debts, and that payment of the one debt meant loss to the other creditor of his or her debt. The husband paid his debt to his wife, by transferring to her corporate stock the value of which was inadequate to cover his debt to her. Held that, in view of the rule in New Jersey that an insolvent debtor may prefer one creditor, even though the preferred creditor is his wife, this transfer was not a fraud upon complainants, even though the husband intended to defraud them; the wife accepting the stock for the sole purpose of obtaining payment of her debt, and not for the purpose of aiding her husband to defraud complainants.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 521; Dec. Dig. <§=>170.]</p> <p>2. Judgment <§=>589 — Merger of Causes of Action.</p> <p>B. was one of the promoters of a corporation, and contracted to give complainants a specified amount of the preferred and common stock in such corporation to be issued to him. He failed to turn over any stock to complainants, and they sued for breach of the contract, and recovered judgment for damages in New York, upon which they sued and recovered a judgment in New Jersey. Thereupon they brought an action to set aside transfers of the stock from B. to his wife, on the ground that they were made to defraud creditors, and were unsuccessful. Held that, if they ever had any equitable lien on the stock, it was merged in the judgment for damages and no longer existed.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062-1065, 1100,1101; Dec. Dig. <§=>589.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by T. B. Harms & Francis, Day & Hunter against Joseph W. Stern and another, copartners doing business as Jos. W. Stern & Co. From an order (222 Fed. 581) denying an injunction, plaintiff appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by the First National Bank of Madison and others against Richard S. Hawes and others. From a,decree in favor of complainants, defendants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of Ohio ? Howard C. Hollister, Judge.</p> <p>Suit in equity by Frances H. Williamson against Justus Collins, Eugene Zimmerman, George R. Collins, and the Superior Portland Cement Company. Decree for complainant, and defendants bring error.</p> <p>Justus Collins, Eugene Zimmerman, George R. Collins, and the Superior Portland Cement Company (defendants below) appeal from a decree rendered by the District Court in favor of Frances H. Williamson as plaintiff.</p> <p>- The defendant company was organized in 1906, with a capital stock of $525,-000, divided into 5,250 shares, of $100 each. The articles of incorporation provide that its principal office shall be located at Jackson, Ohio. Its-plant is on lands in Lawrence and Scioto counties, purchased of Mrs. Kelley for $100,000, of which sum $10,000 was paid to one Wright as a commission, and by him returned to the company. Mrs., Kelley, as agreed in the terms of sale, subscribed for $50,000 of the stock and paid for the same as calls were made by the boarfl of directors. Wright received stock to the amount of $25,000 for his services in consummating the deal and placing the stock. Following the contract of purchase made with Mrs. Kelley, Sternberger, who was solicited to make a large subscription for stock, declined to do so, unless, to protect his stock, bonds to an amount equal to the authorized capital stock should be issued and delivered to the respective stockholders to an extent equal to the stock subscribed for by each. This suggestion was adopted, but with reluctance on the part of Collins. To make it appear that there was a consideration for the bonds, resort was had to a fiction. The records as to the organization of the company, which for convenience had been prepared in advance of the meeting held for that purpose, were interlined so as to show that the purchase price of Mrs. Kelley’s lands was $100,000 and $525,000 in bonds, which bonds, bearing 5 per cent, interest, are secured by a mortgage in the usual form made to the Provident Savings Bank & Trust Company as trustee, with, which trust company the defendant company subsequently did its banking business. On the delivery of the bonds to Mrs. Kelley she was to return and did return them to the company to be issued by it. Calls were made from time to time for the payment of stock subscriptions, and, when they were paid to the extent of 50 per cent., bonds equaling one-half of the stock subscription of each person were delivered to him by the company. The residue of the bonds were ax>portioned and delivered when full payment was made for the stock. There was also a later $25,000 issue of preferred stock, one share of common stock being given for every two shares of preferred stock.</p> <p>Collins, who at all times has been president of tbe company, became the owner of 2,669 shares of stock, and, with the holdings of his relatives (his wife, son-in-law, and son), continuously owned a controlling interest in the company. The plaintiff and her relatives (including Wright and his wife, formerly Mrs. Kelley) owed 780 shares. Eugene Zimmerman acquired 825 shares. Owing to the financial disturbance of 1907 and depressed business conditions affecting the cement trade, the company did not prosper in the early years of its existence. It has never paid a dividend, or set aside anything to the sinking fund, which was to be five cents on each barrel of cement sold, to care for the bonds. A limited number of the bonds issued passed into the hands of third parties — the plaintiff, for instance, having disposed of hers, and Wright also having parted with at least $12,000 worth of his. Bonds held by the Wrights had been pledged as collateral to an Ironton bank. A small amount of interest was paid on bonds which had gone into the i>ossession of others than members of the corporation; but, excepting such small sums, the company, for want of funds, paid no interest on the bonds or on the unpaid coupons, which it ivas agreed should bear five per cent, interest. The company’s total investment reached about $537,000. Its business required considerable ready cash for its conduct, and to obtain working capital it became necessary at the inception of its business operations to borrow large sums. Tbe trust company limited its credit to $135,000, but, on account of the impairment of the company’s credit by the mortgage bond issue, which from the beginning was regarded unfavorably by Collins, required in addition to the defendant company’s obligation personal security. Collins indorsed tbe company’s notes and pledged for its benefit all of the stock and bonds issued to him by the company, and also other securities, as collateral. In 1907 the indebtedness before the company’s plant was put into operation reached $55,000, and, as the trust company required further personal security when it was desired to increase the loan beyond that amount, Collins, Stemberger, and Zimmerman guaranteed a further loan to the company of $60,000. At one time the sum due to the trust company reached $165,000. The loans were all duly authorized by the board of directors.</p> <p>The want of funds for the proper transaction of the company’s business was well known to the members of the corporation and much considered by them, and, for the purpose of improving its credit, Collins, who was willing to lend his credit to the company, if all its other1 members did so, became persistently insistent that the stockholders surrender all their bonds, and that he and the others who had become liable for the company’s hank indebtedness should be relieved of their liability. The same attitude was assumed by Zimmerman and Sternberger. The return of the bonds to the company was not effected, because the plaintiff and the Wrights did not assent thereto. Sternberger died in June, 1912, at which time there was due $115,000 to the trust company, which had permitted the renewal of the company’s notes from time to time at their maturity. The trust company then requested further security from Stemberger’s estate for the $60,000 loan or its payment, and on failure to comply with such request it finally called for the satisfaction of the company’s entire indebtedness to it. The trust company had become unwilling to accept the defendant company’s notes, even if the entire bond issue were deposited with it, unless personal or other adequate security were also furnished. Without the knowledge of his associates, other than the secretary and treasurer, Collins, on February 26, 1913,, at the instance of the trust company, borrowed of it $115,000, giving his note to'it for that amount, paid the company’s indebtedness to it, took over the $55,000 and the $60,000 notes and thei securities pledged for their payment, and deposited the whole of them with the trust company to protect his individual note. He also arranged to pay to the trust company $2,500 for each of the next four months on the debt, and thereafter $5,000 for each succeeding month until the debt was fully paid, which arrangement was reported to the stockholders; but the indebtedness could not be thus liquidated without reducing the funds requisite for the operation of the company’s business.</p> <p>The net profits, which for the year 1912 were about $13,000, in 1913 approximated $70,000; but, owing to the increasing friction within the company, arising out of its financial condition, the effort to get in the bonds, and alleged abruptness on the part of Collins towards certain members of the corporation, and the desire of Collins and Zimmerman to be relieved of their liability to the company, Collins, on his own motion, in each of the months of July, August, and September, paid $10,000 on the bank indebtedness, and on Septembér 16th, in behalf of the company as its president, entered into a contract with the Commercial Credit & Investment Company, of Chicago, by the terms of which he sold to the Credit Company such of the defendant company’s contracts and accounts and bills receivable as it then had or might acquire for 80 per cent, of their face value, the remaining 20 per cent, to be paid to the defendant corporation when the accounts were paid in.‘ From the sums collected on the accounts, however, the Credit Company was to retain an agreed compensation. This contract was approved by the company’s directory on October 14th. The proceeds arising from, the sale made to the Credit Company were so applied by Collins to the bank indebtedness as fully to satisfy it on October 30th. In consequence of such application of its'funds, the company was unable to meet its bills payable as it had previously done, but, as they became due, notes were issued for the same. The contract with the Credit Company, the amount of compensation allowed for its services, the use- made of the funds received from it, and the nonpayment of current bills intensified the feeling which had theretofore arisen, especially on the part of the plaintiff and her relatives. A meeting of the stockholders and also of the board of directors was therefore duly called for October 31st, to consider the financial condition of the company, and “to take action to protect the financial status of the company, and to take all necessary action tending to that end.”</p> <p>On October 14th, when it was determined to call such meeting, Collins, who was willing, as was Zimmerman, to give financial assistance to the company, if the other stockholders would also do so, believing, as he always had, that the bond issue was invalid, and having decided that he would no longer carry the burden of the company’s finances, for the purpose of getting rid of the bonds, determined to cause the company to make an assignment to himself in trust under the state law for the benefit of its creditors; but he did not communicate that fact to the other members of the'corporation. He caused the deed of assignment to be prepared, and on October 31st made known his purpose to such members, including Zimmerman, who sanctioned the plan. The making of the assignment was approved at the stockholders’ meeting by a vote of 3,371 as against 1,781 shares,.and also at the directors’ meeting, but the approvals weie not without earnest protest from the minority stockholders. The deed was executed, delivered, and filed in the insolvency court in Hamilton county (its power to administer assignments being the same as that of probate courts), where the offices from which the company’s business was directed were located, and als9 in Lawrence and Scioto counties, in which were the company’s lands, but was not filed in the probate court of Jackson county. There was at that time upwards of 813,000 in bank to the company's credit and about $86,000 was owing to merchandise creditors. There was also a judgment against the company for $5,725.</p> <p>Prior to October-31st Collins bad prepared letters to the creditors to be sent out by him as assignee, apprising them of the assignment and that its purpose was to get rid of the bond issue, assuring them of the solvency of the company, and soliciting their consent to a continuance of its business under the authority of tile insolvency court. More than three-fourths of them assented, and thereupon, having qualified as assignee by giving a bond of $160,000, he proceeded as assignee under authority of such court 1o appraise the company’s property and to continue its business. The court named appraisers and also recognized as valid the contract with the Credit Company. Following the assignment, negotiations were had to compose the differences between the members of the company. The plaintiff and the Wrights never lent financial assistance to the company, or agreed to surrender their bonds, although in the negotiations immediately preceding the filing of the bill the Wrights suggested that they would either sell their stock at 95 per cent, of its face value and thus eliminate their bond holdings, or that a loan for three years be made for them to take the place of that for which certain of their bonds were hypothecated and thereby enable them to turn in the bonds still in their possession. Before negotiations were concluded, the plaintiff filed her bill in the District Court against the defendants, and on a final hearing that court decreed the deed of assignment to be null and void, enjoined Collins from acting as assignee thereunder, required him to file in such court a complete account of all of his transactions as assignee, assessed against him and Zimmerman the cost, and appointed a receiver for the defendant company, which receiver is still acting. The purpose of this appeal is to reverse such action, of the trial court. Collins’ conduct, as president, of the company’s business operations is not successfully assailed. Annual statements were made by the directors showing the status of the company’s affairs.</p>

<p>1. Adverse Possession @=>34, 44 — Character of Possession — Exclusiveness and Continuity.</p> <p>Under Eev. St. Tex. 1911, art. 5675, providing that any person having a right of action for the recovery of land against another having peaceable and adverse possession thereof, cultivating, using, or enjoying it, shall institute his suit therefor within 10 years after his cause of action shall have accrued and not afterwards, the occupation which will give title by adverse possession must be exclusive and continuous.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 136, 226-231; Dec. Dig. @=>34, 44.]</p> <p>2. Adverse Possession @=>114 — Character of Possession — Encroachments.</p> <p>Eev. St. Tex. 1911, art. 5675, require actions to recover land from another having peaceable and adverse possession thereof, cultivating, using, or enjoying it, to be brought within 10 years. Article 5676 provides that the peaceable and adverse possession contemplated in the preceding article, as against the person having the right of action, shall be construed to embrace not more than 160 acres, including the improvements or the number of acres actually inclosed. Plaintiff in 1902 purchased 160 acres of land in the C. survey and thereon built his house and appurtenances. Prior to his purchase there had been an encroachment over the unlocated boundary line between the C. survey and an adjoining unoccupied section of from one to two acres, cultivated, upon which had been erected a wagon shed, with a roof, but with uninclosed sides. Plaintiff in 1903 moved on his land, and cultivated .his own land and about an acre and a half to two acres in the adjoining section, corresponding practically to the former encroachment. In 1903, and again in 1907, he moved away from his land, and while away no one lived in his house, but during all of the time he cultivated his own land and the encroachment, except in 1910, and in that year he planted 12 to 15 fruit trees on the encroachment, in extending an orchard on the C. survey, and tended them, and also stored tools in the wagon shed and pastured hogs on the unoccupied section. At different times he also pastured hogs and cut posts and wood and pickets there. Held, that there was a mere encroachment, and not such a continuous adverse possession as to give the owner of the unoccupied section notice that he was claiming adversely any part of the section, or to authorize him to recover 160 acres of land from such section.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dee. Dig. @=>114.]</p>

Action by James OTIalloran and another against the American Sea Green Slate Company and others. Judgment for plaintiffs, and defendants bring error. This cause comes here upon writ of error to review a judgment in favor of defendants in error who were plaintiffs below. The action was brought to recover treble damages under section 7 of the act'of Congress of July 2, 1890, the Sherman Anti-Trust Act.

<p>1. Railroads <@=328 — Crossing Accidents — Duty to Stop, Look, and Listen.-</p> <p>It is the positive duty of an automobile driver, approaching railroad tracks where there is a restricted vision, to stop, look, and listen at a • time and place where stopping, looking, and listening will be effective.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1057-1070; Dec. Dig. <@=328.]</p> <p>2. ‘Railroads <@=330 — Crossing Accidents — Contributory Negligence— Raising Gates. .</p> <p>The raising of railroad crossing gates is an invitation to travelers to cross the railroad tracks, but is an invitation only to cross with due care, and the traveler must use his sight, hearing, and such other factors of safety as the situation and circumstances permit and require.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1071-1074; Dec. Dig. <@=330J</p> <p>3. Railroads <@=350 — Crossing Accidents — Actions—Questions for Jury.</p> <p>An automobile driver stopped about 15 feet north of a railroad crossing where the crossing gates were down, at which point he could not see the approach of trains. As soon as a passing train had passed the gates were raised, and he proceeded to cross without again stopping until struck by an east-bound train on the south track when almost across. Photographs were in evidence indicating that as he passed the north gate his view of trains on the south track was shut off by a gradually rising bank extending to an overhead crossing 350 feet away, and it appeared that beyond such crossing the tracks curved to the north. The crossing watchman testified that trains could not be seen beyond the overhead crossing. Helé, that it was a question for the jury whether he was negligent in failing to stop before reaching the track, and whether such negligence contributed to the accident.</p> <p>[Ed. Note. — 'For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. <@=350.]</p> <p>' On Petition for Rehearing.</p> <p>4. Courts <@=376 — United States Courts — Conformity to State Practice.</p> <p>The New Jersey crossing statute, providing that whenever any railroad ' shall have installed any safety gates, bell, or other device at any crossing, or placed a flagman at such crossing, persons approaching it may assume that the warning appliances are in good order and will be properly operated, unless a notice to the contrary is conspicuously posted, or that the flagman will guard such crossing with sufficient care, and that, in any action for injuries at such a crossing, no plaintiff shall be barred of the action because of the failure of the person injured to stop, look, or listen, does not require every case of injury at a protected grade crossing to be submitted to the jury, but simply declares a rule of evidence to which the federal courts in New Jersey should conform.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 984; Dec. Dig. @=>87(5.1</p>

<p>Appeal from the District Court of the United States for the Southern District of N.ew York.</p> <p>Suit by David J. Waller, Jr., and another, trustees under the will of David J. Waller, deceased, in their own behalf and in behalf of all other bondholders of the New Orleans, Baton Rouge & Vicksburg Railroad Company, against the Texas & Pacific Railway Company and others. From a decree dismissing the bill, plaintiffs appeal.</p> <p>On appeal from a decree which dismissed the bill in a suit commenced by certain bondholders holding 30 bonds of $1,000 each issued by the New Orleans, Baton Rouge & Vicksburg Railroad Company in September, 1872, and payable September 1, 1902. These bonds were secured by a deed of trust by the Baton Rouge Company to the Union Trust Company of New York upon all of the said Baton Rouge Railroads property, including its right of way and land grant given it by Congress.</p> <p>The following is the opinion of-Evans, District Judge, on dismissing the bill:</p> <p>The time at our disposal affords opportunity only for the very condensed statement which follows, wherein we shall omit all details except those necessary to- an understanding of the one essential ground upon which we shall base our Judgment. Many other propositions were indeed very ably and elaborately discussed by the learned counsel, but we shall confine ourselves to that one of the defenses upon which we think our decision must turn.</p> <p>On September 4,1872, the New Orleans, Baton Rouge & Vicksburg Railroad Company, a Louisiana corporation created in 1869, and which, for convenience, we shall speak of as the Baton Rouge Company, executed a deed of trust to the Union Trust Company of New York to secure the payment of $12,000,000 of its 80-year bonds, each of the denomination of $1,000, the principal of which to become due at the end of 30 years, namely, September 1, 1902, coupons being attached to each bond, whereby the maker of the bond agreed to pay interest semiannually until the principal was due. By this deed of trust (which we shall call the mortgage) the Baton Rouge Company conveyed to the trustee named all of its property including certain conditional interest in lands granted to it by Congress under the act of 1871 (Act March 3, 1871, c. 122,16 Stat. 573), to aid in the construction of a railroad from New Orleans to Vicksburg. Only 1,500 of these bonds (aggregating $1,500,000) were sold or issued, .and of them nearly all were taken up in some way long before their maturity. What was done with the proceeds or how some of them were taken up in no way appears from the testimony, though it is not contended by the plaintiff that any part of the proceeds of those bonds was applied by anybody to the construction of the railroad afterwards built by those who sueceedod the Baton Rouge Company, which latter company never did anything towards actually perfecting the land grant, inasmuch as it appears only to have filed what was regarded as an insufficient map of its general location in the office of the Secretary of the Interior at Washington. The plaintiff’s intestate, in due course, for value and before their maturity, became the owner and holder of the 30 bonds described in the bill, each of them being one of those issued under the mortgage referred to, and each being for the sum of §1,000.</p> <p>Under date of January 5, 1880, the Baton Rouge Company .entered into an agreement in writing with the New Orleans Pacific Railroad Company, which we shall call the New Orleans Company, and which was another Louisiana corporation created in 1875. The language of that agreement was as follows:</p> <p>“This indenture, made the fifth day of January, one thousand eight hundred and eighty, between the New Orleans, Baton Rouge & Vicksburg Railroad Company, a corporation created and existing under and by virtue of a special act of the Legislature of the state of Louisiana, approved December 30, 1869, party of the first part, and the New Orleans Pacific Railway Company, a corporation created and existing under and by virtue of the laws of the state of Louisiana, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the sum of one dollar lawful money of the United States of America to it in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and of other good and valuable considerations, has reraised, released, and quitclaimed, and by these presents does remise, release, and quitclaim unto the said party of the second part, and to its successors and assigns forever, all the right, title, and interest of said party of the first part, its successors, or assigns, of, in, or to a certain grant of public lands granted to the said party of the first part by an act of the Congress of the United States, approved March 3, 1871, and entitled ‘An act to incorporate the Texas Pacific Railroad Company and to aid in the construction of its road, and for other purposes,’ together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profit thereof, to have and to hold all and singular the above mentioned and described premises, together with the appurtenances unto the said party of the second part to its successors and assigns forever.</p> <p>“In witness whereof, the said party of the first part hath caused its corporate seal to be hereunto affixed, and these presents to be signed by its President and Secretary the day and year first above written.</p> <p>“W. H. Barnum, President.</p> <p>“Wm. M. Barnum, Secretary.”</p> <p>Nearly 11 years after the issuance of the bonds described in the bill, namely, in April, 1883, and after the construction of the railroad by agencies other than that of the Baton Rouge Company, the New Orleans Company^ for purposes therein recited, executed to John F, Dillon and Henry M. Alexander a deed of trust covering, among other things, the Baton Rouge Company’s possible interest in the property referred to in the agreement which we have just copied. This last deed of trust contained a clause as follows: “And whereas the New Orleans, Baton Rouge & Vicksburg Railroad Company has transferred and assigned its right to the said land grant to the said New Orleans Pacific Railway Company, which said last-mentioned company has accepted the same, without, however, assuming or becoming liable for any of the debts, obligations, claims, or charges of the New Orleans Baton Rouge & Vicksburg Railroad Company.” There was a consolidation of the New Orleans Company and the Texas Pacific Railroad Company, from which resulted the defendant, the Texas & Pacific Railway Company, and the latter company became bound t\> pay all the then existing indebtedness of the New Orleans Company, though, u\iless inferentially, it did not become bound to pay those of the Baton Rouge Company. And here it may be important to recall that the land grant lands, while in any way under the control of the Baton Rouge Company, had in no manner contributed to the construction of the railroad itself. Indeed, the Baton Rouge Company had not paid and never did pay to the United States even the expenses of the survey of those lands and so entirely nominal had become any claim- of that company to the land grants lands that by the act of February 8, 1887 (24 Stat. 391, c. 129) Congress forfeited the grant to the Baton Rouge Company and confirmed the title of the New Orleans Company. In these ways the land may have become liable for the debts of the New Orleans Company and the Texas & Pacific Company, but ,we have not been able to see how it can be inferred from any statutory provision or any agreement in writing that any trust upon that property could or did expressly or impliedly result for the payment of any of the debts of the Baton Rouge Company.</p> <p>While, indeed, my sympathies are with the plaintiff as the holder for value of the bonds which are the subject of this action, neither the quitclaim deed we have copied, nor any statute, nor any conjunction of both agreement and statute, have enabled us- to see how any express trust ever existed in plaintiff’s favor, or in favor of his decedent, except that created by the mortgage to the Union Trust Company as trustee, the bonds and limitations of which are set forth in the deed itself, which instrument, as we have seen, is in effect nothing more or less than a mortgage, and to be treated as such. If, as distinguished from that, there exists now or ever existed any trust, it must necessarily be one which arises ex maleficio or by mere implication and construction. To say the least, it is very difficult to see how any trust apart from the lien created by the mortgage of September, 1872, ever arose or could have arisen. Of course, the lien or trust of that mortgage rested upon the property of the Baton Rouge Company embraced in the mortgage, but that was neither more -ñor less than an ordinary mortgage lien only. If that lien still exist by virtue of that mortgage it may, of course, be enforced in a direct action in a court having jurisdiction, namely, a court, ether state or federal, sitting in Louisiana. A suit to subject that property to the mortgage must necessarily be brought and prosecuted 'in the state of the situs of the property and n'ot elsewhere. The situs of that real estate is not here, and this action is not that sort of suit. This suit seeks to enforce the collection of the mortgage debt, not indeed from the property mortgaged, but from another corporation now alleged to be personally liable for it. We have concluded that any such liability, if it exist at all, must be one that is secondary in character and resulting from some trust ex delicto to be implied (if such implication can arise) from some state of fact shown, and not upon any direct undertaking by the New Orleans Company or the defendant to pay the debt of another, to wit, the Baton Rouge Company. This statement will indicate our view to be that our decision must turn upon either one or both of the affirmative defenses made by the Texas & Pacific Railway Company (the only defendant before the court, the others having long ago been dismissed from the cause), and which defenses may compendiously be referred to, the first as that of the statute of limitations, and the second as that which imputes to the plaintiff such laches in bringing his action as should prevent the chancellor from granting relief.</p> <p>And, first, as to the statute of limitations:</p> <p>The bonds described in- the bill matured in September, 1902. This action was commenced on May 7, 1913, more than 19 years after the bonds became due. The principal and interest would aggregate at this time over $104,009. It is well settled that the law of the forum is that which governs where the statute of limitations is invoked. The forum being New York, the statute of that state is the one to govern in equity causes as well as in actions at law. Lewis v. Marshall, 5 Pet. 470, 8 L. Ed. 195. And see also O’Brien v. Wheelock, 184 U. S. 450, 493, 22 Sup. Ct. 354, 46 L. Ed. 636. The applicable provisions of the law of New York are embraced in the following sections and parts of sections of the Code of Civil Procedure, to wit:</p> <p>Section 380 is as follows: “The following actions must be commenced within the. following periods, after the cause of action has accrued.”</p> <p>“Sec. 381. Within twenty years: An action upon a sealed instrument. But where the action is brought for breach of a covenant of seisin, or against incumbrances, the cause of action is, for the purposes of this section only, deemed to have accrued upon an eviction, and not before.”</p> <p>“Sec. 382. Within six years: 1. An action upon a contract Obligation or lia bility express or implied; except a judgment or sealed instrument. 2. An action to recover upon a liability created by statute; except a penalty or forfeiture.”</p> <p>“See. 388. An action, the limitation of which is not specally prescribed in this or the last title, must be commenced within ten years after the causo of action accrues.”</p> <p>“Sec. 390». Where a cause of action arises outside of this state, an action cannot be brought, in a court of this state, to enforce said cause of action, after the expiration of the time limited by the laws of the state or country where the cause of action arose, for bringing an action upon said cause of action, except where the cause of action originally accrued in favor of a resident of this state. Nothing in this act contained shall affect any pending action or proceeding.”</p> <p>The court in this connection must avail itself also of the judicial knowledge imputed to it respecting the provisions of the Louisiana Code. That Coda seeins to fix the period of prescription (or, as we call it, the period of limitation) at not over ten years — that is to say, a suit upon a negotiable instrument is prescribed in five years after maturity, and a suit upon a mortgage is prescribed at ten years after it becomes enforceable. See Merrick’s Revised Code of Louisiana. If a suit brought in Louisiana to enforce a mortgage upon real estate situated there is prescribed by ten years’ delay after the cause of action has arisen, it would seem that the provisions of section 390a of the New York Code might certainly he applicable to the situation with which we are confronted. This action not being against the mortgagor nor against the maker of the bonds, but against a third party who is a stranger to both, is not a suit upon the mortgage, nor one upon the bonds in any direct way, nevertheless both the mortgage and the bonds are in a large sense, though incidentally, the basis of the action, for without them tho plaintiff could not succeed. As the claim against the defendant the Texas & Pacific Railway Company, must be based upon some implication to ho drawn from facts aiiunde the mortgage and tho bonds of the Baton Rouge Company, wo incline strongly to think that section 382 of the New York Code fixes the limitation governing this case, or, if it does not, then that section 388 does, and this, too, notwithstanding the provisions of section 410 of the New York Code, tiie second clause of which does not as we think, apply to a case like this, hut must be confined to those examples of express trusts explicitly named therein. We have carefully examined the cases of Northern Pacific Railway Co. V. Boyd, 228 U. S. 48, 33 Sup. Ct. 554, 57 L. Ed. 931, and Angle v. Chicago, etc., Railway Co., 151 LT. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55, but cannot find that they are controlling hero, nor that the statute of limitations was either pleaded or discussed by tho court in either of them.</p> <p>We need give little timo to a discussion of tho defense of laches, though it is quite difficult to find In the testimony anything to justify or excuse the long delay in bringing tho action, especially as the bonds on their face referred to the mortgage which was recorded in the proper offices in Louisiana whereby notice was given to all holders. We much inclino to think that this defense also should he sustained, but prefer rather to base our decree upon tho siatute of limitation. As to the defense of laches we think consideration may helpfully be given to O’Brien v. Wheelock, 184 TJ. S. 450, 493, 22 Sup. Ct. 354, 46 L. Ed. 636. The court, during the trial, was purposely very liberal in the admission of testimony, especially when offered by tho ifiaintiff, preferring to be free to give it any weight It might bo entitled to rather than to exclude it altogether. But while dealing with the question of admissibility in that spirit, some few items of proffered testimony seemed to be so remote as to fall outside of any reasonable limit.</p> <p>We think it results that the bill must be dismissed, with costs, and a decree accordingly may he prepared and submitted.</p>

