Volume 231 — Federal Reporter

<p>In Error to the District Court of the United States for the South- . ern District of Texas; Waller T. Burns, Judge.</p> <p>Trespass to try title by B. F. Moore against the Foster Lumber Company.</p>

<p>1. .Municipal Corporations <@=>931—Bond Issues—Validity—Application of Charter.</p> <p>Denver Charter, § 264a, as amended in 1910, relative to the purchase or construction of a waterworks system and the issuance of bonds for that purpose, provides that nothing in the preceding sections or in the charter, except as therein specifically provided, shall apply to the acquisition or operation of a waterworks, and that any provisions of the charter in conflict therewith are thereby repealed. Held, that the validity of bonds issued thereunder must be determined from that section alone, especially as the electors knew of existing trouble between the municipality and a water company, and in amending the charter legislated particularly with reference thereto.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1944^-1947; Dec. Dig. <§=>931.]</p> <p>2. Municipal Corporations <@=>931—Issuance of Bonds—Submission to Vote—Operation and Effect.</p> <p>Denver Charter, § 264a, as amended in 1910, created a public utilities commission, authorized the creation of an indebtedness in the sum of $8,000,000 to provide a municipal water plant, such indebtedness to be evidenced by bonds, and provided that, if a water company did not take advantage of its provisions as to selling its system to the city, then at a special election to be held as therein! stated there should be submitted to the taxpaying electors the question of issuing $8,000,000 in bonds for the construction of a new municipal water plant. Held, that bonds authorized at such an election are not void because of the fact that a complete system of waterworks cannot be constructed for $8,000,000, as there is no provision in the charter prohibiting the issuance of the bonds unless a complete system can be built with the proceeds, and, while it would be unwise for the commission to start the construction of the system under the circumstances without obtaining authority from the voters for the issuance of additional bonds, the courts possess only judicial power, and may not correct unwise legislation or unwise official action.</p> <p>[Ed. Note.—For other eases, see Municipal Corporations, Cent. Dig. §§ 1944-1947; Dec. Dig. <@=>931.]</p> <p>3. Municipal Corporations <@=>931—Issuance of Bonds—Submission to Vote—Charter Provisions.</p> <p>Denver Charter, § 264a, as amended May 17, 1910, creates a public utilities commission, gives it' all .the powers of the municipality in the matter of constructing, purchasing, condemning, and acquiring a water-plant or system, authorizes the creation of an indebtedness in the sum of $8,000,000 to provide such system, when authorized by a vote of the taxpaying electors, and provides that if a water company, on or before July 1, 1910, shall place a deed of its property in escrow, with a direction to deliver it to the commission in exchange for $7,000,000 of bonds, the commission shall file its acceptance, and at a special election to be held on the first Tuesday in September, 1910, there shall be submitted the question of issuing $8,000,000 in bonds for the purchase and repair of such system, and that if the water company fails to comply therewith there shall be submitted at such election the question of issuing such bonds, to be sold or used for the construction of a new municipal water plant. A subsequent paragraph provides that the commission, immediately upon its election, in case the water company has not accepted the 87,000,000 in bonds, shall make a careful investigation of the value of such plant, and a careful estimate of the cost of constructing a new water system, and may submit an alternative proposition at such election for the issuance of bonds in such sum as it may deem advisable for the acquisition or construction of a water plant in any of the ways within its powers. Held, that it was discretionary with the commission whether it would follow7 this last paragraph, or the preceding one. and its failure to act under the last-mentioned -paragraph did not invalidate bonds authorized at an election at which the question of issuing $8,000,000 in bonds for the construction. of a new system was submitted, especially as the time between July 1st and the date of the election war, entirely insufficient for a careful investigation of the value of the existing plant and the cost of a now system.</p> <p>©=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—-For other cases, see Municipal Corporations, Cent. Dig. §§ 194D-1947; Dec. Dig. @=>931.]</p> <p>4. Municipal Corporations @=>918(1)—Issuance op Bonds—Submission to Vote—Charter Provisions.</p> <p>As the charter authorized the creation of an indebtedness to provide a municipal water plant upon a vote of the taxpaying electors, and provided that the question actually submitted should he submitted, the failure of the commission to ascertain the probable cost of such system prior to the special election did not-render the vote nugatory.</p> <p>LEd. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. @=>918(1).]</p> <p>5. Municipal Corporations @=>918(1)—Issuance op Bonds—Submission to Vote—Charter Provisions.</p> <p>It was sufficient to submit to the taxpaying electors the question which the law required to be submitted, and the commission’s failure to fix the date, form, and maturity of the bonds, as authorized by the charter, prior to the special election, did not affect the validity of the bonds.</p> <p>[Ed. Note.—For other casos, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. @=>918(1).]</p> <p>6. Municipal Corporations @=>918(1)—Issuance of Bonds—Submission to Vote—-Charter Provisions.</p> <p>The bonds were not void because of the commission’s failure to state in the proposition submitted to a vote how it proposed to create a sinking fund for the payment of tho principal and interest on the bonds.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. @=>918(1).]</p> <p>7. Municipal Corporations @=918(1)—Issuance of Bonds—Submission to Vote—Charter Provision s.</p> <p>An ordinance of the city of Denver provided for a tax sufficient to pay the annual interest on bonds authorized to be issued for the purpose of constructing a waterworks and to provide a sinking fund to extinguish the principal at maturity, and further provided that when the plant should have been constructed so much of the revenue as was not needed for the operation and maintenance of the plant should be paid into the sinking fund, and that no part of the levy should be utilized in the ex-tinguishment of principal and interest until such revenues were exhausted. It was contended that the law only authorized the public utilities commission to provide for a sinking fund to be created out of the net earnings of the w7ater plant. Held, that .the bonds were not invalid merely because the commission and council made a provision for a sinking fund that might not have been necessary.</p> <p>@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. <@=>918(1).]</p> <p>8. Municipal' Corporations <@=>920—Issuance op Bonds—Submission to Vote—Charter Provisions.</p> <p>Denver Charter, § 264a, as amended in 1910, authorizes the creation of an indebtedness in tbe sum of $8,000,000 to provide a municipal water plant, such indebtedness to be evidenced by bonds maturing at such times as may be prescribed by the public utilities commission, thereby created, and provides that such bonds may be called for redemption and redeemed by the commission as provided in another section. Helé, that this provision as to redemption does not deprive the commission of authority, in determining when the bonds shall mature, to determine that they shall be straight 30-year bonds.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1930, 1931; Dec. Dig. <@=>920.]</p> <p>9. Municipal Corporations <@=»918(1)—Issuance op Bonds—Submission to Vote—Charter Provisions.</p> <p>The failure of the commission to determine whether the bonds were to be straight 30-year bonds or call bonds prior to the election, and to inform the taxpayers thereof before the submission to them of the question of issuing such bonds, did not invalidate the bonds, as it was sufficient to do what the law commanded, and the law did not require that the taxpayers be informed whether the bonds would be straight bonds or call bonds.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1919; Dec. Dig. <@=>918(1).]</p> <p>10. Trial <@=>56—Keception of Evidence—Cumulative Evidence.</p> <p>It was not error to exclude evidence which was merely cumulative, because the record already showed the facts desired to be proved.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 131, 132; Dee. Dig. <@=>56.]</p> <p><g=»For other cases see same topic & KEY-N UMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Conspiracy <§=>48—Conspiracy to Defraud United States—Questions for Jury.</p> <p>On a trial for conspiracy to defraud the United States out of a part of the customs duty on imported coal, whether the United States was defrauded in that some of the coal never reached the scales for weighing, and in that it paid drawbacks for coal delivered to steamers entitled to claim drawbacks in excess of the quantity actually delivered, and whether these results were brought about by a conspiracy between defendants held for the jury.</p> <p>[Ed. Note.- -For other cases, see Conspiracy, Cent. Dig. §§ 108-111; Dec. Dig. <®=>48.J</p> <p>2. Conspiracy <§=>43(10)—Customs Duties—Fraud—Indictment.</p> <p>An indictment for conspiracy to defraud the United States of customs duties on imported coal, by preventing part of the coal from reaching the scales for weighing and by causing the payment of drawbacks for coal In excess of the quantity delivered to steamers entitled to claim drawbacks, was not sufficient if it merely charged in general terms a conspiracy to defraud the United States.</p> <p>[Ed. Note.—For other eases, see Conspiracy, Cent. Dig. §§ 80, 97; Dec. Dig. <§=>43(10).1</p> <p>3. Criminal Law <§=>1032(5)—Objections for Purpose of Eeview—Indictment.</p> <p>An indictment charged defendants with conspiring to defraud the United States of duties on coal imported into the United States by making and causing to be made false weights and false returns of weights of cargoes and importations of coal, and made like charges as to coal discharged into vessels entitled to claim a drawback. It further charged that defendants so manipulated the scales and weights and method of weighing thereon that they recorded the weights of coal desired by defendants, and not the true weight of the coal, and that they caused all coal weighed oil scales upon whicn the coal handled by their company was weighed to be Incorrectly measured and weighed, to the end and foi the purpose that they, under the name and guise of such company, should receive the profit and gain from such inaccurate and fraudulent weight. Belt! that, where no objection was made to the indictment before trial, or interposed to the introduction of testimony, and no request was made to limit the scope of the charge in the instructions of the court, and defendants were not misled to their prejudice, the indictment, though general in terms and lacking in particulars, was sufficient.</p> <p><^s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2627; Dee. Dig. @=>1032(5).]</p> <p>4. Criminal Law @=>919(5)—Argument of Counsel—Time for Objections.</p> <p>An objection to argument of prosecuting counsel, first called to the attention of the court by a motion for a new trial, came too late.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2199; Dec. Dig. @=>919(5).]</p> <p>5. Criminal Law @=>1156(1)—Appeal—Review—Denial of New Trial.</p> <p>While it would seem that an appellate court will review an order denying a new trial at least to the, extent of determining whether the court below refused to receive and consider proper testimony, where the court considered all affidavits presented in support of such a motion, and after a full hearing denied the motion in the exercise of the discretion vested in it by law, and the circumstances did not plainly require an appellate court to review and reverse the order, it would not be disturbed.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3067; Dec. Dig. @=>1156(1).]</p> <p>@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Niles, Judge. Action'by the Board of Commissioners of Muddy Bottom Swamp Land District No. 1 of Tippah County, Mississippi, against the Equitable Surety Company and another. There was judgment for plaintiff, and defendant named brings error.

Action by Katie Washko, an infant, by Frank Dindl, her guardian ad litem, against the Lehigh Valley Coal Company. This cause comes here upon appeal from a judgment in favor of defendant in error, who was plaintiff below. The action was brought by a widow to recover damages for the death of her husband, who was employed by defendant in its mine in Pennsylvania.

Burns, Judge. Nathan A. Hughes and others were convicted of offenses, and they bring error. Nine defendants were convicted upon one trial of conspiring to violate section 215 of the Penal Code and of a violation of that section, and were sentenced to terms of varying length in the penitentiary. All nine defendants sued out writs of error to this court from the judgment of the court below.

<p>1. Bankruptcy <@=>493—Cm minar Offenses—“Concealment” of Property.</p> <p>“Concealment” of property by a bankrupt from his trustee, either by conversion of the property or by secretly retaining it, is a positive act coiffmitted at some time or other with respect to a physical thing, and wherever that act is done there alone the court has jurisdiction of the offense.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. § 910; Dec. Dig. <@=3493.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Concealment. I</p> <p>2. Bankruptcy <@=3485—Criminar Offenses—Conoearment of Property-Omission from Schedule.</p> <p>Since the criminal offense of fraudulently concealing property from die trustee in bankruptcy, prescribed by Bankr. Act July 1, 1898, c. 541, § 29b, cl. 1, 30 Stat. 554 (Comp. St. 1913, § 9613), is in the same subsection with clause 2, which prescribes the offense of making a false oath or account in relation to any proceeding- in bankruptcy, it must be presumed that they refer to different offenses, and that the mere omission of property from the schedule is uot a concealment.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 906, 908; Dec. Dig. <@=3485.]</p> <p>3. Bankruptcy <@=3493—Criminar Offenses—Concealment of Property-Venue.</p> <p>Where the testimony fails to show that any property concealed by a bankrupt from his trustee was ever in the district in which the voluntary petition in bankruptcy was filed, the offense was not committed there, and a prosecution for the offense in that district deprived the bankrupt of his right under Const. Amend, art. 6, to bo tried by a jury of the district in which the offense wms committed, though that court had acquired jurisdiction over Mm and his estate, wherever situated, for all purposes of bankruptcy, under Bankr. Act, § 5c. (Comp. St. 1913, § 9589).</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 910; Dec. Dig. <@=3493.1</p> <p>Buffington, Circuit Judge, dissenting.</p> <p><@E»l«7or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy <§=495—Offenses—Admissibility of Evidence—Concealment of Property.</p> <p>In a prosecution against a bankrupt for fraudulently concealing property from his trustee, evidence that defendant, shortly before the petition was filed against him, removed his books and disposed of a large part of his goods, which were then in the district in which the bankruptcy proceedings wore subsequently filed and the prosecution instituted, was properly admitted, not as proof of the completed act of concealment, but as evidence of a plan or scheme from which an inference of subsequent concealment could be drawn.</p> <p>[Ed. Note.—'For other cases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. @=495.]</p> <p>2. Bankruptcy <§=485—Offenses—-“Concealment of Property.”</p> <p>Bankr. Act July 1, 1898, c. 541, § 1, cl. 22, 30 Stat. 544 (Comp. St. 1913, § 9585), which defines concealment to include secrete, falsify, and mutilate, contemplates by “concealment of property” a continuous concealment in cases where the property was physically converted and concealed before bankruptcy and remains secreted and concealed thereafter.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 906, 908; Dec. Dig. <§=485.</p> <p>For other definitions, see Words and Phrases, First and Second Scries, Concealment.]</p> <p>3. Bankruptcy <§=485—Offenses—Concealment of Property—Construction of Statute.</p> <p>The construction of continuous concealment of property in civil cases under Bankr. Act, § 14b (Comp. St. 1913, § 9598), applies to the concealment under the criminal section, 29b (section 9613).</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 906, 908; Dec. Dig. @=485.]</p> <p>4. Criminal Law @=741(1)—Questions for Jury—Hypothesis of Innocence.</p> <p>While the evidence must exclude every reasonable hypothesis of guilt, where the reasonableness of the only hypothesis of innocence propounded presents a question on which men of ordinary intelligence may differ, it is for the jury.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1705, 1713, 1727, 1728; Doc. Dig. @=741(1).]</p> <p>5. Criminal Law @=829(9)—Requested Charges—Charge Already Given.</p> <p>Where the court had properly charged the jury on the presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt, there was no error in refusing a requested charge that if there aro a number of theories fairly dedueible from the evidence which are compatible with guilt, and a single theory fairly compatible with innocence, the jury must adopt the theory compatible with innocence.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=829(9).]</p> <p>6. Criminal Law @=1044.—Appeal—Questions Presented—Sufficiency of Evidence.</p> <p>Appellate courts need not consider the question whether there was substantial evidence to sustain a conviction, in the absence of a request for an instructed verdict and an exception to its denial.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2672, 2674, 2675 ; Dec. Dig. @=1044.]</p> <p><g=»For other cases see same topic & KI2Y-NUMBJ3IÍ in all Key-Numbered Digests & Indexes</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of Montana; George M. Bourquin, Judge. In the matter of R. S. Miller, bankrupt. An order of the referee, requiring the bankrupt to file a supplemental schedule, was reversed by the District Court (221 Fed. 690), and the Olmsted-Stevenson Company files a petition to revise.

Petition for Revision of a Certain Order of the District Court of the United States for the District of Montana, in Bankruptcy; George M. B our quin. Judge. In the matter of S. A. Langdorf, bankrupt. On petition by the Olmsted-Stevenson Company for revision, under Bankr. Act July 1, 1898, e. 541, § 24b, 30 Stat. 553 (Comp. St. 1913, § 9608), of an order in matter of law.