<p>In Error to- the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by James H. Brooks against the Pennsylvania Utilities Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Quieting Title <@=>45 — Pleading—Defenses.</p> <p>Rev. St. Colo. 1908, § 4089, provides that every person in actual possession of lands under claim and color of title made in good faith, and who shall for seven successive years pay all taxes legally assessed, shall be adjudged to be the legal owner of such lands according to the purport of his paper title. Held that, in a suit to quiet title, defendants’ claim of title under this section was an affirmative defense, which it was the duty of defendants to set up and establish, and which would not justify a dismissal upon motion.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 93: Dec. Dig. <@=>45.]</p> <p>2. Trusts <@=>372 — Establishment—Actions—Laches.</p> <p>Ordinarily courts of equity, acting on their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere in attempts to establish stale .trusts, except where the trust is clearly established and the facts have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 600-603; Dec. Dig. <@=372.]</p> <p>3. Quieting Title <@=>29 — Laches—Guabdian’s and Administrator's Sale of Mining Property.</p> <p>Plaintiffs’ father died in 1892, while plaintiffs were minors, and in October of that year an administrator appointed by a Missouri probate court was authorized to sell their father’s interest in a mining claim in Colorado. In 1894 a guardian of plaintiffs and a curator of the estate of their deceased father, appointed by the same court, was authorized to sell the father’s interest in another mining claim, also situated in Colorado. The sales were made for what might well have been considered a fair price at that time, and the properties were developed with the expense, exertion, and risk incidental to mining enterprises. In 1913, 15 years after the oldest plaintiff, and 8 years after the youngest plaintiff, reached her majority, a bill was filed to quiet title and for an accounting, on the theory that the Missouri probate court had no jurisdiction to authorize the sales. Though fraud was alleged, no facts supporting the charge of fraud were alleged, except the want of authority of the administrator and the guardian to make the sales, and the assertion of title and the enjoyment of the properties by the purchasers. It appeared that plaintiffs knew of the appointment of the .administrator and the guardian, and while they claimed that they had no knowledge of their rights until in 1913, all that transpired in connection with the estate was disclosed by the public records. Held, that the* suit was barred by laches, since ignorance which is the effect of inexcusable negligence is no excuse-for laches, and knowledge of facts and circumstances which would put a person of ordinary prudence and diligence on inquiry is, in law,, equivalent to a knowledge of the facts which a reasonably diligent inquiry would disclose.</p> <p>[Ed. Note. — For other eases, see Quieting • Title, Cent. Dig. § 63; Dec. Dig. <@=>29.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; Walter H. Sanborn, Judge.</p> <p>Suit by the North American Company against the St. Louis & San Francisco Railroad Company, in which a receiver of the railroad company was appointed, and in which J. E. Love and others, constituting the Corporation Commission of the state of Oklahoma, and the United States Fidelity & Guaranty Company intervened. From a judgment allowing the claims of the interveners, but denying them a preference, the interveners appeal.</p>

Action by Cassius E. Gillette against the Press Publishing Company. Judgment for plaintiff, and defendant brings error. This cause comes here upon writ of error to review a judgment of the District Court, ..Southern District of New York, against plaintiff in error, who was defendant below.

Bill Caroline F. Hogg against Eascelles C. Maxwell and others. Decree for defendants, and complainant appeals. Affirmed. The suit is brought by the widow of Charles B. Hogg, a resident of New York state, to procure a construction of his will. The plaintiff contends that a certain trust created by the fifth clause of said will and the remainders limited upon it are void under the statutes of the state of New York against perpetuities.

<p>In Error to the District Court of the United States for, the Eastern Division of the Northern District of.Illinois; Kenesaw M. Landis, Judge.</p> <p>Action for statutory penalties by the United States against the Grand Trunk Railway Company. Judgment for the United States, and defendant brings error.</p> <p>The United States, defendant in error, brought this suit against plaintiff in error to recover a penalty for violation of tho act of June 29, 1906 (U. S. Comp. Stat. 1901, Supp. 1911, p. 1341), commonly known as the Twenty-Eight Hour Law, and being “An act to prevent cruelty to animals while in transit,” etc. The declaration is in one count, and charges that plaintiff in error knowingly and willfully confined a shipment of horses, loaded at Lucknow, in Ontario, Canada, transported from that point over its road through Michigan into Illinois, and destined to a point in British Columbia, for a period exceeding 28 hours, without unloading, in accordance with the requirements of the statute. The cause was submitted to the court without a jury, upon a stipulation of facts in substance as follows: The shipment, consisting of two cars containing 17 horses each, was loaded at 12 o’clock noon on February 1, 1911, at Lucknow, in Ontario, Canada, and left that place on that date; It reached Port Huron, Mich., at 12:50 a. m. on February 2, and Elsdou, 111., on February 3, where it was unloaded at 11:30 a. m. on that day, making a total period of 46 hours and SO minutes from the time it left Lucknow. The point of destination was New Westminster, British Columbia, in the Dominion of Canada, and the shipment was unloaded for the purpose of watering, feeding, and rest-tag the animals at Elsdon, 111. It was a continuous, through shipment between the above two Canadian points by connecting carriers, of which plaintiff in error was the originating carrier and carried the animals in question from Lucknow, Ontario, to -Elsdon, 111., on its own road. On one of the cars there was a 36-hour request. Upon the evidence thus presented, the court entered judgment against plaintiff in error in the sum of $500, to reverse which judgment this writ of error was sued out</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Pennsylvania Steel Company and another against the New York City Railway Company and others.' In the matter of the application of Benjamin Oppenheim for an order against Douglas Robinson, as receiver of the Metropolitan Street Railway Company. From an order denying the petition, petitioner appeals.</p>

<p>Customs Duties <S=»22 — Prohibition of Importation — Statutory Provisions.</p> <p>Negatives of a prize fight, from which positive films are to be made ■ and exhibited before the members and guests of clubs, societies, associations, and athletic clubs, with no limitation as to the number of guests, is within the inhibition of Act July 31, 1912, c. 263, 37 Stat. 240, as supplemented by the Act of October 3, 1913, c. 16, par. 380, 38 Stat. 151.</p> <p>[Ed. Note. — For other, cases see Customs Duties, Cent. Dig. § 18; Dec. Dig. <§u=22J</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by the United States, to the use of William T. Fowden, against the Fidelity & Deposit Company, -in which J. J. Witman intervened. Judgment for Witman, and defendant brings error.</p>

Suit in admiralty by Edgar E. Luckenbach and another, as executors of the will of Lewis-Luckenbach, deceased, against Ralph Pierson and others. From a decree holding the owner’s withdrawal of a steamer under a time charter wrongful, libelants appeal.

<p>Bankruptcy <@=3161 — -Voidable “Preference” — Transfers Constituting.</p> <p>Bankr. Act July 1, 1898, c. 541, § 47a (2), 30 Stat. 557 as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), provides that the trustee as to all property in the custody or coming into the custody of the bankruptcy court shall bo deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings, and as to all property not in the custody of the bankruptcy court with all the rights, etc., of a judgment creditor holding an execution duly returned unsatisfied. Section 60a provides that a person shall be deemed to have given a preference if, being insolvent, ho has within four months before bankruptcy made a transfer of any of his property, the effect of which will be to enable any creditor to obtain a greater percentage of his debt than other creditors of the same class. Section 60b makes such preferences voidable by the trustee. More than four months before bankruptcy the bankrupt executed an unacknowledged chattel mortgage for a present loan, and promised to’give another chattel mortgage on specific chattels for the purchase price thereof. Within the four months the promised mortgage was given; and both mortgages were acknowledged and recorded. It was conceded that both mortgages, though good as against the debtor, were invalid as against lien creditors until acknowledged and recorded; bnt it was 'contended that both mortgages were given for a present consideration, and that a transfer for a present consideration could not be a preference. Held that, assuming that a mortgage given for a present consideration, executed before, but recorded within, the four months period, is not voidable as a preference, the mortgages in question were voidable, since there was no transfer valid as against lien creditors or the trustee in bankruptcy until the mortgages were acknowledged, and the only consideration for the mortgages at that time was the pre-existing obligation.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 261-263; Dec. Dig. <@=3161.</p> <p>For other definitions, see Words and Phrases, First and Second Scries, Preference.]</p>

<p>1. War <5=16 — Jurisdiction—Discretion of Court.</p> <p>Whether the District Court would take jurisdiction of a libel in personam by a British corporation against an Austrian corporation for coal furnished the steamers of the Austrian corporation from time to time at Algiers, a French dependency, was a matter within the discretion of that court.</p> <p>[Ed. Note. — For other cases, see War, Cent. Dig. §§ 80-84; Dec. Dig. @=16.]</p> <p>2. War <$=>16 — Jurisdiction—Discretion of Court.</p> <p>A British corporation supplied coal to the steamers of an Austrian corporation from time to time at Algiers,' and drafts were drawn therefor, payable at London and duly accepted. Before maturity war was declared, and each sovereign prohibited its citizens from paying debts due an enemy, and the accepting bank at London refused payment, whereupon a libel in personam was filed for the amount of the original debt, and a steamer was attached. Held, that the District Court did not abuse its discretion in declining to take jurisdiction, on the ground that it would be inexpedient to- do so under the circumstances.</p> <p>[Ed. Note. — For other cases, see War, Cent. Dig. §§ 80-84; Dec. Dig. <$=>16.]</p>

Suit by Cyrus Townsend Brady against the Reliance Motion Picture Corporation and others. Erom an order denying a preliminary injunction in a copyright case, complainant appeals.

In E.rror to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action by John I. Marler and others against the Illinois Central Railroad Company. Judgment on a directed verdict for and plaintiffs bring error.

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge. .</p> <p>Suit by the Trenton & Mercer County Traction Corporation and others against the Board of Public Utility Commissioners of the State of New Jersey. From an order (227 Fed. 502) denying a preliminary injunction, complainants appeal.</p>

Rose, Judge. Action by John H. Tate against the Baltimore & Ohio Railroad Company for infringement of letters patent No. 643,560, for an improvement in locomotives, granted Eebruary 13, 1900, to J. B. Tate. Judgment for defendant, and plaintiff brings error.

<p>Patents @==>328 — Validity and Infringement — Bunk Cae.</p> <p>The Morton patent, No. 582,217, for a hunk car, for moving lumber in and out of the drying room, was not anticipated and discloses invention, but is entitled to a narrow construction only, and a limited range of equivalents ; also held infringed.</p>

Suit in equity by the Philadelphia Rubber Works Company against the United States Rubber Reclaiming Works. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree of the District Court,. Western District of New York, for injunction and accounting in a suit for alleged infringement of a patent.

<p>Patents @=>328 — Validity and Infringement — Fastening for Gratings.</p> <p>Tbe Berson patent, No. 1,105,873, for means for fastening floor and sidewalk gratings, claim 1, held to disclose patentable "invention, but not infringed.</p>

<p>Patents <©=5328 — Validity—Utility of Device.</p> <p>The Schmidt patent, No. 924,840, for an improvement In pipe couplings, claims 1 and 3, held void for lack of utility.</p>

Suit in equity by William T. Garrison and another against the Eagle Wagon Works and William Deveson, for infringement of patent No. 645,816, granted March 20, 1900, to George H. Lawrence, for a dumping car. Decree for defendants, and complainants appeal.

<p>In Equity. Suit by the Cheatham Electric Switching Device Company against the Brooklyn Rapid Transit Company, the Brooklyn Heights Railroad Company, the Nassau Electric Railroad Company, the Brooklyn, Queens County & Suburban Railroad Company, the Coney Island & Brooklyn Railroad Company, and the Transit Development Company. On motion by complainant for decree. Denied.</p>

<p>L Patents @=129 — Suit fob Infringement — Estoppel to Deny Validity.</p> <p>Where a patentee, who has assigned his patent, is employed toy an alleged infringer for the very purpose of designing a competing device which will, if possible, avoid infringement, there is such privity between employer and employs that, if infringement results, the employer is affected toy the equitable estoppel of the employé to deny the validity of the patent, but may, like him, show the state of the prior art.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 182%-186; Dec. Dig. @=129.]</p> <p>2. Patents @=90 — Anticipation—Prior Art — Copending Applications.</p> <p>As between two patents, the applications for which were in the Patent Office at the same time, neither is prior art as against the other, although, if they are for the same device, there may toe a contest as to priority of invention, and either patentee may carry the date of invention back of the date of filing his application.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 113-120; Dec. Dig. @=90.]</p> <p>3. Patents @=129 — Suit for Infringement — Evidence—Estoppel.</p> <p>A complainant is not estopped to attack a patent, when introduced by defendant as a part of the prior art, by the fact that it was one of those originally sued on, tout abandoned.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§■ 182%-186; Dec. Dig. @=129.]</p> <p>4. Patents @=165 — Construction of Claims — “Claim is the Measure of the Invention.”</p> <p>The statement in opinions that “the claim in a patent is the measure of the invention” is to be understood as applying to attempts to broaden claims beyond their language, and not as precluding a court from inquiring whether the claim as written is warranted by tbe specification, drawings, and the pMor art.</p> <p>[Ed. Noto. — Eor other cases, see Patents, Cent. Dig. § 241; Dep. Dig. @=165.]</p> <p>5. Patents @=328 — -Validity—Linotype Mechanism.</p> <p>The Cooney and Totten patent, No. 759,501, claim 11, for a magazine gate for linotype machines, held void, as too broad.</p> <p>6. Patents @=328 — -Validity and Infringement — Linotype Mechanism.</p> <p>The Homans patent, No. 888,462, claim 14, lor a magazine gate or matrix locking device for linotype machines, held not infringed.</p> <p>7. Patents @=328 — Anticipation by Prior Use — Linotype Mechanism.</p> <p>The Kennedy patent, No. 586,337, claims 1 and 2, for a space-band buffer for linotype machines, held void for prior use of the device by others.</p> <p>8. Patents @=828- — Valibtty and Infringement — Linotype Mechanism.</p> <p>The Rogers patent, No. 619,441, for a vise jaw mechanism for linotype machines, claims 1 and 2, if valid, are narrow, and are not infringed by the device of the Homans patent, No. 1,107,758, claim 4 held invalid, as too broad.</p> <p>9. Patents @=328 — Validity and Infringement — Linotype Mechanism.</p> <p>The Champion patent, No. 719,436, and the Morehouse patent, No. 826,-593, both relating to vise jaw mechanism for linotype machines, held not infringed.</p> <p>10. Patents @=328 — Invention—Linotype Mechanism.</p> <p>The Rogers patent, No. 630,112, for a pi-stacker or sorts-holding attachment for linotype machines, held void for lack of invention, and also for prior use.</p> <p>11. Patents @=328 — Validity and Invention — Linotype Mechanism.</p> <p>The Muelheisen patent, No. 718,781, claims 2 and 3, relating to magazine channels for linotype machines, held not infringed.</p> <p>12. Patents @=328 — Infringement—Linotype Mechanism.</p> <p>filie Dodge patent, No. 797,412, claim 9, for a magazine supporting frame in linotype machines, held not infringed.</p> <p>13. Patents @=328 — Infringement—Linotype Mechanism.</p> <p>The Ilomans patent, No. 830,436, claim 7, for a magazine supporting frame for linotype machines, held infringed by the device of the Homans patent, No. 1,116,280.</p> <p>14. Patents @=328 — -Validity and Infringement — Linotype Mechanism.</p> <p>The Kennedy patent, No. 797,436, claim 1, for a keyboard lock for lino-type machines, conceding its validity, if narrowly construed, held not infringed.</p> <p>15. Patents <5^=328 — Validity and Infringement — Linotype Mechanism.</p> <p>The Hensley patent, No. 643,289, claims 1, 2, and 3, for a mold-resistant device for linotype machines, held valid and infringed.</p> <p>16. Patents @=328 — Validity and Infringement — Linotype Mechanism.</p> <p>The Dodge patent, No. 739,996, claims 1, 2, and 3, for a mold support for linotype machines, held infringed.</p> <p>17. Patents @=328 — Invention—Linotype Mechanism.</p> <p>The Bedell patent, No. 787,821, claims 1, 2, and 8, for a gear wheel for actuating the second keyboard roll in linotype machines from the first, held void for lack of invention.</p> <p>IS. Patents @=328 — Infringement—Linotype Mechanism.</p> <p>The Homans patent, No. 837,276, claims 1 and 9, for a knife-adjusting device in slug-trimming mechanism for linotype machines, held not infringed.</p> <p>19. Patents @=328 — Infringement—Linotype Mechanism.</p> <p>The Rogers patent, No. 925,843, claims 1, 2, 8, and 4, for a mold disc support for linotype machines, construed, and held not infringed.</p> <p>20. Patents @=>328 — Infringement—Linotype Mechanism.</p> <p>The Bedell patent, No. 848,338, claim 4, for means, operative from the front of the machine, for disconnecting the ejector slide in linotype machines, is limited to,the particular means specified, or its equivalent. As so limited, held not infringed.</p> <p>21. Patents @=>328 — Validity and Infringement^-Linotype Mechanism.</p> <p>The Rogers reissue patent, No. 13,489 (original No. 615,909), claims 6 and 7, for an elevator for linotype machines employing matrices with two characters each, and provided with a movable matrix supporting blade, are entitled to a liberal construction, and a broad range of equivalents. As so construed, held infringed.</p> <p>22. Words and Phrases — “Yielding”—“Resilient”—“Spring-Supported.”</p> <p>The word “yielding,” as used in a patent claim, is not the equivalent of “resilient,” or “spring-supported,” but may be applied to a part which is retractable at will.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Yielding.]</p>

In Equity. Suit by the Dicks Press Guard Manufacturing Company and another against George W. Bowen, doing business as the Bpwen Manufacturing Company. On motion by complainant to have the Geuder, Paeschke & Frey Company made a party defendant.

<p>Patents <®=»328 — Validity and Infringement — Wise Mattress.</p> <p>The Witzel reissue patent, No. 18,125 (original No. 921,494), for a wire mattress having its sides extended and turned up at right angles to form a side guard to prevent the hair mattress from spreading, claim 23, held valid and infringed. Claims 19, 20, 22, and 24 held not infringed.</p>

In Equity. Suit by the Grand Rapids Showcase Company against Jesse I. Straus and others. On motion by complainant for bill of particulars. This is a motion made by the plaintiff for a bill of particulars of the defendants’ defense.

<p>In Equity. Suit by Nathan Tucker and William B. Robinson against Beriah E. Williamson, Collector of Internal Revenue for the Eleventh District of Ohio, and others.</p> <p>A motion is made to dismiss the bill, whose averments, as far as need be noted, are as follows: Both of the plaintiffs are graduates of medical schools. Each is a member of his county and state medical society. One ,has been engaged for 48 years as a physician in lawful practice, and the other 'for 19 years. Both are duly licensed to practice medicine in Ohio, and each has registered as required by the act of Congress of December 17, 1914, known as the Harrison Narcotic Daw.' Each has paid the special tax required by that law. In the course of their professional practice only they have been and are prescribing for, dispensing and distributing to various patients, numbering many thousands, and residing in various states, a certain medicine prepared by them for the relief of asthma and hay fever, which medicinal preparation contains cocaine. They do not personally attend all of their patients for and to whom they thus prescribe, dispense, and distribute such preparation, but in most instances prescribe for such patients and dispense and distribute such medicinal preparation to them upon the written statements of such patients to plaintiffs, describing and setting forth their respective symptoms and conditions. Since March 1, 1915, and for many years prior thereto, plaintiffs have kept a complete record showing the amount of all the drugs mentioned in section 1 of the act in question, dispensed or distributed, the date thereof, and the name and address of each patient to whom such drugs have been dispensed or distributed, and still keep such record as required by the act. The amount of cocaine in each dose does not exceed .001 of a grain. The preparation is distinctly alkaline. The greater per cent, of cocaine used in it is in the form of the decomposition products of cocaine, and not as cocaine per se; such cocaine being denatured as to its habit-forming or habit-satisfying qualities. As partners and jointly the plaintiffs, by means of the order forms prescribed by the act, have in their possession cocaine, for the sole purpose of its use, sale, and distribution by them and each of them in the lawful'practice of their profession as physicians, and have made and preserved duplicates of suc-h orders upon the form issued for that purpose by the Commissioner of Internal Revenue. Their medicinal preparation must be kept for a suitable length of time to perfect the same as a useful medicine for the treatment of asthma and hay fever patients. If the supply now on hand should be seized and destroyed, it'will prevent them from continuing to prescribe for and treat their patients, and will cause irreparable loss to them and each of them. The collector of internal revenue for this district, and other internal revenue officers, acting under the instruction of the Commissioner of Internal Revenue, dated June 10, 1915, will, unless restrained by the court, seize and forfeit all of the medicinal preparation and all medicines containing cocaine now in the possession of the plaintiffs, and will recommend to the district attorney the names of the plaintiffs for indictment and prosecution. Hie plaintiffs, on September 10, 1915, were notified by the Acting Commissioner of Internal Revenue that their practice of sending out a preparation containing cocaine to patients which such physicians have never seen is considered by such Commissioner to be an illegitimate practico of medicine, and in direct violation of the intents and purposes of the Harrison Anti-Narcotic Law, particularly of section 2, and should be stopped, and that a copy of his notification had been furnished to the district attorney and tho revenue agents. The plaintiffs are engaged in the practice of their profession as physicians, conducted according to law, and are prescribing for and dispensing and distributing to their patients the above-named medicinal preparation. and have a large' and valuable practice among such patients, and, if the orders of the Commissioner of Internal Revenue are enforced against them, they will suffer irreparable injury, loss, and damage, unless the defendants (the internal revenue collector and other revenue officers whose names are unknown) are restrained from seizing and forfeiting tho plaintiffs’ medicines, drugs, and medicinal preparation now in their possession and adapted to, needed for, and used in tho treatment of their patients. It is charged that the proposed acts of the defendants will be illegal, unauthorized, and in violation of the Constitution and laws of the United States, and of plaintiffs’ rights, and that the act in question is unconstitutional and void as applied to the plaintiffs or either of them in connection with their practice as physicians, in that it attempts to regulate tho prescribing, dispensing, and distributing of the drugs mentioned in it within the state of Ohio. The order of the Commissioner of June 10, 1915 (hereinafter mentioned), is also alleged to be without authority of law and void, in that (1) it holds that a physician can prescribe such drugs only when -he personally attends upon his patients in the course of his professional practice; (2) it attempts to invest the collector of internal revenue with a power of discrimination as to tho registration of certain named persons; (3) it holds that, if parties secure registration, such registration may be null and void, and does not protect them from prosecution for the use of the prohibited drugs mentioned in the act, upon the claim that the registration was obtained thrbugli misrepresentation or fraud; (4) the order attempts to authorize and direct the collector and other internal revenue officers to seize and forfeit prohibited drugs in the possession of citizens of the United States within the district; (5) it directs the collector and other internal revenue officers to recommend persons to the district attorney for indictment and prosecution; (G) it directs the collector and other internal revenue officers to seize and proceed to forfeit drugs prescribed or distributed on receipt of mail orders received from patients, or which are designed to bo so prescribed and distributed. The prayer is for a restraining order and for ultimate injunctive relief.</p> <p>Section 1 of the act provides, with certain exceptions which need not now be noted, for the registration and the payment of a special tax of $1 by “every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or cocoa leaves or any compound, manufacture, salt, derivative, or preparation thereof.” Cocaine is one of the speed-fled salts. Failure on the part of any such person so to register or pay the special tax is specifically declared to be unlawful. The word “person” ismnde to include a partnership. The provisions of existing revenue laws relating to the special tax, so far as applicable, including the provision of section 3240, R. S. U. S., are extended to the special tax imposed by the act. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is required to make all needful rules and regulations for carrying tiio provisions of the act into effect. The first paragraph of section 2 makes it unlawful for a person to sell, barter, exchange, or give away any of the drugs mentioned in the act, except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. It further requires the person who accejits such order to preserve the same, and also the person who gives it (if it be accepted) to preserve a copy of the same, for a period of two years in such a way as to be readily accessible to inspection of any officer, agent, or employé of the Treasury Department duly authorized for that purpose; hilt section 2 (a) declares that nothing contained in the section (and consequently the foregoing provisions also relating to the preservation of orders and copies of orders) shall apply to the dispensing or distribution of any of such drugs by a physician registered under the, act in the course of his professional practice only: Provided, that such physician keeps a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom the drugs are dispensed or distributed, except such as may he dispensed or distributed to a patient upon whom such physician shall personally attend — such record to be kept for two years from the date of the dispensing or distributing of such drugs, subject to inspection as above provided. Section 2 (d) provides for the sale of blanks by the Commissioner of Internal 'Revenue, with the approval of the Secretary of the Treasury, and the sale of them by collectors of internal revenue. It requires collectors, before delivery of any such blanks, plainly to write or stamp on them the name of the purchaser, and declares it to be “unlawful for any person to obtain by means of said order form any of the aforesaid drugs for any purpose other than the use, sale or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.” Section 4 first declares in comprehensive language who may not send, ship, carry, or deliver any of the drugs mentioned in the act, and then excepts from such broad provision “any person who shall deliver any such drug which has been prescribed or dispensed by a physician * * * required to register under the terms of this act, who has been employed to prescribe for the particular patient receiving such drug.” Section 7 provides that all laws relating to the assessment, collection, remission, and refund of internal revenue taxes, including section 3229, R. S. U. S. (Comp. St. 1913, g 5952), so far as applicable to and not inconsistent with the provisions of the act in question, are extended and made applicable to the special tax imposed by it. Section 8 specifies the persons as to whom it shall be presumptively unlawful to have any of such drugs in his possession. The section is then made inapplicable (1) “to any employé of a registered person(2) “to a nurse under the supervision of a physician * * * registered under this act, having such possession or control by virtue of his employment or occupation and not on his own account;” or (3) “to the possession of any of the aforesaid drugs which has or have been prescribed in good faith by a physician * * * registered under this act.” Section 9 imposes on violators of the law, upon conviction, a fine of not more than $2,000, or imprisonment for not more than five years, or both, in the discretion of the court.</p> <p>The ruling announced by the Commissioner of Internal Revenue and the Secretary of the Treasury on June 10, 1915, and of which complaint is made, is, in substance, as stated in this paragraph, and is as follows: The limitation of registration to certain named persons indicates the vesting of a power of discretion in collectors of internal revenue as to who shall register and from whom the special tax may be received. . Persons not legitimately engaged in the exercise of their trade or profession cannot legally register under the terms of the act. From the express language of the act, a physician can register and dispense the drugs embraced in the act “in the course of his professional practice only.” He can prescribe such drugs when he “has been employed to prescribe for the particular patient receiving such drugs,” and upon Whom he “shall personally attend in the course of his professional practice only.” Such prescriptions must be made “in the legitimate practice of his profession,” and then only when “employed to prescribe for the particular person (patient) receiving such drugs.” The duties of collectors of internal revenue do not end, under the provisions of the act, with simple registration. If parties secure registration through misrepresentation or fraud, such registration is null and void, and does not protect them from prosecution for the illegal use of the drugs, and it is the duty of collectors, when such cases are discovered, to investigate the same, and, when the law has. been violated in line with the foregoing, to seize and proceed to forfeit the prohibited drugs illegally in possession of such parties, and recommend such persons to the district attorney for indictment and prosecution. The collectors were informed that the foregoing “has special application to those persons who, registering as physicians, prescribe or distribute narcotic drugs or preparations on receipt of mail orders received from so-called patients, or who, under the laws of the state or under municipal regulation, are not permitted to practice medicine.”</p>

<p>Iii Equity. Suit by the Pittsburgh Melting Company against the Baltimore and Ohio Railroad Company and another. Decree for plaintiff.</p>

<p>In Equity. Suit by the Coca-Cola Company against J. G. Butler & Sons. Decree for plaintiff.</p> <p>Tlie plaintiff seeks to enjoin the defendants, who constitute a mercantile firm, doing business under the firm name of J. G. Butler & Sons, from using, in connection with the manufacture, advertising, offering for sale, or sale of any beverage, the words “Coca-Cola,” or any like word or words, and in any other manner infringing upon the plaintiff’s rights as owner of the trade-mark “Coca-Cola,” and also seeks an accounting of the damages sustained by it, by reason of the unlawful use of its trade-mark.</p> <p>The material allegations in the complaint are: That the plaintiff is now, and has been ever since 1892, manufacturing and marketing a syrup for making a beverage sold to the public under the name of “Coca-Cola.” That it became vested with and entitled to the sole and exclusive right to use that trade-mark, which has been duly registered in the United States Patent Office on May 14, 1892, under the provisions of the Act of Congress of March. 3, 3.891, c. 565, 26 Stat. 1106. That on April 22, 3.905, registration of the said trade-mark was again allowed by the Commissioner of Patents under the Act of Congress approved February 20, 1905, c. 592, 33 Stat. 724. That it has manufactured and marketed, and is now manufacturing and marketing, two kinds of said syrup — one designed and adapted for making a beverage by mixing with carbonated water at soda fountains in the presence of the purchaser, which is intended for immediate consumption, and is a fountain drink, and is well known to the public. The other kind is designed and adapted to be used, and is used, for manufacturing a carbonated beverage put up> and sold for consumption in bottles; each of them being sold by the plaintiff in distinctive packages, bearing its trade-mark name on distinctive labels. That it has at all times insured and safeguarded the manufacture and bottling of said carbonated bottled beverage made from its “Coca-Cola” bottling syrup, by selecting, designating, and licensing the bottlers using the said bottling syrup, and inspecting and supervising the manufacture, carbonating, and bottling of said beverage by said bottlers, so as to safeguard and insure the purchasers and consumers of said bottled product as to the quality, purity, and character thereof, and has under such circumstances and conditions, and none others, allowed and permitted the use of the name “Coca-Cola,” as the trade-mark therefor, and as plaintiff’s guaranty of the authenticity of the said carbonated and bottled beverage, and plaintiff’s supervision, inspection, and approval thereof, and responsibility therefor. So that in connection with a bottled drink the name “Coca-Cola” is plaintiff’s guaranty of genuineness and fidelity that such drink is properly made of proper materials, and is plaintiff’s assuranee of cleanliness and excellence of manufacture, carbonating, bottling, and sale, and is so relied upon by the purchasers and the public. That it has expended large sums of money in advertising to the public that its beverage, under its trade-name, can be had at fountains and in bottles, and that the bottled product which is offered to the public in bottles, with plaintiff’s trademark name “Coca-Cola,” applied to the bottled beverage, means to the public a beverage produced wholly under conditions which plaintiff supervises and controls, and one guaranteed throughout by plaintiff to be so produced, and to be wholesome, palatable, and'uniform, and is-so understood l}y the public. It is then charged that the defendants have put upon the market in bottles a product somewhat resembling in taste and appearance the plaintiff’s bottled “Coca-Cola,” but which is not plaintiff’s bottled “Coca-Cola,” and had applied to the crown of the bottles containing said defendant’s product, and upon labels attached to the bottles, the name “Coca-Cola,” as the trade-mark name therefor, without plaintiff’s permission or authority; that by reason thereof the public is being deceived into the belief, contrary to the fact, that the product of the defendants is the bottled product guaranteed by the plaintiff, as aforesaid.</p> <p>The answer of the defendants pleads that they are not sufficiently informed as to some of the allegations that are set out in the complaint, and therefore demand strict proof thereof. They deny that they have put upon the market in bottles any product resembling in taste and appearance the plaintiff’s bottled “Coca-Cola,” but allege the truth to be that the article they have put on the market is the genuine, identical article and product known as “Coca-.Cola.” They admit that they have applied to the crowns of the bottles containing such product, and upon labels attached thereto, the name “Coca-Cola,” but deny that it was done without authority. They allege that they purchased said product for the identical purpose to which they have applied the same, from individuals and corporations who were the lawful owners thereof, and authorized to sell the same to these defendants for the purpose of retailing the same, bottled and carbonated as “Coca-Cola,” and therefore they deny that the result of this use by them has been to deceive the public into the belief, contrary to the fact, that the product of the defendants is the product guaranteed by plaintiff to be properly made of proper materials, and made, carbonated, and bottled under the plaintiff’s authority and supervision. They then plead that the plaintiff, by adopting a system of exclusive contracts, has undertaken to divide the country, and especially the territory in which the defendants are operating, into districts, whereby they have agreed to sell to such persons and corporations alone, and exclusively thus contracted, which was done for the purpose of establishing and maintaining a monopoly in the sale of said product, and preventing and destroying, competition in the sale thereof, among the different purchasers, and have refused and still reftise to sell and furnish such product or commodity to the defeudants upon the same terms and conditions and at the same price as they are furnishing and selling this commodity to other purchasers thereof, all of which it is charged is for the purpose and object of lessening the competition and creating a monopoly in the sale of said syrup, in violation of the laws of the United States.</p> <p>■ The cause was submitted upon an agreed statement of facts. From this it appears: That the plaintiff is the owner of the trade-mark “Coca-Cola,” and it has been used by it and its predecessor in title since May, 1886. That it was duly registered as a trade-mark in the United States Patent Office, in conformity with the laws of the United States, as set out in the complaint. That it has advertised the same throughout the United States and in foreign countries; and that over $19,000,000 have been expended by the plaintiff in advertising it. That it is made up for the public in two forms, as alleged in the complaint. That the following differences, among others, are made between the syrup “Coca-Cola” manufactured to be used at fountains and that to be sold in bottles: In 1,250 gallons of the finished product the bottler’s syrup contains 1,000 pounds more sugar than the other. It has 10 per cent, more coloring matter, to wit,'caramel. It contains more phosphoric acid, and some percentage less of caffeine, than does the syrup made to be used at soda fountains. The fountain syrup contains 28 pounds of caffeine to 1,250 pounds of the finished product, while that used in the bottler’s syrup contains only 25 pounds of caffeine to 1,250 pounds. That the plaintiff in its sales system has two methods by which the product is sold:</p> <p>First. The system by which the syrup manufactured for fountain sale is sold to jobbers and dispensers, to be sold from the soda fountain; the jobbers selling it to tbe dispensers under a contract that the plaintiff will supply it only in the original package, that the jobber is not to sell or offer for sale as '‘Coca-Cola” any imitation of or substitute therefor, and upon compliance with the terms of the contract plaintiff will allow certain rebates to tbe jobber, depending upon the quantity bought, provided that the sales have been to dispensers only, and none to bottlers, or for the purpose of carbonating in bottles. The dispensers’ contract, wbicli he is required to sign, obligates him that, when "Coca-Cola” is asked for, he will only supply “Coca-Cola” as manufactured and furnished by the plaintiff, not to sell or offer for sale as “Coca-Cola” any imitation of or substitute therefor, and if he complies with these terms he is to receive a rebate, depending upon the quantity bought by him. The plaintiff does not enter into a dispenser’s contract directly, but only through the jobber. The fountain syrup is never sold for the purpose of bottling, and is not made or intended for the purpose of having the same bottled.</p> <p>Second. The syrup made for bottling purposes is sold to two corporations- - one “The Coca-Cola Bottling Company,” and the other “Coca-Cola Bottling Company.” This sale is made under and by virtue of contracts entered into between the ¡plaintiff and the bottling companies. There was an original contract, which was later amended. The original contract was made on the 21st day of July, 1899, and by this contract the bottling company obligated itself to establish in the city of Atlanta, Gn., a bottling plant for the purpose of bottling this syrup, with carbonic acid and water, and to prepare and put up in bottles, or other receptacles, a carbonated drink containing a mixture of “Coca-Cola,” syrup, and water charged with carbonic acid gas’ under a pressure of more than one atmosphere; the syrup to be in proportions of not less than one ounce to eight ounces of water. It also obligates itself to keep on hand a sufficient quantity to supply the demand in all the territory embraced in the agreement; that it is to buy all the “Coca-Cola” syrup from the plaintiff,, upon the terms set forth, and it is not to buy any substitute therefor, or other syrup or substances, nor attempt to use or imitate in any article prepared by them “Coca-Cola” syrup. The plaintiff is also to furnish all necessary labels and advertising matter at its own cost. Tbe right to use the name “Coca-Cola” and all the trade-marks and designs for labels then owned and controlled by the plaintiff, and the right to vend such preparation, or mixture, bottled or put up in bottles, in the United States, except the six New England states and the states of Mississippi and Texas, is granted to them exclusively; but the right to use the name, trade-mark, and labels is to apply only to the carbonated mixture described, and is not to apply to tbe soda fountain business.</p> <p>This contract was later amended by requiring the bottling company to buy all of the “Coca-Cola” syrup necessary to comply with the agreement' directly from the plaintiff; not to sell, or in any way dispose, without the written consent of the plaintiff, of any “Coca-Cola,” except after it is carbonated and bottled. The labels and advertising matter furnished by the plaintiff are to be paid for by the bottling company at what the actual cost and freight expense may be. By another amendment made to these contracts on April 2-1, 1915, the provision whereby tbe bottling company was to purchase the syrup directly from the plaintiff was amended by eliminating the condition that the bottling company is to buy all the “Coca-Cola” necessary from the plaintiff. It also eliminates from the former contracts those provisions by which the bottling company obligated itself not to use any substitute, or substitutes, or to attempt to use or imitate “Coca-Cola” syrup, and in lieu thereof the bottling company agreed not to manufacture, deal in, sell, offer for sale, use, Or handle, nor attempt to do so, either directly or indirectly, any product that is a substitute for or imitation of “Coca-Cola.” By another provision in this last amendment to the former contracts the plaintiff selects the bottling company as its sole exclusive customer and licensee, for the purpose of bottling “Coca-Cola” in the territory heretofore acquired by it, and it agrees not to sell its fountain syrup to any one, when it knows, that such syrup is to be used for bottling purposes; that under these contracts the bottling companies are not permitted to bottle the syrup manufactured for fountain purposes; that the two bottling companies have, with the approval of the plaintiff, given the right to certain local companies, which are established in different localities, for the purpose of bottling the bottling syrup of the plaintiff; that such a contract was made with the Little Bock Coca-Cola Bottling Company, for certain territory, which includes the town of Bussellville and county of Pope, where the defendants are carrying on the business sought to be enjoined by this proceeding.</p> <p>It is further stipulated that the plaintiff sets the standard by which its product is to be bottled, and by a system of inspection and supervision inspects and supervises the bottling of its product, wheresoever made; that it requires that its bottled product shall be bottled, using certain proportions, that the plants must be kept clean, and the cases and bottles sent out in a sanitary and presentable manner, a close supervision being kept over the character of the goods sent out; that a minute inspection is maintained in regard to the character, purity, and wholesomeness of the bottled “Coca-Cola.” The bottling companies have no connection in any way, shape, or manner with the sale of the fountain product. This supervision and inspection extends to all plants that bottle “Coca-Cola,” no matter where situated. The difference between these two products arose from the fact that it developed, in the process of bottling, that the product, when bottled, stood for a longer time after its carbonation than did the' syrup used at the fountains, and therefore, in order to provide for this contingency, a difference had to be made in the bottled product, and further that the character of ,the trade was best supplied by making a specific syrup for the particular purpose of bottling; that the syrup is not consumed by the public, only after being mixed with the proper proportions of water; that the system of supervision and inspection exer■cised by the plaintiff and the parent bottling companies consists of the following:</p> <p>In order to see that the product is bottled in a certain manner, and that the business is properly conducted, a system of supervisions has been organized by the plaintiff, known as the “Inspection Department.” This inspection department has a competent man at the head, whose duty it is to divide up the territories in such a, manner that they can be covered advantageously by the inspectors. Hive inspectors in this department operate in the Southern States. The head inspector routes these different inspectors and follows them up. A report is required from these inspectors from each different plant visited. Samples of the product are taken from the plant, which product is tested in the plant, to see whether or not the product conforms to the standard established ; these inspectors being trained men. The inspectors are equipped-with gas test gauges and hydrometers and other instruments to enable them to determine whether or not the product is being put up according to instructions. They carry other gauges and other things to test each machine used by the bottling plant, to determihe whether or not the machines are throwing the proper amount of syrup into each particular bottle. Samples are taken of the product, both before and after the process of carbonation. These samples are forwarded to the head inspector at Atlanta, where they are chemically examined, and if any difference appears they must immediately make the changes necessary to bring them to the standard prescribed by the plaintiff. If necessary, the chemical expert and a member of the advisory board are sent to make personal investigations of the plant.</p> <p>The water used in the carbonating is chemically tested, and the sanitary condition of the-plant is investigated, the latter being one of the main questions considered at all times. The question of carbonation in making the bottled product is given strict attention by the inspectors and chemical experts ; proper carbonation depending upon the machinery, the kind of water, and the temperature of the water used. As warm water cannot be carbonated, the bottling plants are required to install cooling plants to get the proper carbonation. The proper amount of carbonic acid gas, not only gives the product life, but helps to preserve it against deterioration, and thereby preserves the standard of the product. This supervision and inspection is tarried on in each and every bottling plant.</p> <p>It is further stipulated that the defendants have not been given a contract, nor express permission, directly or indirectly, to bottle either product of the Coca-Cola Company, nor use the trade-mark “Coca-Cola.” Notwithstanding this fact, the defendants are engaged in the manufacture and bottling of beverages, and are bottling and putting upon the market a product, a bottle of which is filed as evidence. The syrup used in making up this product by the defendants is the fountain syrup manufactured by the Coca-Cola Company, and which they obtain in the course of trade from jobbers or retailers who have purchased the fountain product of the Coca-Cola Company, and they bottle it without permission or authority from the plaintiff, and, apply the trade-mark “Coca-Cola” thereto, by using the tops and labels of the plaintiff on the product, without authority from any one authorized to give it. These purchases are made from parties who are the lawful owners thereof, and who sell the same to the defendants in the due course of trade. The plaintiff, as well as the bottling companies, have refused to sell to the defendants the syrup for the purpose of bottling, although the defendants offered to purchase and pay therefor, and objected to their using the trade-mark “Coca-Cola” in connection with their bottled product, or to do anything to the plaintiff’s syrup for the purpose of reselling or using the same.</p>

<p>1. Couets <§=>274 — United States Couets — District in Which Suit Should be Brought.</p> <p>Under Judicial Code (Act March 3, 1911, e. 231) § 57, 36 Stat. 1102 (Comp. St. 1913, § 1039), relative to ordering absent defendants to appear and plead in suits to enforce any legal or equitable lien upon or claim to real or personal property within the district where the suit is brought, a suit by a New York telegraph corporation to enjoin a Kentucky railroad corporation from removing or interfering with the telegraph company’s lines on the right of way within the Northern District of Georgia was maintainable in that district, as it involved a claim to an easement in land or right to occupy land.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 814; Dec. Dig. <§=>274.]</p> <p>2. Couets <§=5276 — United States Courts — Waiver, of Objections to Action in Wrong District.</p> <p>In an action in the Northern district of Georgia by a New York corporation against a Kentucky corporation, defendant waived its right to object that the suit was not brought in the proper district by appearing and • filing a motion .to dismiss the case on the merits.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 815; Dec. Dig. <§=5276.]</p> <p>3.. Telegraphs and Telephones <§=>11 — Use of Railroad Rights of Way— Construction of Contracts.</p> <p>The A. Railroad Co., owning telegraph lines on its right of way, conveyed such lines to the W. Telegraph Co., and entered into a working agreement with it respecting the use and maintenance of such lines. The A. Co. subsequently conveyed all of its property to the L. Railroad Co. Some time prior thereto a contract had been made between the L. Co. and the W. Co. whereby the L. Co., so far as it legally might, granted and agreed to assure to the telegraph company an exclusive right of way on and along the line, lands, and bridges of all roads then or thereafter owned, leased, controlled, or operated by it, for the construction and use of such lines of poles and wires as the telegraph company might require. The contract stated that it was intended to cover and embrace all railroad lines then owned, leased, controlled, or operated by the L. Co., and also any branches thereafter constructed or any other railroads that might be acquired by it. Melé, that the A. Co.’s road, having been acquired by the L. Co. during the existence the agreement, was embraced within the contract, and the contract was operative with respect thereto.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 7; Dec. Dig. <@=5llj</p> <p>4. Telegraphs'and Telephones <§=>11 — Use of Railroad Rights of Way— Construction of Contracts.</p> <p>A contract between a railroad company and a' telegraph company provided that the railroad company, so far as it legally might, thereby granted and agreed to assure to the telegraph company an exclusive right of way on and along the railroad's lines for the construction and use of such lines of poles and wires as the telegraph company might require,, together with the exclusive right to maintain offices in its depots for telegraph business. It further provided that it should supersede -prior agreements between the parties, and should continue in force for 25 years, and thereafter until the expiration of one year after written notice had been given by one party to the other of a desire or intention to terminate it. Held, that the agreement gave the telegraph company no irrevocable of perpetual right in and upon the railroad right of way, but simply the right to use and occupy such right of way until the expiration of the contract, and after the expiration of the 25 years either party had a right to terminate the contract by giving notice.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 7; Doc. Dig. <@=>11.]</p> <p>5 Eminent Domain <§=>10(1 — Jurisdiction—Courts of Equity.</p> <p>Where a railroad company had notified a telegraph company to remove its lines from the railroad right of way and vacate the right of way after the expiration of a contract between the companies authorizing the telegraph company to use and occupy the right of way, a court of equity had no power to condemn the property and fix the amount of compensation to be paid to the railroad company by the telegraph company.</p> <p>[Ed. Note — For other cases, see Eminent Domain, Cent. Dig. §§ 448-150, 456; Dec. Dig. (@=>166.]</p>

<p>1. Corporations <@^.‘>08 — Officers—Salaries—Powers of Board of Directors.</p> <p>M. was the treasurer of a corporation whose business had been very prosperous during the year ending August 1, 1910. By the company’s custom, salaries were iixed by the directors in January, but ran for one year from the preceding August. In January, 1911, M. demanded an increase'-in salary from $12,000 to $25,000, and the issuance to him of stock in the corporation previously authorized, but not issued, because of extraordinary services rendered by him during the preceding year. The directors objected, and the matter was left in abeyance and not settled until August 2, 1911,' after the expiration of the salary year. At that time M., to whom the company was then largely indebted, took the position that the company could either meet his terms or get another treasurer and arrange for payment of his indebtedness. The company was in no position to take this last alternative, and the directors, after considering the matter carefully, honestly and disinterestedly decided that it was best for the company to comply with M.’s demand, and it was voted to pay the $25,000' demanded and issue the stock in “part payment for his services to the company during the year.” The corporation was not then insolvent, and did not become bankrupt for about 17 months thereafter. With the knowledge of the directors M. continued to draw salary at the increased rate until his death in the following June. The board of directors in office in January, 1911, did not go out of office until the following October. Held, that it was not beyond the powers of the directors to act in the matter after the expiration of the salary year, their own term of office not having expired.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334r-1349; Dec. Dig. <@=>308.]</p> <p>2. Corporations <@=>308 — Officers—Salaries—Validity of Payment.</p> <p>As M. was ácting for himself in the transaction, and the corporation was adequately represented by its board of directors, the contract, after it had been executed by M., could not be set aside, and his estate charged with the difference between his original salary and the increased salary.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1334^-1349; Dec. Dig. <@=>308.]</p> <p>3. Corporations <@=>316 — Officers—Dealings with Corporations.</p> <p>While the vote referred to the stock as payment for past services, it was •demanded and granted as the price of M.’s future assistance and financial support, and was not a bonus or gift.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1404r-1406, 1408, 1409, 1412-1414; Dec. Dig. <@=>316.]</p> <p>4. Bankruptcy <@=>339 — Corporations <@=>308 — Officers—Dealings with Corporations.</p> <p>Assuming that, because of M.’s fiduciary relation to the company, he had no right to acquire its obligations to such an extent as to give him power to coerce it into meeting his demands, the contract was merely voidable, and not void, and continued in force until the company rescinded it and offered to return what it had received thereunder, and an objection by creditors to the allowance of M.’s claim against the bankrupt estate of the corporation, without offsetting the value of. the stock and the increase in salary, was not such a rescission; the corporation being no party to the proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525, 526; Dec. Dig. <@=>339; Corporations, Cent. Dig. §§ 1334 — 1349; Dec. Dig. <@=>308.]</p> <p>5. Corporations <@=>314 — Officers—Dealings with Corporations.</p> <p>The treasurer of a corporation took up its matured obligations for borrowed money with his personal funds and turned them over to the corporation in exchange for its note for the amount thereof plus a commission of 5 per cent, taken by him on the loan. The commission in question would have been reasonable and proper if paid to a third party, and a similar commission had been paid to third parties on loans previously obtained. Eight of the nine directors of the corporation learned of the transaction while the company was still operating, but neither they nor anybody on behalf of the company ever objected, and the company never rescinded the transaction, nor took- any steps to do .so, prior to becoming bankrupt, though the transaction was disclosed by its books. Held, that while, as the treasurer represented both himself and the corporation in the transaction, it was voidable at the option of the company, it was ratified, and conld not -be set aside.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1393-1398, 1400; Dec. Dig. <§=3314.]</p> <p>6. Corporations <§=3314 — Officers—Dealings with Corporations.</p> <p>Officers of a corporation are not precluded from loaning money to it, so long as they deal fairly with it.</p> <p>[Ed. Note. — For other cases,- see Corporations, Cent. Dig. §§ 1393-1398, 1400; Dec. Dig. <§=>314.]</p> <p>7. Bankruptcy <§=>339 — Claims—Objections—Bight of Creditor to Object.</p> <p>After the appointment of a trustee in bankruptcy, objections to claims should be made and review proceedings, if advisable, taken by him, or, if he declines to act, by creditors proceeding in Ms name by order of the referee, and individual creditors should not be recognized in such matters.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 525, 526; Dec. Dig. <§=>339.]</p>

<p>In Equity. Suits by the Illinois Central Railroad Company and by the Yazoo & Mississippi Valley Railroad Company against the Mississippi Railroad Commission and others. On motion for preliminary injunction.</p>

Patrick H. Coyle was indicted for perjury committed before George B: Russell, special master in a bankruptcy proceeding. On demurrer to the indictment.