<p>1. Alteration of Instruments ©=»3—Effect of—“Material Alteration.”</p> <p>Where plaintiff’s agent stored goods with warehousemen, who issued receipts in the name of the agent, not knowing that plaintiff was the real' party in interest, the substitution of the name of plaintiff and erasure of the .agent’s name from the receipts was a “material alteration,” which, if made by a party in interest, would render the instrument void, despite the rule that the substitution of one name for another is immaterial, when the name of the real party intended is inserted.</p> <p>[Ed. Note.—For other cases, see Alteration of Instruments, Cent. Dig. §§ 5-15; Dec. Dig. <@=3.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Material Alteration.]</p> <p>2. Alteration of Instruments <§=>11(2)—Effect—Alteration by Stranger.</p> <p>A material change in a written instrument avoids it against one party, only when it is made by the other party or with his consent, and an alteration by a stranger, or by an agent without authority, is only a spoliation, not affecting the instrument’s validity.</p> <p>[Ed. Note.—For other cases, see Alteration of Instruments, Cent. Dig. §§ 61-66,68-71; Dec..Dig. <§=>11(2).]</p> <p>3. Alteration of Instruments <S=wll(2)—Authority of Agent.</p> <p>A steamship company directed its agent to store goods with defendants, who were warehousemen. Defendants issued the receipts to the agent. Held, that for the agent to erase its name and insert that of its principal, the steamship company, was not an alteration preventing the company as an undisclosed principal from enforcing the contract, for an agent of a party to the instrument, not authorized to change it, is deemed a stranger, awl the agent, because authorized to store the goods, was not empowered to change the receipts.</p> <p>©ssFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Alteration, of Instruments, Cent. Dig. §§ 61-66, 68-71; Dec. Dig. <g=»ll(2).]</p> <p>4. WaiíJiuiottsumpín <S=>25(5)—-Liability.</p> <p>Civ. Code S. C. 1902, §§ 1719-1721, respectively provide that warehouse-men shall not transfer or remove goods for which a receipt has been, given without the written assent of the persons holding the receipt, that warehouse receipts may be transferred toy indorsement and delivery, but that those provisions forbidding delivery of property except on surrender and cancellation of the original receipt or the indorsement of delivery thereon, in case of partial delivery, shah not apply to property replevied or removed by operation of law. The agent of a steamship company stored its property with defendant warehousemen, and they issued a receipt in the name of the agent. Thereafter the agent, having erased its name and inserted that of its principal, directed the warehousemen to deliver to it a portion of the goods. Reid that, as the original receipt was not produced and canceled, nor was delivery indorsed thereon, the warehousemen were liable to the principal for delivery to the agent.</p> <p>[Ed. Note.-—For other cases, see Warehousemen, Cent. Dig. §§ 42-45; Dec. Dig. <S=>25(5).]</p> <p><S=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations @=>477(1)—Mortgages —Consideration —Mortgages to Stockholders.</p> <p>A corporation and its sole stockholders conveyed all of its assets to A. and W., who indorsed on the conveyance a transfer of the assets to the corporation. The stockholders also transferred the stock to A. and W., and new certificates were issued in their names and assigned to the former stockholders as security. A. and W. paid the former stockholders $7,000 in cash, and they and the corporation made notes for $22,500, to secure which a chattel mortgage was executed by the corporation. The corporation was indebted to a bank, and the former stockholders made a new note to the .bank, and assigned the notes and mortgage and stock certificates as security. Payments were subsequently made on the notes and mortgage, part of which were paid to the bank, and part, with the permission of the bank, to (he former stockholders. Held, that the transaction was in effect a sale by the stockholders of their interest in the corporation and a mortgage by the corporation of its assets to provide for payment of its debts, and payment to the former stockholders of the agreed value of their interest and the mortgage was good as security in the hands of the bank to the extent of the balance due on its debt, since, when the former stockholders took up the corporation’s note, substituting their own, they became creditors of the corporation, and the mortgage" to the extent of the debt was good in their hands, or the hands of their assignee.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1859, 1865-1868; Dec. Dig. @=>477(1).]</p> <p>2. Corporations @=>478—Mortgages—Validity—Estoppel.</p> <p>The consent or permission of the bank to the payment of money by the corporation to the former stockholders in no way affected the bank’s rights, as it was under no duty to subsequent creditors to enforce payment of its security, and had no authority to prohibit the corporation from paying money to the former stockholders.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1871; Dec. Dig. @=>478.]</p> <p>@=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Corporations <3=99(1) — Indebtedness — Assuming Debts op Stockholders.</p> <p>As a general rule a corporation cannot legally bind itself to pay the purchase price of stock sold by a stockholder to a third person, and this principle is embraced in the inhibition of Const. S. C. art. 9, § 10, and Civ. Code 19J2, § 2889, against the issuance of stocks or bonds save for labor, money, or property, and against all fictitious increase of stocks or indebtedness.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 444; Dec. Dig. <3=99(1).]</p> <p>4. Corporations <3=99(1) — Indebtedness — Assuming Debts op Stockholders.</p> <p>Other stockholders and existing creditors, unless they have waived the rule or estopped themselves from asserting it, aro always entitled to the protection of the rule that a corporation cannot bind itself to pay the purchase money of stock sold by a stockholder to a third person.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 444; Dec. Dig. <3=99(1).]</p> <p>5. Corporations <3=477(3)—Indebtedness — Assuming Debts op Stockholders.</p> <p>As stockholders are the equitable owners of corporate property when outstanding debts have been paid, and can by merely formal legal proceedings sell the property, transfer the legal title and divide the proceeds of the sale, they may in equity bind the corporation by a sale or mortgage for their own benefit as individuals as against themselves and all others subsequently becoming creditors or stockholders, with full notice of the conveyance or mortgage and the purpose for which it was given.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 1858; Dec. Dig. <@=477(3).]</p> <p>6. Corporations <3=542(3) — Indebtedness — Assuming Debts op Stockholders.</p> <p>Subsequent creditors of a corporation may attack a mortgage executed by a corporation to secure a stockholder for the purchase money of his stock, unless he has notice by record or otherwise, not only of the existence of the mortgage, but of the purpose for which it was given, as the law authorizes those dealing with a corporation to assume that the corporate assets are kept for corporate purposes, and that the proceeds of a corporate mortgage have been paid into the treasury of the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2156; Dec. Dig. <3=542(3).]</p> <p>7. Corporations <3=547(4)—Indebtedness — Assuming Debts op Stockholders.</p> <p>A corporation and its sole stockholders executed a joint bill of sale of all of its assets for a recited consideration of $29,500 to W. and A., who indorsed on the conveyance a transfer of the assets to the'corporation. The stockholders also transferred their stock to W. and A., and new certificates were issued in their names and assigned, to the former stockholders as security. A. and W. paid $7,000 of the consideration in cash, and they and the corporation made notes for $22,500, secured by a chattel mortgage of the corporation, attached to which was evidence that its execution was authorized by A. and W. as directors and sole stockholders. The bills of salo and mortgage were duly recorded. Held, that subsequent creditors were put on notice that the mortgage was executed as part of the purchase by W. and A. of the stock in the corporation, and could not attack the validity of the mortgage.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2181; Dec. Dig. <3=547(4).]</p> <p>@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Revise in Matter of Raw an Order of the District Court of the United States for the District of Arizona; Wm. H. Sawtelle, Judge. In the matter of the bankruptcy óf the Southern Arizona Smelting Company, a corporation. Petition by M. P. Freeman, as trustee of the estate of the bankrupt, against John H. Martin, as trustee of the estate Orf the Imperial Copper Company, a corporation, bankrupt.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by John A. S. Brown and Frank E. Schermerhorn, trustee, against Austin B. Fletcher, as testamentary trustee of Conrad M. Braker. Decree for defendant, and complainants appeal.</p>

<p>1. Evidence @=>208(4)—Admissions—Pleading in Former Suit—Signature.</p> <p>In trespass to try title, defendant’s answer in a prior equity suit which was unsigned and unverified by either defendant or his attorney, was inadmissible on objection calling the court’s attention to such facts.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 716; Dec. Dig. @=>208(4).]</p> <p>2. Trial @=84(4)—Objection to Evidence—Sufficiency.</p> <p>In trespass to try title, the objection to defendant’s answer in a prior equity suit, when offered evidence, that it was improper and incompetent as impeaching evidence or for any other purpose was sufficient to call the court’s attention to the fact that the answer was unsigned and unsworn to by defendant or his counsel.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 217; Dec. Dig. @=>84(4).]</p> <p>3. Trial @=139'(1)—Weight of Evidence—Question for Jury.</p> <p>In trespass to try title, defendant’s answer in a prior equity suit, admitted in evidence against him, could not support a peremptory charge for the plaintiffs, since the weight of evidence is for the jury.</p> <p>[Ed. Note.—For other eases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. @=139(1).]</p> <p>Pardee, Circuit Judge, dissenting.</p> <p>On Petition for Rehearing.</p> <p>4. Trial @=143—Conflicting Evidence—Question fob Jury.</p> <p>An issue as to which the evidence is conflicting is for the jury.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. @=143.]</p> <p>5. Estoppel @=119—Defense—Prior Inconsistent Claim—Question for Jury.</p> <p>In trespass to try title, whether defendant had previously made a claim inconsistent with his defense held for the jury under proper instructions.</p> <p>[Ed. Note.—For other cases, see. Estoppel, Cent. Dig. § 309; Dee. Dig. @=119.]</p> <p>itoFor other cases see same topic & KEY-NUMBEB. in all Key-Numbered Digests & Indexes</p>

Suits in admiralty by Busch & Jolles, Incorporated, and other libelants, against the steamship Bylands (Joseph F. Wilson & Co., claimants) and others. From the decrees in the consolidated cause, claimants appeal.

<p>In Error to the District Court of the'United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>L. T. Hays was convicted of violating the White Slave Traffic Act, and he brings error.</p>

<p>1. Internal Revenue <@=37—Income Tax—Property' Taxable—“Net Income.”</p> <p>Under Act Oct. 3, 1913, c. 16, § II, div. B, 38 Stat. 167 (Comp. St. 1913, § 6321), providing that the “net income” of a taxable person shall include gains, profits, and income derived from salaries or compensation for personal services, of whatever kind and in whatever form paid, or from businesses, commerce, gains, profits, and income derived from any source whatever, a life insurance agent, whose contract entitled him to commissions of a specified percentage of the first premium of each policy and of a different percentage on subsequent renewal premiums when the same should be paid, is liable to pay the inebme tax on commissions on renewals of policies issued before the act was adopted, which were not paid until thereafter.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 8-10; Dec. Dig. <@=37,</p> <p>For other definitions, see Words and Phrases, First and Second Series, Net Income.]</p> <p>2. Internal Revenue <@=37—Income Tax—Treasury Regulations:</p> <p>The instruction of the Treasury Department requiring return to be made of fees or emoluments for services charged for, but not collected, if good and collectible, cannot change the requirement of the statute that the income tax shall be based on the income arising or accruing during the calendar year.</p> <p>[Ed. Note.—For other cases, see Internal Revenue, Cent. Dig. §§ 8-19; Dec. Dig. <@=>7.]</p> <p>(g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Mechanic’s lien suit by the Portland Wood Pipe Company and others against the Crane Creek Irrigation District and another. Decree for the complainants, and defendants appeal.</p>

Andrea Cuomo was convicted of receiving and having in his possession stolen goods, in violation of Act Feb. 13, 1913, c. 50, 37 Stat. 670 (Comp. St. 1913, §§ 8603, 8604), and the cause comes here upon writ of error to review the judgment.

<p>1. CORPORATIONS @=232(1)-STOCK—SUBSCRIPTIONS--LIABILITY.</p> <p>Under Acts W. Va. 1882, c. 96, § 21, a sale of corporate stock for property cannot be questioned in the absence of frand; therefore corporate creditors in such case cannot hold subscribers liable on the theory that their subscriptions were unpaid, because the property was received at a valuation fixed between them and the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 879, 880, 987; Dec. Dig. @=232(1).]</p> <p>2. Cokpobations @=544(2)—Stock—Trust Fund.</p> <p>Unpaid balances due on stock subscriptions constitute a trust fund for corporate creditors.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2162; Dec. Dig. @=511(2).]</p> <p><@^>For other cases see same topic & KEY-NUMBEK. in all Key-Numberec| Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by Robert F. Werk and Mrs. John Lewis Kennedy, copartners as Robert F. Werk & Co., against F. Thomas Parker and J. Thomas Robey, copartners as the F. T. Parker Company. Decree for defendants, and complainants appeal.</p>

<p>1. Patents <®=»328—Invention—Coke Oven.</p> <p>The Mitchell patent, No. 899,886, for a coke oven of rectangular shape with open ends, substantially parallel sides, and the end walls inclined or curved upward to form a peaked roof, is for an aggregation of structural features taken from pre-existing ovens, attaining- no better or different results, and not involving patentable invention.</p> <p>2. Words and Phrases—“Coke.”</p> <p>“Coke” is partially consumed bituminous coal, from which the volatile constituents have been burned away. It may be described as a partly grapliitized carbon, whose fiber has been affected by escaping and burning gases, so that it is lighter than coal, although its substance is hard and dense.</p> <p><®u»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <®=»328—Infringement—Process and Apparatus for Etching Metal Plates.</p> <p>The Levy patent, No. 627,430, for a process of and apparatus for etching metal plates, claims 2, 5, and 7 relating to the process, and claim 20 re-la ting to apparatus, as limited by the prior art and the proceedings in the Patent Office, held not infringed.</p> <p><§s»Ii,or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Words and Phrases—“Atomized.”</p> <p>The word “atomized” means, in common usage, the form that liquids assume when projected by a blast of air, gas, or steam, breaking them up into very small particles.</p>

<p>L Equity <§=>94—Parties—Rule of Federal Courts—“Indispensable Party.”</p> <p>It is the established rule in the federal! courts that a suit in equity may proceed without the presence of all proper, or even necessary, parties, and that only “indispensable parties” must be joined, who have such an interest in the subject-matter of the controversy that a final decree cannot be rendered in the suit without injuriously affecting their interests, or without leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience.</p> <p>[Ed. Note.—For other eases, see Equity, Cent. Dig. §§ 246, 252; Dee. Dig. <§=>94.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Indispensable Party.]</p> <p>2. Equity <§=>94—Parties—Necessary and Indispensable Parties.</p> <p>Persons who have disposed of all their interest in the subject-matter of a suit in equity, and who cannot be affected by the decree, are neither indispensable nor necessary parties.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 246, 252; Dec. Dig. <®=>94.]</p> <p>3. Patents <§=>195—Assignments—Contract to Assign—Patents for -Improvements.</p> <p>A patentee, who has sold and assigned his patent for a valuable consideration, a part of which is his employment by the purchaser for the purpose of making improvements on the invention, may bind himself to assign any patents for such improvements to his employer.</p> <p><g^>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 272-274; Dec. Dig. <©=>195.]</p> <p>4. Injunction <©=5161—Preliminary Injunction—Discretion oi? Court.</p> <p>The granting or dissolution of an interlocutory injunction rests in the sound judicial discretion of the court of original jurisdiction, and its action may not be reversed by an appellate court without clear proof that it abused its discretion.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 347; Dec. Dig. <S=»i01.]</p> <p>^s?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for the District of Massachusetts; Geo. H. Bingham, Judge.</p> <p>Suit in equity by the Terry Steam Turbine Company against the B. F Sturtevant Company. From the decree, both parties appeal.</p>

<p>Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Suit in equity by the Van Kannel Revolving Door Company against the Louisville Trust Company. Decree for complainant, and defendant appeals.</p>

<p>Patents <©=>328—Validity—Designs—Invention.</p> <p>Tbe Bray design patent, No. 39,201, for a design for a lacing hook, differing from tbe prior art only in that -it is oval in shape, held void for lack of invention. ></p> <p><©=>For other eases sea same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

.In Equity. Suit by Arthur V. Hinman, Ralph L. Hinman, and the Hinman Milking Machine Company, against the Visible Milker Company, Incorporated, for infringement of reissued letters patent No. 13,876 for a cow-milking machine, issued to complainants Hinman February 9, 1915. On final hearing.

<p>1. Patents <@=75, 83—Validity—“Abandonment”—“Prior Public Use.”</p> <p>Tho primary purpose of the patent laws is to promote the progress of science and the useful arts by bringing into general use discoveries which may be made from time to time by inventors; and where the discoverer of a formula and process relating to the manufacture of glass held the same as a secret for nearly 10 years before applying for a patent therefor, during which time they were used by a corporation of which he was president and a stockholder, were known to some of its employes, and their product was sold in the market, a patent thereafter granted is void under Rev. St. § 4886 (Comp. St. 1918, § 9430), upon the ground of abandonment of the right to the same and also upon the ground of prior public use.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 92-97, 108, 109; Dee. Dig. <@=75, 83.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Abandonment; Prior Public Use.]</p> <p>2. Patents <@=S28—Validity—Process for Making Glass.</p> <p>The Macbeth reissue patent, No. 13,766 (original No. 1,097,600), for a formula and process for making glass, held void for abandonment and prior public use.</p> <p>^s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Kellogg Switchboard & Supply Company against the Dean Electric Company and others. On final hearing.</p>

<p>1. 'Evidence <@=»596(1)—Measure of Proof-—Effect of Delay in Prosecution.</p> <p>That a case has been permitted to drag without trial for 10 years requires the party asserting rights to establish them by clearer testimony than would be the case if he had diligently pressed his claim to a decision.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2446; Dec. Dig. <@=>596(1).]</p> <p>2. Patents <@=>328—Validity and Infringement—Telephone Switchboard Relay.</p> <p>The Manson patent, No. 784,872, for a telephone switchboard relay, claims 1, 2, 3, 5, 6, and 8, held void for anticipation in the prior art, and also not infringed, if conceded validity.</p> <p>^^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents @=>328—Infringement—Harmonio Selective Signaling System— Suit for Infringement—Laches.</p> <p>The Dean patent, No. 779,533, for a harmonic selective signaling system, for use in the operating of party line telephones, held not infringed. Complainant also held barred from the right to relief by lacbes in failing to diligently prosecute the suit.</p> <p><@=eFor other cases see same topic & KEY-NUMBEB in all Key-Numbered Digests & Indexes</p>

<p>Patents <@=3-328—-Validity and Infringement—Sash Lock.</p> <p>The Lande patent, No. 1,102,519, for a sash lock, claims 1 and 2, held valid and infringed by the device of the Sternberg patent, No. 1,103,629. The latter patent, if valid as covering an improvement over the Lande device, held not infringed.</p> <p>®=3For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations <@=>574—Reorganization—Contracts by Bondholders’ Committee—Validity.</p> <p>A majority of the bondholders of a corporation whose assets consisted of the capital stock of certain mining companies deposited their bonds with a committee to be used in carrying out any reorganization plan they might approve. The committee entered into a contract with defendant corporation by which the latter agreed to advance money for reorganization purposes and also to expend not exceeding $209,000, in exploration of the. mining property. It was to bo the sole judge of the manner and extent of such exploration with the right to’ abandon the work at any time in its discretion, and was to be secured by a pledge of all the property of the first corporation which the committee agreed to buy in at foreclosure sale. Without notifying the bondholders of this contract, the committee submitted to them a plan of reorganization, which was approved, by which the committee was to organize a new corporation to own the property bought in, but which authorized the committee to create prior Hens not to exceed $309,000, for any purpose which the committee in its “uncontrolled discretion” should deem wise or necessary for the protection or development of the property. The agreement with defendant was carried out, and to secure it the committee pledged all the property it purchased at the foreclosure sale. Defendant abandoned the exploration work and sold and bought In the stocks so pledged. Held,, that such contract and the pledge and sale of the stocks thereunder were void because the committee had no authority originally to make the contract, and under the approved plan and agreement its authority to create indebtedness extended only to such as in its “uncontrolled discretion” was necessary for the protection or development of the property, whereas by the contract it had deprived itself of all discretion as to the amount to be expended or the manner of its use; that the pledge was valid only to the extent that it secured advances made for purposes of the reorganization which was within the committee’s authority.</p> <p>[Ed. Note.—For other cases, see Corporations, Gent. Dig. §§ 2297-2303; Dee. Dig. <@=>574.]</p> <p><@=>For other cases see same topic & KEY-NUMBER m all Key-Numbered Digests & Indexes</p> <p>2.. Corporations @=>574—Reorganization—“Prior Liens.”</p> <p>The words “prior lien,” as used in a proposed plan for reorganization of a corporation providing that the property of the old company should vest in a new one free and clear except for a prior lien to be created by the committee, mean a first or superior lien, and not one necessarily antecedent in' time. •</p> <p>[Ed. Note.—For other eases, see Corporations, Cent. Dig. §§ 2297-2353; Dea Dig. @=>574.]</p> <p>@=>For other cases see same topic & KEY-NUMBER ini all Key-Numbered Digests & Indexes.</p>

At Law. Action by the City of Memphis, Tenn., against the Board of Directors of the St. Francis Levee District and others. On demurrer to the complaint.

At Law. Actions by the Laurentide Company, Limited, against Cyrus Durey and against Roscoe Irwin, as Collectors of Internal Revenue. Actions tried before the court without a jury. No. 13 is an action to recover the sum of $1,572.91, amount of special excise tax assessed against the complainant, Laurentide Company, Limited, a foreign corporation, for the year 1911, under the United States Revenue Act of August 5, 1909, and paid under protest.

In Equity. Suit for accounting by Terence McManus, as executor of the last will and testament of Arabella McManus, against Decatur M. Sawyer and another, copartners doing business as Sawyer & Blake. On exceptions to the account filed with the answer.