<p>In Bankruptcy.- In the matter of the Louis J. Bergdoll Motor Company, bankrupt. On petitions for review of an order of the referee.</p>

<p>In Admiralty. Suits for collision by A. J. & J. J. McCullom, Incorporated, and by Edward J. Phalen against the steam tug Port Johnson Towing Co. No. 7.</p>

<p>In Bankruptcy. In the matter of Hannah Josephson and others, individually and as partners under the firm name of Josephsons, bankrupts. On objections to the discharge of the bankrupts. Discharge denied as to two of the partners, and granted one of the partners.</p>

<p>1. Monopolies <3=31 — Criminal Prosecutions — Sufficiency of Indictment.</p> <p>An indictment alleged that defendants entered into a conspiracy that they should appoint an executive committee, that the executive committee should constitute a listing committee, that the listing committee should cause a list of undesirable persons to be prepared and published, and that defendants should thereafter refuse to have any further business dealings with such blacklisted persons, that the defendants did appoint a listing committee, that in pursuance of the conspiracy and to effect its object the committee blacklisted a person named, and defendants refused to deal with him, thereby restraining him from carrying on interstate trade. Held, that this sufficiently alleged that the conspiracy was actually entered upon and engaged in, and the use of the word “should” did not render it insufficient in this respect.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <3=31.]</p> <p>2. Indictment and Information <3=125 — Monopolies—Criminal Prosecutions — Duplicity.</p> <p>Such indictment was not bad for duplicity, as charging both a conspiracy in restraint of trade and an actual restraint of trade, as the overt acts described were alleged in support of the charge of conspiracy, and not as separate crimes.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Gent. Dig. §§ 334-400; Dec. Dig. <@=125.]</p> <p>3. Indictment and Information <3=86 — Requisites and Sufficiency — Allegations as to Venue.</p> <p>An indictment for a conspiracy in restraint of trade alleged that at Boston, in the district of Massachusetts, the defendants therein named unlawfully, etc., entered into- a conspiracy therein described, and that, in pursuance of such conspiracy and to effect its object, they did certain acts. Meld that this sufficiently alleged a crime committed by each of the defendants within the district of Massachusetts.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <§=>86.]</p> <p>4. Monopolies <§=31 — Criminal Prosecutions — Sufficiency of Indictment.</p> <p>Interstate shippers of an especially desirable variety of potato formed a shippers’ association, the members of which made 75 per cent, of all interstate shipments of such potatoes. The association acted through a committee, which was authorized to determine whether any person producing, receiving, or dealing in such potatoes was undesirable. Persons adjudged undesirable were put on a black list, which was circulated among the members, who were forbidden under a penalty from having any business dealings with blacklisted persons. The black list was also circulated among nonmembers, dealing in potatoes as buyers, sellers, commission merchants,'or otherwise, and such nonmembers were notified that, unless they ceased dealing with blacklisted persons they would be blacklisted, and members of the association would no longer deal with them. An indictment for a conspiracy in restraint of trade did not state the object of the association or the -reasons for which persons were blacklisted. Meld, that on demurrer it must be assumed that these reasons were legitimate, and hence the indictment did not show that defendants were not within their rights in forming the association, blacklisting persons, and agreeing that the members would not deal with such blacklisted persons, but that in going outside its own membership and attempting to coerce nonmembers from dealing with those blacklisted it was an illegal conspiracy.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent Dig. § 20; Dec. Dig. <§=>31.]</p> <p>5. Monopolies <§=>17 — Combinations Prohibited — Boycotts — Secondary Boycotts.</p> <p>Where it was intended to restrain the trade of the blacklisted persons, the “secondary boycott,” or attempt of the members of the association to coerce nonmembers into refraining from dealing with blacklisted persons, was illegal under the Sherman Act (Act July 2, 1890, c. 647, 26 Stat. 209 [Comp. St. 1913, §§ 8820-8830]), regardless of defendants’ purpose or motive as no purpose or motive could make such action justifiable or such restraint legal.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <§=>17J</p> <p>6. Monopolies <§=>31 — Criminal Prosecutions — Sufficiency of Indictment. .</p> <p>Where an indictment against the members of £ potato shippers’ association, the members of which controlled 75 per cent, of an especially desirable variety of potatoes, for conspiracy in restraint of trade, alleged that persons engaged in buying, selling, or dealing in such potatoes could not obtain sufficient quantities to meet their legitimate demands unless potatoes were supplied to them by such members, it sufficiently appeared that it was intended to restrain the trade of persons blacklisted by the association, as the refusal to do business with them would restrain their trade, and the intent must be presumed from the act itself.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <§=>31.]</p>

<p>In Equity. Suit by Laughter & Fisher against W. T. McLain, Eire & Police, Commissioner of the City of Memphis, and another. Stay vacated, and temporary injunction denied.</p>

<p>1. Constitutional Law <@=>240 — Monopolies <@=>10 — Equal Protection op the Laws — Classification.</p> <p>Act La. No. 10 of 1915, regulating the business of refining sugar, provides that any person engaged in the business of refining sugar within the state, who shall systematically pay in Louisiana a less price for sugar than he pays in any other state, shall be prima facie presumed to be a party to a monopoly or combination in restraint of trade or commerce, and upon conviction thereof subject to a fine of $500 a day for the period during which he is adjudged to have done so, and that the business of refining sugar within the meaning of that act is thereby defined to be that of any concern that buys or refines raw or other sugar exclusively, or that refines raw or other sugar from sugar taken on toll, or that buys and refines more raw or other sugar than the aggregate'of the sugar produced by it from cane grown and purchased by it. Held, that the discrimination between the sugar refiners to which it applies and buyers of sugar not engaged in refining, or refiners of sugar not engaged in refining in Louisiana, or not buying or refining more sugar than the aggregate of that produced from cane grown and purchased by them, or not buying sugar in any other state, is such a denial of the equal protection of the laws to the refiners to which it applies as to render the statute invalid and unenforceable, as it makes the fact of one’s ownership of property in Louisiana the test of criminality, and makes an arbitrary selection of the parties who shall be subjected to its penal provisions, without regard to any difference between their delinquency and that of others.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 688, 692, 693, 697-699; Dec. Dig. <@=>240; Monopolies, Cent. Dig. § 9; Dec. Dig. <@=>10.]</p> <p>2, Injunction <@=>105 — Subjects of Relief — Enjoining Enforcement of Statute.</p> <p>A sugar refining company, within the class to which Act La. No. 10 of 1915, regulating the business of sugar' refining, applies, is entitled to injunctive relief against the enforcement of such statute.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 178, 179; Dee. Dig. <@=>105.]</p> <p>3. Injunction <@=>21 — Grounds for Denial — Coming into Court with Unclean Hands.</p> <p>That a sugar refining company, seeking injunctive relief against the enforcement of a statute regulating the business of buying and refining sugar, and arbitrarily discriminating between parties engaged in such business, has in the past been guilty of alleged harmful and lawless practices In the conduct ¿of its business, Is not ground for denying injunctive relief, as such relief will not protect it from the consequences of any past misconduct, or enable it in the future to do anything which it has not a right to do.</p> <p>[Ed. Note. — for other cases, see Injunction, Cent. Dig. § 19; Dec. Dig. <@=>2i.]</p>

Frederick W. Curtis was indicted for alleged violations of the act of Congress approved December 17, 1914, and known as the “Harrison Narcotic Daw.” On demurrer to the indictment.

In Admiralty. Suit by the Orvig Dampskibselskap Actieselskabet and by the Actieselskabet Neptun against the New York & Bermudez Company and the Hamburg-Amerikanische Packetfahrt Actien Gesellschaft. On objection by. the second defendant to answering certain interrogatories attached to the libel.

<p>3 Copyrights <3=81 — Suits for Infringement — Parties.</p> <p>Under equity rule 37 (198 Fed. xxviii, 115 C. C. A. xxviii), providing that all persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, where the author of a copyrighted drama assigned the right to produce and present it upon the stage by a company of players, reserving all other rights, including the moving picture rights, the licensee was not a proper party to a suit for infringement of the copyright by producing a motion picture play, though this production would be financially injurious to the licensee by diverting persons w'ho might see the play from doing so, as the interest referred to in tlie rule means an interest in law, and does not include a possible injury for which a person has not retained for himself any right or redress.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. <3=81.]</p> <p>2. Equity <3=149 — Misjoinder of Parties Plaintiff — Effect.</p> <p>In a suit in equity, the misjoinder of a party plaintiff having no interest, and to whom no relief can be granted, renders the complaint multifarious and devoid of equity, and requires the dismissal of the complaint.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 342, 368-370; Dec. Dig. <3=149.]</p> <p>3. Copyrights 3=82 — Suits! for Infringement — Exhibits.</p> <p>Under the express provisions of Supreme Court rule 2 (29 Sup. Ct. xlviii), in a suit for infringement, a copy of the work alleged to be infringed should accompany the complaint, or its absence should be explained.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 72, 73; Dee. Dig. 3=82.]</p> <p>4. Copyrights 3=82 — Pleading—Amendment—Terms.</p> <p>Where, in a suit for infringement of a copyrighted drama, an incorrect copy of the work was filed with the complaint, whether this required that plaintiff should, as a condition of amendment, be compelled to pay certain expenses incurred by defendants, was a matter that could be dealt with on the trial, when the trial judge could deterihine whether the differences between the copyrighted work and the manuscript submitted to tbe court were of real importance, or only of minor consequence, and it would not be determined on a motion to dismiss.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 72, 73; Dec. Dig. <3=82.]</p>

<p>1. Corporations <@=537 — Insolvency—Capital Stock as Liability.</p> <p>The capital stock of a corporation is not a liability to be taken into account in determining whether a corporation is solvent, as stockholders do not stand on an equal footing with creditors, and their rights are subordinate to the rights of creditors, especially in view of Bankruptcy Act July 1, 1898, e. 541, § la (15), 30 Stat. 544 (Comp. St. 1913, § 9585), providing that a person shall be deemed insolvent within that act whenever the aggregate of his property, exclusive of any conveyed, etc., with iptent to defraud creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts.</p> <p>[Ed. Note. — For other cases, see -Corporations, Cent. Dig. § 2150; Dec. Dig, <@=537.]</p> <p>2. Corporations <§=>876 — Indebtedness—Purchases of Stock — “Property.”</p> <p>Under Const. Pa. art. 16, § 7, and Act Pa. April 17, 1876 (P. L. 32) § 4, prohibiting corporations from issuing stock or bonds except for money, labor done, or money or property actually received, and providing that all fictitious increases of stock or indebtedness shall be void, where a corporation purchased its own stock and issued a bond secured by a mortgage in payment thereof, the bond and mortgage were void, as the stock of the corporation was not “property” that would enlarge the assets of the corporation and be available for creditors, and the debt created was therefore fictitious.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1530; Dec. Dig. <§=>376.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>3. Cobpobations <§=>544 — Capital Stock as Trust Fund.</p> <p>Under the law of Pennsylvania the capital stock of a corporation is a trust fund for the payment of company debts.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2162-2169; Dec. Dig. ©=>544.]</p> <p>4. Bankruptcy ©=>148 — Tbansfers by Bankrupt — Capital Stock as Trust Fund.</p> <p>Under the rule recognized in Pennsylvania that the capital stock of a corporation is a trust fund for the payment of debts, where a corporation owing debts, some of which had not been paid when it subsequently became bankrupt, purchased its own stock and executed a bond secured by a mortgage therefor, the mortgagees were not entitled, as against creditors and the trustee in bankruptcy, to Insurance money on certain of the mortgaged property, as until the mortgage was paid the capital stock was not paid for, and. the transaction amounted only to an agreement to redeem the stock, and the mortgagee stockholders were therefore attempting to seize capital stock to the prejudice of the creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 194, 201, 202, 213-217, 223, 224; Dec. Dig. ©=>143.]</p>

In Admiralty. Suit for collision by James Morrow and another against the steam tug Wyomissing and the Morris & Cumings Dredging Company. Decree against the tug, and dismissed as to the Dredging Company.

<p>In Bankruptcy. In the matter of Ambrose Matthews & Co., alleged bankrupt. On exceptions to and motion to confirm the report of a special master recommending that the alleged bankrupt, a corporation of</p> <p>New Jersey, be adjudged a bankrupt. Exceptions sustained, and petition dismissed.</p>

<p>In,Admiralty. Proceeding by the Union Spar Company against'the schooner Francis J. O’Hara, Jr. On intervening petition of the Gorton-Pew Fisheries Company.</p>

<p>At Law. Action by Jessie G. Darrow against the Postal Telegraph-Cable Company of New York. On rule to set aside service of the summons.</p>

<p>1. Bankruptcy <@=346 — Preferred Claims — Taxes—Power of Bankruptcy Court.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (Comp. St. 1913, § 9648), making taxes preferred claims, but providing that, in case any question arises as to the amount or legality of any such tax, it shall be heard and determined by the court, the court is not bound by the action of the taxing authorities, but may decide the amount or legality of the'tax for itself, and is not limited to such questions as the bankrupt might have raised against the tax at the date of the bankruptcy proceedings.</p> <p>[E'd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <@=346.]</p> <p>2. Bankruptcy <@=346 — Preferred Claims — Taxes—Validity.</p> <p>A state tax commissioner assessed against a corporation a tax based on the market value of its stock, acting upon a padded and false return made by the corporation, which largely overstated its assets and understated its liabilities. The stock was in fact worthless, and if the real facts had been disclosed no assessment could properly have been made. Held, that the state was not entitled to the allowance of the tax in bankruptcy, to the prejudice of the general creditors of the corporation.</p> <p>HOd. Note,/ — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <@=3346.]</p>

<p>At Law. Action by Charles Fias against the Illinois Central Railroad Company. On motion to remand.</p>

<p>1. Master and Servant <§=>278 — Actions fob Injuries — Negligence—Sufficiency of Evidence.</p> <p>An employé, operating an excelsior baling press, consisting in part of a plunger, moving horizontally forward and back across a pit, and a treader, coming down into the pit from above, was killed by the treader knocking him into the pit in front of the plunger. It was part of Ms duty to bend over the pit, and put a header into the pit,, as the plunger drew back, when the pit was filled with excelsior, and when he went to work ■ he was instructed, before doing this, to shut off the flow of excelsior and move a lever, throwing the treader out of operation. There were no eyewitnesses to the accident, and the excelsior was found shut off, but the treader was in operating position. There was evidence that the treader would sometimes operate when the lever was in the stop position, and throw the lever into the operating position; that this was known to the agent whom the employer directed to instruct the employé as to the manner of doing the work; that it was abnormal and dangerous for the treader to so operate, and that it would not do so if the machine was in proper repair; and that the employ!) had always been seen by the employer and Ms associates doing his work as instructed. Held, that the jury were warranted in finding that the machine was out of repair; that the employer knew this, or from the length of time that it had’ existed, ought to have known of»it, and put it into proper condition; and that it was negligefit in failing to do so.</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> <p>2. Master and Servant <@=>276 — Actions for Injuries — Negligence—Sufficiency of Evidence.</p> <p>A finding was warranted that the employé followed the instructions and stopped the operation of the treader, and that the machine was after-wards put into operation through its being out of repair, especially in view of the fact that he must have known that it would be extremely hazardous, if not impossible, for him to put in the header when the treader was operating.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. <@=>276.]</p> <p>3. Master and Servant <@=>265 — Actions for Injuries — Burden of Proof.</p> <p>It was not incumbent upon the employé’s administratrix, in an action for death, to show what particular defect in the machine caused it to operate in the abnormal and dangerous way mentioned; ’ the fact that it did so operate itself disclosing that the machine was in some particular defective.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. <@=>265.]</p> <p>4. Master and Servant <£=285 — Actions for- Injuries — Questions for Jury.</p> <p>In an action for the death of an employé, operating an excelsior baling press and killed when a treader, the lever operating which had been placed in a stop position, was in some way thrown into operating position, evidence held to make questions for the jury as to whether the accident was caused by the worn condition of certain parts of the machine, which allowed them to come in contact with an upright controlling the operation of the treader.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. <@=>285.]</p> <p>5. Master and Servant <@=>270 — Actions for Injuries — Admissibility ' of Evidence.</p> <p>In an action for the death of an employs, operating an excelsior baling press and knocked into a pit in front of a plunger by a treader, there was evidence that when he went to work he was instructed to move the lever controlling the operation of the treader to a stop position before leaning over the pit, and that his employer and associates had always seen him do the work in this way. The treader was found in operating position after the accident, but there was evidence that defects in the machine might have caused this. Held, that the testimony as to how he operated the machine was competent; whether or not testimony of habit is admissible, to show the method of work pursued at the time of an accident, as such evidence simply tended to show that in doing his work he understood what his instructions were and followed them, and it was a perfectly reasonable inference for the jury to make that he probably followed such instructions on the occasion in question.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. <@=>270.]</p> <p>6. Master and Servant <@=>270 — Actions for Injuries — Admissibility of Evidence.</p> <p>In an action for the death of an employs, claimed to have been caused by the machine he was operating being thrown into operating position because of defects in the machin.e, the court admitted' evidence as to occasions shortly before he commenced work on the machine and shortly after the accident, when the operation of the machine was started in this way, as well as evidence regarding the wear on a part of the machine claimed to have thrown the machine into operation. Held, that an objection to this evidence on the ground of remoteness raised a question for the trial court, and presented no error of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. <@=>270.]</p>

<p>1. Insurance @=>560 — Notice oe Loss — Waives.</p> <p>A policy of fidelity insurance issued to an insurance company on account of an agency required the assured to give immediate notice of any loss, or of facts indicating that loss had probably been sustained. The assured notified the insurer of a claim against the agency several months overdue, explaining that the delay in giving notice was due to its continued attempts to obtain settlement and statement of the account. The insurer, without objecting to the notice, also assisted in trying to obtain an agreement between the parties. Held, that it thereby waived the condition requiring immediate notice.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1393-1404; Dec. Dig. @=560.]</p> <p>2. Insurance <§=>556 — Waiver of Conditions — Authority.</p> <p>A provision of an insurance policy that-none of its conditions shall be deemed waived, unless in writing, signed by the president or vice president of the company, with its seal attached, cannot prevent a waiver by the company ilself, acting through its officers who haye charge of its business.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1374-1377; Dee. Dig. <@=>550.]</p> <p>3. Insurance <§=>605' — Fidelity Insurance — Construction of Policy.</p> <p>Fjvideuce helé to sustain a recovery on a policy insuring against loss by reason of “fraud or dishonesty” of an agent, where, while there was a dispute between the principal and agent as to the amount of compensation which the agent was entitled to retain from collections made, lie used the money so collected, and was unable to pay it over on final settlement.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1B55, 1707-1728; Dec. Dig. <@=>665.]</p> <p>4. Insurance <@=>285 — Avoidance for Concealment — -Surety Bond.</p> <p>A renewal surety bond, insuring a principal against loss by reason of the fraud or dishonesty of an agent, which was procured by the agent, is not invalidated by the fact that, when the renewal was made, the agent owed the principal a considerable balance, of which the insurer was not advised, where the principal had no communication with the insurer, was not asked the state of its account, and had no knowledge of fraud or dishonesty on the part of the agent.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 657; Dec. Dig. <§=>285.1 , .</p> <p>5. Insurance <@=>168 — Surety Bond — Construction.</p> <p>A mere recital in a surety bond given by an agent that he has been appointed agent at a certain place does not limit the scope of the bond, or the liability of the surety to business done by the agent at such place.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 325; Dec. Dig. <§=>168.]</p>

<p>In Error to the District Court o£ the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by Jermain P. Quinette against the Pullman Company and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.</p>

<p>1. Copyrights <®=^66 — Infringement — Musical Compositions — “Perform Publicly for-Profit.”</p> <p>Under Copyright Act Miarch 4, 1909, c. 320, 35 Stat. 1075, authorizing the copyright of musical compositions and dramatico-musical compositions, and giving one taking out a copyright on a dramatico-musical composition the sole right to print and sell copies, and the sole right to publicly perform it, but to the author of a musical composition only the right to print and sell copies and to perform the copyrighted work “publicly for profit,” the copyright of a song, if valid, was not infringed by rendering it in a public restaurant, where no admission fee was charged, though the performer was privately paid for rendering it by the proprietor of the restaurant.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 63; Dec. Dig. '<®=5>66.]</p> <p>2. COFYRIGHTS <§^>40 — LOSS OF RIGHTS-SEPARATE PUBLICATION OF PARTS OF Work.</p> <p>The copyright covering a comic opera or dramatico-musical composition was lost as to a vocal number contained in the opera, which was published and sold separately without any announcement on the copies sold that the opera from which it was taken was copyrighted, assuming that the insertion of such notice would have retained the advantages of the copyright as to the republished song.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 35; Dec. Dig. <S=»40.]</p>

Tom Wilson was convicted of a violation of section 8 of the act of December 17, 1914, familiarly known as the “Harrison Daw,” and the cause comes here upon writ of error to review the judgment.

<p>Petition to Revise and Appeal from Order of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Harry B. Hollins and others, alleged bankrupts. A petition of H. B. Hollins & Co. to compel Crossman & Sielcken to pay over money to the petitioners, or to A. Deo Everett, receiver in bankruptcy, was denied, and the petitioners appealed and filed a petition to revise.</p>

<p>1. Collision <S=»73 — Moving and Anchored Vessels — Presumption oe Fault.</p> <p>A moving vessel, which comes into collision with one at anchor without fault of the latter, is presumptively in fault, and has the burden of proof to exonerate herself from liability by showing that it was not in her power to prevent the,collision by adopting any practicable precautions.</p> <p>[Ed. Note. — For other cases,' see Collision, Cent. Dig. § 103; Dee. Dig. <S=>73.]</p> <p>2. Collision <S=»71 — Moving and Anchored Vessels — Fault.</p> <p>In the absence of evidence that it was customary, a steamship anchored for the night cannot be held in fault for a collision with a moving vessel because she did not keep up steam, so as to be prepared to instantly move out of the way.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dee. Dig. «=»71.1</p> <p>3. Collision <3=?71 — Moving and Anchored Vessels — Fault.</p> <p>A moving steamship, which, in attempting to reach a position in which to come to anchor at one side of the fairway in the St. Mary’s River above the locks, was allowed to swing and come into collision with another vessel anchored in a proper place to one side of the fairway, held solely in fault. The failure of the officer in charge of the anchored vessel to release the anchor, when at almost the last moment the danger of collision became apparent was at most an error of judgment in extremis, and not a fault.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dec. Dig. <®=»7I.]</p>

<p>1. Criminal Law @=>370 — Evidence—Other Offenses — Admissibility.</p> <p>On a trial for conspiracy to violate Ecod and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (U. S. Comp. St 1913, §§ 8717-8728), by shipping Caracas coffee misbranded as Bogota coffee, where defendant denied all knowledge of the misbranding and claimed that it was “put over him” by employés acting secretly with coffee brokers through whom an order for the coffee was received, warehouse orders passing through defendant’s office and directing the mixing and, misbranding of other lots of coffee were admissible as tending to show his knowledge; the court having carefully charged as to the purpose and effect of such evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dee. Dig. @=>370.]</p> <p>2 Criminal Law @=>432 — -Evidence—Documents—Preliminary Proof.</p> <p>On a trial for conspiracy to violate the Food and Drugs Act by shipping misbranded coffee, whore warehouse orders for the mixing and misbranding of 'other lots of coffee were admitted as bearing on defendant's knowledge of the misbranding, evidence as to the meaning of initials with which such coffee was marked held- to make such orders intelligible, so as to render them admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1021; Dec. Dig. @=>432.]</p> <p>3. Conspiracy @=>43 — Indictment—Issues, Proof, and Variance.</p> <p>Under an indictment, charging defendants with conspiring among themselves and with other persons unknown to ship misbranded coffee in violation of the Food and Drugs Act, the mere fact that third parties testified before the grand jury as to which they did in misbranding the coffee did not show that they were known to the grand jury to be conspirators when the indictment was found, and hence either defendant could bo convicted for conspiring with such third persons, though the jury found that the defendants did not conspire with each other.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. @=43.]</p> <p>4. Constitutional Law <@=>70 — Legislative Power — Merger in Oeeenses Committed.</p> <p>Congress having made a conspiracy to commit an offense a distinct offense, with a penalty differing from and frequently more severe than that imposed for the commission of the act which defendants conspired to commit, the claim that it is unfair for the government to prosecute defendants for conspiracy to commit an offense, when it has proof tending to show the commission of the substantive offense, is one to be addressed to Congress, and not to the courts.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. <@=>70.]</p>

Original petition by Tomas Garrosi and another for a writ of mandamus, prohibition, or certiorari. On motion to dismiss. Motion allowed, and petition dismissed.

<p>Street Railroads <3=>7S — Leash—Liability of Lessor for Torts of Lessee.</p> <p>The lease of its system by the Metropolitan Street Railway Company to the New York City Railway Company, executed February 4, 1902, under authority conferred by the New York statute (now section 148 of the Railroad Law [Consol. Laws, c. 49]), held valid, following prior decisions of the court; also, adopting the construction of the statute given it by the Court of Appeals of the state, the Metropolitan Company held not liable jointly with its lessee for torts committed by the latter in its operation of the system.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 166-171; Dec. Dig. <§==>78.]</p>

<p>Petition to Revise Order of the District Court of the United States for the Western District of New York.</p> <p>In the matter of Charles T. Craning and another, individually and as copartners doing business under the firm name of Graning & Well-man, bankrupts. A motion of John R. Powers, trustee, for an order adjudging the bankrupts in contempt was denied, and the trustee files a petition to revise.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Ethel Ruth Fowler and another, infants, by Henry M. Fowler, their guardian ad litem, against the Pennsylvania Railroad Company and another. Judgment was entered in favor of the Pennsylvania Railroad Company, and dismissing the complaint as to the Pullman Company, the plaintiffs having elected to proceed against the railroad company under the Pennsylvania statute giving a right of action for damages for causing death. From such judgment, plaintiffs bring error.</p>

<p>On Reargument of Issue Relating to Double Regulation of Air.</p> <p>United States <@=370 — Construction of-Contracts — Contract for Manufacture of Torpedoes — Restrictive Provisions.</p> <p>A provision in a contract for tbe manufacture by defendant of torpedoes for the United States Navy that defendant should not “make use of any device, the design for which is furnished to it by [the United States] in any torpedo constructed or to be constructed for any person or persons, firms or corporations, or others, or for other governments,” is not to be so narrowly construed as to exclude from its operation a material device adopted at the request of the government merely because no blueprint or working drawings were furnished, where it was so simple of construction that its indication on the drawings already furnished was sufficient to enable defendant to understand it.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 53; Dec. Dig. <@=370.]</p> <p>Ward, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy <§=»288 — Recovery of Property — Questions op Fact;</p> <p>In a proceeding by a trustee in bankruptcy to compel tbe bankrupt’s-wife to turn over money to bim, evidence held to make a question of fact as to whether money which the wife at one time had on deposit in a bank belonged to her or to the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <@=»2SS.]</p> <p>2. Bankruptcy <®==>442 — Recovery of Property — Waiver of Objections to</p> <p>Summary Proceedings.</p> <p>Where, in a summary proceeding by a trustee in bankruptcy to compel the bankrupt’s wife to turn over money claimed to belong to the estate, neither the bankrupt, the' wife, nor any one else objecting to the form, of the proceeding, it was too late on a petition to revise to contend that a plenary suit, and not ai summary proceeding, should have been brought.</p> <p>|Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 918; Dec. Dig. <§=>442.]</p> <p>3. Bankruptcy <§=>446 — Review of Pbocetsdings — Questions of Fact.</p> <p>Where, in a proceeding to compel a bankrupt’s wife to turn over money to the trustee, the evidence made a question of fact as to the ownership of money at one time on deposit in the wife’s name, the Circuit Court of Appeals would not be justified in overruling the finding of the District Judge after seeing and hearing the witnesses.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. <§=>446.]</p>

Action by Ilario Corsi and wife against the Alpha Portland Cement Company. Judgment for plaintiffs, and defendant brings error. This cause comes here upon writ of error to review a judgment in favor of defendants in error, who were plaintiffs below. The action is brought by the parents of Silvio Corsi, who was killed in defendant’s mill at Martin’s Creek, Pa.

<p>1. Master and Servant <§=>180 — Liability for Injuries — Negligence of Fellow Servants.</p> <p>The Pennsylvania Liability Act (Act June 10, 1907 [P. L. 523] § 1) provides that the negligence of a fellow servant of an employé shall not be a defense, where an injury was caused or contributed to by the neglect of any person engaged as superintendent, manager, foreman, or any person in charge or control of the works, plant, or machinery, or tho negligence of any person in charge of or directing the particular work in which the employé was engaged at the time of the injury or death. A sweeper in a coal breaker, employed to clean ont screenings between tho tracks, was killed as a result of the negligence of a person in charge of the work of running loaded cars down such tracks by gravity in failing to give the sweeper adequate warning. Held, that he was in charge as the alter ego of the defendant in, the particular work, and for his negligence the defendant was liable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. <§=>180.]</p> <p>2. Master and Servant <§=>286 — Actions for Injuries — Questions for Jury.</p> <p>In an action for the death of a sweeper in a coal breaker, engaged in ' cleaning out screenings accumulating between the tracks and struck by a car running down the track by gravity, with no one on board to manage it, the person in charge of the work of sending cars down the tracks testified that he shouted a warning to decedent. A witness working about 20 feet from decedent testified that he heard no warning shouts. Held, that this testimony, in connection with the presumption that an able-bodied, prudent man, with an experience of six years in the business in question, would not remain in a position where he was sure to be crushed to death if such warning shouts had been given, made a question for the jury as to the giving of such warning.</p> <p>[Ed. Note. — For other cases, see Hasten and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1086-1042, 1044, 1046-1050; Dec. Dig. <§=>286,]</p> <p>Lacombe, Circuit Judge, dissenting.</p>

Bill in equity by Lawrence B. Cohen, as trustee in bankruptcy of Simon Uhlfelder and another, individually and as members of tire firm of Uhlfelder & Weinberg, bankrupts, against Julius Bacharach. From a decree dismissing the bill, complainant appeals.

Action by William H. O’Brien against the American Agricultural Chemical Company. Judgment for defendant, and plaintiff 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, which was defendant below.

David Kaplan was convicted of an offense, and he brings error. Writ of error to review a judgment entered upon the verdict of a jury finding the defendant guilty, upon the third count of the indictment, of having devised a scheme to defraud by sending through the mails a false statement of his assets and liabilities, for the purpose of obtaining credit. Section 215, Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [Comp. St. 1913, § 10385]).

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Suit in equity by Daniel B. Luten against George B. Bearce and another. Decree for defendants, and complainant appeals.</p>

<p>Habeas Corpus <S=82 — Hearing on Petition — Production oe Prisoner,</p> <p>A practice of the District Court for a district in which a federal penitentiary is located, and in which applications for writs of habeas corpus are very numerous, to make a preliminary determination as to the propriety of issuing the writ without the personal appearance of the prisoner upon such preliminary determination, does not violate the statute governing writs of habeas corpus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 74; Dec. Dig. <&=»82.]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action at law by Addheid Steengrafe, as executrix of Claus Steengrafe, deceased, against the Vellore Steamship Company, Limited. Judgment for plaintiff, and defendant brings error.</p> <p>This cause comes here on a writ of error to review a'judgment entered on the 5th day of May, 1915, sustaining the demurrer of the plaintiff to the defendant’s answer and directing that she recover of the defendant, Vellore Steamship Company, Limited, the sum of $6,-036.66, being the amount demanded with interest and costs.</p>

Action by Eyttleton Fox, as trustee in bankruptcy of the John F. Stevens Construction Company, against Joseph T. Magee. From a judgment in favor of plaintiff for $356.74 entered upon the decision of the court, a jury trial having been waived, defendant brings error.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by the United States against the United States Fidelity & Guaranty Company. Judgment for the United States, and defendant brings error.</p>

<p>Patents <§=>328 — Validity and Infringement — Spring Cushion.</p> <p>The Stotts patent, No. 810,522, for a spring cushion for automobiles, cars, etc., is strictly limited by the prior art, which shows, in patents for beds and cushions, all of its elements, although .not in precisely the same combination, and by the proceedings in the Patent Office, to the specific structure described, or its full equivalent. As so limited, helé not infringed.</p>

•Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by the Mergenthaler Dinotype Company against the International Typesetting Machine Company and another. From the decree, both parties appeal. This cause comes here upon cross-appeals from, a decree in a suit for infringement of patents.

Mack, _ Suit in equity by Carey A. Cheshire against the Cox Multi-Mailer Company. Decree for defendant, and complainant appeals. Appellant brought this suit to restrain infringement of patent No. 971,245, granted September 27, 1910, for a feeder for printing presses, to Brewer and Cheshire. The device is one for expediting the feeding of books and pamphlets, through feed rolls, to printing or type cylinders.

Suit in equity by the Sanitary Street Flushing Machine Company against the City of Amsterdam. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree holding a patent valid and infringed.

Suit in equity by the Allen Auto Specialty Company against E. G. Baker. Decree for complainant, and defendant appeals. The decree of the District Court held valid and infringed claim 1 of letters patent No. 799,662 granted to Benjamin Nathan on September 19, 1905, for a covering for automobile tires.

Appeals from the District Court of the United States for the Southern District of New York. Suit in equity by Charles J. Witzel and the Englandor Spring Bed Company against Butler Bros. From the decree (229 Fed. 197), both parties appeal. This cause comes here upon cross-appeals from a decree in a suit for infringement of United States reissue patent No. 13,125, granted June 28, 1910, to Charles J. Witzel, for a wire mattress.

<p>L Patents <@=>157 — Rules of Construction.</p> <p>A patent, when attacked for invalidity, should be viewed in a liberal spirit, and should not only be sustained whenever possible, but the construction placed upon it by the patentee should be adopted, whenever this can be done without excluding anything from it or adding anything to it which is not fairly contained therein.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 229-232; Dec. Dig. <@=>157.]</p> <p>2. Patents <@=>168 — Rules of Construction.</p> <p>The claims of a patent are entitled to the construction their language naturally imports, and their rejection or replacement by others, or the substitution of a new specification, do not necessarily require the limitation or narrowing of tbeir scope.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 243%, 244; Dec. Dig. ©=>168.]</p> <p>3. Patents ©=>328 — Validity and Infringement — Oar Lighting System.</p> <p>The Thompson patent, No. 1,070,080, for an electric car-lighting system, consisting of a generator driven from the car axle which charges current to a storage battery and lamps, the special features of which are means to prevent the overcharging of the storage battery and to maintain a constant current, notwithstanding variations in the speed of the car or increased voltage of the battery, was not anticipated, discloses patentable invention, and, while not for a pioneer invention, covers an improvement of such utility as to entitle it to a fair range of equivalents; also held infringed.</p> <p>4. Patents <@=>259 — “Contributory Infringer” — Supplying Parts of Infringing Structure.</p> <p>Where a person manufactures an essential part of an infringing structure, which is not adaptable to other uses, and disposes of the same to others, with the intention that the structure shall be completed or the remaining parts supplied by the user, he becomes liable as a “contributory infringer.”</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 400-402; Dec. Dig. <@=>259.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]</p>

<p>1. Corporations <®==>486 — Corporate Mortgages — Sinking Funds — Rights-op Bondholders — “Net Earnings.”</p> <p>A railroad company organized a canal company to take' over a canal owned by it, and provided for an interlocking directorate. Tbe canal company executed a mortgage and gave tbe trustee, a railroad official, power to select tbe officers and managers of tbe canal company, and the-canal was conducted as a department of tbe railroad. Tbe mortgage provided that tbe canal company would each year, out of its net annual earnings, if sufficient, provide a sinking fund of $20,000, but, if not sufficient therefor, then a sum- equal to such net annual earnings for tbe payment of tbe principal of tbe bonds, such sinking fund to be invested by tbe canal company in tbe bonds thereby secured or in other good securities. All tbe charges and earnings of 'the canal company were to be-applied to interest as well as principal. Tbe railroad company was a party to tbe mortgage, and indorsed on tbe bonds an agreement to purchase any of tbe interest coupons not paid by the canal company, and in a suit to foreclose tbe mortgage it was interpreted as requiring tbe redemption of interest coupons so taken up by tbe railroad company before payment of the principal. Held, that tbe bondholders bad a right to have tbe net earnings of tbe canal company to tbe extent of $20,000 a year applied to tbe sinking fund provided for payment of tbe principal, instead of paying interest on tbe bonds, and thereby relieving tbe railroad company of its obligation to purchase the coupons, since, while “net earnings,” in bookkeeping language, meansi a balance, or what remains-after something has been deducted, the deductions to be made can only be determined from the occasion for the use of the words, or from the context.</p> <p>[ 13d. Note. — For other cases, see Corporations, Doc. Dig. <@=486.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Net Earnings.!</p> <p>2. Corporations <@=486 — Corporate Mortgages — Sinking Funds — Rights of Bondholders.</p> <p>If the railroad company was bound to purchase unpaid coupons attached to bonds in which the sinking fund was invested, it was a wrong to the bondholders to cancel such bonds, thereby depriving the sinking fund of the interest to accrue, while, if it was not so liable, it was a wrong to the bondholders to invest the sinking fund in securities which bore no interest.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. <@=486.1</p> <p>3. Corporations <@=482 — Foreclosure of Mortgage — .Tudgment—Conclusiveness.</p> <p>The decree in the foreclosure suit, in which it was determined that the interest coupons taken up by the railroad company were to be first paid from the proceeds of the mortgaged property before payment of the principal, though conclusive as between all persons bound thereby on all questions involved in it, did not bar a suit to require the railroad company to account to the bondholders for the loss sustained by its diversion of moneys from the sinking fund, or depletion of the fund for its benefit</p> <p>¡I3d. Note. — For other cases, see Corporations, Cent. Dig. §§ 1870, 1877-1888; Dec. Dig. <@=482J</p> <p>4. Corporations <@=318 — Liability fob Acts of Officers and Agents.</p> <p>Though there was no direct evidence that the railroad company had, by any corporate action, anything to do with the sinking fund, it was a fair inference that the common officers and agents of the two corporations, in diverting the sinking fund so as to benefit tbe railroad company, were acting for and by command of the railroad company.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1363, 1364; Dec. Dig. <@=318.J</p>

<p>1. Canals <@=>18 — Obstruction by Contractor — Injuries to Vessels.</p> <p>A contractor for the widening and deepening of a state canal is bound in the exercise of reasonable care to ascertain from time to time as the work proceeds the depth of water iñ the canal and the condition of its prism in the locality, in order to avoid interference with navigation, and is liable for injuries to vessels caused by obstructions due to the work, whether by itself or by a subcontractor.</p> <p>[Ed. Note. — Eor other cases, see Canals, Cent. Dig. §§ 20-24; Dec. Dig. <@=>18.]</p> <p>2. Canals <@=>18 — Obstruction by Dredging Contractor — Liability for Injury to Vessel.</p> <p>Injury to a canal boat forming part of a tow in the Erie Canal by striking a boulder left projecting from the bottom by respondents, who as contractors were engaged in dredging, held due in part to the negligent navigation of the tow, in failing to see or heed a buoy placed by respondents to mark the obstruction, and in part to the failure of respondents to sufficiently mark the place; there being four of the boulders at considerable distances apart.</p> <p>[Ed. Note. — Eor other cases, see Canals, Cent. Dig. §§ 20-24; Dee. Dig. <@=>18.j</p> <p>S. Admiralty <@=>50 — Bringing in New Parties.</p> <p>Where the owner of canal boats comiirising a tow in the Erie Canal brought suit to recover for an injury to one of such boats by striking an obstruction left in the bottom of the canal by respondents, who were contractors, and also as bailee of cargo lost, it is within the discretion of the court to permit respondents to file a cross-libel under admiralty rule 59 (29 Sup. Ct. xxxix) bringing in libelant’s vessels, even after trial of the case has commenced.</p> <p>[Ed. Note. — Eor other cases, see Admiralty, Cent. Dig. §§ 414-429; Dec. Dig. <@=>50.]</p> <p>4. Canals <@=>18 — Obstructions Left by Contractor — Injury to Vessels.</p> <p>A contractor and subcontractor, engaged in deepening the Erie Canal, held liable in part for injury to a passing canal boat by striking a rock left by them on the bottom of the canal; and the boat also held in fault for failure to exercise proper care, in view of a previous stranding, which caused her to leak and increased her draft.</p> <p>[Ed. Note. — Eor other cases, see Canals, Cent. Dig. §§ '20-24; Dec. Dig. <@=>18.]</p>

<p>In Equity. Suit by Charles Russell and others against the Shippen Bros. Lumber Company and others. In the matter of the intervention of A. H. Burtz and Charles T. & Linton C. Hopkins. On exceptions to master’s report.</p>

In Equity. Suit by the Pennsylvania Steel Company and another against the New York City Railway Company and another, with three other causes. In the matter of claims for preference by certain contract creditors. By decisions of this court (208 Fed. 168) and of the Circuit Court of Appeals (216 Fed. 471, 132 C. C. A. 518) it was determined that certain type claims were to be paid in full, with interest at 6 per cent, from the average due date of each claim.

In the matter of George J. Zeis, bankrupt. On review of a decision of the referee in bankruptcy, sustaining objections and disallowing a claim of lien and priority of payment. Claim disallowed, and report approved.

<p>Bankruptcy <@=>196 — Liens—Execution.</p> <p>Where a sale under an execution issued more than four months before bankruptcy was adjourned seven times with the consent of, though with no specific instructions from, the execution creditors, and the bankrupt was at all times in possession of the property levied upon, and no custodian was in charge, though negotiations were pending for a compromise of the judgments, the executions were dormant as against the trustee in bankruptcy, and he was entitled to assert their invalidity under Bankr. Act July 1, 1898, c. 541, § 47a, 30 Stat 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), providing that the-trustee as to all property in the custody of the bankruptcy court shall be deemed vested with all the rights and remedies of a creditor holding a lien and as to all property not in the custody of such court with all the rights and remedies of a judgment creditor! holding an execution duly returned unsatisfied.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. §§ 308-316; Dec. Dig. <@=>196; Execution, Cent. Dig. § 382.]</p>

In Admiralty. Suits for collision by one Gardner, master of tbe schooner Addie M. Lawrence, against the tug Teaser, the barges Powel and Horace A. Allyn, and the tug Juno-, and by the Baker Transportation- Company, owner of the Powel, against the schooner Addie M. Lawrence, the tug Juno, the tug Teaser, and barge Horace A. Allyn. Decree for the Lawrence against the Teaser and the Powel only, and libels dismissed as against the Juno and the Allyn.

In Equity. Suit by the United States against the Ash Sheep Company to enjoin grazing of sheep on Indian lands. Decree for the United States for an injunction and nominal damages.

Dooling, Judge. Habeas corpus by Low Kwai and wife against Samuel W. Backus, as Commissioner of Immigration of the Port of San Francisco. From an order discharging the writ, and remanding one of the petitioners to custody for deportation, the petitioners appeal.

In Erfor to the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Action by Harris Kobey against Anna W. Hoffman and another. Judgment for defendants, and plaintiff brings error.

Petition to Revise and Appeal from Order of the District Court of the United States for the Northern District of New York. In the matter of the Progressive Wall Paper Corporation, bankrupt. A petition by Fred FI. Justin, as trustee, for an order requiring the First National Bank of Ballston Spa, N. Y., to turn over to the trustee certain bonds of the corporation, was denied by the District Court (224 Fed. 143), and the trustee appeals and files a petition to revise.

Petition to Revise and Appeal from Order of the District Court of the United States for the Northern District of New York. In the matter of the Progressive Wall Paper Corporation, bankrupt. A petition by Fred H. Justin, trustee, for an order requiring the People’s National Bank of Hudson Falls to turn over certain bonds-to him and to have such bonds adjudged invalid was denied, and the trustee appeals and files a petition to revise.

<p>1, Carriers <@=>38 — Interstate Commerce Act — -Rebates—Provisions of Lease.</p> <p>A coal mining company, owning a railroad with branches to its mines in the Lehigh mining district, in 1871 leased the same to defendant for 999 years; defendant agreeing to pay as rental a stated sum annually, and also to give to the mining company certain advantages in rates over other shippers in the same region by charging it only the rates in force from a designated point. After the enactment of the Hepburn Amendment (Act inner 29, 1906, c. 3591, 34 Stat. 584) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat 379), defendant attached a note to its tariff schedules filed, setting out the requirements of its lease, and thereafter, while charging the mining company schedule rales from points of shipment, as it did other shippers, it returned a portion of such charges in monthly settlements. Held, that such allowance was not for the use of an instrumentality of commerce furnished by the mining company, since by the lease defendant became for all practical purposes the owner of the road, and that on the enactment of the Interstate Commerce Act, and especially section 6, as amended by Hepburn Act June 20, 1806, § 2 (Comp. St. 1913, § 8597), the allowance became illegal as a rebate; its effect being to give the mining company an advantage over other and competing shippers.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. <G=>38.]</p> <p>2. Carriers <@=>38 — -Interstate Commerce Act — Prosecution fob Violation —Defenses.</p> <p>That defendant made such payments in good faith and in the belief that they were not prohibited by the act is not a defense to a prosecution for its violation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. <@=>38.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Alexandria; Edmund Waddill, Jr., Judge.</p> <p>Action at law by H. B. Hutchison against the New York & Pennsylvania Company. Judgment for defendant, and plaintiff brings error.</p>

<p>3. Burglary <©=32 — Commerce @=35, 8 — Interstate Commerce — Criminal Offenses — Statutory Provisions.</p> <p>Act Cong. Feb. 13, 1913, c. 50, 37 Stat. 670 (Comp. St. 1913, §§ 8603, 8604), prescribing the punishment for unlawfully breaking the seal of any railroad car containing interstate shipments or entering any such car, with intent to commit larceny, or stealing from any such ear any goods which are a part of or constitute an interstate shipment, is constitutional, since, though the police power is reserved to the states, Congress, as to those powers expressly granted to it, possesses a power analogous to that of the police power, and it is immaterial that the breaking into a railroad car for the purpose of committing larceny therein, and the larceny itself, may also Ipe punished under the laws of the state.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 1-3; Dec. Dig. <©=32; Commerce, Cent. Dig. §§ 3, 5; Dec. Dig. <©=?5, 8.]</p> <p>2. Burglary <@=18 — Indictment—Sufficiency.</p> <p>Where an indictment for entering a railroad car containing an interstate shipment for the purpose of committing larceny followed the language of the statute, specifically described the car broken into, alleged that it was the property of a named railroad company, and contained an interstate shipment from the state of Massachusetts to the state of California, and gave the names of the consignor and consignee, and alleged that the breaking was with intent to commit larceny, it was sufficient.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. §§■ 31, 32, 36; Dec. Dig. <®=3l8.]</p> <p>3. Larceny 2=28(1) — Indictment—Sufficiency.</p> <p>Where an indictment charging defendants with stealing goods constituting part of an interstate shipment from a railroad car followed the language of the statute, charged that the shipment was an interstate one, described the property stolen, and described the larceny with all the particularity required by the common law, and charged all the facts necessary to enable defendants to prepare for their defense and to plead former jeopardy in ease they were again Indicted for the same offense after an acquittal or conviction on such indictment, it was sufficient.</p> <p>[Ed. Note. — For other eases, see Larceny, Cent. Dig. §§ 58, 99, 100; Dec. Dig. <£=28(1).]</p> <p>4. Burglary 2=22 — Indictment--Allegations as to Incorporation.</p> <p>Under Rev. St. § 1025 (Comp. St. 1913, § 1691), providing that no indictment shall be deemed insufficient by reason of any* defect or imperfection in matter of form, which shall not tend to the prejudice of the defendant, an indictment for entering a railroad car containing an interstate shipment with intent to commit larceny and for stealing goods therefrom was not insufficient because it failed to allege that the railway company owning' the car was incorporated; It not being apparent liow this could have any tendency to prejudice defendant.</p> <p>I Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 55-61, 66; Dec. Dig. 2=22.]</p> <p>5. Criminal Law 2=878(2) — Conviction fob Different Offenses under Same Indictment.</p> <p>Where an indictment in one count charged defendants with entering a railroad car containing an interstate shipment, with intent to commit larceny therein, and in another count with stealing goods from such car, they could be convicted on both counts, especially where the sentences on both counts were the same and concurrent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2099; Dec. Dig. 2=878(2).]</p> <p>6. Burglary 2=31 — Trial—Admissibility of Evidence.</p> <p>On the trial of railway employes for breaking into a ear containing an interstate shipment and stealing shoos therefrom, the rear brakeman, who was not on trial, was asked what opinion he gave as to where tho shoes were at a certain time, and was permitted to answer over objection. Two of the shoes stolen were for tho same foot, and were sold by tiie witness to his brother, and the question was asked for the purpose of identifying them. He answered that he asked Ills brother where the shoes were, that his brother said he had sent them home by his boy, and that the wiiness told him that he was thinking of getting the shoes and giving them back to one of the defendants, as he was afraid there was going to be trouble over them. Held, that while the question, standing alone, seemed to be irrelevant, it was properly admitted when taken in connection with the other evidence.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. §| 83, 86, 88; Dec. Dig. 2=31.]</p> <p>7. Criminal Law 2=564 — Evidence—Venue—Sufficiency.</p> <p>On the trial of railway employés for entering a ear containing intersi ate shipments and stealing shoes therefrom, it appeared that, when tho train had proceeded at least 14 miles in the Western district of Oklahoma, one of tho defendants appeared with the shoes. Held that, even though the evidence was insufficient to establish beyond a reasonable doubt that the car was broken into in that district, it sustained a verdict of guilty on the count charging larceny, as that offense is a continuous offense, and, though committed in one district, may be tried in another district into which the stolen property is brought with intent to feloniously convert it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. 2=564.]</p> <p>8. Criminal Law <©=>1177 — Harmless Error — Insufficiency of Evidence to Support Conviction on One Count.</p> <p>Where defendants were convicted of entering a railroad car with intent to commit larceny, and of stealing goods therefrom, but the punishment imposed on both counts was the same and ran concurrently, they were not prejudiced, even though there was no evidence to warrant the verdict of guilty on one count; the evidence clearly warranting a conviction on the other.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3183-3189; Dec. Dig. <©=>1177.]</p> <p>9. Burclary <©=>42 — Sufficiency of Evidence — Possession of ' Recently Stolen Property. .</p> <p>Possession of property recently stolen, if unexplained, in connection with other evidence showing the presence of the defendant at the time and place where a theft was committed, justifies a finding of guilty. ,</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 80, 104-107; Dec. Dig. <@=>42.]</p> <p>10. Criminal Daw <©=>829 — Instructions—Good Character or Reputation.</p> <p>On a criminal trial, defendants requested an instruction that the good character of a defendant among his neighbors in the community in which he resided was of value, especially in doubtful eases, and that, if the jury believed from the evidence that one of the defendants bore a good character or reputation in the community in which he resided, they might consider such character in connection with all the other evidence, and that, if the evidence in regard to his character raised a reasonable doubt as to his guilt, they would find defendant not guilty. The court refused this instruction,. but charged that testimony had been introduced for the purpose of showing defendants’ good reputation in the community in which they lived, that this testimony was competent for the jury’s consideration, that in the light of it they should view all the evidence in determining defendant’s guilt or innocence, and whether they were convinced of defendant’s guilt beyond a reasonable doubt, or entertained such a reasonable doubt of their guilt, but that if, after considering all the evidence, including that which had been introduced on the subject of reputation, they were satisfied beyond a reasonable doubt that defendants were guilty, it would be their duty to convict them, notwithstanding the evidence on the subject of reputation. Hélü,, that the refusal of the requested instruction was not error, as the instruction given covered this phase of the case even more favorably to defendants than was asked by their instruction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <©=>829.]</p>