<p>At Law. Action by D. J. Cline against the Southern Railway Company. On motion to dismiss the complaint.</p>

<p>1. Trade-Marks and Trade-Names <§=>85(1)—Suit for Infringement— Right to Relief.</p> <p>A trade-mark is in the nature of a property right which a court of equity will protect from invasion, but he who seeks such relief must himself be free from fraud or misrepresentation.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 94; Dec. Dig. <§=>85(1).]</p> <p>2. Trade-Marks and Trade-Names <§=>45, 85(2)—Right to Protection in Equity—Misrepresentation.</p> <p>Where complainant registered a trade-mark for hosiery packages consisting only of a device or symbol in different colors, the placing thereon in use of the word “Nótaseme,” which had been refused registry as a part thereof, in connection with a statement of the registry, constituted a material misrepresentation which invalidated the trade-mark and was a bar to equitable relief.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 53, 59, 94; Dec. Dig. <§=>45, 85(2).]</p> <p>3. Trade-Marks and Trade-Names <§=>75—Unfair Competition—Use of Similar Labels.</p> <p>Tlio use by defendant of a label on hoisery boxes similar in shape and coloring to complainant’s, but differing in (he arrangement of the colors and especially in the trade-mark name conspicuously shown thereon, helé not sufficient to establish unfair competition, in the absence of proof that customers were actually deceived into buying defendants’ goods for those of complainant.</p> <p>©s»For other cases see same topic & KEY-NUMBBIl in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. <S=>75.]</p>

<p>In Bankruptcy Proceeding against the Bondurant Hardware Company. On reclamation proceedings by the Oliver Chilled Plow Works.</p>

<p>In Admiralty. Suit by the Federal Sugar Refining Company against the American Steamship Lyra, and cross-suit by J. A. McDonald, master of the Lyra, against the libelant.</p>

<p>In Bankruptcy. In the matter of the All Star Feature Corporation, bankrupt. On petition to review an order of the referee denying priority to the claim of Jane Klauber.</p> <p>The petitioner is the well-known actress going by the name of Jane Cowl, who entered into a contract with the bankrupt to perform as acffiess in a motion picture play entitled “The Garden of Lies.” She wa's' to receive $5,000, for four weeks’ engagement, beginning November 1, 1914, and ending not later than December 1, 1914. Besides acting, she was to furnish her own costumes. It was agreed that if necessary she shoüld give also a fifth week.</p>

<p>Bankruptcy @=828—Proop op Claims—Limitation—“Expenses op Administration.”</p> <p>The limitation of time for proof of claims prescribed by Bankr. Act July 1, 1898, c. 541, § t>7n, 80 Stat. 560 (Comp. St. 1918, § 9641), has no application to a claim for rent for premises while occupied by the trustee after bankruptcy, which is for an “expense of administration.”</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. @=328.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Expenses.]</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Be amen <®==>11—Medical Treatment and Maintenance When Disabled— Time after End of Voyage.</p> <p>A seaman who falls sick or is injured on a voyage is entitled to charge the expense of his maintenance and cure for a reasonable time after the end of the voyage.</p> <p>[Ed. Note.—For other cases, see Seamen, Cent. Dig. §§ 39-44, 187; Dec. Dig. <s=>ll.J</p> <p><£s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of Victor J. French, bankrupt. On petition to review an order of the referee. This is a proceeding on petition of the trustee in bankruptcy to reconsider and revise the order allowing the claim of Thomas A. Jewell. The trustee in bankruptcy Willard B. Phetteplace asks that the claim be disallowed on the ground that said Jewell has received a preference or preferences.

<p>1. Taxation <3=5—Personal Property op Indians.</p> <p>Personal property issued by the government to Sioux Indians, who live on separate allotments, but maintain their tribal relations, consisting of horses, cattle, and their increase, and farm implements and other property acquired by exchange of such property or otherwise, which is derived directly or indirectly from the government and is used by the Indians on tbeir farms, is not subject to taxation by state authorities. Such property is not absolute property of tbe Indians, but is held in trust for their benefit by the government for the purpose of carrying out its policy of helping them to be self-sustaining, as is evidenced by Act July 4, 1884, c. 180, 23 Stat. 94 (Comp. St. 1913, § 4121), and Act March 2, 1889, c. 405, § 17, 25 Stat. 895, which restrict the sale of cattle issued, and their increase, by the Indians to members of their own tribe.</p> <p>[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 17, 31-44; Dec. Dig. <©=>5.],</p> <p>2. Indians <©=>31—Statutes—Effect of Granting Citizenship.</p> <p>The citizenship conferred on Indian allottees by Act Feb. 8, 1887, c. 119, § 6, 24 Stat. 390 (Comp. St. 1913, § 3951), did not operate to withdraw them from the supervision, control, and protection of the government, both as respects themselves and their property.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. § 23; Dec. Dig. <3=31.]</p> <p>'3. Indians <@=23—Status—Personal Property.</p> <p>Under the provisions of the Enabling Act of South Dakota, Act Feb. 22, 1SS9, c. 180, 25 Stat. 676, 677, and article 22 of the State Constitution, reserving to Congress “absolute jurisdiction and control’’ over all lands within tbe state owned or held by Indian tribes, or by individual Indians who have not severed their tribal relations, not only the lands, but all other property issued by the government to such Indians for use thereon, remain subject to such control until Congress relinquishes the trust.</p> <p>[Ed. Note.—For other cases, see Indians, Cent. Dig. § 15; Dee. Dig. <@=23.]</p> <p>4. Indians <@=23—Personal Property—Taxation.</p> <p>That Indian allottees, to whom live stock has been issued and the agents in charge, have failed to brand the increase of such stock, as required by the statute, does not release such increase from the trust restrictions by Congress, nor render it subject to state taxation.</p> <p>[Ed.- Note.—Fori other cases, see Indians, Cent. Dig. § 15; Dee. Dig. <@=23.]</p> <p><g^Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the Syracuse Gardens Company, bankrupt. On application by the New York & New Jersey Produce Company for payment to it of certain money.

In Equity. Suit by the Merchants’ & Manufacturers’ Traffic Association of Sacramento and others against the United States and others. On application for an.injunction to restrain the Interstate Commerce Commission from enforcing certain orders of the Commission under Act Oct. 22, 1913, c. 32, § 1, 38 Stat. 208, entitled “An act making appropriations to supply urgent deficiencies in appropriations for the fiscal year nineteen hundred and thirteen, and for other purposes.”

In Equity. Bill by the Sunny Brook Zinc & Bead Company against Zade A. Metzler and others. Tills is a suit in equity to impress a trust upon certain real property in Joplin in the state of Missouri, held by the defendant formerly belonging to the plaintiff.

In Bankruptcy. In the matter of the bankruptcy of the Pierce, Butler & Pierce Manufacturing Company. Application by trustee to have fixed the amount he should pay the Tribune Company of Chicago, 111., for printing notice of sale and notice of adjournment. On exceptions to the report of the special master.

In Equity. Suit by the Eastman Kodak Company against the National Park Bank and others. On motion to dismiss. This is a motion to dismiss a bill in equity, of which the following is an analysis: The plaintiff is the purchaser from the defendant Kodak, Limited, of a draft or check drawn upon the National Park Bank and in favor of the Bankers’- Trust Company, to the account of the plaintiff. The drawer was one Alfred Edward Berthoud, a subject of Great Britain.

<p>1. United States @=>133—Actions by—Laches.</p> <p>The principle that the United States is not bound by any statute of limitations, nor barred by any laches of its officers, is applicable only to suits brought in its capacity as a sovereign government to enforce a public right or to assert a public interest.</p> <p>[Éd. Note.—For other cases, see United States, Cent. Dig. §§ 127, 128; Dee. Dig. @=>133.]</p> <p>2. Parties @=>6(1)-—Nominal Parties—Real Parties in Interest.</p> <p>A court may look beyond the names of the parties to a suit and ascertain the real parties in interest from the facts as they appear in the record.</p> <p>[Ed. Note.—For other cases, see Parties, Cent. Dig. § 6; Dec. Dig. @=>6(1).]</p> <p>3. United States @=>133—Suit by Nominal Party—Laches.</p> <p>Where a suit by the United States to set aside a patent to land was allowed to stand without action for 35 years before a subsequent purchaser through mesne conveyances from defendant was brought in as a party, and it appeared from the record that complainant had ho interest in the land, but that in case it succeeded in the suit the same would be patented to a third person on a homestead entry made before- the suit was brought, the laches was such as to constitute a bar to the further prosecution of the suit.</p> <p>[Ed. Note.—For other cases, see United States, Cent. Dig. §§ 127, 128; Dec. Dig. @=>133.]</p> <p>4. Equity'@=>67—Laches—Failure to Prosecute Suit.</p> <p>The mere institution of a suit does not relieve a party from the charge of laches, but if he fails in its diligent prosecution the consequences are the same as though no suit had been brought.</p> <p>[Ed. Note.—For other cases, see Equity, Centi Dig. §§ 191-196; Dec. Dig. @=>67.]</p> <p>5. Lis Pendens @=>10—Operation and Effect—Prosecution of Action.</p> <p>’ The protection afforded by1 a lis pendens filed pursuant to statute is lost if the suit is not diligently prosecuted.</p> <p>[Ed. Note.—For other cases, see Lis Pendens, Cent. Dig. § 29; Dec. Dig. @=>10.]</p> <p>cgS5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Springfield Gas & Electric Company against John T. Barker, Attorney General, and others, to restrain tire enforcement of an order made by the Public Service Commission of the State of Missouri.</p>

In the matter of requiring a bond from aliens found or brought unlawfully into the United States. The question is raised whether the United States District Court has lawful power and right to hold an alien unlawfully in the United States to bail when his deportation has been stayed so that he may testify concerning the violations of the Immigration Daw in both crim^ inal and civil cases; that is, actions to recover penalties as well as in cases of misdemeanors.

At Law. Action by David L. Hough against the Société Electrique Westinghouse de Russie and another, originally brought in the Supreme Court of the state of New York. On plaintiff’s motion to remand, after removal of the cause to the United States District Court, and defendants’ motion to dismiss the action.

At Daw. Action by Mary M. Hill and others against Will Hill and others. On demurrer to defendants’ plea. This is an action in ejectment, instituted by the plaintiffs to recover certain lands lying in the county of Phillips, state of Ai-kansas. The plaintiffs claim to be the owners of the lands by certain mesne conveyances, hereinafter more fully set out. The original defendants are tenants of the children and heirs of John R. Williams, deceased.

<p>1. Courts <§=274—United States Courts--Jurisdiction—Actions Against Aliens.</p> <p>A British corporation can bo sued in a United States court only in a district where it can be validly served.</p> <p>[Ed. Note.—JTor other cases, see Courts, Cent. Dig. § 814; Dee. Dig. <§= 274.J</p> <p>2. Courts <§=276—United States Courts—Jurisdiction—Waiver ok De-IflCCTS.</p> <p>As under Act March 3, 1887, c. 373, 24 Stat. 552, as amended by Act Aug. 13. 1888, c. 866, 25 Stat. 433, giving the Circuit Courts jurisdiction of suits involving controversies between citizens of a state and foreign states, citizens, or subjects, the District Courts generally have jurisdiction over any case between an alien and a citizen of any state, the right of an alien to object to the place of suit or to any defect in the service can be waived.</p> <p><g^>Fnr other cases see same topic & KEY-NUMBER, in ail Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other eases, see Courts, Cent. Dig. § 815; Dec. Dig. @=> @=>276.]</p> <p>3. Corporations @=>668(7) — Foreign Corporations — Actions — Service of Process.</p> <p>The managing director of an English corporation, while in the United States upon a pleasure trip, negotiated with parties seeking to enter into business relations with the corporation, but confined his activities to preliminary negotiations, leaving the making of any contract to the corporation in England. The corporation owned stock in a New York corporation conducting a somewhat similar business, but left ordinary business transactions to the New York corporation as within its territory. Held, that process in a suit on a cause of action arising some time previously in connection with transactions in England between plaintiff and the corporation could not be served on such managing director while so in the United States, as the corporation was not conducting business, and had no place of business within the district, so as to justify such service.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2613; Dec. Dig. @=>668(7).]</p> <p>4. Corporations @=>668(7)—Foreign Corporations—Actions—Service op Process. .</p> <p>A foreign corporation could not object to the service of process upon an officer while within-a district, if while in such district, upon the primary-purpose of a pleasure trip, he exercised his official connection with the company in the conduct of its ordinary business and was served in such capacity.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2613; Dec. Dig. @=>668(7).]</p> <p>5. Corporations @=>642(6)—Foreign Corporations—Actions—Service of Process.—“Engaged in Business for Corporation”—1“Begular Place of Business”—“Office for Transaction of Business.”</p> <p>The making of a contract or entering into business relations with a party within the boundaries of any certain district may render the terms of that contract subject to the laws of the jurisdiction, and in so far as an officer or agent of the corporation was concerned with the making of such a contract he would be “engaged in business for the corporation”; but the hotel or other casual place in which the transaction might be had could not be construed as a “regular place of business,” nor “office for the transaction of business” of the corporation.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2526; Dec. Dig. @=>642(6).]</p> <p>6. Corporations @=>642(6)—Foreign Corporations—Actions—Service of Process—“Doing Business.”</p> <p>The mere taking advantage of casual presence in a given locality, and the direct interview or arranging for business by word of mouth rather than letter or telephone, would not constitute “doing business” by a foreign corporation and the maintenance of a place of business, unless the circumstances indicated that the corporation was entering upon the actual conduct of business in the mercantile sense, in the place where the negotiations were had, and that the appearance of accidental or casual coincidence and negotiation was but a subterfuge or cloak.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2526; Dec. Dig. @=>642(6).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Corporations <§=>642(1)—Foreign Corporations—Actions—Service on Process—Doing Business.</p> <p>To be doing business- in a jurisdiction the business done by a foreign corporation must be such in character and extent as to warrant the inference that it has subjected itself to the jurisdiction.</p> <p>[Ed. Noto.—For other cases, see Corporations, Cent. Dig. §§ 2520, 2521; Dec. Dig. <s=642(l)J</p> <p>8. Corporations <3=>674—Foreign Corporations—Actions—Service op Process.</p> <p>Whether a foreign corporation is conducting business and has a sufficiently defined place of conducting business to justify the United States courts in holding that it has been found and is liable to service within the district is primarily a question of fact, and the legal position rests upon the determination of this question of fact.</p> <p>[Ed. Note.--For other cases, see Corporations, Cent. Dig. §§ 2651, 2652; Dec. Dig. <§=>674.]</p> <p><©^>For other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit by William B. Vane and others against A. M. Wood & Co., Incorporated, and the American Smelting & Refining Company. This is a libel in personam for the recovery of freight upon a voyage of the schooner Fannie H. Stewart, of Cambridge, Md., from Baltimore to Perth Amboy and back to Chesapeake Bay.

Bill by Samuel C. Scotten and another against Max Rosenblum and another. On motion to dismiss as against the named defendant. This is a motion to dismiss a bill in equity as against the defendant Rosenblum.

<p>SnmuNC <s=>173—Construction of Charter Party—Cesser Clause.</p> <p>A charter party provided that the charterers should pay demurrage for delay through their fault in loading or discharging beyond the lay days allowed, but by a cesser clause it was further provided that the ship should have a lien on the cargo for all freight, dead freight, and demur-rage, and that “all and any liability of the charterers * * * shall cease and determine as soon as the cargo is on board, all questions, whether of demurrage or otherwise, to be settled with the consignees, the owners and captain looking to their lien on the cargo for this purpose.” Held that, in the absence of any provision showing that the lien given was not commensurate with the liability of the charterers, such clause was valid and 'enforceable, and that a suit in personam could not bo maintained against the charterers for demurrage because of delay in loading.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. § 570; Dec. Dig. <S=»173.1</p> <p><S=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit for salvage by the members of the firm of W. J. Scanlan Company against the deck scow Johnson Lighterage Company No. 24 and its cargo. On order to show cause why the cargo should not be released from seizure and delivered free and discharged thereof to its owner, the Russian government.

<p>In Error to the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.</p> <p>Five actions by Johnson & Johnson, a corporation, against William D. Rutan, Collector of Internal Revenue, and eleven actions by the same plaintiff against Herman C. H. Herold, Collector of Internal Revenue.</p>

Dickinson, Judge. Suit in admiralty for collision by the United States against the steamship A. A. Raven. From the decree, both parties appeal.

<p>In Error to the District Court of the United States for the Eastern District of Virginia, ^t Norfolk;' Edmund‘Waddill, Jr., Judge.</p> <p>Action by I. C. Lord against the Grand Union Tea Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Action by the Maryland Casualty Company against George E. Price and others, partners doing business as Price, Smith, Spilman & Clay.</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.</p> <p>Action by John A. Gardner against the Western Union Telegraph Company.</p>

<p>1. Compromise and Settlement <§=>6(1)—Validity.</p> <p>The S. Co., owning a majority of the stock of the T. Co., which manufactured motor trucks, sold such stock to the F. Co. for an amount payable in installments, and agreed to assume the debts of the T. Co., consisting of amounts due itself and its officers and $20,000 due a bank. Without a formal transfer, the F. Co. took possession of the T. Co.’s assets. Subsequently a receiver was appointed for the F. Co. at a time when $19,500 remained unpaid on the purchase price of the stock. The S. Co. had paid $10,000 to the bank, and it purchased part of the notes for the balance, and it and the bank asserted their claims as creditors of the T. Co. against property then in the receiver’s possession, valued at $25,-000 or more, which had belonged, to the T. Co. Thereupon the receiver made an agreement with the S. Co. whereby he issued receiver’s certificates with the court’s approval to the S. Co. and the bank for $10,000, subject to certain prior certificates, and released the S. Co. from its obligations under the prior contract, and the S. Co. credited the $10,000 upon its claim for $19,500, and released all claims against former property of the T. Co. upon the notes for $10,000 and all similar notes. Held, that the situation was such as justified a compromise to avoid litigation, as the receiver, by advancing $10,000 of the S. Co.’s claim to the rank of a second preferred claim, secured at the least, and even if the claims could be defeated, escape from litigation and expense and damages from «May-in carrying out the receivership plans.</p> <p>«g^For othej cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 85, 12, 44-49; Dec. Dig. <©:»6(1.).]</p> <p>2. Compromise and Settlement <S=»19(1)—Claims—Consideration.</p> <p>That tile receiver, in reporting the settlement with the S. Co. to the court, did not exhibit a copy of the contract, but reported only his conclusion as to the justness of the S. Co.’s contention, thus leading the court to believe that the S. Oo.’s claims were clear, rather than doubtful, did not justify the cancellation of the receiver’s certificates after such, proceedings had been had as made it impossible to put the S. Co. in statu quo, where the receiver acted in good faith and on the advice, of counsel, as, even though the S. Co. was wrong in its position, it would nevertheless have been prudent to approve a reasonable compromise and avoid delays and appeals.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 67, 75; Dec. Dig. <S^19(1)J</p> <p>3. Compromise and Settlement <S=>19(1)—Claims—Validity.</p> <p>Where, after the settlement, the business was continued, the proceeds of sales of trucks received from the T. Co. were mingled and expended or reinvested, the material on hand was used up, and the machinery and other remaining assets which the S. Co. might have claimed were united with other assets in one gross sale, and it was impossible to trace the proceeds, and tell what part of the final purchase price was realized from tiie disputed assets, the S. Co. could not be put in statu quo upon a cancellation of the receiver’s certificates.</p> <p>[Ed. Note.-—For other cases, see Compromise and Settlement, Cent. Dig. §§ 67, 75; Dec. Dig. <S=>19(1).]</p> <p>4. Compromise and Settlement <2=39—Claims -Consideration.</p> <p>The S. Co., in urging its claim, in settlement of which the receiver’s certificates were issued, was not seeking to rescind its contract with the F. Co., but was rather insisting upon specific performance, as if, only claimed that it should not be compelled to carry out the remainder of its contract and pay the rest of the T. Co.’s debts, unless the F. Co. carried out the remainder of its contract and furnished the money it had agreed to furnish, which could then be devoted to paying the debts.</p> <p>[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 32-84; Dec. Dig. «=9.]</p> <p>(g^X^or other cases see same topic & KilTY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Northern District of Virginia, at Wheeling; Alston G. Dayton, Judge.</p> <p>Action by Charles Blake against the Missouri Valley Bridge & Iron Company.</p>

Burns, Judge. Suit in admiralty for salvage by the Steele Towing & Wrecking Company against the Seaboard & Gulf Steamship Company, owner of the steamship Kennebec. From the decree, libelant appeals.