<p>1. Courts <§=366 — United States Courts — State Laws as Rules of Decision.</p> <p>Indictments in the courts of the United States are not to be construed in conformity with the decisions of the highest court of the state in which the offense is committed, in construing tho statutes of that state.</p> <p>LEd. Note. — For other cases, see Courts, Cent. Dig. §§ 954-957, 960-968; Doc. Dig. <§=366J</p> <p>2. Post Office <§=48 — Use of Mails to Defraud — Indictment—Requisites and Sufficiency — Description of Persons Defrauded.</p> <p>The failure of an indictment for using the mails in the execution or attempted execution of a scheme to defraud a bank to allege that the bank was incorporated did not prejudice the defendant, and hence the indictment would not be quashed because thereof, in view of Rev. St. § 1025 (Comp. St. 1913, § 1691), providing that no indictment shall be deemed insufficient by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <§=48.]</p> <p>3. Post Office <§=48 — Criminal Offenses — Fraudulent Use of Mails — Indictment.</p> <p>While an indictment for using the mails in the execution or attempted execution of a scheme to defraud must describe the particulars of the scheme with sufficient certainty to show its existence and character, and fairly acquaint the accused with the particulars of the fraudulent scheme charged, such particulars need not be pleaded with all the certainty as to time, place, and circumstances required in charging the gist of the offense, the mailing of the letter in execution or attempted execution of the scheme.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <§=48.j</p> <p>4. Post Office <§=48 — Criminal Offenses — Fraudulent Use of Mails — Indictment.</p> <p>Where an indictment for using the mails in the execution or attempted execution of a scheme to defraud alleged that a letter mailed in such execution or attempted execution was inclosed in an envelope, a further description of which envelope was to the grand jury unknown, and then set out the letter contained in the missing envelope, it was not defective because of the failure to allege to whom the envelope was addressed.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <§=48.]</p> <p>5. Post Office <§=48 — Criminal Offenses — Fraudulent Use of Mails — Indictment.</p> <p>An indictment charging defendant with using the mails in the execution or attempted execution of a scheme to defraud the estate of R. was not defective, where it alleged that R. was deceased, and that his estate was in the course of probation in the probate court of a county named, as this gave defendant all the information needed to prepare her defense, and sufficiently stated who was intended by her to be defrauded.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <§=48.]</p> <p>6. Criminal Law @=1129' — Appeal—Assignments of Error — Sufficiency.</p> <p>An assignment of error that the verdict is contrary to the law is too broad and indefinite, and cannot be considered.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2954-2964; .Dee. Dig. @=1129.]</p> <p>7. Criminal Law @=586, 1151 — Appeal—Review—Denial of Continuance.</p> <p>The refusal to grant a continuance was a matter addressed to the discretion of the trial court, and, unless clearly shown to have been a gross abuse of discretion, would not be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 3045-3049; Dec. Dig. @=586, 1151.]</p> <p>8. Witnesses @=255 — Examination—Refreshing Memory.</p> <p>On a trial for fraudulent use of the mails, it was not error to permit a post office inspector to refer to notes made at the time of his investigation of the case for the purpose of refreshing his memory, where he was not permitted to' read his notes as his testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-S90; Dec. Dig. @=255.)</p> <p>9. Criminal Law @=1059 — Reservation of Grounds of Review — Sufficiency of Exceptions.</p> <p>An exception “to the charge to the”jury separately and as a whole, to each and every charge to the jury, and also to them in toto,” was too general, and could not be considered, where any part of the charge was good; the court’s attention not being called to any specific errors alleged to have been committed, so as to give it an opportunity to correct them.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. @=1059.]</p> <p>10. Criminal Law @=829 — Instructions Covered by Those Given.</p> <p>The refusal of a. requested instruction that defendant should only be convicted of the offense charged in the indictment, and of no other, was not error, where the court had already charged to that effect.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=829.]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States against the Illinois Surety Company. Judgment for the United States, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States against the Illinois Surety Company. Judgment for the United States, and defendant brings error.</p>

<p>1. Criminal Law <§=>369 — Internal Revenue — Prosecution for Offenses— Evidence — Other Offenses.</p> <p>In a prosecution for carrying on the business of a liquor dealer without having paid the special tax therefor required by law, evidence of sales by defendant prior to the years namecl in the indictment is admissible.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dee. Dig. <§=>369.]</p> <p>2. Internal Revenue <S=47 — Prosecution for Offenses — Evidence.</p> <p>In a prosecution for carrying on the business of a wholesale liquor dealer without having paid the special tax therefor, the defense was that defendant made the sales as agent for his brother who was a bonded distiller, and as such entitled to make the sales of liquor on which he had paid the tax. Held, that evidence to show that defendant and not his brother was in fact the owner of the distillery was not competent to establish the offense charged.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 144-150 Dec. Dig. <§=>47.]</p> <p>Woods, Circuit Judge, dissenting.</p>

Appeals from the District Court of the United States for the Western District of New York.

Suit by the Standard Brewery Company of Baltimore City against the Interboro Brewing Company, Incorporated. From a decree dismissing a bill in equity to restrain the infringement of a registered trade-mark, plaintiff appeals.

Dietrich, Judge. Action at law by the United States against Joseph B. Bistline for damages for alleged false and fraudulent acquisition and sale by the defendant of certain public lands of the United States. Judgment for the United States, and defendant brings error.

<p>1. Saues @=>45 — Rescission foe Fraud — Purchase Without Expectation of Payment.</p> <p>On May 29th, when a milling company ordered goods from the claimant to be paid for January 1st following, the milling company was doing a large business. It for a long time had been insolvent, but it had excellent credit at a bank which was its principal creditor, and until August 18th continued to do business, making regular payments of indebtedness. In August the bank failed, forcing the milling company to close its mill. There was nothing to show that the milling company had any reason to anticipate the failure of the bank. Held, that the facts did not show that the goods were purchased without any reasonable expectation of being-able to pay for them, so as to entitle the claimant to reclaim the goods, though the relation of the milling company to the bank was abnormal on the part of the bank, and though, the milling company’s manager having disappeared, there was no direct testimony on behalf of that company that it had a reasonable expectation of being able to pay.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. § 94; Dee. Dig. @=> 45.]</p> <p>2. Bankruptcy @=5303 — Reclamation Proceedings — Burden of Proof.</p> <p>One seeking to reclaim goods from a trustee in bankruptcy, on the ground that they wore purchased on credit by the bankrupt while insolvent, without reasonable expectation of being able to pay for them, has the burden of showing the fraud alleged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458-462; Dec. Dig. @=>303.]</p> <p>3. Bankruptcy @=>140 — Sales—Rescission for Fraud — Purchase on Credit by Insolvent.</p> <p>Under the rule'pertaining in Ohio, or that prevailing in Michigan, a seller of goods on credit cannot, in the absence of fraud, reclaim them from the buyer’s trustee in bankruptcy, though the buyer was insolvent at the time of the purchase and the seller was ignorant thereof.</p> <p>[Ed. Note. — For’other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. @=>140.]</p> <p>4. Bankruptcy @=>140 — Reclamation of Goods Sold on Credit.</p> <p>The claimant sold goods to a milling company on credit at a time when it was-insolvent, but was continuing to do business because of a large credit extended to it by a bank. Reté that, in the absence of any purpose on the bank’s part to defraud or prejudice those dealing with the milling company, the fact that the bank was the milling company’s principal creditor created no equity in claimant’s favor, entitling it to reclaim the goods so sold from, the milling company’s trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199, 219, 225; Dec. Dig. @=>140.]</p>

<p>In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.</p> <p>Action by the Portland Gas & Coke Company against the Uttna Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Bankruptcy <@=»340 — Claim: for Rent — Surrender oe Premises.</p> <p>After merchants had gone into bankruptcy, their stock had been sold, and the premises vacated, with no prospect of a continuance of the business, and there was no property on'leased premises to secure payment of rent for any further occupation, a clerk in the office of attorneys for the receiver in bankruptcy took the keys for the leased premises to the lessor’s office and stated that she had been sent by the receiver’s attorneys and would leave the keys. On being told by the lessor to take them to his attorney, she replied that her orders were to leave them at his office, whereupon she left them upon a table and left. The keys were immediately taken into the possession of the lessor, who afterwards entered the premises, cleaned them out, and displayed thereon a “For Rent” sign, which remained thereon until the expiration of the term. Held, that, under the rule recognized in Pennsylvania, it was a question of fact whether the surrender of the premises was accepted by the lessor, and findings of the referee in bankruptcy and the bankruptcy court that there was such an acceptance were not erroneous.</p> <p>[I'M. Note. — For other cases, see Bankruptcy, Cent. Dig. § 527; Dec. Dig. <®=>340.]</p>

<p>On rehearing on certain questions of costs.</p>

<p>Master and Servant <§=278 — Actions for Injuries — Evidence—Res Ipsa Loquitur.</p> <p>In an employe’s action for injuries, the evidence showed that, while he was working under a car which was being repaired, a door in the floor of the car suddenly opened and fell upon him. There was no evidence tending to show what eansed the door to fall, or that the employer was -negligent, except, such as arose from the falling of the door without plaintiffs fault, held, that a verdict for defendant should have been directed, since in actions in the federal courts the maxim of “res ipsa loquitur” does not apply, where the relationship of master and servant exists, and to hold the master responsible for injuries the servant must show by_substantive proof that the master was negligent in the maimer alleged in the complaint, and that such negligence was the cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. <S=278.]</p>

District Court of the United States for the District of Delaware; Edward G. Bradford, Judge. Suit by the Pennsylvania Rubber Company against the Dreadnaught Tire & Rubber Company. From a deefee (225 Fed. 138) for complainant for insufficient relief, it appeals.

<p>1. Courts <@=>405 — Circuit Court of Appeals — Jurisdiction—Amount Involved.</p> <p>Where, in an action in the District Court for the Canal Zone, the amount sued for was over $14,000, a verdict was rendered for plaintiff for $930.60, a counterclaim was interposed by defendant of $421.95, which did ■ not appear to have been passed upon by the jury, and the plaintiff in error submitted in the court below an affidavit that the amount in controversy exceeded $1,000, the amount involved was sufficient to give the Circuit Court of Appeals jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097-1099, 1101, 1108; Dec. Dig. <@=>405.]</p> <p>2. Appeal and Error <@=>695 — Record—Sufficiency to Show Error.</p> <p>The refusal to charge the jury not to consider one of the claims asserted in plaintiff’s complaint, because of- the absence of any evidence in its support, was not shown to be erroneous, where the bill of exceptions did not purport to set out all, or the substance of all, the evidence offered to support such claim.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. <@=>695.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.</p> <p>Suit in equity by Niels A. Christensen and the Allis-Chalmers Company against the National Brake & Electric Company. Decree for complainants, and defendant appeals.</p>

Suit in equity by the Dicks Press Guard Manufacturing Company and another against George W. Bowen, doing business as the Bowmen Manufacturing Company. From an order granting a preliminary injunction, defendant appeals. This cause comes here on appeal from an order of the District Court, Northern District of New York, granting preliminary injunction in a patent suit.

<p>Patents <S=>328 — Invention—Cultivator.</p> <p>Tho Boall patent, No. 654,125, for a pivot axle cultivator, claims 12 and 13, held void for lack of invention, in view of the prior art.</p>

In Equity. Suit by the United States Envelope Company and another against the Transo Paper Company and another. On motion by the defendant named to dismiss for want of jurisdiction. Motion granted.

In Equity.’ Suit by the Rollman Manufacturing Company against the Universal Hardware Works. On defendant’s motion to suppress circular letters sent out by plaintiff. Order in conformity with the opinion granting a part of the relief sought.

Action by the Hood Rubber Company against the United States Rubber Company and others. On demurrer .to the declaration. Demurrer of the defendant named overruled, and demurrers of the other defendants sustained.

'In Equity. Suit by the Interurban General Contracting Company of New York and another against the United States, for the sole use and benefit of the Victoria White Granite Company of Ohio, and others. On motion to dismiss the bill. Bill dismissed.

<p>Injunction —Infringement Suits — Enjoining Prosecution of Other Similar Suits.</p> <p>In a suit against a contributory infringer for conniving at or facilitating the unlawful use of a lawful assemblage of parts, capable of lawful use not infringing plaintiff’s patent, defendant moved for an order enjoining tbo institution or prosecution of suits against its customers ponding the final determination of the issue between it and plaintiff. Its affidavits showed that the various parts of the machine were identical, and contained no explicit explanation that such parts could not be used in infringement of the patent, or that they had not in fact been so used. Held, that the injunction would be denied, there being a substantial distinction between an action for procuring and contributing to an infringing use, and an action against customers who’ have bought and taken possession of the machine, and used it in a way specifically prohibited.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-19, 51-61; Dec. Dig. <@=»20.]</p>

Niles, Judge. Action by J. O. Kittel, trading as the Tennessee Stable & Transportation Company, and others, against the County of Lauderdale. Judgment for plaintiffs, and defendant brings error. This is a writ of error from a judgment in favor of the plaintiff in the court below, Kittel, who is the defendant in error in this court, and against the defendant in that court, the county of Lauderdale, which is the plaintiff in- error in this court.

<p>In Error to the District Court of the United States for the Western District of Virginia, at Harrisonburg; Henry Clay McDowell, Judge.</p> <p>Action by George H. Eeonárd & Co., to the use of Marden, Orth & Hastings, against John E. Roller, trading as the Excelsior Oak Extract Company. Judgment for plaintiffs,, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Maine; Clarence Hale, Judge.</p> <p>Suit in equity by the Goldsmith Silver Company against Llewellyn W. Savage. Decree for defendant (211 Fed. 751), and complainant appeals. Affirmed.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Suit in equity by the Bowling Green Trust Company, trustee, against the Virginia Passenger & Power Company and others. Charles -I-Iall Davis, intervener, appeals from a decree dismissing his petition against the Virginia Railway & Power Company and others.</p>

Riner, Judge. Action at law by the Federal Title & Trust Company against Alexander Nisbet, as Commissioner of Safety, etc., and others. Judgment for plaintiff, and defendants bring error. July 21, 1913, Buffalo Bill’s Wild West and Pawnee Bill’s Great Far East, Combined, a corporation organized under the laws of the state of New Jersey, and hereinafter referred to as the circus corporation, was exhibiting in Denver.

<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 in equity by the Crown Orchard Company, Incorporated, against William H. Dennis and others. Decree for defendants (220 Fed. 516), and complainant appeals.</p>

Appeals from the District Court of the United States for the Western District of Virginia, at Lynchburg; Henry Clay McDowell, Judge. Suits in equity by the United States against Luther Laflin Kellogg and Daniel J. Leary and George Leary, administrators of the estate of James D. Leary, deceased. Decree for complainant, from which defendants separately appeal.

<p>1. Corporations @=^657 — Foreign Corporations — Contracts—Ratification. On January SO, 1909, at the time of the execution of an instrument evidencing in part a contract by a New Jersey corporation'to furnish electrical current to a corporation doing business in Alabama, the New Jersey corporation had not complied with the Alabama constitutional and statutory requirements (Const. 1901, § 232; Code 1907, § 3642), made prerequisites to the existence oí any power in it' to transact business in Alabama. On June 11, 1909, it complied with such requirements. Both parties recognized the existence of the contraed;, evidenced in part by such instrument, and evinced a mutual understanding or agreement to conform their dealings to the terms of the contract expressed in such instrument. Held, that they thereby adopted the contract expressed in such instrument, since, while parties cannot by ratification validate a void contract from the time it was undertaken to be made, they can, when duly qualified to contract, elect to adopt as the whole, or a part of the contract by which their dealings are to be governed what is expressed in an instrument which was ineffectual at the time it was signed.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2536-2541, 2550, 2552-2554; Dec. Dig. <3=657.]</p> <p>2. Specific Performance <3=6 — Contracts Enforceable — Mutuality of Obligation.</p> <p>A power company contracted to furnish a traction company electrical current for the operation of its railway for 15 years. It had complied with its obligations thereunder, and was ready, able, and willing to carry out and perform the contract, and was desirous of so doing; but the traction company was about to discontinue the use of electrical current supplied by the power company and obtain from another source the power required for the operation of its railway. The power company sued for specific performance, and the traction company contended that, as the power company’s obligations called for the continued operation of its plant through a term of years, involving the rendition of skilled personal services and the outlay of considerable sums of money, the contract could not be specifically enforced against the power company, and hence lacked the mutuality of remedies necessary to its specific enforcement. Held, that a decree enjoining the traction company from taking electrical current from any person, firm, or corporation other than the power company during the term of the contract, so long as the power company performed the obligations imposed upon it by the contract, did not involve the inequitable result, the avoidance of which is the prime object of the rule as to mutuality of remedies, since, in so far as the power company had performed, the traction company was safe from any possible injury due to its lack of an efficient remedy to compel performance by the power company, while any material injury which it might sustain from the lack of such remedy was effectually avoided by making its obligation to continue performance dependent upon a continuance of performance by the power company.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 9-11; Dec. Dig. <3=6.]</p> <p>3. Specific Performance <3=127(1) — Belief Awarded — Form of Decree.</p> <p>Where a traction company contracted to take its supply of electrical current from a power company for 15 years, the District Court did not exceed the broad powers permissible to bo used in affording specific performance, or prejudicially abuse or mistakenly exercise its discretion as to the use of such powers by enjoining the traction company from taking electrical current from any party other than the power company during the period covered by the contract, so long as the power company performed the obligations imposed upon it by the contract; the result of this being to require the traction company specifically to perform its obligations.</p> <p>[Kd. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 406, 407, 409, 410; Dec. Dig. <3=127(1).]</p>

Petition to Superintend and Revise Order of the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. . Proceeding to have the Wauchula Manufacturing & Timber Company adjudged a bankrupt. On application by William T. Abbott for leave to file an answer and defend the proceeding, the court ordered that no action be taken until certain conditions were complied' with, and the petitioner files a petition to superintend and revise.

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at New Bern; Henry G. Connor, Judge.</p> <p>Suit in admiralty by Howard S. Roberts and others against the steam dredge A (Edmund H. Mitchell, trading as Mitchell '& Co., claimant) and others. From the decree, certain of the libelants appeal.</p>

<p>1. Bankruptcy <©=303 — Preferences—Sufficiency of Evidence.</p> <p>In an action to recover back money paid by a bankrupt to a creditor within 30 days before the adjudication, evidence held to show that the bankrupt was then wholly insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent.'Dig. §§ 458-462; Dec. Dig. <@=303.]</p> <p>2. Bankruptcy <©=>166 — Preferences—Knowledge and Intent of Transferee.</p> <p>Within 30 days before an adjudication in bankruptcy against M. he paid defendant the amount of debts due Mm, defendant’s wife, and the bank of which defendant was president, from the proceeds of a sale of land to a purchaser procured by defendant. Defendant and the bankrupt’s attorney, who was an indorser on the note to the bank, attended to tile sale; the bankrupt shortly afterwards not even remembering the purchaser’s name. The selling price was within a few cents of the amount of such debts. Defendant bad Ms own lawyer examine the title for tile purchaser, paying the lawyer himself, and it was claimed that he did this to save time. Defendant had for years been trying, without success, to collect the debts. He claimed that shortly before he was furnished by the bankrupt a statement of Ms financial condition, and that from this and from his own mercantile experience he thought the bankrupt solvent. In the statement a stock of merchandise which afterwards sold for less than $12,000 was valued at over $40,000, accounts receivable, which were apparently worthless, aggregating nearly $10,000, were included, and debts aggregating $50,000 were shown. Held, that the facts showed that defendant not only had reasonable cause to believe that he would be given a preference, but that he initiated and caused the transaction to be consummated for the very purpose of procuring a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250-253, 255-258; Dec. Dig. <©=»166.]</p>

<p>Petition for'Revision of Proceeding of the District Court of the United States for the District of Oregon, in Bankruptcy.</p> <p>In the matter of I. Gevurtz & Sons, bankrupts. Petition by the Howard D. Thomas Company to reclaim certain property, with damages for such as could not be returned, opposed by William H. Beharrell and others, trustees in bankruptcy, was denied, and the claimant files a petition to revise, under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608).</p>

Geiger, Judge. In the matter of one Lcflys, bankrupt. From an order disallowing as a preferred claim the claim of the Strauss Bros. Company, opposed by the Wisconsin Trust Company, trustee, the claimant appeals. Bankrupt conducted a general department store at Milwaukee, Wis.

<p>Petition to Review and Revise an Order of the District Court of the United States for the Western District of Wisconsin; Ferdinand A. Geiger, Judge.</p> <p>In the matter of the Footville Condensed Milk Company, bankrupt. A claim of lien by Emerson Carey and another was sustained by the District Court, and William B. Roys, trustee, brings a petition to review and revise.</p>

<p>Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p> <p>Bill by the Turner Construction Company against the Union Terminal Company and others. From a decree dismissing the bill, plaintiff appeals.</p>

Cushman, Judge. Action by Gustave H. Neumeyer and another, copartners doing business as Neumeyer & Dimond, against the Poison Logging Company. Judgment for plaintiffs for $3,895.39, the amount sued for, and defendant brings error.

Suit in admiralty by Joseph W. Brooks and others, owners of the schooner Grace Seymour, against the Hilton-Dodge Lumber Company and the Yellow Pine Company, impleaded. From the decree, the Yellow Pine Company appeals.

<p>Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Dandis, Judge.</p> <p>Jn the matter of Abe Krecun, bankrupt. The District Court overruled an order of the referee refusing to permit the. filing of objections by Louis Meyer and another, copartners doing business as Louis Meyer & Son, to the trustee’s report on the claim for exemptions, and the bankrupt files a petition to review and revise.</p>

In’ Error to the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge. Action by John K. Duke against the Good Pine Dumber Company. Judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the Southern District of Florida; Wm. B. Sheppard, Judge.</p> <p>Libel in admiralty by Ronald Forsyth- against George Bennett, master of the schooner Granville R. Bacon. Decree for libelant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge.</p> <p>Action by George S. Fullinwider against the Southern Pacific Railroad Company of California and others. From a decree dismissing the bill, plaintiff appeals.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suit in equity by the Dayton Engineering Laboratories Company and another against the Sidney B. Bowman Automobile Company. From the decree, both parties appeal. TMs cause comes here upon cross-appeals from a decree entered in a patent infringement suit. Two patents are involved.

<p>Patents <@=>328 — Validity and Infringement — Machine for Sewing Sweatbands into Hats.</p> <p>The Gammons patent, No. 747,963, for a machine for sewing sweatbands into hats, claim 4, was not anticipated and discloses patentable invention ; also held infringed.</p>

Sanborn, Judge. Suit in equity by the T. H. Symington Company against William H. Miner. Decree for complainant, and defendant appeals. Appellee brought suit to restrain infringement of the four claims of the Emerick patent, No. 693,643, for draft rigging for cars, granted February 18, 1902, on application filed May 24, 1901. The object of the invention, as claimed by the inventor, was to provide a draft rigging device wherein the coupling bar could be easily replaced.

<p>In Equity. Suit by Samuel H. Thurston and others against Philip E. Reed and others. On hearing on pleadings and proofs.</p>

<p>In Equity. Suit by the Crown Cork & Seal Company of Baltimore City against the Carper Automatic Bottling Machine Company of Baltimore City and Albert A. Carper. On final hearing. Decree for complainant.</p>

In Equity. Suit by William Epstein and Samuel Epstein against Milton M. Dryfoos for infringement of letters patent No. 887,610, for a skirt or petticoat, granted May 12, 1908, to William Epstein and 'Samuel Epstein- On final hearing. Decree for defendant.