Foster, Judge. Suit in admiralty by Leon G'. Tujague & Co. and others against the steamshipi Gerty; Unione Austríaca di Navigazione of Trieste, Austria, claimant. Decree for libelants, and claimant appeals. Tbe appellees, Leon G. Tujague & Co., libeled tbe steamship Gerty, alleging damage to a consignment of lemons shipped from Palermo to New Orleans on that steamship, caused by fumigation of the ship at Havana by tbe quarantine authorities of tbe United States.

Foster, Judge. Suit in equity by the Erie City Iron Works against the Cecilia Sugar Company, Limited; the Whitney-Central Trust & Savings Bank, as trustee, and William P. Luck and others, as interveners. From a decree giving preference to the claims of Luck and others, the Trust & Savings Bank appeals.

Jackson, Judge. Action by James Beckford against the Panama Railroad Company. James Beckford, an employs of the Panama Railroad Company, was injured by one of the company’s engines while engaged in his work of track oiler and repairer in the Cristobal yards. He instituted suit to recover damages in the District Court of the Canal Zone against the company, and recovered damages in the sum of $2,500.

Appeals from the District Court of the United States for the Southern District of New York. Receivership suits by the Pennsylvania Steel Company and others against the New York City Railway Company and others, with three other cases.

Appeals from the District Court of the United States for the Southern District of New York. Receivership suits by the Pennsylvania Steel Company and others against ihe New York City Railway Company and others, with three other cases.

<p>Bankruptcy <ga^368—Trustee’s Commissions—Amount Disbursed.</p> <p>A bankrupt bad purchased quantities of rubber and had contracted to sell, it to its customers. As part of the arrangement it had contracted to procure letters of credit to enable the seller to pay for rubber it had contracted to purchase. Rubber having fallen in price, the bankrupt would have been liable to damages if the contracts were not fulfilled. The contracts with the bankrupt’s customers were therefore assigned to the seller under an agreement that it would ship the rubber to the customers and account for profits to the bankrupt; but the seller became unable to supply the necessary funds, and an arrangement was entered into under which the contracts with customers were assigned to New York banks which agreed to furnish letters of credit. To induce this arrangement the bankrupt’s trustees deposited $50,000 with the banks, and they were to repay this advance and the further sum of $50,000 as a liquidated profit. Though the trustees attended to the delivery of the rubber, they never received the proceeds, and the trial court found that they handled the rubber as agents of the seller and the banks. Held that, under Bankr. Act July 1, 1898, c. 541, § 48a, 30 Stat. 557 (Oomp. St. 1913, § 9632), providing that trustees shall receive commissions on moneys disbursed by them, not exceeding those therein specified, and section 72 (section 9656), providing that the trustee shall not in any form receive any other or further compensation than that expressly authorized and prescribed by that act, the trustees were entitled to commissions only on the $50,000 profit; that being the only amount disbursed by them, though the volume of business transacted was about $900,000'.</p> <p>LEd. Note.—For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <@=»368J</p> <p><@=s>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <S=»439—Review of Proceedings—Petitions to Revise—Jurisdiction.</p> <p>Act June 7, 1878, c. 160, 201 Stat. 99, repealing Bankr. Act March 2, 1867, c. 176, 14 Stat. 517, provided that such repeal should not invalidate or affect any pending cause in bankruptcy, but that as to all such pending cases and all future proceedings therein, and in respect to all rights of debtors and creditors, except the right of commencing original proceedings, the acts thereby repealed should continue in full force and effect until the, same should be fully disposed of, as if such acts had not been repealed. Held, that Bankr. Act July 1, 1898, c. 541, 30 Stat. 553, § 24b (Comp. St. 1913, § 9608), giving Circuit Courts of Appeals jurisdiction to superintend and revise in matters of law the proceedings of inferior courts of bankruptcy within their jurisdiction, gives a Circuit Court of Appeals no jurisdiction of a petition to revise an order denying a petition to require assignees under the act of 1867 to pay certain dividends to the petitioners.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. <§=439.]</p> <p><£c5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Bankruptcy <§=>384—Composition—Confirmation—Destruction of Books.</p> <p>Where the books of a bankrupt, who could neither read nor write, were kept by his daughter, who destroyed the books each year after she had opened a new set and transferred to them the unclosed items, such destruction was not fraudulent, so as to be within Bankr. Act July 1, 1898, c. 541, § 14b(2), 30 Stat. 550 (Comp. St. 1913, § 9598), which authorizes denial of discharge where the bankrupt, with intent to conceal his financial condition, destroyed or failed to keep books of account, and therefore did not authorize a refusal to confirm the composition with creditors.</p> <p>[E'd. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 590-592; Dec. Dig. <§=>384.]</p> <p><5cs>For other casos seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeal fi;om the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by the Arthur Ackerman Lighterage Company against the City of New York. Decree for libelant, and respondent appeals. On appeal from awarding damages to the libelant for injuries sustained by its tugboat, Peter'L. Colon, occasioned by a collision with the submerged portion of a catamaran belonging to the city of New York.

<p>Admiralty <@=>21—Jurisdiction—Enforcing State Statute—Suit tor Wrongful Death—“Maritime Tort.”</p> <p>The injury of a stevedore, while employed in discharging a ve iel, through a defective appliance furnished by the ship, constitutes a “n ritime tort”; and where death resulted after his removal from the lip a remedy given by -the state statute may be enforced and relief give íd admiralty.</p> <p>IEd. Note.—For other cases, see Admiralty, Cent. Dig. §§ 218-: :0; Dec. Dig. <@=>21.</p> <p>For other definitions, see Words and Phrases, First Series, Marit ne Tort.]</p> <p><®=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inde :s</p>

<p>1. Patents <§=>828—Validity and Infkingement—Demountable Rims for Wheels.</p> <p>Tlie Perlman patent, No. 1,052,270, for a demountable rim for carrying tlie tire of automobile wheels, which may be readily and speedily removed, and replaced, with means for locking it on a fixed rim and the felly of the wheel, was not anticipated and discloses invention. Claims 8, 11, 12, and 18 construed, and held infringed.</p> <p>2. Patents <§=>73—Anticipation—Prior Patents.</p> <p>A patent is not anticijfeted by a prior patent, where the patentee carries the date of Ms invention back to a time prior to the issuance and publication of the alleged anticipating patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 64; Dec. Dig. <§=>73.1</p> <p><@=s3?or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>• In Equity. Suit by the United States against Oscar Ernst Moritz Salomon to cancel a certificate of naturalization.</p>

<p>Marshaling Assets and Securities <®=^4—Bankruptcy—Proceedings—Dis-tribution op Property.</p> <p>A bankrupt, who had already mortgaged his residence, acquired other property subject to mortgages, payment of which he assumed. Thereafter he gave a second mortgage on his residence to the mortgagee of the last-acquired property, subsequently selling such property to third persons, who agreed to pay the several mortgages, including the second one on Ms dwelling. Helé, that on Ms bankruptcy, the bankruptcy court, being one ot equity, would not, on foreclosure of the first mortgage on the bankrupt’s dwelling, apply the surplus to the payment of the second mortgage, which had been assumed by the bankrupt’s grantees, although after foreclosure by the second mortgagee, on failurd of the grantees to discharge the mortgage, such surplus would be subject to payment of any deficiency.</p> <p>igmoFCr other cáses see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Marshaling Assets and Securities, Cent. Dig. § 4; Dec. Dig. <®=o4.]</p>

<p>1. Bridges @=20(4)—Liability of Contractor—Undermined Pier—Conjectural Depth.</p> <p>Where, in an action by a county against the contractor and its surety to recover for the loss of a bridge, alleged to have collapsed through the failure of the contractor to build the center pier according to contract, it was established that the pier was undermined by the current and fell because of the failure to drive the piles to refusal, defendant could not escape liability on the ground that, the undermining having refilled, its extent could not be definitely known, and that therefore, for all that appeared, the piles might have been undermined if sunk to any depth; such theory being mere conjecture.</p> <p>[Ed. Note.—For other cases, see Bridges, Dec. Dig. @=20(4).]</p> <p>2. Evidence @=69—Bridge Contract—'Dawful Performance—Presumption.</p> <p>In an action against a bridge contractor and its surety to recover for the loss of the bridge through improper construction, defendant surety could not escape liability on the ground that, the bridge being across a navigable stream, and there being no proof of the approval of the plans and specifications by the Secretary of War, as required by the act authorizing the bridge, the contract did not take effect, but the bridge was unlawfully built, excusing the surety from liability, since the necessary approval will be presumed.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent Dig. § 90; Dee. Dig. @=69.]</p> <p>3. Principal and Surety @=90—Contract—Unlawful Performance— Discharge.</p> <p>Assuming that the contractor had unlawfully built such bridge without securing the necessary approval of the Secretary of War, his surety would not be thereby' discharged in the absence of acquiescence by the county in such illegal performance, since a surety engages that the principal will lawfully perform.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. § 140; Dec. Dig. @=90.]</p> <p>4. Principal and Surety @=159—Contract—Unlawful Performance—Acquiescence—Burden of Proof.</p> <p>The burden of proof was on such surety to show that the county acquiesced in the unlawful act of the contractor in building the bridge without the approval of the Secretary of War.</p> <p>[Ed. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. @=159.]</p> <p><©=s>For other cases see same topic & KEY-NUMBER in all Ke/-Numbered Digests & latexes</p> <p>5. Principal and Surety <s=»101—Contractor’s Bond—Illegal Payments— Discharge.</p> <p>The fact that the county made payments to the contractor out of order, or that such payments were anticipated, did not in itself show a substantial depart ure from the contract discharging the surety.</p> <p>I F.'d. Note.—For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439-441; Dec. Dig. <§=>161.]</p> <p>6. Bridges <§=>20(5)—Accepting Bridge—Devects—-Waiver.</p> <p>The acceptance of such bridge by the county waived all the contractor’s defaults discoverable by reasonable Inspection, but not defects not so discoverable.</p> <p>[Ed. Note.—For other cases, see Bridges, Cent. Dig. §§ 39, 40; Dec. Dig. <@=>20(5).j</p> <p>7. Bridges <§=>20(6)—Breach oe Contract—Doss oe Bridge.</p> <p>Where the collapse of such bridge left standing only the shore pier and approaches, the loss was total, entitling the county to the contract price paid for the bridge, and it was not the county’s duty to incorporate such remaining portions into a new bridge in mitigation of damages,</p> <p>[Ed. Note.—For other cases, see Bridges, Cent. Dig. § 46; Dec. Dig. <§=> 20(6)..]</p> <p>(§s»For other cases see same topic & KEY-NUMBER in a!2 Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=>58(3)—Time Chabteb—Delay in Redeliveby—Damages.</p> <p>Where there is delay in redelivery of a ship after the expiration of a time charter in assessing damages, the owner is entitled to the best going rate from the place of delivery. That rate, however, is not necessarily the highest that could have been obtained for an outbound cargo; but, as affecting such rate, it is proper to take into consideration the position in which the ship would be left at the end of the outward voyage with re-, spect to securing another cargo.</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. <@=>5S(3).]</p> <p>2. Shipping <@=>58(3)—Injury to Vessel by Chartebee—Damages.</p> <p>Findings of a commissioner as to damages recoverable by the owner of a vessel for injury by grounding, due to the fault of a charterer, reviewed. ■</p> <p>[Ed. Note.—For other cases, see Shipping, Dec. Dig. <@=>58(3).]</p> <p><@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. Proceeding by the Brown Bros. Company, Limited, against the Smith Bros. Company, Limited. On exceptions by the trustees to a report of the master granting the petition of the Commercial-Germania Trust & Savings Bank to require the trustees to turn over to it a fund in their possession.</p>

<p>1. Courts ©=>526—Priority or Jurisdiction or .Subject-Matter—Protection by Injunction.</p> <p>A court Of equity may always control tbe parties of whom it bas acquired jurisdiction in a suit before it for tbe purpose of protecting its jurisdiction of tbe subject-matter of tbe controversy from being in any wise interfered with or jeopardized, and an order to that end, although it may indirectly arrest, through a party, tbe prosecution of an action in another court, is not an invasion or interference with tbe jurisdiction of tbe latter tribunal.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1449; Dec. Dig. ©=>526.]</p> <p>2. Courts ©=>526—Priority or Jurisdiction—Protection by Injunction.</p> <p>A court of equity which bas, through its receivers, taken possession of tbe property of an insolvent corporation at suit of creditors has tbe right, and it is its duty, to retain and protect its prior jurisdiction for the determination of all matters essential to tbe full, final, and complete administration of tbe property and rights involved, and will to that end enjoin any party before it from proceeding in another jurisdiction to try any question so connected with tbe controversy, or involving any of the rights concerned in such way as to interfere with its primary jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1449; Dec. Dig. ©=>526.]</p> <p>3. Courts ©=>526-^Prioeity or Jurisdiction—Protection by Injunction.</p> <p>Defendant railroad company entered into a number of contracts to which the Denver & Rio Grande Railroad Company and other railroad companies were parties. These contracts contained provisions by which advances were to be made to defendant for the completion and equipment of its road, in consideration of reciprocal covenants and mutual traffic agreements which the parties, respectively, were given the right to specifically enforce. The Denver Company agreed to advance money necessary, in addition to defendant’s net earnings, to meet interest and sinking fund payments on its bonds. At the same time a mortgage was executed by defendant securing the bonds which covered the contracts, and the trustee was authorized to enforce the same for the benefit of the bondholders. The trustee brought suit to foreclose the mortgage, and receivers were appointed for all of the mortgaged property. Held that, the mortgage and contracts, having been executed at the same time and as parts of the same transaction, were to he construed together; that the foreclosure suit brought all of the contracts within the jurisdiction of the court for the determination of the reciprocal rights of the parties thereunder; that complainant would be enjoined from maintaining a suit in another jurisdiction to enforce separately the agreement of the Denver Company to make advances for interest and sinking fund payments, and incidentally to require an accounting of earnings by defendant, but that complainant would bave leave to bring into the suit as parties all parties to the contracts whose interests might be affected.</p> <p><gs»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Courts, Cent Dig. § 1449; Dec. Dig. <§S3526.]</p>

<p>1. Municipal Corporations @=5902—Warrants—Negotiability and Transfer—“Negotiable Instrument.”</p> <p>City warrants, while negotiable in form, so as to be transferable by indorsement and delivery, are not negotiable instruments in the sense of the law merchant, and are subject in the hands of a bona fide holder to any defense existing between the original parties.</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. % 1887; Dec. Dig. ©=902.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Negotiable Instrument.]</p> <p>2. Municipal Corporations ©=902—Validity of Warrants—Recitals.</p> <p>A city cannot be bound by a false recital in a resolution of its council ordering an issue of warrants of the purpose for which they were issued, where they were in fact issued and used for a wholly unauthorized purpose, which fact was known to the payee.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 18S7; Dec. Dig. ©=902.]</p> <p>3. Evidence ©=83(1)—Public Record—Presumption.</p> <p>An erasure and alteration in a record made by a public officer, in the absence of evidence to the contrary, will be presumed to have been lawfully made at the time the record was written.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. ©=83(1).]</p> <p>4. Municipal Corporations ©=898—Warrants—Estoppel of City.</p> <p>Where the Constitution and statutes of a state prohibited a city from incurring any indebtedness in excess of 5 per centum of the value of the taxable "property therein, to be ascertained by the last assessment for state and county taxes, and made it the duty of the county auditor to keep the record of such assessment, a purchaser of warrants issued by the city was charged with notice of the assessed valuation of its property as shown by the auditor’s books, and the city cannot be estopped from showing that the warrants were in excess of the legal limit of indebtedness by the fact that the city auditor, who had nothing to do with such records, falsely certified to a larger assessed valuation.</p> <p>[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1883; Dec. Dig. ©=898.]</p> <p>5. Municipal Corporations ©=898—Validity of Warrants—Ratification or Estoppel.</p> <p>Where city warrants were void in their inception for lack of power to issue them, neither representations by its officers nor the payment of interest thereon by the city can operate as an estoppel or a ratification.</p> <p>[Ed. Note.-—For other cases, see Municipal Corporations, Cent. Dig. § 1883; Dec. Dig. ©=89SJ</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Maritime Liens <§=>49—Supplies—Agreement oe Owner—Waiver.</p> <p>Four steamers belonging to the same owner were chartered for a common enterprise. The charterer, being without money or credit to buy necessary supplies, by agreement with the owner gave notes to libelants for supplies to be furnished on the credit of the vessels, each of which was named in the notes. The supplies) were furnished to the charterer for the joint use of the vessels, to which they were distributed as needed. They were purchased and furnished in a foreign port, and were necessary. A suit having been brought against the steamers by others, libel-ants intervened, setting up one half their claims against the steamer Portland and the other half against the Lawrence. The vessels were sold, and the proceeds of the Portland were exhausted in the payment of prior claims by seamen; but from the proceeds of the Lawrence there was a surplus after paying all claims except that of a mortgagee. Held, that the transaction by which the supplies were obtained created, as was intended, a maritime lien on all the steamers jointly, which was superior to that of the mortgage; that libelants, by filing their libels against the Portland for a portion of their claim, did not waive their lien on the Lawrence, but might, on surrender of the notes, assert the same for the amount remaining due by an amended libel.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 78-94; Dec. Dig. <§=>40.J</p> <p>2. Maritime Liens @=43—Supplies—Waiver by Acceptance oe Notes.</p> <p>The acceptance of notes for supplies furnished to a vessel, unless so intended, does not operate as a payment, nor as a waiver of the right to a lien.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. § 82; Dec. Dig. @=43.]</p> <p>other cases see same topic & KEY-NUMBEit in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of A. A. Thomas, bankrupt. On review of order of referee dismissing petition of the Chase-Hackley Piano Company.</p> <p>The Chase-Hackley Piano Company filed its petition with the referee, in which it alleged that on January 27, 1914, it entered into a consignment contract with A. A. Thomas, the bankrupt, under which it shipped to him on February 2, 1914, 14 pianos, all of which were disposed of by said bankrupt before bankruptcy, except 4 (giving the numbers of same), and that said pianos were in the possession of the bankrupt at the time of his adjudication, and afterwards passed into the possession of Abram Levy, trustee of the bankrupt; “that during the entire period of the business between petitioner and said Thomas under the aforesaid contract, both parties always treated the goods as consigned goods, and they were dealt with as such”; that petitioner had demanded of the trustee possession of the said pianos, and that delivery thereof had been refused. Petitioner prayed for an order directing the trustee to deliver the pianos to- it. Attached to the petition was a copy of the contract in question, the same being as follows:</p> <p>“No alterations of .this contract will be accepted.</p> <p>“Chase-Hackley Piano Company, Muskegon, Mich.—Gentlemen: (1) In consideration of your-furnishing us with pianos on consignment, we agree to sell them in Augusta, Ga., and vicinity on the following conditions: All pianos that are now or shall hereafter be furnished us by you are to be heid upon consignment and sold on such terms as you may direct.</p> <p>“(2) All money, notes, or other property received on sale of any piano shall belong to you. Customers’ notes or leases shall be made on blanks furnished by you, payable to your order, secured by lien on the instrument sold, and subject to your approval. All notes and leases shall bear interest at the rate of not less than 6 per cent, per annum, or we will pay the difference to that amount from our commission. We will indorse all such notes and biases, guarantee payment at maturity, and hereby waive protest and notice of protest on the same at your option.</p> <p>“(3) We agree to sell all instruments within four months from date- of shipment, or pay interest after that time at the rate of 6 per cent, per annum on the invoice price; but it is expressly understood that the charge of said interest and the payment thereof shall in no sense be construed as indicating a sale of said instrument to us. tf any piano is unsold six months from date of shipment, 1 agree to paj for same at your option.</p> <p>“(4) For the purpose of forming- a basis upon which our compensation is to be fixed for the sale of said instruments, we direct you to bill same to us at the prices you have given us, and which prices and values we will account to you for; and we agree that our compensation and commission hereunder shall be such sum or sums as we inny sell said instruments for in excess of the price at which they are billed as above. Our commission on cash sales shall be due and payable when you receive your pay for the instrument. On time sales, yon to pay us all of first payment, provided it does not exceed $50 of our commission. It is further agreed that, when the first payment is less than $50, we are to retain the subsequent payments to the amount of $50, providing we collect the said $50 in four months from date of sale.</p> <p>“(5) Balance of commission to be paid as you receive money from the purchaser, after you have received the invoice price of the piano in cash, together with the interest thereon, provided you have no claim against us for other indebtedness; it being understood and agreed, however, that you are to have in your possession collaterals of the face value of at least 25 per cent, more than the total net value of consigned goods which we may have sold at that rime.</p> <p>“((>) All instruments taken back from customers on account of default of payments. or for other causes, and all new or secondhand instruments taken in exchange, or in part payment for instruments consigned by you, are to- be regarded the same as goods consigned, and to be accounted for in the same maimer. We will send you a statement the 1st day of each and every month of all instruments received and sold, and remaining on hand unsold, and make prompt returns as sales are made.</p> <p>“(7) Upon your demand, or that of your agent, we will deliver as you may direct, free of charge or expense of any kind to you, any and all of said goods remaining unsold at the time of said demand, including the original packing cases for same. All goods returned to you to be passed to our credit at 90 per cent, of original bill, the balance, 10 per cent, being deduc ted for depreciation and shop wear of goods, except instruments which have been taken iu exchange or trade from customers for default in payment on notes or leases, such stock to be credited at a fair cash value, to be determined by you. We agree to pay all freight, taxes and expenses, including attorney’s fees, court costs, and any 'other charges to which you may be put in taking possession of any instrument or making collections, and to insure all stock against loss by fire, loss payable to Chase-Ilackley Piano Company.</p> <p>“This agreement may be terminated at any time by either party, and any stock on hand will be subject to your order.</p> <p>“[Signed] A. A. Thomas Piano Go.,</p> <p>“A. A. Thomas.</p> <p>“Sir: Your contract or proposal, as above, we accept.</p> <p>“[Signed] Ghase-Hacklev Piano Co.,</p> <p>“Per II. B. Bradley.”</p> <p>To this petition the trustee demurred on the following grounds: (1) That it is apparent from the petition that the Chase-Hackley Piano Company lias no title to the pianos in question; (2) that the transaction between the petitioner and the bankrupt was a conditional sale and the contract not having been recorded, petitioner cannot recover the pianos; and (3) that under the contract between the petitioner and the bankrupt the bankrupt became absolutely bound to pay for the unsold pianos at the expiration of six months.</p> <p>The referee sustained the demurrer and dismissed the petition, and the Chase-Hackley Piano Company filed a petition to review this order of the referee.</p>

<p>1. Parties <3=32—To Pleading—“Indispensable Party.”</p> <p>In suit by a deceased wife’s administrator to set aside a de.ed given by her and her husband, the husband, though a proper and necessary, was hot an “indispensable, party,” one so necessary that a decree without his presence would prejudice his rights and leave the case contrary to equity and good conscience, a party whose interest in the subject-matter of the suit and the relief sought is so bound up with that of other parties that his legal presence as a party is an absolute necessity to the court’s right to proceed, since, though the husband had an inchoate interest in the cause, in that, if plaintiff succeeded, he would be benefited by the litigation to the .extent of having his title to tho property potentially established. subject to the right of the administrator to subject it to the payment of the wife’s debts, plaintiff administrator could proceed without such husband as a party and obtain all the relief to which he was entitled, without affecting the husband’s interests or rights.</p> <p>[Ed. Note.—For other cases, see Parties, Dec. Dig. <3=32.</p> <p>For oilier definitions, see Words and Phrases, First and Second Series, Indispensable Party.]</p> <p>2. Executors and Administrators <3=438(8)—Action by Administrator— Husband of Decedent as Party Plaintiff.</p> <p>In suit by a wife’s administrator to set aside deeds, one given by decedent and husband to M., and one given by M. to another, the proper position of the husband as a party to the suit, was as a plaintiff, and not as a defendant, as a recovery by the administrator was in harmony with recovery by the husband, so that the federal court had no jurisdiction of the cause, on the ground of diversity of citizenship, where the husband was a resident of the same state as the defendants, in which the administrator was appointed.</p> <p>[Ed. Note.—For other cases, see Executors and Administrators, Gent. Dig. § 1777; Dee. Dig. <3=438(8); Parties, Gent. Dig. §§ 17, 25, 37, 50.]</p> <p>@=oFor other oases see same topic & KEY-NTJMBBR in all Key-Numbered Digests & Indexes</p> <p>3. Judgment @=>233—Parties—Absence of Persons Affected—Granting Belief.</p> <p>Where the court can do justice to the parties to a suit without injuring persons not before it, it will do so, shaping its relief so as to preserve the rights of such absent persons, requiring, if necessary, dismissal of the bill as to them.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 412; Dec. Dig. @=>233.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Public 1 Lands <@=>106(1)—Decisions of Land Department—Collateral Attack.</p> <p>Where land was public land of the United States and so subject to the jurisdiction of tbe Land Department at the time it was listed to a state under Rev. St. § 2449 (Comp. St. 1913, § 4870), as lieu land under a school land grant, the decision of the department that the land was nonmineral and of the character embraced in the grant, even if erroneous and voidable, is not void as against one who shows no connection with the land at the time it was so listed, and cannot be attacked by him.</p> <p>[Ed. Note.-—For other cases, see Public Lands, Cent. Dig. §§ 104, 301; Dee. Dig. @=>106(1).]</p> <p>2. Public Lands <@=>53—-Listing—Statutes—Construction—“Void.”</p> <p>As against a collateral attack, the word “void,” as used in Rev. St. § 2449 (Comp. St. 1913, § 4870), providing that the listing of lands to a state under a grant, which are not of the character embraced in the grant, shall be “perfectly null and void” is to be construed as “voidable.”</p> <p>[Ed. Note.—-For other eases, see Public Lands, Cent. Dig. §§ 143-145; Dee. Dig. <@=>53.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Void.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Public Lands @=53—Grant for School Purposes—Selection of Lieu Lands.</p> <p>Under Rev. St. § 2275 (Comp. St. 1913, § 4860), which authorizes a state to select lands of equal acreage to compensate deficiencies where sections 16 or 36, granted for school purposes, “are fractional in quantity, or where one or both are -wanting by' reason of the township being fractional or from any natural cause whatever,” the validity of a lieu selection is not affected by the fact that when survey was made, it was found that the section, or part of section, which was made the base of the selection would have been in the ocean and not a part of the public lands; it not appearing that the section or township was not fractional.</p> <p>[Ed. Note.—For other eases, see Public Lands, Cent. Dig. §§ 143-145; Dec. Dig. @=53.]</p> <p>4. Public Lands ©=>54(3)—Officers of Land Department—Purchase of School Land from State.</p> <p>Rev. St. § 452 (Comp. St. 1913, § 698), which prohibits the “officers, clerks and employés in the General Land Office” from purchasing or becoming interested in the purchase of public lands under penalty of removal from office, if construed to apply to a surveyor general for a state does not render void a purchase by him of school lands from the state.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§ 154, 157; Dec. Dig. @=54(3).]</p>

In Bankruptcy. In the matter of Alfred Edward Berthoud, trading and doing business as Coulon, Berthoud & Co., alleged bankrupt. On motion for an order of adjudication.

<p>1. Landlord and Tenant <§=>265(3)—Leases—Covenants—Kent.</p> <p>Where a lessee agreed to pay a fixed rent in monthly Installments, together with the annual taxes assessed for each year during the term, the taxes to be paid on or before December 20th, such taxes, as well as water rates the tenant covenanted to pay, are rent, the agreement to pay them not being a mere personal one independent of the reservation of rent, and so the landlord might distrain for such sums.</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 1067; Dec. Dig. <§=>265(3).]</p> <p>2. Bankruptcy <@=>345—Priorities—Right to Priority.</p> <p>A tenant agreed to pay taxes and water rates assessed upon the premises. Landlord and Tenant Act N. J. § 4 (3 Comp. St. N. J. 1910, p. 3066), declares that no goods or chattels lying on the demised premises shall be liable to be taken by virtue of any execution against the tenant without payment to the landlord, before removing them, of all rent due at the time of the taking or which shall have accrued up to the day of removal, whether by the terms of the lease the day of payment shall have come or not Bankr. Act July 1, 1898, c. 541, § 64b, cl. 5, 30 Stat. 563 (U. S. Comp. St. 1913, § 9648), declares that debts owing to any person who by the laws of the state or the United States is entitled to priority shall have priority on bankruptcy. Section 67f (section 9651), declares that all levies, judgments, attachments, or other liens obtained against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy, shall be deemed null and void. The lessee failed to pay rent and water rates as agreed, and was then adjudicated a bankrupt. Held, that as under the New Jersey statute the landlord has a mere right of priority and not a lien, and as until the landlord has asserted his lien by distress the tenant may dispose of or incumber his property, the landlord was not entitled to priority as to taxes which at the time of the adjudication in bankruptcy had not been assessed and could not be determined, for in such case an execution creditor would take the chattels free from the landlord’s claim.</p> <p>[Ed. Note.—For otiier cases, see Bankruptcy, Cent. Dig. §§ 531, 532, 534, 539, 540; Dec. Dig. <§=>345.1</p> <p>3. Landlord and Tenant <§=>247—'Rights of Landlord — Execution Against Lessee.</p> <p>Under Landlord and Tenant Act N. J. § 4 (3 Comp. St. N. J. 1910, p. 3066), declaring that no goods or chattels lying on the demised premises shall be taken by virtue of any execution, attachment, or other process against the tenant without payment to the landlord, before removing them from the demised premises, of all rent due at the time of taking or which shall have accrued up to the day of removal, whether due under the lease or not, an execution creditor of a lessee may take the lessee’s property free from the claims of the landlord for taxes payable as rent, where at the time of execution the amount of the taxes was not ascertained; there having been no assessment.</p> <p><g=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 985; Dec. Dig. <@=>247.]</p> <p>4. Bankruptcy <@=>318(4)—Claims—Provable Claims.</p> <p>Bankr. Act, § 63a, els. 1, 4 (Comp. St. 1913, § 9647), declares that debts of the bankrupt which are a fixed liability absolutely owing at the time of the filing of the petition may be proven and that debts founded on an .open account or a contract express or implied may be proven. A tenant agreed as part of the rent to pay the taxes and water rates levied against the demised premises. At the time of his bankruptcy the taxes had not been assessed. Eeld that, while the landlord was not entitled to priority as to such taxes, which were part of the rent reserved, he might, when they had been assessed, prove the amount as a claim against the estate of the bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 4S2; Dec. Dig. <@=>318(4).]</p> <p><©c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Dawson Conekin against Ella Ann Lockwood.</p>

<p>1. Citizens @=13—Expatriation—Right to Change Allegiance.</p> <p>A citizen may throw off his allegiance to this country if he desires, especially in viéw of Rev. St. § 1999 (Comp. St. 1913, § 3955), declaring that the right of expatriation is a natural and inherent right of all people.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. @=1.3.]</p> <p>2. Citizens @=13—Expatriation—Residence in Foreign Country.</p> <p>Mere residence in a foreign country, even by a naturalized American, has no effect upon such person’s citizenship.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. @=13.]</p> <p>3. Citizens @=13—Expatriation—Statutory Provisions.</p> <p>Act March 2, 1907, c. 2534, § 2, 34 Stat. 1228 (Comp. St. 1913, § 3959), provides that when any naturalized citizen shall have resided for two years in the foreign state from which he came it shall be presumed that he has ceased to be an American citizen, provided that such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States. Reid, that it was within the power of Congress to lay down this rule even as applied to a naturalized citizen who had left the United States for the land of his birth before the act was passed.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. @=13.]</p> <p>4. Citizens @=13—Expatriation—Statutory Provisions.</p> <p>Act March 2,1907, § 2, providing that when any naturalized citizen shall have resided for two years in the foreign state from which he came It shall be presumed that he has ceased to be an American citizen, provided that such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer, does not refer only to the status of naturalized citizens while abroad, but applies when a naturalized, citizen, after living abroad for the statutory period, returns to the United States; and, when such a person presents himself for admission to the country, the presumption is that he is no longer an American citizen, especially in view of the Naturalization Convention of 1869 with Sweden, providing that a naturalized citizen renewing his residence in Sweden without intent to return to .America shall be held by the government of the United States to have renounced his American citizenship, and that the intent not to return may be held to exist when a person so naturalized resides more than two years in Sweden.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. @=13.]</p> <p>5. Citizens @=13—Expatriation—Statutory Provisions.</p> <p>The presumption, under Act March % 1907, § 2, that a naturalized citizen residing for two years in the foreign state from which he came has ceased to be American Citizen, is rebuttable.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. @=13.]</p> <p>6. Treaties @=6—Abrogation.</p> <p>The Naturalization Convention of 1869 with Sweden and Norway is now in force notwithstanding the separation of those kingdoms in 1905.</p> <p>[Ed. Note.—For other eases, see Treaties, Cent. Dig. § 6; Dec. Dig. @=6.]</p> <p><@=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Treaties <§=3ll—Operation and Effect.</p> <p>Tho admission of aliens and the regulation of citizenship, as distinct from alienage, is peculiarly a matter of national concern, and, as to such matters, treaties are the supreme law of tho land.</p> <p>TEd. Note.-—For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig.</p> <p><S=s>For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Chapin-Sacks Manufacturing Company against the Hendler Creamery Company and L. Manuel Hendler.</p>