<p>In Equity. Suit by John J. Gillespie against Walter R. Smith and others. Decree for complainant.</p>

<p>1. Death @=>25 — Actions fob Death — Defenses—Settlement oe Rf.lease.</p> <p>Gen. St. Coun. 1962, § 1091, provides that the executor or administrator of any person whose death shall have been caused by negligence may recover of the party in fault just damages, not exceeding ¡?5,000. Section 399, prior to its amendment in 1915, provided that damages recovered under section 1901 should be distributed, after deducting costs and expenses, one-half to the husband or widow and one-half to the lineal descendants, per stirpes, and that, if there were no such descendants, the whole should go to the husband or widow, or, if there was no husband or widow, to the heirs, according to the law regulating the distribution of intestate personal estate. Held, that a settlement with the widow of a decedent before her appointment as administratrix and a release by her was not a defense to an action thereafter brought by her as administratrix, since the beneficiaries of the action have no vested right prior to judgment, and the amount recovered is to be distributed to those who are beneficiaries on the day the judgment is rendered; the statute not contemplating a distribution to the personal representatives of deceased beneficiaries.</p> <p>[Ed. Note. — For other cases, see Death, Gent. Dig. § 27; Dec. Dig. @=>25.]</p> <p>2. Constitutional Daw @=>105- — Right to Damages as Property.</p> <p>There can be no rested right in a claim for damages for a tort not connected with or growing out of a contractual relation until judgment is rendered, and until that time the claim is a mere expectancy or an inchoate right, not assignable, and not liable to attachment, and not a debt.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 228-235; Dec. Dig. @=>105.] '</p> <p>3. Descent and Distribution- @=>76 — Executors and Administrators @=>49 —Right to Damages as Property.</p> <p>-A claim ior damages for a tort does not pass to an administrator as assets, save by virtue of a statute, nor descend to a person’s heirs until judgment is rendered.</p> <p>I Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 252-262; Dec. Dig. @=>76; Executors and Administrators, Cent. Dig. §§ 301, 303-305; Dec. Dig. @=549.]</p> <p>4. Death <§=691 — Actions for Causing Death — Evidence.</p> <p>In an action for death under the Connecticut statute, the trial court has nothing to do with the distribution of the recovery, and evidence of the number and condition of the beneficiaries is inadmissible on the question of damages, and can by any possibility be admissible only to show an absolute lack of beneficiaries or heirs.</p> <p>'[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 80, '87; Dec. Dig. @=69.]</p> <p>5. Statutes <§=267, 276 — Construction—Statutory Provisions as to Construction.</p> <p>Gen. St. Conn. 1902, § 1, providing that the passage or repeal of an act shall not affect any pending action, does not limit the power of the Legislature in the enactment of laws, nor affect the construction of laws when enacted when the legislative intent is clear, and must yield to later expressions of the legislative will.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 850-359, 371, 372; Dec. Dig. <§=267, 276.]</p>

<p>At Law. Action by U. S. Grant Lanterman and another against the Delaware, Lackawanna & Western Railroad Company and another. On motion to- strike out complaint.</p>

<p>1. Courts <@=294 — Jurisdiction of Federal Courts — Suit by Receiver of National Bank.</p> <p>The fact that a suit is brought by the receiver of a national hank in the course of winding up its affairs gives a federal District Court jurisdiction, under Judicial Code (Act March 3, 1911, c. 231) § 24, par. 16, 36 Stat. 1092 (Comp. St. 1913, § 991), regardless of the citizenship of the parties.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 836; Dec. Dig. <@=294.]</p> <p>2. Equity <@=409 — Reference to Master by Consent — Review of Findings of Master.</p> <p>Under a consent order, referring a case to a master to hear, and to report to the court his findings of fact and rulings of law thereon, which further provides that any party “shall have the right to a review and a determination by the court upon the evidence reported by the master,” and that the master “shall report to the court all the evidence bearing upon any question of fact which any party desires to be re-examined and _ found by tbe court,” tbe findings of fact by the master are no more than ' presumptively correct, hut will be sustained, except as they appear to tbe court to be clearly against tbe weight of evidence, or so inconsistent with each other that they cannot properly stand.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 904, 920-923; Dec. Dig. <@=409.]</p> <p>3. Banks and Banking <@=253 — Insolvency—Liability of Directors.</p> <p>The by-laws of a national bank provided that every six months, which was supposed to be immediately preceding the declaring of tbe semiannual dividend, there should be appointed by tbe board of directors “a committee whose duty it shall be to examine into the affairs of the bank, to count its cash and compare its assets and liabilities with the balance on the general ledger, for the purpose of ascertaining whether or not the books are correctly kept and the condition of the bank in a sound and solvent condition.” The deposits averaged between $300,000 and $400,000. During the three years and three months preceding its closing, the bookkeeper who kept the deposit ledger was stealing from the bank in increasing amounts, which aggregated $310,000. His method was the drawing of cheeks on the bank, which were cashed in a city and returned with other checks through the clearing house. He received the checks, withdrew his own, and charged the sum to other deposit accounts, until the amount grew too large to be covered in that way, and then made false entries and footings, which an examination of his ledger would have readily detected. During the time the directors made but two examinations, and on neither occasion did tbe committee examine the deposit ledger, nor compare the checks received through the clearing house with the lists which accompanied the same, from which the remittances were made.</p> <p>There were also other circumstances which should have put them on inquiry. Held, that the directors were negligent in failing to make examination's at proper times and in proper manner, and were liable for the losses of the bank through the thefts after the time when a proper examination would have disclosed the same.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 944-949; Dec. Dig. <@=>253.]</p> <p>4. Abatement and Revivat, <@=>53 — -Causes oe Action Which Survive — Ac- - tion by Bank Receiver Against Directors.</p> <p>An action by the receiver of an insolvent national bank against its directors, to recover for losses sustained through their misconduct or negligence for the benefit of creditors and stockholders, is ex contractu, and survives the death of a defendant.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 251, 252; Dec. Dig. <@=>53.]</p>

<p>At Law. Action by the Real Estate Title, Insurance & Trust Company against Ephraim Lederer, Collector of Internal Revenue for the First District of Pennsylvania. On motion to take off nonsuit.</p>

In Bankruptcy. In the matter of the Capitol Trading Company, Incorporated, bankrupt. On review of action and order of Referee Edwin A. King in refusing, for want of a revenue stamp, to file certain letters of attorney and allow the attorneys designated in such letters or powers of attorney, respectively, to cast the vote of Mrs. E. I. Stewart and 159 other alleged creditors of the bankrupt, respectively, for trustee in a bankruptcy proceeding then pending.

<p>1. Aliens <@=>'52 — Deportation op Chínese — Appeals—Effect.</p> <p>Under Chinese Exclusion Act Sept. 13, 1888, c. 1015, § 13, 25 Stat. 479, providing, relalive to the deportation of Chinese, that any Chinese person convicted before a commissioner may appeal to the judge of the District Court, the taking of an appeal vacates the commissioner’s order of deportation, and leaves the case as if it had never been tried and no order of deportation had ever been entered, as the appeal is to be tried de novo and transfers the whole case to the District Court as if the proceedings had been originally instituted in that court.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <©=>.'52.]</p> <p>2. Aliens <@=>32 — Deportation of Chinese — Aivpeals—Dismissal.</p> <p>While the District Court, in dismissing for want of prosecution an appeal by a Chinese person from a commissioner’s order of deportation, might have incorporated into the order of dismissal an order for the deportation of such person, where no such order of deportation was made, the order of dismissal constituted a final judgment, and did not operate to restore to full power and effect the commissioner’s order of deportation, which had been vacated by the appeal.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=>‘52.1</p> <p>3. Aliens <@=332 — Deportation of Chinese — Appeals—Dismissal.</p> <p>As an order dismissing for want of prosecution an appeal by a Chinese person from a commissioner’s order of deportation finally disposed of the case, it could not be restored to the docket at a subsequent term, even with the consent of the United States attorney.</p> <p>TEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=332.]</p> <p>4. Altf.ns <@=>32 — Deportation of Chinese — Authority of United States Commissioners.</p> <p>An appeal by a Chinese person from an order of deportation made by F., a United States commissioner, was dismissed for want of prosecution, and thereafter, F. having died, H., another commissioner, made an order reciting the dismissal of the appeal, and ordering that the deportation order of Commissioner F. be executed. Held, that Commissioner H. had no authority to make this order, and it was of no effect, even assuming that Commissioner F. could have made such an order, as the case was not pending before Commissioner H., and no statute gave him jurisdiction on the death of Commissioner F.</p> <p>TEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=332.]</p> <p>5. Aliens <@=>32 — Deportation of Chinese — Weight and Sufficiency.</p> <p>In a proceeding to deport a Chinese person on the ground that he was found in the United States in violation of the Exclusion Acts, evidence held to show that he was one of two persons arrested on deportation proceedings in 1897 and adjudged entitled to enter the United States on the ground that he had been born there.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <@=332.]</p> <p>6. Aliens <@=332 — -Deportation of Chinese — Conclusiveness .of Judgment.</p> <p>Where a Chinese person, claiming to have been bom in the United States and to have been taken to China when he was throe years old, was arrested on deportation proceedings upon his return to the United States, and adjudged entitled to enter the country upon the ground that he was bom there, the government was estopped by such judgment from further deportation proceedings against him.</p> <p>[Ed. Note. — Por other eases, see Aliens, Cent. Dig. §§ 84, 92-95; Dec. Dig. <§=>32.]</p>

At Law. Three actions by the Fernald Woodward Company against the Conway Company. On referee’s report on motions directed against his findings and rulings.

<p>In Bankruptcy. In the matter of Frank T. Hardy, bankrupt. On petition for review of an order of the referee denying a homestead exemption to the bankrupt.</p>

<p>1. Bankruptcy ©=5340 — Payment on Claims — Priority—Taxes.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 (Comp. St. 1913, § 9618), providing that the court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, etc., in advance of the payment of dividends to creditors, taxes are placed in a class by themselves, and are not preferred claims, but stand ahead of preferred claims.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <©=5346.]</p> <p>2. Bankruptcy <©=>346 — Payment oe Claims — Priority—Taxes.</p> <p>A state has the right to charge upon taxes not paid when due such interest as will make the payment, when received, equivalent to payment at the appointed time, and this interest is a part of the tax, and entitled to priority of payment under Bankr. Act, § 64a.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <©=5346.]</p> <p>3. Bankruptcy <©=5346 — Payment oe Claims — Priority—Taxes—“Interest” —“Penalty.”</p> <p>“Interest” is ordinarily understood as a charge for the use of money or damages for its detention, while a “penalty,” as applied to the nonpayment of taxes when due, is the punishment imposed for failure to make the payment on time; and while interest on taxes not paid when due is a part of the taxes, and entitled to priority of payment under Bankr. Act, § 64a, penalties are not a part of the taxes and are not entitled to such priority, especially where the estate was in course of administration during the entire period when they accrued.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <@=>346.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interest; Penalty.]</p> <p>4. Bankruptcy <@=>346 — Payment of Claims — Priority—Taxes.</p> <p>In determining whether a statute providing that if a tax remains unpaid after it becomes due it shall bear interest at the rate of 1 per cent per month until paid imposes a penalty for nonpayment of the tax, or merely provides for interest on the tax, the fact that the statute calls the amount to be paid interest is not conclusive upon the bankruptcy court, and that court will examine and decide the question for itself.</p> <p>[Ed. Note.' — For other cases, see Bankruptcy, Cent. Dig. § 535; Dec. Dig. <@=>346.]</p> <p>5. Bankruptcy <@=>346 — Payment op Claims — Priority—Taxes—“Interest” —“Penalty.” ,</p> <p>3 Gen. St. N. J. 1895, p. 3339, § 261, provides, relative to the franchise tax assessed against corporations, that if the tax remains unpaid on the 1st day of July, after it becomes due, it shall thenceforth bear interest at the rate of l.per cent, per month until paid. Under 3 Gen. St. 1895, p. 3704, § 7, the legal rate of interest is fixed at 6 per cent, per annum. Held, that 1 per cent, a month exceeds what is fairly required to make good the loss to the state from the delay in payment, and as to such excess above legal interest is not interest, but a penalty imposed for failure to pay promptly, and hence such excess is not entitled to priority of payment in bankruptcy, especially as this penalty becomes due, whether proceedings are instituted to collect the tax and expenses thereby incurred or not.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535; Dee. Dig. <@=>346.]</p>

<p>In Equity. Suit by the Window Glass Machine Company and another against the Brookville Glass & Tile Company. On application to require answers to interrogatories. Objections to interrogatories sustained, and neither party required to answer.</p>

<p>1. Charities <©=>45 — Hospitals—Actions for Death — Sufficiency of Statement.</p> <p>In an action against a hospital and its trustees for the death of a patient, the statement alleged that defendants had substantially completed and occupied a new hospital building and were engaged in removing their equipment and stores of drugs and chemicals thereto, that a pupil nurse in charge of a patient attempted to administer medicine prescribed for him, and with gross negligence gave him instead thereof a dose of poison from which he was killed, that defendants were grossly negligent in keeping such poison in such circumstances as to allow a nurse to make such a mistake, in so conducting the removal of the activities of thospital from one building to another as to make such mistake possible, and in the employment of persons charged with the direct management of the hospital and in failing to provide for the patient a safe environment for his care, that it was a custom among hospitals to provide a separate cupboard or closet for the safe-keeping of such poisons and to keep it securely locked with a single key in the custody of some person charged with responsibility therefor, that this custom was well known and universally observed and had theretofore been observed by defendants, that they neglected such custom during tho removal of the hospital and allowed the stock of poisons to be taken out of their customary depository and removed without being thus protected and left without such protection for two days before tho occurrence of the mistake, held, that a demurrer should be sustained, if for no other reason, because of the indefinite character of the negligence charged to the corporation and its trustees, as tho statement did not show what particular agents of the corporation committed a wrongful act or neglected a duty owing the patient, and did hot even state where the poison was kept or under what circumstances or in what way they were negligent in moving the hospital or in employing persons charged with the management of the hospital.</p> <p>[Ild. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dee. Dig. <@=>45.]</p> <p>2. Charities <@=>45 — Hospitals—Liability por Injuries or Death.</p> <p>A charitable hospital for tho care and treatment of the diseased and injured and its trustees charged with the management thereof were not liable for the negligence of a nurse in administering poison to a patient by mistake, the nurse not being incompetent or the corporation or its officers negligent in selecting her.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-101; Dec. Dig. <@=>45. |</p> <p>3. Courts <@=>372 — Precedents—Decisions op State Courts as Precedents in Federal Courts.</p> <p>While the decisions of a state court upon a general legal proposition not covered by statute are not binding upon the federal courts, they are naturally given considerable weight by such courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 977-979; Dec,Dig. <S=»372.]</p>

<p>Salvage <S=>38 — Distribution os’ Award — Salving of Derelict.</p> <p>The schooner Hubbard, laden with lumber, was caught in a severe gale, and on her signals of distress the fishing schooner Mary, returning laden, went to her assistance. She was then about 50 miles east by south of Boston light. She was leaking, down by the head, and unable to cany sail. Her crew abandoned her and went on hoard the Mary, but some of the latter’s crew, who were working on the lay, and had finished their catch, and were returning to port, went on hoard the Hubbard, and with considerable labor and risk got sails up. Some stayed, and the others went hack. The Mary stood by until the storm abated, and then proceeded to Boston, from where the tug Sadie Ross, on being notified, went to the rescue, and after a search found the Hubbard and towed her to port; the service lasting about 22 hours and involving some risk, on account of the half sunken condition of the tow. A salvage award of 50 per cent., of salved value, amounting to about $2,700, was agreed upon. Held, that the tug, having been the actual means of saving the vessel, was entitled to $1,000 of the award; that the Mary, which incurred no risk and performed no actual service, was entitled to 8400;' that of the remainder, to be distributed among her crew, the four men who remained on the vessel and the captain of the Mary should receive $200 each, and the remainder ho distributed to the other members of the crew.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102; Dec. Dig. <§^38.]</p>

<p>1. Indictment and Information <@=>110 — Following Language of Statute —Transportation of Women for Immoral Purposes.</p> <p>Counts in an indictment for violations of White Slave Traffic Act June , 25, 1910, c. 395, §§ 2, 3, 36 Stat. 825, held substantially in the language of the statute,'and sufficient.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <@=>110.]</p> <p>2. Indictment and Information <@=>110 — Following Language of Statute.</p> <p>It is elementary that, where certain acts or things are denounced by a statute as constituting a crime, an indictment founded upon such statute, which follows substantially the language of the statute, is good.</p> <p>[Ed. Note. — For of her cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <@=>110.]</p> <p>3. Prostitution <@=>1 — Offense—Transportation of Women for Immoral , Purposes.</p> <p>White Slave Traffic Act, § 2, provides that any person who shall knowingly aid in transporting in interstate commerce any woman or girl with, the intent to entice or compel her to become a prostitute or to give herself up to debauchery, or who shall knowingly aid in procuring transportation to be used by any woman or girl in interstate commerce with such intent, whereby any such woman or girl shall be transported in interstate commerce, shall be guilty of a felony. Section 3 provides that any person who shall knowingly persuade, etc., any woman or girl to go from one place to another in interstate commerce with intent that she shall engage in prostitution, etc., and who shall aid in causing her to go as a passenger of any carrier in interstate commerce, shall be guilty of a felony. Held, that it is not an element of the offenses denounced that the intent to subject the girl to debauchery shall be consummated by thé commission of a specific act of prostitution or debauchery by her:</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. <s=»l.]</p>

<p>1, Bankruptcy <§=>326 — Claims—Right to Set Ope Mutual Claims.</p> <p>The bankrupt was engaged in manufacturing woolen cloth, and had been receiving wool from defendant and making it into cloth for a price per yard which included all usual manufacturing costs and a profit, to be paid on delivery. It sometimes developed that the goods were not salable as first quality, because the manufacturing was imperfect, and, a reduction in the price was charged back against the bankrupt. In November,. 1913, taking these countercharges into account, defendant had overpaid the bankrupt over $7,000, and a demand note for the amount overpaid was taken. Beginning January 1, 1914, a new arrangement was made, whereby only 80 per cent, of the manufacturing charge was paid when the goods were delivered; 20 per cent, being reserved against the counter-charges for imperfect work. In May, 1914, the bankrupt informed defendant that it was not able to continue operating its plant, and defendant ran the mill on a rental basis to work out its own stock in process, after which the mill was shut down, and in July an adjudication in bankruptcy was made. Held that, under Bankr. Act July 1, 1898, c. 541, § 68a, 30 Stat. 565 (Comp. St. 1913, § 9652), defendant was entitled to apply on its note sums due to the bankrupt out of the reserved amounts and sums due for work done by the bankrupt on the stock in process turned over to defendant, since the determination of the amount due the bankrupt when made would relate back to the adjudication, even though the bankrupt’s claim was regarded as not due until the settlement of the accounts had been completed, and each party therefore had a provable claim against the other.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. <§=>326.]</p> <p>2. Bankruptcy <§=>326 — Claims—Right to Set Oee Mutual Claims.</p> <p>The rent which defendant agreed to pay for the use of the mill to run out the ptoek in process, not being a debt created for the purpose of set-off, stood upon the same footing as the other sums due the bankrupt, and defendant was entitled to set it off and apply it on the note.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. <§=>326.]</p>

<p>In Bankruptcy. In the matter of Francis Howe and Arthur P. Pearce, alleged bankrupts.</p>

At Daw. Action by A. R. Re Roy against M. H. Harlwiek and others. On demurrer to the jurisdiction of the court. This is an action on three notes, executed by the defendants on April 29,19.13, to one A. B. Holbert, a citizen of Iowa, and by him assigned, for value and before maturity, to the plaintiff, who is also a citizen of the state of Iowa. Each of the notes is for $987. All of them were executed in the state of Texas, and made payable in that state.

<p>Habeas corpus by Chin Teung against Henry J. Skeffington, Commissioner of Immigration.</p>

<p>At KLaw. Action by Frank Klug, administrator of C. W. Tinnemeyer, deceased, against the Martinsburg Power Company. On plea in abatement.</p>

<p>At Law. Action by Thomas Stewart against the Boston & Maine Railroad. Verdict for defendant, which plaintiff moves to set aside.</p>

In Bankruptcy. In the matter of J. R. Hereford, bankrupt. Upon certificate for review of the action of the referee in reference to the respective priorities of two trust deeds.

Petition to Revise Order of the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge. In the matter of Max Joseph, doing business as the Workmen’s Clothing Store, bankrupt. On petition by S. T. Hills, trustee, to revise an order setting aside certain exempt property to the bankrupt.

<p>1. Indians <@=>16 — Lease oe Lands — Subsequent Lease oe Mining Rights.</p> <p>Even in tbe absenice of statute the owner of land in fee who has leased the surface without reservation has the right to drill through the surface for oil or gas, and may convey that right by lease to another; but as to Indian lands coming within its scope such right) is reinforced by Act May 27, 1908, c. 199, § 2, 35 Stat. 312, which provides that “leases of restricted lands for oil, gas or other mining purposes, leases of restricted homesteads for more than one year, and leases of restricted lands for periods of more than five years, may be made, with the approval of the Secretary of the Interior,” the effect of which is to make a severance of the oil and gas right from the surface. [Ed. Note. — Eor other cases, see Indians, Cent. Dig. § 45; Dec. Dig. <@=>16.]</p> <p>2. Injunction <@=>135, 161 — Preliminary Injunction — Discretion oe Court.</p> <p>The granting or dissolution of an interlocutory injunction rests in the sound judicial discretion of the court of original jurisdiction, and one of the rules with reference to the granting of such injunctions is that the court will take into consideration the amount of damage which the plaintiff will sustain if an injunction be not granted, and the amount which defendant will sustain if it be granted, although such considerations can have no weight, if the rights of one of the parties are clear and indisputable.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Cent. Dig. §§ 304, 347; Dee. Dig. <$=>135, 161.]</p> <p>3. Injunction <@=>161 — Dissolution oe Temporary Injunction — Discretion oe Court.</p> <p>In a suit by tbe lessee of land for agricultural purposes to enjoin a subsequent lessee of the oil and gas rights from drilling a well on the premises, it was within the discretion of the court to dissolve a temporary injunction previously granted, where it appeared from the showing made that the injury to complainant’s rights from the drilling of such well would be trifling.</p> <p>[Ed. Note.- — Eor other cases, see injunction, Cent. Dig. § 347; Dec. Dig. <@=>161.]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Clarke, Judge. Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio*; Howard' C. Hollister, Judge.

<p>In_ Error to the District Court of the United States for the District of New Jersey; William H. Hunt, Judge.</p> <p>Actions by the Public Service Railway Company and the Consolidated Traction Company, by the Public Service Railway Company and the Rapid Transit Street Railway Company, by the Public Service Gas Company and the Newark Consolidated Gas Company, and by the Public Service Electric Company and the United Electric Company of New Jersey, all against Herman C. H. Herold; by the Public Service Railway Company and the Camden Horse Railroad Company and by the Public Service Railway Company and the Camden & Suburban Railway Company against Isaac Moffett; by the Public Service Electric Company and the South Jersey Gas, Electric & Traction Company and by the Public Service Corporation of New Jersey and South Jersey Gas Electric & Traction Company against Herman C. H. Herold; by the Public Service Corporation of New Jersey and the South Jersey Gas, Electric & Traction Company against Isaac Moffett; and by the Public Service Railway Company and the Bergen Turnpike Company, by the Public Service Railway Company and the New Jersey & Hudson River Railway & Ferry Company, by the Public Service Corporation of New Jersey and the Gas & Electric Company of Bergen County, by the Public Service Electric Company and the Somerset, Union & Middlesex Lighting Company, by the Public Service Corporation of New Jersey and tire Somerset, Union & Middlesex Lighting Company, by the Public Service Gas Company and the Hudson County Gas Company, by the Public Service Corporation of New Jersey and the Paterson & Passaic Gas & Electric Company, and by the Public Service Gas Company and Essex & Pludson Gas Company, all against Herman C. PI. Herold. From the judgments, plaintiffs bring error, and in two cases defendant also brings error. Certain of the judgments affirmed, and others reversed. See, also (D. C.) 219 Fed. 301, and (D. C.) 227 Fed. 486, 490, 491, and 494.</p>

<p>In Error to the District Court of the United States for the Eastern District of Rennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action by the Hudson County Gas Company, to use of the Bublic Service Gas Company, against William McCoach. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Action by the E. Clemens Horst Company against the Pabst Brewing Company. Judgment for plaintiff, and defendant brings error.</p>

Action at law by Rudolph Schultz against the Stack-Gibbs Dumber Company for damages for alleged breach by the defendant of two certain logging contracts. Judgment for defendant, and plaintiff brings error.

Rudkin, Judge- Action for statutory penalties by the United States against: the Great Northern Railway Company. Judgment for defendant on demurrer, and the United States brings error.

Campbell, Judge. Suit in equity by Albert W. Shulthis against the Kiefer Oil & Gas Company and others, with ancillary bill by D. A. McDougal against said Oil & Gas Company. Decree for complainant, and defendant appeals.

<p>1. Indictment and Information <@=>125 — Duplicity—Series of Acts Constituting Same Offense.</p> <p>Rev. St. § 5209 (Comp. St. 1913, § 9772), provides that every cashier, etc., of a national banking association, who without authority from the directors issues or puts forth any certificate of deposit with intent to injure or defraud the association, shall be deemed guilty of a misdemeanor. Held, that an indictment charging that defendant, without authority and with intent to injure and defraud the bank of which he was cashier, did issue and put forth a certain certificate of deposit was not duplicitous and bad, since, when an offense may be committed in one or more of several ways, or where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense, an indictment may-in a single count charge any or all of the acts conjunctively, or charge the commission of the offense In any or all of the ways specified.</p> <p>[Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. <@=>125.]</p> <p>2. Criminal Law <@=>182 — Former Jeopardy — Discharge of Jury Without Verdict.</p> <p>A prosecution on a defective indictment did not bar a subsequent prosecution, where there was no acquittal bn the merits, but the court, upon the defects being called to its attention, after the close of the testimony and the arguments to the jury, discharged the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 330-332; Dec. Dig. <@=>182.]</p> <p>3. Indictment and Information <@=>133 — Objections—Manner of Taking Objections.</p> <p>Orderly procedure requires that objections to an indictment should be made either by motion to quash, by demurrer, or by motion in arrest of judgment, and the practice of permitting such objections to be urged during the trial by objections to the testimohy, or by requests for instructions, is not to be commended, and should not be encouraged.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dee. Dig. <@=>133.]</p> <p>4. Criminal Law <@=>113 — Venue—Offenses Committed Partly in Different Districts.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 42, 3® Stat. 1100 (Comp. St. 1913, § 1024), provides that, when any offense against the United States is begun in one judicial district and coini>leted in another, it shall be deemed to have been committed in either, and may be dealt with, tried, and punished in either district as if it had been actually and wholly committed therein. Held that, where a certificate of deposit was signed in blank by the cashier of a bank in Idaho, and was filled in by another party in Mississippi, and negotiated in Kentucky, a prosecution for issuing and putting forth such certificate with intent to injure and defraud the bank, and for aiding and abetting the cashier to so issue and put it forth, was maintainable in Idaho.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 190) '232 ; Dec. Dig. <@=>113.]</p> <p>5. Banks and Banking <@=>256 — Criminal Offenses — Defenses.</p> <p>Where a certificate of deposit was issued by the cashier of a national bank without authority from the directors and with intent to injure and defraud the bank, In violation of Rev. St. § 5209 (Comp. St. 1913, § 9772), the criminal act was then complete, and the subsequent ratification of its issuance by the directors could not change the character of the acts.</p> <p>[Ed. Note. — For oilier cases, see Banks and Banking, Cent. Dig, §§ 958-901, 907; Dec. Dig. <g=>25G.]</p> <p>6. Banks and Banking <S=>257 — Gkiminai. Prosecutions — Instructions.</p> <p>In a criminal prosecution in which the cashier of a national bank was charged with unlawfully issuing and putting forth a certificate of deposit with intent to injure and defraud the bank and without authority from the directors, and another party was charged with aiding and abetting him, evidence was rejected that the cashier executed a deed to his home to secure one of the directors, who advanced money to take up the certificate. The court charged that, when the certificate was sent to another bank at C. and presented for payment, some arrangement was made by which defendants, or one of them, took care of it and protected the bank against loss; that the charge was not that the bank was injured or defrauded, but that the certificate was issued with the intention to injure or defraud; that defendants were not relieved or acquitted because they took care that the bank did not suffer loss; that evidence of this fact of payment would not have been received, except for the contention that the money realized by the use of the certificate got into defendants’ private accounts as a result of a misunderstanding between them, and that the mistake was not discovered until some time later; that if defendants had immediately repaired the wrong, before others had knowledge of the existence of the certificate, the jury might very properly conclude that the restoration to the bank of the valne of the certificate tended to corroborate their contention of innocent mistake; that whether the jury would give such significance to the restoration at the later date, when the certificate had come to C. and its existence was known, he left to the jury to say; that, except for sucli light as the payment threw upon' the question whether the certificate was intended to be used for defendants’ personal benefit, or whether such benefit was the result of inadvertence and misunderstanding, the payment was without significance. Helé, that this gave defendants the full benefit of any inference that might be drawn from the fact that the certificate was taken up and paid by them.</p> <p>I Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 965, 966, 970-976; Dee. Dig. <S=»257.]</p>

Dooling, Judge. Suit in equity by the United States against the El Dora Oil Company, J. E. Campbell, H. M. Jackson, and John Shrader, doing business under the firm name of the Ohio Valley Construction Company, and John Shrader and T. J. Green. From an order granting a preliminary injunction, defendants appeal.