<p>Banks and Banking <S=»281—National Banks—Liquidation.</p> <p>The action of the stockholders of a national bank in voting to go into voluntary liquidation and in appointing a liquidation agent, pursuant to Rev. St. §§ 5220, 5221 (Comp. St. 1913, §§ 9806, 9808), is equivalent to the appointment of a receiver by the Comptroller in its effect on the property and the rights of the creditors. The assets of the bank become a trust fund to be administered for the benefit of all creditors pro rata, and while the bank retains its corporate existence and may be sued, the effect of a judgment obtained against it by a creditor is only to fix the amount of the debt, and the judgment plaintiff can acquire no lien which will give him an advantage over other creditors.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 1075-1079; Dec. Dig. <S=»281.]</p> <p>4@ss>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Admiralty <©=>56—Garnishment—-Hele ase or Garnishee on Stipulation.</p> <p>A garnishee in admiralty, who admittedly has a sum in his hands belonging to the respondent, the amount of which is not in dispute, may retain the same “to answer the exigency of the suit,” as provided by admiralty rule 37 (29 Sup. Ct. xliii), or where permitted by a rule of court he may be released from further liability by giving a stipulation for the amount, to abide the further order of the court.</p> <p>[Ed. Note.—For other cases, see Admiralty, Cent. Dig. § 451; Dee. Dig. <©=>56.]</p> <p><©Es>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Post Office <@=48(4)—Offenses—Indictment—Use of Mails to Defraud.</p> <p>An indictment under Penal Code (Act March 4, 1909, c. 321), § 215, 35 Stat. 1130 (Comp. St. 1913, § 10385), which charged that the scheme for which the mails were used was one 1» defraud divers ignorant persons in three named states, especially Austrians not familiar with business, without naming them or slating that their names were unknown to the grand jurors, is sufficient, since it shows that the scheme was to defraud, not an individual, or group of definite individuals, but a class, which was described as particularly as possible.</p> <p>[Ed. Note.—For other casos, see Post Office, Cent. Dig. § 72; Dee. Dig. <@=48 (4).]</p> <p>2. Indictment and Information <@=71—Sufficiency—Certainty.</p> <p>The highest degree of certainty is not required in an indictment, but certainty to a common intent is sufficient.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 144, 174, 193, 194; Dec. Dig. <@=71.]</p> <p>3. Post Office <@=48(4)—Offenses—Indictmf.nt—Use of Mails to Defraud.</p> <p>An indictment charging the use of mails to defraud, which alleged that the plaintiff sold stock of a certain corporation, of which he was not the agent, and which stock he did not intend to deliver, and converted the amount paid therefor to his own use, and that the corporation had ceased to do business, and none of its stock was for sale, was not defective for failing to allege that the defendant had knowledge that the corporation had ceased to do business, since the fraud was complete if defendant agreed to sell the stock, intending to convert the money to his own use, and not to deliver the stock.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. <@=48(4).[</p> <p>4. Indictment and Information <@=63—Sufficiency—Form of Averment— “As Aforesaid.”</p> <p>Where an indictment for using the mails to defraud in the first two paragraphs set out the fraudulent scheme, and in the third paragraph alleged, “And so the grand jurors do further present as aforesaid,” setting out the particular means whereby an individual was defrauded, the word “so” was surplusage, and the words “as aforesaid” refer to the manner in which the additional mutter was presented, there being no invariable rule which refers those words to the last or any antecedent word or averment, and they did not render the indictment bad, as showing that the third paragraph was an argumentative conclusion by the grand jurors, and not a direct allegation.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 185; Dec. Dig. <@=63.</p> <p>For other definitions, see Words and Phrases, First and Second Series, As Aforesaid.)</p> <p>5. Indictment and Information <@=119—Sufficiency—Form of Averment— Surplusage.</p> <p>If those words could not be so construed, they were surplusage, since no prior mention had been made of the fact charged in the third paragraph.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. <@=119J</p> <p>©=»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>6. Post Office <@=>48(4)—Indictment—Use of Mails to Defraud—Description of Letter.</p> <p>An indictment for the use of mails to defraud, which specified the sender of the particular letter charged to have been received in furtherance of the fraudulent scheme, the place of mailing, the contents, the amount of the post office order contained therein, the addressee and his post oflice address, the payee of the money order, and the date on which he took it from the post office, sufficiently described the letter; a post office money order being so well known as not to require a more particular description.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. <@=>4S(4).]</p> <p>7. Post Office <@=>48(S)—Variance—Use of Mails to Defraud—“Letter.”</p> <p>There is no variance between an indictment under Penal Code, § 215, for using the mails to defraud, which charged that defendant took á “letter” from the post office, and proof that he took ail envelope which contained only w post office money order, since “letter,” as used in that statute, is a comprehensive term, and includes such a communication.</p> <p>[Ed. Note.—For other eases, see Post Office, Cent. Dig. § 7S; Dec. Dig. <@=>48(81.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Letter.]</p> <p>8. Post Office <@=>49—Offenses—Evidence—Takino from: Post Office.</p> <p>In a prosecution for taking from the post office a letter in furtherance of a scheme to defraud, contrary to Penal Code, § 215, evidence that an envelope containing a post office money order duly stamped and addressed to defendant was deposited in a post office and forwarded in the mails, and that on the following day the same money order was presented by defendant at the post office to which the letter had been addressed and payment therefor receipted by him, is sufficient to show that he took the letter from the post office.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. <©=>49.]</p> <p>9. Criminal Law <@=>730(3)—Misconduct of Prosecutor—Evidence by Defendant-Cure by Court.</p> <p>Where the prosecuting attorney, in a prosecution' for using the mails with intent to defraud, offered in evidence-all of defendant’s letters to his agent prior to the termination of the agency, whereupon the defendant asked that the subsequent letters he introduced also, the remark of the prosecuting attorney that he would do> so if the defense would produce the letters the prosecution had asked them for was not erroneous, as seeking to compel the defendant to produce as evidence against himself the letter charged to have been received in furtherance of the scheme to defraud, where the court, on defendant’s exception to the remark, negatived such inference.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <@=>730(3).]</p> <p>10. Post Office <@=>49—Offenses—Evidence—Use of Mails to Defraud—Intent.</p> <p>In a prosecution for the use of tlie mails in furtherance of a, fraudulent scheme to contract to sell corporate stock with intent to convert the proceeds and not to deliver the stock, evidence hold sufficient to warrant the jury in finding that defendant did not intend to purchase the stock in the market and deliver, and did not by mistake offer that stock for sale, instead of stock which he or his wife then owned.</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. <@=>49.]</p> <p>11. Criminal Law <@=>1169(1)—Harmless Error—Admission of Evidence.</p> <p>Where defendant was charged with using the mails in furtherance of a fraudulent scheme to sell stock of a mining corporation which had ceased to do business, and there was proof that the defendant had represented that there was such a corporation, the admission of parol evidence to establish the existence of that corporation was not prejudicial.</p> <p><@=For other cases seG same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 8137; Dec. Dig. <§=>1169(3).]</p> <p>12. Criminal Law <§=>070—Error—Presenting Questions Below—Offer of Evidence.</p> <p>Error cannot be predicated on the refusal of the court to admit evidence in a prosecution for using the mails in furtherance of a fraudulent scheme to sell stock not owned by defendant and to convert the proceeds, because in response to a question by defendant’s counsel whether the court would permit defendant’s brother-in-law to testify to conversations with defendant relative to a sale of stock by him, or his intention in that respect, the court replied that he would not, since the proposition submitted to the court was too indefinite.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 757, 1593-1590; Dec. Dig. <§=>670.]</p> <p>>For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.</p> <p>Suit by the Equitable Trust Company of New York, as trustee, against the Western Pacific Railway Company and others. From an order (231 Fed. 478) enjoining complainant from prosecuting a different suit, complainant appeals, and also files original applications for writs of prohibition and mandamus, directed to Hon. William C. Van Fleet, Judge of the District Court for the Northern District of California, and to such District Court.</p>

' Suit in equity by the Guaranty Trust Company of New York, trustee, against the International Steam Pump Company. Decree for complainant, from which Gilbert Collins, as foreign receiver, appeals.

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge.</p> <p>Action by David F. Deal against the Coal & Coke Railway Company to recover damages for personal injuries under the federal Employers’ liability Act.</p>

<p>In Error to the District Court of tire United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action at law by Edmurson Hatt, administrator of' the estate of William Lynn Hatt, deceased, against the New Ætna Portland Cement Company.</p>

<p>In Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Action at Law by the Eastern Cement Gun Company against the Western Maryland Railway Company.</p>

<p>In Error to the District Court of the United States for the Northern District of New York.</p> <p>Action for personal injuries by Carl Kilmer against the Eehigh Valley Railroad Company.</p>

<p>Railroads <§=>350(30)—Accidents at Crossing—Contributory Negligence —Passenger in Automobile.</p> <p>A woman riding in the back seat of an automobile, with her husband and an experienced chauffeur on the front seat, who stopped 146 feet from a railroad crossing to look, but failed to discover the approach of a train which sounded no signals, is not contributorily negligent as matter of law because she did not insist that her husband and the chauffeur do more than they did to discover the train, when the chauffeur had been held not contributorily negligent as matter of law.</p> <p>[Ed. Note.—Eor other cases, see Railroads, Cent. Dig. § 1189; Dec. Dig. <§=>350(30).]</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by Edgar A. Emens, as executor of thfe last will and testament of Martha E. Emens, deceased, against the Lehigh Valley Railroad Company, Judgment for plaintiff, and defendant brings error.

Whitaker Thompson, Judge. Suit by the Jones Brothers Publishing Company and another against the Historical Publishing Company for an injunction to restrain the infringement of two copyrights. Injunction granted as to one copyright, and denied as to the other, and both parties appeal.

<p>1. Copyrights <®=o85—Injunction—Denial of Relief—Failure to Do Equity.</p> <p>R. agreed to sell and assign to defendant all musical compositions written during the period of five years. In violation of his legal and moial obligation under this agreement, be assigned a musical composition to other parties, who had it copyrighted. Held, that Ms assignees, who stood in his shoes, were not entitled to an injunction restraining defendants from infringing the copyright, as R. committed iniquity, and did not come into court with clean hands, and Ms misconduct was, for the purposes of the suit, the misconduct of those standing in his shoes.</p> <p>(Ed. Note.—For other cases, see Copyrights, Cent. Dig. § 78; Dec. Dig. <®=o85.]</p> <p>2. Equity <^>54—Denial of Relief—Unconscionable Relief.</p> <p>A court of equity is a court of conscience, and within the scope of its powers is governed by its own rules, and withholds aid whenever it is asked to do that which it deems to be against conscience.</p> <p>[Ed. Note.—For other cases, see Equity, Dec. Dig. <3=>51.1</p> <p>3. Copyrights <S=^85—Injunction—Denial of Relief—Failure to Do Equity.'</p> <p>That an injunction is a sited to protect a copyright does not take the case out of the general principle that an injunction will not be granted to one who has not done equity and does not come into court with clean hands.</p> <p>©soFor other eases see same topic & KHY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Copyrights, Cent. Dig. § '78; Dec. Dig. <®=»85.]</p>

<p>Bankruptcy <§=>407(5)—Discharge—Statement to Obtain Credit—“False.”</p> <p>A member of a bankrupt firm, who did not prepare the false statement, and who knew nothing of its contents, and did not know of the falsity of the statement which he did sign, cannot be denied a discharge under Bankr. Act July 1, 1808, c. 541. § 14b, cl. 3, 30 Stat. 500, as amended by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (Comp. St. 1913, § 9598), entitling him to a discharge, unless he had obtained money on a materially false statement in writing made by him, since “false” means that which is not true, coupled with a lying intent, and in jurisprudence imports more timn the vernacular sense of erroneous or untrue (quoting Words and Phrases, False).</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. §§ 760, 761; Dec. Dig. <§=>407(5).J</p> <p><g=?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville; James F. Boyd^ Judge.</p> <p>Suit by W. E. Wilson against Frank Waldo and another. From an order of the District Court refusing to dissolve an injunction (221 Fed. 505), defendants appeal.</p>

<p>Judgment <©=>675(1)—Persons Concluded—Persons Participating in Prosecution or Defense.</p> <p>Where both parties to an infringement suit, involving the question of priority of invention between two patentees, although not parties of record, openly participated in a prior suit involving the same issue and contributed to the expense thereof, the decree in such suit is conclusive ou both, and the question as between them is res judicata.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1190, 1194; Dec. Dig. <S=>675(1).]</p> <p><&=s>For other cases see same topic & KEY-NUMBER 19 all Key-Numbered Digests & Indexes</p>

Action for personal injuries by Charles N. Groves against the Pennsylvania Railroad Company. On writ of error to review a judgment for $6,045.16 entered upon the verdict of a jury in favor of the plaintiff for $6,000 for injuries sustained by him on April 19, 1914. The action was tried by Judge Edwin S. Thomas sitting for the Western district of New York at Buffalo. Judgment was entered April 23, 1915.

<p>1. Bankruptcy <@=»309—Partners it ip—Provable Claims.</p> <p>Notos for borrowed money may be proved against the estate of a partnership in bankruptcy, although signed by individual members of the firm, where the money was in fact borrowed and used for the benefit of the firm, and it was the understanding of both borrower and lender that the notes were firm obligations. ■</p> <p>LEd. Note.-—For other cases, see Bankruptcy, Cent. Dig. §§ 555-561; Dec. Dig. <®=50!).]</p> <p>2. Bankruptcy <§sk>330—Prooí oí Claims—Splitting Indebtedness.</p> <p>Where a creditor holds more than one note against a bankrupt, they siiould be proved as a single claim, and it proved separately the claims will be treated as one.</p> <p>LEd. Note.—For other eases,, see Bankruptcy, Cent. Dig. §§ 517, 519, 521; Dee. Dig. @=>3:50.]</p> <p>Gzatfor other cases see same topic & KI3Y-NUMBKU in all Key-Numbered Digests & Indexes</p> <p>3. Bankruptcy <©=3467—Appellate Procedure—General Order Allowing Claims.</p> <p>Although a court of bankruptcy allowed a number of claims by a single general order, for the purposes of an appeal such order must be treated as several.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. <©=3467.]</p> <p>©==For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <@=>365—Rules of Decision—State Decisions—Construction of Will.</p> <p>In construing a will affecting title to real estate in Kansas, the federal court is controlled by the construction placed on similar provisions by the Supreme Court of that state.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 807; Dec. Dig. <@=>365.]</p> <p>2. Wills <@=>440—Construction—Intent of Testator—Technical Rules.</p> <p>In construing a will, the testator’s intention, gathered from the entire will, controls as against technical rules, the application of which would defeat such intention.</p> <p>[Ed. Note.—For other eases, see Wills, Cent. Dig. § 956; Dec. Dig. <@=> 440.]</p> <p>3. Wills <@=>610(8)—Construction—Estates Created—Power of Disposition.</p> <p>Under the laws of Kansas as construed by its Supreme Court, a will which gives the first taker the absolute right to dispose of the property enables him to deprive the remaindermen of their interest.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1426; Dec. Dig. <@=>616(8).]</p> <p><®ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Wills <@=>616(8)—Construction—Estates Created—Power op Disposition.</p> <p>A will which devised testator’s real and personal property to his wife and her assigns, to hold during her life on condition that she remain a widow, and directed that on her decease the remaining real and personal property should be equally divided among the children, gave the wife an absolute power of disposition, so that the remainder did not vest in the children ; and one of them, who became a bankrupt during the lifetime and widowhood of his mother, had no interest in the real estate which could pass to his trustee.</p> <p>[ICd. Note.—For other cases, see Wills, Cent. Dig. § 1426; Dec. Dig. <@=> 616(8).]</p> <p>5. Wills <©=>616(1)—Construction—Intent op Testator—Power op Disposal.</p> <p>Since there is nothing in the will to indicate that the testator intended to differentiate the real and personal property, the courts cannot limit the power of disposal to the personalty.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1418, 1428-1430; Dee. Dig. <@=>616(1).]</p> <p>^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>L Sales «=>55—Construction—Law Governing.</p> <p>Where the bankrupts resided, and did business in Michigan, and the goods claimed by a petitioner were received and held by the bankrupts, the construction and effect of the contract under which 'they were held must be determined by the laws of that state as construed by its Supreme Court.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 2, 153; Dec. Dig. «=>55.]</p> <p>2. Bankruptcy «=>184(2)—Title op Trustee—Conditional Sale.</p> <p>A contract for the delivery of goods, which retained title thereto in the seller until paid, and which plainly contemplated a resale by the buyer, and provided that the goods were to be paid for, whether resold or not, and that all accounts and notes for goods purchased, whether given in payment for goods, or as collateral security, should be immediately due in case the buyer sold out, thus implying a right to sell otherwise than at retail, is a contract of absolute sale retaining a lien for the purchase price, which must be recorded as required by the laws of Michigan to be valid against the trustee in bankruptcy.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 276; Dec. Dig. «=>184(2).]</p> <p>8. Sales «=>454—Conditional Sale—Reservation op Title—Inconsistent Provisions.</p> <p>In a contract for the delivery of goods intended for resale, a reservation of title in the seller cannot be sustained unless, taking the entire contract .and the circumstances together, the reservation of title is dearly dominant over the right of resale and other inconsistent features of the contract, and the resale can be considered as made by the buyer as agent or consignee of the seller.</p> <p>[Ed. Note.—For other cases, see Sales, Cent Dig. §§ 1324, 1325, 1333, 1334; Dec. Dig. «=>454.]</p> <p><gzxaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Sales <§^55—Construction—Law Governing.</p> <p>Where the bankrupt resided and did business in Michigan, and the goods claimed by petitioner were received and held there, the construction and effect of the contract under which they were he'd must he determined by the laws of that state as construed by its Supreme Court.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 2, 153; Doc. Dig. <S=»55.]</p> <p>2. Bankruptcy <§»184(2)—Title of Trustee—Conditional Sale.</p> <p>Where the contract under which goods were delivered to the bankrupts contemplated a resale by them, provided that the g'oods and proceeds of sale thereof were to be held by the bankrupts as collateral security and in trust for the seller until the indebtedness to the seller was paid, required the goods to be settled for at fixed times whether already sold or not, and provided that all past-due accounts should draw interest and that the goods and their proceeds should be surrendered to the seller on demand, but were not to become its property, except as they were credited and considered as payments on account, the contract was one of absolute sale, reserving a lien for the purchase price, which must be recorded as required by the laws of .Michigan to be valid against; the trustee in bankruptcy, and not a conditional sale contract reserving title in the seller.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 276; Dec. Dig. ®=184(2).]</p> <p>3. Sales <®=p404—Conditional Sale—Reservation of Title-Inconsistent Provisions.</p> <p>In a contract for the delivery of goods intended for resale, a reservation of title in the seller cannot be sustained unless, taking the entire contract and the circumstances together, the reservation of title is clearly dominant over the right of resale and other inconsistent features of the contract, and the resale can be considered as made by the buyer as agent or consignee of the seller.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1324, 1325, 1333, 1334; Dec. Dig. <8=»454.]</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>4. Bankruptcy <@=5467—Appeal—'Findings—Review.</p> <p>Where the testimony was taken before the referee, his finding of the facts, affirmed by the District Judge, will not be rejected on appeal od anything less than a demonstration of a plain mistake.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 929; Dea Dig. <@=>467.]</p> <p>5. Bankruptcy <@=>308(3)—Title op Trustee—Warehouse Receipt.</p> <p>On a petition for reclamation of property held by a trustee in bankruptcy, evidence held to show that a warehouse receipt given by the bankrupts to petitioner, who had sold the goods under contract of absolute sale, was taken as additional security for the purchase price, not as a transfer of the goods.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. <@=5303(3).]</p> <p><®s=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Munger, Judge. In the matter of the Iowa-Nebraska Public Service Company, bankrupt. From an order allowing the claim of the Holmesville Mill & Power Company for the balance of an account for electric current, Henry F. Maxwell, as receiver in bankruptcy, appeals.

Cushman, Judge. Voluntary proceeding in bankruptcy by the Chehalis River Lumber & Shingle Company, bankrupt, in which W. W. Keyes was trustee. The claim of W. C. Davie to a prior lien was sustained by the referee, whose order was affirmed by the District Court, and the trustee appeals.

Suit by Marcus Rosenthal, as trustee in bankruptcy, against the Bronx National Bank and others, to set aside a chattel mortgage and recover the value of the property sold by defendant Bank thereunder. Decree for complainant (222 Fed. 83), and defendant Bank appeals.

<p>I. Receivers <§=>198(1)—-Compensation—Amoun'j>—Discretion of Court.</p> <p>Receivers are entitled to a fair and reasonable compensation for the services rendered, to be fixed by the court appointing thorn after considering the nature of the matters administered, the amount involved, the complications attending it, the amount of the bond, the time, labor, and skill needed and expended, the degree of success under all the circumstances, the fidelity to details, and the promptness in accounting, and to be-determined on the compensation for similar services in the performance of official duties, rather than in private business transactions, and in consideration of the value of the services rendered, not generally, hut with reference to that trust.</p> <p>@u»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other eases, see Receivers, Cent. Dig. §§ 392-395; Dec. Dig. <@=198 (1).]</p> <p>2. Appeal and Error <@=955—Receivers <@=198(2)—Discretion of Court— Compensation of Receiver.</p> <p>The compensation allowed a receiver is within the discretionary power of the lower court, which ordinarily has better knowledge of the controlling circumstances than an appellate tribunal can have, and will not be reversed, where there are no facts which show that the court abused its discretion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3822; Dec. Dig. <@=955; Receivers, Cent. Dig. § 396; Dec. Dig. <@=198(2).]</p> <p>3. Receivers <@=198(2)—Compensation—Amount.</p> <p>An allowance by the District Court of $33,000 as compensation to each of two receivers of a large mercantile corporation, of which the assets exceeded $55,000,000 and the liabilities $47,000,000, exclusive of capital stock, where the receivership lasted eight months, during which assets exceeding $30,000,000 passed through the hands of the receivers, whose services were efficient and satisfactory in trying circumstances, is not so low as to show an abuse of discretion, though the creditors advised the court that they would not object to an allowance of $50,000 to each of the receivers.</p> <p>[Ed. Note.—For other cases, see Receivers, Cent. Dig. § 396; Dec. Dig. <@=198(2)J</p> <p><§=s>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Jack London against the Biograph Company. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree in favor of complainant in a suit brought under the Copyright Act.