<p>1. Courts <@=>347 — Federal Courts — Practice in State Courts — Demurrer —Overruling—Judgment.</p> <p>Even though, under Rev. St. Mo. c. 84, § 35, a state court would have no other course, upon the overruling of a demurrer to a replication tendering an issue of fact, except to enter judgment for plaintiff, the statute did not control the discretion of a federal court, nor its power as to amendments, and the court properly proceeded to hear and determine the issue tendered by the replication.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <@=>347.]</p> <p>2. Courts <@=>274 — Federal Courts — Foreign Corporations — Service oe Process.</p> <p>Pub. Laws Me. 1911, c. 152, § 1, requires foreign corporations having a usual place of business in the state, or engaged in business therein without a usual place of business, to appoint a resident of the state its true and lawful attorney, upon whom all processes may he served, and provides that service of such process shall be made by leaving a copy of the process in the office of such attorney. Held, that service upon an agent in Maine expressly authorized by a foreign corporation would have been sufficient to subject it to the jurisdiction of 'the federal court for that district, as its consent to be so sued in Maine in the federal as well as in the state courts would he implied as a condition of being allowed to do business within the state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. <@=>274.]</p> <p>3. Courts <@=>274 — Federal Courts — Foreign Corporations — Service oe Process.</p> <p>To make service upon an alleged agent of a foreign corporation doing business in Maine valid for the purpose of the jurisdiction of a federal court, the person served must be representing the company with respect to the business itself being done in Maine in such sense that authority in him to receive service on its behalf could be properly implied.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dee. Dig. <@=>271.]</p> <p>4. Corporations <§=>668 — Foreign Corporations — Actions—Service oe Process.</p> <p>Whether an alleged agent of a foreign corporation, upon whom process was served, so represented the corporation that authority in him to receive service on its behalf could be properly implied, depended upon the character of the agenlj, and, in the absence of express authority from the corporation, the surrounding facts, and proper inferences therefrom.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2693-2627; Dec. Dig. <§=>668.]</p> <p>5. Corporations <§=>673 — Foreign Corporations — Actions — Service oe Process.</p> <p>A foreign corporation doing business in Maine had designated an agent upon whom process might be served, but in an action against the corporation service was made by leaving a copy of the summons and writ with S., described in the marshal’s return as the superintendent of the company. He was in fact superintendent only of its operations in a particular mill, with authority to hire and discharge employés, but with no authority to fix or pay their wages, purchase supplies, or sell the product of the mill; another resident agent had charge of these and other matters connected with the business in Maine; and still other matters relating to such business were referred to the New York office. Held, that the conclusion of the District Court that S.’s authority with respect to the corporation’s Maine business was not such as carried with it the implication that he was agent or attorney for the purpose of service of process was not erroneous.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2534, 2535, 2557, 2558, 2659; Dee. Dig. «=>673.]</p> <p>6. Courts <§=>344 — Federal Courts — Foreign 'Corporations — Service oe Process.</p> <p>In an action against a foreign corporation doing business in Maine, where the marshal’s return showed service of the writ upon S., described therein as the superintendent of the company, without any recital of further facts showing him to have been an agent in whom authority to receive service of process could be implied, it was not aided by any presumption to that effect, as all facts essential to federal jurisdiction must appear affirmatively.</p> <p>[E'd. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. <§=344.]</p> <p>7. Exceptions, Bill oe <§=>27 — Recitals.</p> <p>On appeal from a judgment sustaining a plea in abatement and quashing the writ, in an action against a foreign corporation, on the ground that there was no valid service of process, where the evidence as to the extent of authority of the alleged agent upon whom process was served was made a part of the exceptions, a recital in the bill of exceptions that he was superintendent and general manager, in charge of the corporation’s mill and its operations, could add nothing to what the evidence itself showed.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 34; Dec. Dig. <®=>27.]</p>

Geiger, Judge. Action by Otto Siegesmund against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiff brings error.

<p>1. Post Office <@=>31 — -Criminal Offenses — Mailing Unmailable Matter— “Will.”</p> <p>Penal Code (Act March 4, 1909, c. 321) § 211, 35 Stat. 1129 (Comp. St. 1913, § 10381), declares unmailable every article or thing designed, adapted, or intended for preventing conception or producing abortion, and every written or printed card, letter, etc., giving information, directly or indirectly, where, or how, or from whom, or by what means any of the articles or things therein mentioned “may” be obtained or made, or where or by whom any act or operation for the procuring or producing of abortion “will” be done or performed, and prescribes the punishment for mailing any such unmailable matter. Belli that, if a person uses the mails to give information that he elects, intends, or is willing to perform illegal abortions, he is guilty, though he does not expressly or impliedly bind himself to operate; but, while no obligation, promise, or assurance is essential, there must be the indication of a positive intent that the act will be done not merely that it may perhaps be performed.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. <@=>31.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Will.]</p> <p>2. Post Office <3=581- — Criminal Offenses — Mailing Unmailable Matter —“Abortion.”</p> <p>The word “abortion” in Penal Code, § 211, prohibiting the mailing of information as to where operations producing abortions will be performed, must be taken in its general medical sense, irrespective of local statutory definitions.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. <3=531.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Abortion.]</p> <p>8. Post Office <3=531 — Criminal Offenses — Mailing Unmailable Matter.</p> <p>WTiile the letter of Penal Code, § 211, prohibiting the mailing of information as to where operations producing abortions will be performed, would cover all acts of abortion, a reasonable construction, in view of its purpose, excludes acts in the interest of the natural life, and a physician may lawfully use the mails to say that, if an examination shows the necessity of an operation to save life, he will operate, if such in truth is his real position.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. <3=531.]</p> <p>4. Post Office <@=581 — Criminal Offenses — Mailing Unmailable Matter.</p> <p>While to render matter unmailable under Penal Code, § 211, as giving information concerning the performance of abortion, a positive intent that the act will be done must be indicated, the intent need not be apparent from the document itself, and a letter innocent on its face, a general statement that a person performs abortions, or an advertisement reading “Women’s Diseases a Specialty,” may be shown to have conveyed, and to have been intended to convey, the prohibited information.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 50, 52; Dec. Dig. <3=531.]</p> <p>5. Post Office <3==48 — Unmailable Matter — Indictment.</p> <p>An indictment for mailing information as to where or by whom abortions will be performed must charge that apparently innocuous words were used and intended to be used in a wrongful sense, and must allege such matters as justify the charge.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <3=548.]</p> <p>6. Post Office <3=548 — Unmailable Matter — Indictment.</p> <p>An indictment charged that defendant, a doctor, advertised “Women’s Diseases a Specialty”; that he received a letter which, as therein set out, was dated September 16, 1912, stated that the writer’s daughter was in a family way, and asked him if he would take her and relieve her of her disgrace; that on September 25th defendant, intending to give information where, how, from whom, and by what means an abortion might be produced, mailed a letter therein set out; and that he meant and intended to give and convey such information. His letter purported to be in answer to “your letter of the 24th,” referred to “the operation you speak of,” and stated that “would have to first see the patient before determining whether I would take the case or not.” Held, that, as the indictment neither charged nor alleged facts to show that defendant’s letter was in answer to the letter of the 16th, and as it neither directly nor indirectly charged that the language of his letter was designed merely to disguise, in a form recognizable by the addressee, the prohibited information of a willingness to perform the illegal act, it was fatally defective as charging merely an intent to convey information as to where or by whom an abortion might be produced, and not information as to where or by whom it would be produced, and as failing to allege facts showing the essential intent.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 67-80; Dec. Dig. <®=^48.j</p>

Dooling, Judge. Action by Paul Scharrenberg against the Dollar Steamship Company and others. Judgment for defendants on demurrer, and plaintiff brings error.

<p>1. Factors <S=»49 — Liability to Third Persons.</p> <p>A factor, though he acts innocently and in good faith, is liable in tort to the true owner or lienor of chattels against whom the principal’s act of placing the chattels with the factor is a tort; but this liability is limited to cases in which there were defects in the principal’s right of possession when he turned the chattels over to the factor.</p> <p>[Ed. Note. — For other cases, see Factors,, Cent. Dig. § 81; Dee. Dig. <S=»49.]</p> <p>2. Factors <§=j49 — Authority—Revocation.</p> <p>If a principal has in fact good title and right of possession when he delivers chattels to a factor to sell, the factor’s possession is lawful, and his authority to sell continues until he has notice of revocation.</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. § 81; Dec. Dig. <g=s>4&]</p> <p>3. Carriers >@=>58 — -Bills of Lading — Ownership of Chattels — Conversion.</p> <p>A stock buyer, who had been shipping hogs to commission merchants with instructions to sell them on commission, shipped hogs and received a “straight” bill of lading designating the commission merchants as consignees. He indorsed, the bill of lading in blank and delivered it, with a draft on the commission merchants, to a bank, which discounted the draft. Before the draft was presented to the commission merchants, and before notice to the commission merchants of the transfer of the bill of lading the commission merchants received the hogs from the carxler and sold them. Held, that the sale of the hogs was not a tort, and did not render the commission merchants liable in trover to the bank, since, while the transfer of an “order” bill of lading may be deemed evidence of an intended pledge of the chattels described therein, as an assignment of the shipper’s rights against the carrier, a straight bill of lading is not a true document of title, possession of which is symbolic of actual possession, and the carrier’s possession is on behalf of the consignee, and though the consignor may transfer his interest in the shipment, neither he nor his transferee can disturb the effect of the straight bill of lading as against the carrier or the consignee withoxit notice.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dee. Dig. <@=»58.]</p>

Shields against the Columbia River Dumber Company. Judgment for defendant, and plaintiff brings error. The plaintiff in error, as the assignee of ono Winsor, brought this action against the defendant in error to recover $10,000 and interest on account of the alleged conversion of certain shares of stock. The parties will be named plaintiff and defendant, as they were in the court below. The defendant owned 50,000 acres of land in Chelan county, Wash.

<p>1. Appeal and Error <@=>1008 — Review—Sufficiency of Evidence to Support General Finding.</p> <p>Under Rev. St. § 700 (Comp. St. 1913, § 1668), providing that, when an issue of fact in any civil cause is tried and determined by the court without a jury, the rulings of the court in progress of the trial, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed upon writ of error or appeal, and that when the finding is special the review may extend to a determination of the sufficiency of the facts found to support the judgment, an appellate court cannot, on writ of error, inquire into the sufficiency of the testimony to support a general finding, where at the close of the testimony there was no application for a declaration of law that upon the whole case the finding should be for plaintiff or for defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. <@=>1008.]</p> <p>2. Appeal and Error <@=>987 — Review—Sufficiency of Evidence to Support General Finding.</p> <p>The parties to an action tried without a jury cannot by consent or stipulation authorize the Circuit Court of Appeals to review the sufficiency of the evidence to support a general finding, as the authority of that court is regulated by statute, and its jurisdiction cannot be enlarged or extended by consent or stipulation of the parties.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3893-3896; Dec. Dig. <@=>987.]</p>

T. Dooling, Judge. Libel in admiralty by K. V. Kruse and another, copartners doing business as the Kruse & Banks Shipbuilding Company, on behalf of themselves and their underwriters, against M. J. Savage and others, claimants of the American steamer Hardy, her tackle, apparel, and furniture. From an adverse decree, the libelant appeals. The steamer Hardy undertook to tow a barge for the appellants from Ooos Bay to San Francisco.

<p>In Error to the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dealing,</p> <p>E. E. Robbins was convicted of an offense, and he brings error.</p>

T. Dooling, Judge. Proceeding by James R. Ryan and another against Herman Murphy to have Murphy adjudged a bankrupt. From an order or decree (228 Fed. 1018), denying an adjudication and dismissing the petition, the petitioning creditors appeal.

<p>Patents <©=>328 — Invention—Electric Car-Lighting System.</p> <p>The Thompson patent, No. 926,618, for a car axle lighting system, heU void for lack of patentable invention, in view of the prior art.</p>

Suit in equity by the Ruud Manufacturing Company and another against the Beler Water Heater Company and another. Decree for complainants, and defendants appeal. This cause comes here upon appeal from a decree finding a certain patent valid and infringed. The patent is No. 1,028,284, issued June 4, 1912, to Edwin Ruud for a water heater.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the Victor Talking Machine Company against Thomas A. Edison, Incorporated. Decree for defendant, and complainant appeals.</p> <p>The following is the opinion of Teamed Hand, District Judge:</p> <p>Patent 785.362 being withdrawn, I have only to consider patents 814,786 and 1,060,550. The plaintiff urges that the “reorganized” machine infringes claims 16, 23, and 37 of patent 814,786 and claims 39 and 42 of patent 1,060,550. Claim 23 of patent 814,786, if considered verbally, is clearly not applicable. The “bent pivoted tube” is especially designed not “to carry the sound box in substantial alignment with the tapering portion of said arm.” Therefore claim 23 may he disregarded at once, because, whore so many claims are put into a patent, each element in a given claim must be supposed to be especially necessary to the combination. In such a patent there is little room for latitude of interpretation. In claim 16 the term, “sound tube,” used in the claim should be confined to the movable section, 2.9, which is called a “sound tube” on page 2, lines 49, 50, 61, 70, and 93, and which is used in that sense in a number of the claims. The defendant has no “sound tube,” because it has no such element as Johnson’s disclosure; the whole organization oi' its machine being quite different and being derived from another part of the art— that is, from the solid horn art.</p> <p>If, however, that part of the solid horn which comes above the record be deemed the “sound tube,” so that the defendant infringes, then the claim in my judgment presents no patentable novelty over the prior art. I shali assume for the moment, and until I take up claim 37 that the Clark patent, 756,348, and the Lake patent, 1902, British, 785, show a sound tube with an end piece, to which the sound box is rigidly attached, hut which itself moves freely upon two axes, vertical and horizontal. The proof of that 1 shall give later. If so, it was not patentable to give to the sound box that double motion when annexed to a solid horn. Johnson’s own patent, 785,363, which was in the office at the same time as the patent in suit, would have been a. good reference otherwise upon this very point. Moreover, Johnson’s patent, 634,944, shows the horn bent through 90 degrees to meet the sound bo.x with a solid connection. Surely it was not invention to make the straight tube of Clark and Lake into a bent tube like Johnson, 634,914, or to vary the bend into a semicircle, as the defendant has done. In the patent in suit the joint between the sound tube and the semicircular part may well he patentable, but the defendant does not use it, or anything like it. The bend in its tube is a twist in the solid metal, which puts the sound box in the same vertical plane with the horn, when the tube is in a straight line with the horn, but which has no functional significance. At least, I am not willing to attribute invention to that particular feature, and that is the only feature which is new. Therefore I think that claim 16 must be limited to the disclosure as shown, where there is a separated horn of which one part is a sound tube in the sense mentioned in the patent.</p> <p>Claim 37 contains an element described as “a hollow sound conducting arm movable in a plane parallel with” the record support. The phrase “sound conducting arm,” or “tube,” is used in tbe patent interchangeably with “sound tube” to mean the element, 29, distinct from the horn proper (page 2, lines 27, 41), but it may be (page 1, line 18) that this use is not throughout as consistent as in the case of the “sound tube.” However that may be as mere matter of terminology, the element must be limited to the organization disclosed, or it is invalid, because, if the element include the whole of a solid horn, as it must to cover the defendant’s device, it is invalid under Clark, supra, and Lake, supra. Here there is a hollow sound conducting arm in the sense of a horn which moves parallel with the record. The sound box has a vertical movement about the horizontal pivot, i, which permits the box to move from or to the record independently of the horn, sufficiently to remove the stylus. However, the plaintiff urges that, as the Clark and Lake patents are clearly for a feed machine, the sound box cannot, therefore, move freely laterally across the record, as the defendant’s does and as the plaintiff’s does. That in all feed machines there must be some play, which permits a slight amount of accommodation to the grooves of the record, all agree. The whole phonograph art shows this; ’ but it is urged with some plausibility that such slight accommodation as this should not be confounded with a deliberate adaptation for tracking through the guidance of the record alone. Hence it is insisted that patents like Yon Madaler, 1899, British, 23,497, and the MacDonald patents, are not applicable, and that there must be understood in the patent in suit a machine made like the original Berliner machine, where the stylus drifts freely in a lateral plane.</p> <p>The organization of Clark’s machine leaves no doubt in my mind that a lateral movement was contemplated about the vertical pivot, j, within the sleeve, m. Figures 5 and 9 show how this was to be done; the pin, j, being that on the upper end of which the guide arm, D, was fastened. The disclosure (page 1, lines 45-70) leaves no doubt as to the patentee’s purposes; the phrase “universal joint,” line 60, being wholly unambiguous. Just how much play was permitted depended upon the relative lengths of m and Jo within the joint and of their difference in caliber, but the degree of motion is not a patentable detail. The fact that the defendant’s universal joint is a ball and socket is irrelevant.</p> <p>Lake’s patent, 1902, British, 785, illustrates precisely the same thing and quite as clearly, not, as the plaintiff thinks, confusedly. Thus the patentee says (page 5, lines 1-3) that the device “permits a very slight motion in the horizontal direction to the tubes of the diaphragm as arranged in Figures 15 and 16. This horizontal movement is just sufficient to permit the ball to follow smoothly the path of the spiral groove.” All the defendant has done is to allow this play in a “horizontal direction” to be large enough “to permit the ball [stylus] to follow smoothly the path of the spiral groove.” The fact that it allows the stylus to follow a spiral groove, which was of altogether different threading from that which the feed was meant to accommodate, cannot have any bearing upon patentability. The means are shown, and all that need be done is to'proportion the parts m and Jc, so as to allow enough play to accommodate for whatever the total difference is between the feed and the record. No patent can reside in the mere size of these parts. Unless, therefore, claim 37 is limited to the disclosure, it will meet these two patents and it will be invalid. Therefore I find no infringement of patent 714,856.</p> <p>Patent 1,060,550 was in the office more than 10 years, and the claims in suit were interjected into the application after the patent had been once allowed, and after the defendant’s machine had appeared upon the market. Just how it can happen that a patentee can hold an invention secreted for so long, and can then adapt it so as to cover the subsequent art, does not appear. The result is, assuming that the claims do not constitute a new invention, that the patentee has got from 8 to 9 added years to his monopoly from the time when he would otherwise have been obliged to leave the art unhampered. To let him reserve his patent till the trade independently develops, and then to pounce upon it for a full term, would seem to violate the conditions upon which his grant depends, and to convert the system into a mere means of checking industry. This is especially true where, as here, a fundamental patent like the Berliner protected the whole invention until 1912. The case certainly suggests a purpose to monopolize that invention still further by reserving in the Patent Office patents upon other similar machines known long before. Whether this bo true or not, the practice is so obviously mischievous that the courts should discourage it as much as possible, as well as the practice which permits 48 claims upon a simple and perfectly obvious machine like this. Such claims violate the very purpose of any claims at all, which is to define the forbidden field. In such a waste of abstract verbiage it is quite impossible to find any guide. It takes the scholastic ingenuity of a St. Thomas with the patience of a yogi to decipher their meaning, as they stand.</p> <p>Claim 39 is certainly not infringed because the tapering sound amplifier has no “free swinging movement.” On the contrary, it is rigidly controlled during its operation by the feed mechanism. The disclosure is of a freely floating horn, and it is only a literal reading of the claim which can cover any part of the “reorganized” machine but the little adjunct tubo which carries the sound box, about which more in a moment. If, however, we disregard the limitation of the claim, and consider it as covering the tapering portion, we find that portion anticipated by Jeffries, 1900, British, 16,897, Von Madaler, 1899, British, 23,497, and Lake, supra, in all of which a tapering horn moves exactly as the tapering part of the defendant’s horn moves in the “reorganized” machine and has a sound box which can be raised up and down into and out of co-operation with the record. Therefore the claim cannot safely be allowed an expansion which it would, as matter of interpretation, be absurd to permit; that is, to disregard the freely swinging movement. If, on the other hand, one were to disregard the other element of the claim — -i. o., the taper in the arm — and apply it to the adjunct tube, which swings freely, one would get no further than Lake, supra, which, as I have shown at length, has a free swing in all directions, dependent in amount upon ihe proportion of the elements, m and It. Therefore, even with a latitude of interpretation which would be wholly unwarranted in view of patent as a whole, the claim cannot be regarded as infringed.</p> <p>Claim 42 differs, in that the element of free swing is eliminated and the condition of parallel motion is substituted. This difference makes the claim more verbally applicable to the defendant’s “reorganized” machine than claim 39, though here, too, tlie disclosure must be disregarded altogether. If, however, the claim be interpreted to cover a feed control tapering horn, then Von Hadaler, supra, and Lake, supra, at once become good references because the tapering part of the defendant’s horn is under feed control like them. If, again, as in claim 89, the taper of the horn be disregarded, notwithstanding the words of the claim, and it apply to the adjunct tube, then Lake, supra is as good a reference as upon claim 39. The only change in consideration of these two claims is that Jeffries supra, does not apply to claim 42.</p> <p>Tt hardly seems necessary to consider the defendant’s “normal” machine, except to note how far beyond any possible scope of the disclosure the plaintiff is willing to press the literal interpretation of the claims.</p> <p>Blagden, 67i ,305, does not seem to me to be apposite to this patent, because tlie member which moves laterally parallel to the record is not the tapering horn. This patent is derived from tlie broken horn art, not from the solid horn. Kdison’s original patent does not seem to mo very relevant either to claim 89 or 42. In all tills art there was no room for any great pioneer invention in the mere relations of the horn to the sound box or its connections. Tlie great invention was the floating of the stylus upon the face of the record, and that was Berliner’s discovery. A mere glance at the defendant’s machine shows that its original organization proceeded upon wholly different lines. When the Berliner patent expired, I see no reason in law or morals why they should not have availed themselves of an attachment of the floating sound box type to play Berliner records in the Berliner fashion. They, with the rest of the world, were the beneficiaries of that disclosure. While the floating sound box was somewhat crudely devised by Berliner, the pregnant idea became public, and I cannot see how the defendant has borrowed anything from the plaintiff, except the semicircular twist in its tube. However, amid the wilderness of words I have tried to find and tread a path of logic, though tlie simpler way might have been to rest the case upon broader lines.</p> <p>The bill is dismissed, with costs.</p>

Suit in equity by the Telescope Cot Bed Company against tire Gold Medal Camp Furniture Manufacturing Company. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree finding validity and infringement of United States letters patent No. 793,723, issued July 4, 1905, to R. E. Herman for a folding cot.

<p>1. Patents <§=3313 — Suit for Infringement — Voluntary Dismissal — Grounds for Denial of Leave.</p> <p>Where, in a patent suit, there had been no hearing touching the merits, and though considerable expense had been incurred through the taking of testimony and the doing of other things, the evidence was not closed upon, either side, no substantial rights had accrued to defendants which would warrant the denial to plaintiffs of leave to dismiss on proper terms.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. <§=3313.]</p> <p>2. Patents <§=>313 — Suit for Infringement — Voluntary Dismissal — Conditions.</p> <p>Where, in a patent suit, plaintiffs had taken testimony under circumstances compelling defendants to incur expense, and the case had proceeded beyond the point at which plaintiffs might dismiss as of right, and plaintiffs had instituted a proceeding in another jurisdiction, and had offered to stipulate into the record of that suit all the depositions taken on behalf of defendants, leave to dismiss should be conditioned upon substantial indemnity to defendants, and defendants should be indemnified, not only for taxable costs, but for incidental expenses, including counsel fees which would be lost in subsequent litigation.</p> <p>[Ed. Note.- — For other cases, see Patents, Dec. Dig. <§=>313.]</p>

<p>Patents <§=>62 — Pebsons Entitled to Patent — Evidence as to Okiginaiytty and Pbiobity.</p> <p>In a suit involving the question of priority of invention between parties, each of whom had applied for letters patent, and neither of whom had failed in due diligence, evidence hold to show that defendant’s assign- or, who first applied for a patent, was also the first to conceive the invention, and was the original or first inventor of the device described.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 78; Dec. Dig. <@=>02.]</p>

<p>At Law. Action by John H. Steele against O. P. Halligan. On motion to remand.</p>

At Law. Action by the United States against the Minneapolis Threshing Machine Company. Judgment for the United States for $742.66, with interest and costs. This was an action to recover the difference between the special excise tax levied and assessed against the defendant under section 38 of the act of August 5, 1909, and paid by it, and the amount which it was alleged should have been levied, assessed, and paid.

<p>In Error to tile District Court of the United States for the Eastern. District of Pennsylvania; Oliver B. Dickinson, Judge.</p>

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California ; Maurice T. Dooling, Judge.</p>

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

<p>In Error to the District Court of the United States for the Northern Division of the’Eastern District of Washington; Frank H. Rudkin, Judge.</p>

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

McCall, Judge. Action by tbe Darnell-Taenzer Lumber Company and others against the Southern Pacific Company and others. Judgment for plaintiffs, and defendants bring exxor.