Petitions to Revise Appeals from the District Court of the United States for the Eastern District of New York. Separate involuntary proceedings in bankruptcy i against the H. Battermau Company and against the Bedford Company were argued and decided together. The bankrupt's petition to revise the order of the District Court fixing the compensation of the referee.

<p>Abatement and Revival <S=>12—Suit fob Infringement—Dismissal of Appeal—Pendency of Another Suit.</p> <p>The pendency of another suit between the parties in another jurisdiction, which may not determine their rights in the instant suit, is not ground for dismissal or stay of an appeal in an infringement suit.</p> <p>[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 87-91, 94, 95, 98; Dec. Dig. @=»12.]</p>

<p>1. Patents <S=»69—Patentable Inventions—“Described in Printed Publication.”</p> <p>A device is “described in a printed publication,” within the meaning of Rev. St. § 4886 (Comp. St. 1913, § 9430), and therefore not patentable as a new invention, where it is shown in the drawings of a prior patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 84; Dec. Dig. <S==>69.]</p> <p>2. Patents @=16—Invention—Question of Fact.</p> <p>The question whether a patented device is the result of invention, or only mechanical skill, is one of fact.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 14, 15; Dec. Dig. <@=16.j</p> <p>®=oFor other eases see same topic & KBY-NUMBBR in all Key-Numbered Digests & Indexes</p> <p>3. Patents @=>26(1)—Invention—Combination op Old Elements.</p> <p>The fact alone that the elements of a combination claim are old is not enough to invalidate it.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. @=>26(1).]</p> <p>4. Patents @=26(2)—“Invention”—Combination op Old Elements.</p> <p>Where the elements of a, combination claim were not merely old, but in point of equivalency had for years been devoted to the same uses in the same art and with substantially like results, the combination shows mechanical skill, rather than invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 29; Dee. Dig. @=>26(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p>5. Patents @=>34—Invention—Prior Patents as Evidence.</p> <p>While a patented combination may not be anticipated by any single prior patent, such patents, showing elements of the combination, are a part of the prior art, properly to be considered on the question whether invention or only mechanical skill was required to make the combination.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 39; Dec. Dig. @=34.]</p> <p>6. Patents @=328—Invention.</p> <p>The Keene patent, No. 782,564, for an axle, used chiefly in the construction of manure spreaders, held void for lack of invention in view of the prior art.</p> <p>7. Patents @=>19—Invention—Improvement in Degree.</p> <p>The mere carrying forward of an original conception, resulting in an improvement in degree simply, is not invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 19; Dec. Dig. @=>19.]</p> <p>8. Patents @=>30(1)—Evidence of Invention—Commercial Success.</p> <p>Commercial success of a patented article cannot aid claims of the patent which are clearly lacking in invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 34; Dec. Dig. @=> 30(1)J</p> <p><©^>For other cases see same topic & KBY-NXJMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by Henry M. Toch and another against the Zibell Damp Resisting Paint Company. Decree for defendant, and complainants appeal. This cause comes here on appeal from a decree entered in the United States District Court for the Southern District of New York dismissing the bill of complaint. The facts appear in the opinion.

Suit in equity by the Lovell-McConnell Manufacturing Company against the Oriental Rubber & Supply Company. Decree for complainant, and the defendant appeals. This cause comes here on an appeal from a decree of the United States District Court for the Eastern District of New York. The patent in suit relates to automobile horns.

Appeals from the District Court of the United States for the Southern District of New York. Held: as to the second Case patent, that the claims in issue covered only “a mechanical readjustment of the combination elements shown by the first Case patent.” Hé found as to the first Case patent that the complainant is limited to a switch actuated by a single current which the defendant does not use; also that the claims in issue, 37…

<p>1. Patents <§=328—Validity and Infringement—Connector for Electrical Conductors.</p> <p>The Williams patent, No. 831,815, for connector for electrical conductors, while not of broad scope, was a step in advance in the art, which turned failure into at least comparative success, and discloses patentable invention in the feature of hermetically sealing the joint. Such element was also within the original application fairly construed; also held infringed.</p> <p>2. Patents <§=157(1)—Construction of Claims—“Hermetically.”</p> <p>The word “hermetically,” as used in a patent claim in describing the sealing of a joint, should be given its popular meaning, as describing a Joint which Is practically impervious to air and moisture, and not confined to a rigidly scientific sense.</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 229, 280; Dec. Dig. <©=>157(1).]</p> <p>3. Patents <@=>172—Scope—Advantages Not Desobibed ob Claimed.</p> <p>That the specification and claims of a patent do not refer to all of the advantages of the invention is not material; the patentee is entitled to the benefit of such advantages, although he may not have mentioned or known of them.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. § 247; Dec. Dig. <©=>172.]</p> <p><5saFor other cases see same4 topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeals from the District Court of the United States for the South-ern District of New York.</p> <p>Suit in equity by the Karl Kiefer Machine Company and Karl Kiefer against Unionwerke, A. G., and against Nathan H. Heyman. Decrees for defendants, and complainants appeal.</p> <p>These causes come here upon appeal from decrees dismissing bills for alleged infringement of certain patents; the one suit is against manufacturer, the other against user. Four patents are involved:</p> <p>Reissue patent No. 12,455, issued February 20, 1906, to Karl Kiefer, for a filter pulp-packing machine.</p> <p>Patent No. 993.780, issued May 30, 1911, to Karl Kiefer for a filter.</p> <p>Patent No. 1,015,326, issued January 23, 1913, to Karl Kiefer, for a filter.</p> <p>Patent No. 1,023,254, issued April 16, 3912, 1,o Karl Kiefer, for a filter.</p> <p>The suit against Heyman includes a separate cause of action for repeal, under section 4938, Rev. St. U. S., of a patent, No. 1,029,915, issued June IS, 1912, to Heyman as assignee of Bernno Danziger.</p> <p>The filters are those used in the brewery art. Both suits were tried together in open court before Judge Sanborn, whose opinion will be found in 218 Fed. 847. He very fully discussed the patents, the prior art, and the structure of defendants; his opinion may be' consulted for a presentation of the questions which have been argued here.</p>

Suit in equity by Douis H. Perlman against the Standard Welding Company. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree in favor of complainant. The suit is in equity for infringement of United States letters patent No. 1,052,270, granted to Douis H. Perlman, February 4, 1913, on application filed June 28, 1906, succeeding application filed May 21, 1906, for improvement in automobile wheels.

<p>1. Patents <@=>35—Evidence oe Invention—Commercial Success.</p> <p>Commercial success of a patented article is not persuasive evidence of invention as to a claim which covers only a part of the patented device, and in the absence of evidence that such part is what secured general acceptance or even contributed to such success.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 39; Dec. Dig. <@=>35.]</p> <p>2. Patents <@=>328—Validity and Infringement—Apparatus fob Coaling Ships.</p> <p>The De Mayo patent, No. 797,364, for an apparatus for coaling ships, claim 7, the special feature of which consists of guy devices for maintaining the relative positions of the ship and barge while coaling, if conceded invention, held not infringed.</p> <p><§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <@=328—Infbingement—Pneumatic Tike.</p> <p>The MacDonnell patent, No. 981,208, for a pneumatic tire which is rendered self-healing in case of puncture by means of a stay strip secured to the tread portion and which is nonstretchable in a direction transversely of the tire, thus holding it in a state of compression, but is capable of stretching in a direction longitudinally of the tire, makes the transversely nonstretchable quality of the stay strip an essential element. As so construed, held not infringed.</p> <p><§ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by the Elevator Supply & Repair Company against the New & Beaver Arcade Company and Franz A. Boedtcher. Decree for defendants, and complainant appeals. On appeal from a decree dismissing the, bill alleging the infringement of ffie Payne and Andren patents, owned by the complainant. ,No opinion was delivered in the court below.

In Equity. Suit by the Klauder-Weldon Dyeing Machine Company against John H. Giles and the John H. Giles Dyeing Machine Company. On final hearing. This is a suit in equity to restrain alleged infringement of Weldon patent No. 659,906, for improvements in yarn dyeing machines, and for an accounting. Claim 1 is in issue.

<p>1. Patents ©=328—Validity and Infringement—Valve and Valve Gear for Motor Engines.</p> <p>The Barber patent, No. 781.802, for a valve and valve gear for explosive engines, of such construction that the valves of a motor engine may be readily and quickly removed and replaced when necessary for cleaning, repairing, etc., is for a new and useful combination of old elements, was not anticipated, and discloses patentable invention of a high order. Claims 8 and 9 also helé infringed.</p> <p>2. Patents ©=>235—Infringement—Inferior or Superior Operation.</p> <p>That another structure is superior 1 o that of a patent, or that it performs some other function, does not avoid infringement, when the same elements perform the same functions in substantially the same way.</p> <p>fEd. Note.—For other cases, see Patents, Cent. Dig. § 371; Dec. Dig. ©=>235.]</p> <p>(g^yFor other cases see same topic & KFY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit toy Robert F. Rice (Walter Ottel, as administrator, substituted) against the Palisades Realty & Amusement Company and another. On final hearing.</p>

<p>1. " Shipping @=>132(3)—Suit for Damage to Cargo—Condition op Goods When Received—Recitals oe Bills oe Lading.</p> <p>The recital in bills of lading of the receipt on board in good order and condition of a stated number of “crates iron bath tubs” has reference to the bath tubs and not to the crates, and casts the burden on the ship to show that they were not in good condition when received.</p> <p>LEd. Note.—For other cases, see Shipping, Cent. Dig. §§ 479-481; Dec. Dig. @=>132(3).]</p> <p>2. Shipping @=>123—Liability eor Damage to Cargo—Improper Stowage.</p> <p>Where the crates containing bath tubs shipped from Philadelphia to San Francisco around Cape Horn were such as customarily used, and as liad been used with safety on other, but different, voyages, and they were accepted without objection, although their character was plainly manifest, it was the duty of the ship to stow the tubs with reference to such crating, and it cannot avoid liability for their injury on the voyage, largely by reason of their having been stowed one upon another in tiers from 6 to 9 high, on the ground that the crating was insufficient to withstand the weight Upon the lower tubs.</p> <p>[Ed. Note.—-For other cases, see Shipping, Cent. Dig. §§ 225, 454, 455, 466; Dec. Dig. @=>123.]</p> <p>3. Shipping @=>141(3)—'Liability eor Damage to Cargo—Perils oe the Sea.</p> <p>A ship is not relieved from liability for damage to cargo on the ground of perils of the sea, where the cargo was accepted with full knowledge of its character, the manner in which it was packed, and the storms encountered were no more severe than were reasonably to be expected, in view of the voyage and the season.</p> <p>[Ed. Note.—For other eases, see Shipping, Cent. Dig. § 498; Doc. Dig. @=>141(3).]</p> <p><g=»For other eases see same topic & KEY-NCOIBEIt in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Twin Falls Salmon River Land & Water Company against Twin Falls County, Idaho, W. J. Young, Treasurer, and E. J. Finch, Auditor and Trustee, of said county. On rehearing.</p>

<p>In Admiralty. Suit by the Lehigh Valley Transportation Company against the steam tug Transfer No. 22, the New York, New Haven & Hartford Railroad Company, claimant, with the Lehigh Valley Railroad Company impleaded.</p>

<p>In Equity. Suit by the St. Louis Independent Packing Company against, David IT. Houston, Secretary o£ Agriculture, A. D. Melvin, Cliiei of the Bureau of Animal Industry, and. Jamos J. Brougham, Chief Inspector of such Bureau at St. Louis. On final hearing.</p>

<p>Appeal and Error <©=3339(1)—Final Decree—What Constitutes.</p> <p>In a suit to restrain the infringement of two copyrights, a decree dismissing the bill as to one is final as to that portion of the controversy, though it be interlocutory as to the other, and therefore complainant may appeal from that portion of the decree which is final at any time within six months, there being no reason why a decree may not in part be final and in part interlocutory.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1883: Dee. Dig. «=>339 (1).]</p> <p>«=>For other'cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

the District Court of the United States for the Western District of New York. Suit by Wilbur B. Grandison, as trustee of the estate of the O. L. Gregory Vinegar Company, bankrupt, against Frederick Robertson and another. Decree for complainant (220 Fed. 985), and defendants appeal. This cause comes here on appeal from a decree entered on March 9, 1915. The facts are stated in the opinion.

Suit by Wilbur H. Grandison, as trustee of the estate of the O. L. Gregory Vinegar Company, bankrupt, against the National Bank of Commerce of Rochester. Decree for complainant (220 Fed. 981), and defendant appeals.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Guanica Céntrale against the New York & Porto Rico Steamship Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Trade-Marks and Trade-Names <©=>11— Form of Article—Effect of Expired Patent.</p> <p>Where a corrugated, rubber hose as a new article of manufacture was patented in 1872, and it was shown that the corrugations were useful and functional, on the expiration of the patent the right to make such hose became common to all, and no one manufacturer, by making hose with corrugations for any length of time, could convert the article itself into a trade-mark, and thereby acquire the exclusive right to make it in perpetuity.</p> <p>[Ed. Note.—Eor other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 15; Dec. Dig. @=>11.] -</p> <p><§r^>For other eases see same topic & KlSY^NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judgé.</p> <p>Action at law by the Memphis Telephone Company against the Cumberland Telephone & Telegraph Company.</p>

<p>GUABMAN AND WABD <g=>44—LEASE—DUBATION.</p> <p>Under Const. Okl. art. 7, §§ 11-13, and Rev. Laws Okl. 1910, §§ 3330, 3335, 6532, 6554, 6569, which define the probate jurisdiction of the county courts and authorize them to permit the sale and disposal by guardians of the lands owned by mihors, without restrictions as to duration of estate, and section 6547, which empowers gnardians to lease and grant oil and gas under the same procedure in the county court as now authorized, a guardian can, with the consent of the court, make a lease of the oil and gas under the lands of the minor for so long as those minerals may be found in paying quantities, which will be valid after the ward attains his majority.</p> <p>[Ed. Note.—Eor other cases, see Guardian and Ward, Cent. Dig. §§ 192-201; Dec. Dig. <g=344J</p> <p><g=3?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and Error <§=>966(1)—Continuance <§=>7—Review—Discretion op Court.</p> <p>The ruling of the trial court on an application for a continuance is a matter of discretion, not subject to review unless it clearly appears that the discretion has been abused.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. f 3837; Dec. Dig.' <§=>966(1); Continuance, Cent. Dig. §§ 17, 18; Doc. Dig. <§=>7.]</p> <p>2. Appeal and Error <§=>500(1)—Review—Matters Not Appearing op Record—Denial oe Continuance.</p> <p>Where the record does not show that the motion for continuance because of the absence of a witness was presented to the trial court, and other circumstances appearing in the record tend to show that it never was presented or ruled upon, plaintiff in error has failed to show an abuse of discretion in overruling the motion.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2295; Dec. Dig. <§=>500(1).]</p> <p>3. Trial <§=>29(1)—Continuance—Prejudice op Jury.</p> <p>Where, in the trial of a personal injury case, a juror was withdrawn and the ease adjourned because on that day plaintiff was menstruating, so that defendant’s physician could not examine her as her counsel had agreed, a remark of the judge to the jury that, owing to the condition of the plaintiff the ease would be continued, did not prevent the securing of an impartial jury from the same panel, so as to show an abuse of discretion in denying a continuance for the term, where none of the jurors was questioned as to having heard the remark, since it would be ordinarily understood by them as not referring to plaintiff’s injuries.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 80, 508; Dec. Dig. <§¡=>29(1).]</p> <p>4. Appeal and Error <§=>1046(5)—Harmless Error—Remark op Trial Judge.</p> <p>Even if that remark was understood by the jury as referring to plaintiff’s injuries, it could not have caused the jury to reach an erroneous conclusion as to her injuries as disclosed by the evidence, under a charge which clearly left the jury to determine as questions of fact the nature and extent of the injuries.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4134; D<*., Dig. <§=>1046(5).J</p> <p><@=>For other eases see same topic & KKY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>•5. Appeal and Error @=3263(1)—Presenting Questions in Lower Court-Instructions—Exceptions and Request.</p> <p>An assignment of error to a portion of the charge cannot be sustained, where no exception was taken to the charge on that ground, no modification of it was suggested, and no instructions on the subject requested.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. @=3263(1).]</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>William C. Kinser was convicted of violating the Mann White Slave Act, and he brings error.</p>

<p>1. Evidence <§=»389—Pabox. Evidence—Corporate Records—“Pbincipai. Oppice.”</p> <p>Under General Corporation Law N. Y. (Consol. Laws, c. 23) § 3, subd. 9, defining the term “office” of the corporation as its principal office within a state, or principal place of business within the state if it has no principa} office therein, the “principal office” of a foreign, corporation, where a notice of claim for injuries to an employe may be served under New York Employers’ Liability Act (Consol. Laws N. Y. c. 31, §§ 200-204), is not synonymous with its principal place of business, which it is required by the New York General Corporation Law to designate in the certificate filed with the secretary of state, and parol evidence is admissible- to show that its principal office is at a place different from its designated principal place of business.</p> <p>fir-nTTny other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexed</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1718; Dec. Dig. <$=>389.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Principal Office.]</p> <p>2. Master and Servant <$=>276(1)—Injuries to Servant—Notice of Claim— Sufficiency of Evidence—Place of Service.</p> <p>In an action for personal injuries under the New York Employers’ Liability Act, evidence held sufficient to warrant the jury in finding that the office of the corporate employer, where the notice of claim required by that act was served, was its principal office.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 950, 954; Dec. Dig. <$=276(1).]</p> <p><gE5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in admiralty by the ¿Etna Insurance Company and Tony Ross against the Borough Development Company, impleaded with the steam tug Willie and the scoW Thomas Connell. Decree against the Borough Development Company alone, and it appeals.

<p>In Error to the District Court of the United States for the District of New Mexico; William H. Pope, Judge.</p> <p>Action by Hoggson Bros, against the First National Bank of Roswell.</p>

<p>1. Appeal and Error <@=>248—Questions Reviewable—Necessity of Exceptions.</p> <p>An appellate court on a writ of error can only consider errors which have been properly excepted to at the trial.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1432, 1435-1439, 1443, 1447-1452, 1454-1459, 1462, 1464-1468; Dec. Dig. <@=> 248.1</p> <p>2. Trial <@=>420—Motion for Directed Verdict—Waiver.</p> <p>The introduction of evidence by defendant after the court overruled its motion for a directed verdict at the close of plaintiff’s testimony waives any error in the ruling on the motion.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 988; Dec. Dig. <@=> 420.]</p> <p>3. Public Lands <@=>13—Government Ownership—Cutting Timber—Evidence—Willful Trespass.</p> <p>Where the evidence was undisputed that a homestead entryman arranged for tho disposition of the timber on government land, and thereafter filed a homestead entry for such land, which, he was notified, was suspended because of a conflict with the claim of the state under the Swamp Land Act, but nevertheless lie cut all the merchantable timber therefrom, without making_any attempt to cultivate the land, his trespass was willful, and the United States can recover the value of the timber from a purchaser. <</p> <p>V=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. §§' 16-18; Dec. Dig. <®=>13.]</p> <p>4. Trial <©=>260(3)—Requested Instructions—Repetition oe Given Charge;</p> <p>Where the court bad charged the jury that, unless plaintiff established by a fair preponderance of the evidence that the defendant, and not another corporation, as claimed, bought the timber cut by a- willful trespasser, their verdict should be for defendant, it was not error to refuse a charge requested by defendant, to the same effect, but in different words, which included in addition the statement that it was not evidence to hold the defendant that its officers were also the officers of the other corporation.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 653; Dec. Dig. <©=> 260(3).]</p> <p><@=^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Corporations <@=3374—Powers—Name.</p> <p>Under Gen. St. Kan. 1909, § 1699, which provides, among other things, that the purposes for which private corporations may be formed are the conversion and disposal of agricultural products by means of mills and elevators, or otherwise, and section 1701, providing that the corporate name of every such corporation shall indicate the character of the business to be carried on by it, the adoption as a corporate name of “M. Mill & Elevator Co.” by a corporation whose charter stated that its purpose was, among other things, to buy, sell, and handle all kinds ofl grain, does not limit its business to the operation of a mill and elevator, so as to render unauthorized.contracts for the sale of wheat.</p> <p><g=»For other cases see same topic & KEY-NTJMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. <3=874,1</p> <p>2. Corporations @=425(4)—Powers oe.Agents—General Manager—Estoppel.</p> <p>Where the chief executive officer of a milling and elevator company alone transacted its business, the other officers and directors being farmers or bankers, and made contracts in its behalf with the acquiescence of the other directors, he was held out to third parties as general manager of the company and as authorized to make contracts, though he was never formally appointed as such, and the corporation is estopped to deny his authority.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 1700, 1701; Dec. Dig. @=425(4').]</p> <p>8. Trial @=253(6)—Requested Instructions—Applicability to Evidence.</p> <p>A requested instruction directing a verdict for defendant, which was predicated on unproven facts and ignored facts bearing on the vital issue of the case, was properly refused.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 618; Dec. Dig. @=253(6).]</p> <p>4. Trial @=260(1)—Requested Instructions—Repetition of Given Instruction.</p> <p>A requested instruction, which so far as it contained correct and applicable principles of law had been given in the main charge, was properly refused.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. @=260(1).]</p> <p><J=»For other cases see same topic & KBY-NUMÍ3BH in all Key-Numbered Digests & Indexes</p>

<p>1. Appeal and Error <@=836—Review—Conflicting Rulings by Different Judges.</p> <p>While the ruling by one District Judge on a question ought as a matter of comity and orderly judicial procedure to be followed by another District Judge sitting in the same case, the failure of the second judge to follow the prior ruling does not affect the power of the Circuit Court of Appeals to review the final judgment.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3247-3261; Dea Dig. <@=836.]</p> <p>2. Limitation of Actions <@=127(12)—Commencement of Action—Amended Petition—New Cause of Action.</p> <p>Where a bill to rescind a sale of land for fraud and to recover incidental damages was transferred io the law side of the court under equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv), because the plaintiff had put it out of his power to restore the vendor to his former position, an amended petition claiming damages for the fraud, if allowable, set up a new cause of action, and did not relate back to the filing of the original bill, so that it was barred by Rev. St. Neb. 1913, § 7569, where four years had elapsed after the discovery of the fraud before the filing of the amendment.</p> <p>[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. § 545; Dec. Dig. <@=127(12); Pleading, Cent. Dig. § 688.]</p> <p><©==>For other cases see saigj* pic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Habeas corpus by Sam Sylvester and another against Thomas W. Morgan, as Warden. From a judgment discharging the petitioners, respondent appeals.</p>

<p>1. Bankruptcy <§=>140(1)—Title op Trustee—Consignment to Factor-—Contract.</p> <p>A contract by which a corporation agreed to consign shoes to the bankrupt for sale by him. the bankrupt to pay the freight and storage charges, and to keep the shoes insured for the benefit of the consignor, and to account to the consignor for the not price fixed in invoices, which were to be attached to the contract, and permitting the bankrupt to sell the shoes at such price as would enable him to pay his commission and all expenses, but reserving title in the consignor, is a contract of factor-age, not of sale, which is valid, and not required by the laws of Kansas to be recorded.</p> <p>[Ed. Note.—For other cases, see, Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. <§=>110(1).]</p> <p>2. Bankruptcy <§=>110(1)—Title op Trustee—Consignment—Irregularities .</p> <p>That the parties to such contract conducted the business in relation thereto in an irregular manner did not avoid the contract, so long as no creditor of the bankrupt was thereby misled to his injury.</p> <p><j=oFor other eases seo same topic & KEY-NUMBBIt in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. <@=>140(1).]</p> <p>3. Bankruptcy <@=>140(1)—Title of Trustee—Consignment—Billing of Goods.</p> <p>The billing of the shoes by the consignor upon its ordinary blank forms, without reference to the contract, does not overcome the contract itself, and undisputed testimony that the shoes claimed were shipped under its terms, so as to establish a sale of the shoes to the bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. <@=>140(1).]</p> <p><a=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Bankruptcy ©=>303(1)—Claims—Preferences—Burden of Proof.</p> <p>In order to defeat, under Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 (Comp. St. 1913, § 9041), the claims of creditors who have received voidable preferences and have not surrendered them, the trustee in bankruptcy must prove, under sections 00a and 60b (section 9644), by a fair preponderance of the evidence, that the bankrupt was insolvent at the time the payments were made, that they enabled the creditors to receive a larger percentage of their respective debts than any other creditor of the same class, and that at the time each particular payment was made the creditors had reasonable grounds to believe that the enforcement of the payment would effect a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 458, 459; Dec. Dig. ©=5303(1-).]</p> <p>2. Bankruptcy ©=>303(3)—Claims—Preferences—Part Payments.</p> <p>Evidence hold not to show that creditors, who received from their debt- or, knowing him to be insolvent and during the four months preceding the filing of the petition in bankruptcy against him, payments, none of which exceeded 2% per cent, of the amount of their claims, and which totalled only 18 per cent, of their claims, while during the same period other creditors whose claims amounted to 30 per cent, of the insolvent’s indebtedness were paid in full, and there was sufficient in the hands of the trustee to pay 30 per cent, on the remaining debts, had reason to believe that they would result in a preference.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. ©=5303(3).]</p> <p>S. Bankruptcy ©=>466(1)—“Preference”—Statutes.</p> <p>Under Bankr. Act, § 60a, providing that a person shall be deemed to have given a preference if, being insolvent, he has within four months before tbe filing of tbe petition made a transfer of any of bis property, and the effect of the enforcement of such transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class, the phrase “will be” does not control the provision of section 60b that if a bankrupt shall have made a transfer of any of his property, and if at the time of the transfer he be insolvent and the transfer then operate as a preference, and the person receiving it or to be benefited thereby shall then have reasonable cause to believe that it would effect a preference, it shall be voidable, so as to make the time for determining whether the creditor had cause to believe that the payment operates as a preference the time of distribution, instead of the time of payment.</p> <p><g^s>For oilier cases see same topic & KEY-NUMBER in all Key-Numbered Digesls & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 250, 251; Dec. Dig. <®=»166(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Preference.]</p>

Amidon, Judge. Suit by the Weyman-Bruton Company against E. F. Fadd. From a decree denying the relief asked, and dismissing the bill, plaintiff appeals.

Ben Frankfurt was convicted of conspiracy to conceal the property of a bankrupt, and of concealing the property, and he brings error.

<p>1. Bankruptcy ©=3407(5)—Discharge—Grounds foe Refusal—“Materially False Statement.”</p> <p>A statement, to he materially false, so as to justify the refusal of a discharge to a bankrupt, under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550, as amended by Act Feb. 5, 1003, c. 487, § 4, 32 Stat. 797 (Comp. St. 19.13, § 9598), must be not .only false in fact in a material matter, but must have been with the intention to deceive.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 760, 761; Doc. Dig. ©=3407(5).</p> <p>For other definitions, see Words and Phrases, Second Series, Materially False Statement.]</p> <p>2. Bankruptcy ©=3467—Review—Findings.</p> <p>The finding of the lower court that a false statement made by the bankrupt as to his debts was not made with intention to deceive is presumptively correct, and must he sustained on appeal, unless an obvious error of law or serious mistake of fact appear, especially where both, the master and trial judge reached the same conclusion.</p> <p>[Ed. Note.—For other eases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. ©=3467.]</p> <p><£z=oFor other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes</p>

<p>1. Trial <@=>418—Demurrer to Evidence—Waiver.</p> <p>A demurrer to plaintiff’s evidence was waived by the introduction of evidence on the part of defendant.</p> <p>[Ed. Note.—For other eases, see Trial, Cent. Dig. § 981; Dec. Dig. <@=> 418.]</p> <p>2. Damages <@=> 158(1)—Evidence—Personal Injuries—Applicability to Pleadings.</p> <p>A petition alleging that plaintiff’s legs and the lower part of his body were mashed or crushed, and that he was injured internally, the exact nature and extent of which he could not more definitely state at that time, was sufficient, in the absence of a motion to make more specific, to authorize evidence that plaintiff was ruptured.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 441, 443, 444; Dec. Dig. <@=>158(1).]</p> <p>3. Appeal and Error <@=>263(1), 730(2)—Questions Reviewable—Exceptions —Assignment op Error—Instructions.</p> <p>Where the portion of the charge alleged to have been erroneous was not set out tofidem verbis, as required by rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), and no exception was taken to the charge as given, the judgment will not be reversed on an assignment of error to the charge. ■</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1520, 1522, 1523, 1525, 1529-1532, 3014, 3015; Dec. Dig. <@=>263(1), 730(2) .j</p> <p>4. Trial <@=>252(11)—Instructions—Applicability to Evidence.</p> <p>Where there was evidence that defendant promised to warn his servant whenever other servants were about to perform the work in connection with which plaintiff received his injuries, a requested charge that the plaintiff assumed all of the open, ordinary, and obvious risks of his employment was properly refused.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <@=> 252(11).]</p> <p>5. Master and Servant <@=>294(5)—Injuries to Servant—Duty op Master-Delegation.</p> <p>In an action by a servant for injuries caused by his master’s failure to use ordinary care to furnish a reasonably safe place for work, a requested charge on the negligence of fellow servants was properly refused, since that duty could not be delegated by the master.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1164; Dec. Dig. <@=>294(5).]</p> <p>6. Appeal and Error <@=>974(1)—Trial <@=>349(2)—Review—Discretion op Lower Court—Special Questions to Jury.</p> <p>The submission of special questions or findings of fact to the jury in a personal injury action is discretionary on the part of the trial court, and error cannot be assigned thereon.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3858; Dec. Dig. <@=>974(1); Trial, Cent. Dig. § 824; Dec. Dig. <@=>349(2).]</p> <p>@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Appeal and Ekrob <@=>733—Questions Reviewable—Assignment op Error.</p> <p>In an action for personal injuries, where the verdict was for plaintiff, an assignment that the court erred in refusing to render judgment for defendant, instead of plaintiff, presents nothing for review.</p> <p>LBd. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. <@=>733.]</p> <p>8. Appeal and Error <@=>688(1)—Questions Presented—Motion fob New Trial.</p> <p>An assignment of error relating to remarks of the trial court, which remarks do not appear in the hill of exceptions, but only in the motion for new trial, cannot be considered.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2894, 2895; Dec. Dig. <@=>688(1).]</p> <p>9. Appeal and Error <@=>977(1)—Questions Review able—Motion foe New Trial.</p> <p>The ruling of the trial court on a motion for a new trial is not reviewable in the Circuit Court of Appeals.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. § 3860; Dec. Dig. <©=>977(1).]</p> <p><©c»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Petition to Revise Order of the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge. In the matter of Julius Tuxhorn, bankrupt. Petition of the Hart-Parr Company, a corporation, against Adam Barkley and another, to revise an order of the District Court denying petitioner’s application to vacate the adjudication.

<p>In Error to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Ejectment by Albert N. Damon and others against John Sullivan.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>In the matter of the Young Commission Company, bankrupt. From an order denying a petition by the Barton Dumber & Brick Company against W. W. Prewitt, as trustee in bankruptcy, to recover the value of materials furnished the bankrupt, the petitioner appeals.</p>

<p>1. Compbomise and Settlement <@=23(3)—Cancellation—Evidence—-Fbatjd —Mistake.</p> <p>In a suit to cancel a contract for tho settlement of personal injuries to a passenger, evidence helA not clear, unequivocal, and certain that the contract was procured by fraud or mistake, and therefore not to justify setting it aside.</p> <p>fE'd. Note.—For other cases, see Compromise and Settlement, Cent. Dig. § 94; Dec. Dig. <©=»23(3).]</p> <p>2. Appeal and Ebbok <@=>1009(1)—Review—Findings op E’aot—Equitable Suit.</p> <p>Tile conclusion of the lower court in a snit to cancel a contract of settlement for fraud or mistake, based on oral testimony and depositions, is presumptively correct, and should bo followed on appeal, unless an obvious error is found in the application of the law, or a, serious and important mistake in the consideration of the proofs.</p> <p>PM. Note.-—For other cases, see Appeal and Error, Cent. Dig. §§ 3970, 3978; Dec. Dig. <©=>1009(1).]</p> <p><g=>Por other cases see same topic & KEY-NUMBEK. In all Key-Numbered Digests & Indexes</p>

<p>1. Post Office <@=>42—Offenses—Tampering with Maid—“Lbtteb Intends» to he Conveyed by Mail."</p> <p>Decoy letters addressed to fictitious persons, which were placed in the mails by post office inspectors, so as to be carried over the route of a suspected railway mail clerk, and intended to be removed from the mails at the end of his route without being carried to the place of address, are letters intended to be conveyed by mail, within Penal Code (Act March 4, 1909, c. 321) § 195, 35 Stat. 1125 (Comp. St. 1913, § 10365), making it punishable for an employe in the postal service to detain, delay, or open any “letter intended to be conveyed by mail.”</p> <p>■<@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Post Office, Cent. Dig. § 61; Dec. Dig. @=>42.]</p> <p>2. Indictment and Information <@=>110(3)—Tampering- with Mail.</p> <p>An indictment against a railway mail clerk, which charged in separate counts the offenses of detaining and delaying, secreting, embezzling, and destroying, and selling, abstracting, and removing the contents of letters placed in the mails, in the language of the statute, and specifically describing the letters, is sufficient.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 291-294; Dec. Dig. <@=>110(3).]</p> <p><@ss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *</p>

<p>1. Master and Servant <@=>300—Torts op Servant—Liability op Master.</p> <p>A master is liable for the torts of his servant, committed in the course of his employment and within its scope.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig. <@=>300.]</p> <p>2'. Master and Servant <@=>332(2)—Master's Liability to Third Persons— Evidence—Scope op Employment—Assault and Battery.</p> <p>In an action for assault and battery, committed by defendant’s general manager after he had rightfully ejected plaintiff from defendant’s telephone booth, using no more force than necessary, evidence held sufficient to take to the jury the question whether the subsequent assault, following almost immediately thereafter, was a continuance of the first assault, so as to render the defendant liable, or was a mere personal quarrel, having no relation to the duties of the general manager.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1275; Dec. Dig. <@=>332(2).]</p> <p><®s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p> <p>Proceeding by the United States against Oscar Ernst Moritz Salomon to cancel a certificate of citizenship. From a decree dismissing the proceedings (231 Fed. 461), the United States appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit by Andrew Reed against Edwin A. Welty to quiet title. Decree for complainant, and defendant appeals.</p>

Petition to Revise and Superintend Proceedings of the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge. In the matter of Jones Bros. & Co., bankrupt. ■ On petition by the Southern Railway Company against D. P. Wilder, trustee, to revise an order denying the petitioner the preference claimed by it.

<p>Appeal from, the District Court of the United States for the Eastern District.of Louisiana; Rufus E. .Foster, Judge.</p> <p>Suit by A. C. Wuerpel and others, as trustees of the Smith Bros. Company, Limited, bankrupt, against the Canal-Louisiana Bank & Trust Company and others. From a decree dismissing complainants’ claim for a part of the demand set forth in the bill, complainants appeal.</p>

Suit by John J. Hillman and others against the New York State Steel Company, of which Alfred E. Becker and another were appointed receivers. From an .order of the District Judge awarding to M. A. Hanna & Co. the proceeds of certain ore sold by the receivers, the receivers appeal.

<p>1. Public Lands <@=338—Disposal by United States—Conditions—Validity.</p> <p>The government had the right to impose as a condition of the purchase of its timber and stone lands that the Intending purchaser should, at the time he made his application, have the intention to appropriate the land to his own use and benefit; and it did impose such condition by Comp. St. 1913, § 4672, providing that the applicant to purchase such lands shall make a verified written statement thal he does not apply to purchase the same on speculation, but in good faith to appropriate to his own exclusive use and benefit, and that, if any person shall swear falsely in the premises, he shall forfeit the money paid for the lands and all right thereto.</p> <p>[Ed. Note.—For other cases, see Public Lands, Cent. Dig. § 82; Dec. Dig. <@=>38.]</p> <p>2. Public Lands <@=338—Disposal by United States—Timber and Ston;e Lands—Speculative Purpose.</p> <p>A purchase of timber and stone lands, made with no intention on the part of the purchaser to himself use the land, or any of it, or to hold it any longer than may be required to realize an expected or hoped-for profit from resale, is a purchase for speculation, contrary to Comp. St. 1913, § 4672, and entitles the government to have canceled the patent and the deed 'given by the patentee.</p> <p>[Ed. Note.—For other eases, see Public Lands, Cent. Dig. § 82; Dec. Dig. <@=338.]</p> <p><@cs>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Charles P. Orr, Judge.</p> <p>Suit in equity by Cornelia E. Clement against Mary Ann Whittaker, executrix, and others. Decree for defendants, and complainant appeals.</p>

Appeals from the District Court of the United States for the Southern District of New York. Suits in admiralty for collision by the Erie Railroad Company and' by Jerry Petrie, wherein the Erie Railroad Company was impleaded,, against the steamship Allemania; the Hamburg-American Dine, claimant. Decree for the Erie Railroad Company for half damages, and in favor of Petrie against both the steamship and the Railroad Company, which appeal.

Suit in admiralty by Patrick C. O’Rourke, owner of the canal boat Grace, against Gardner Pattison and others. Decree for respondents, and libelant-appeals.

Bankruptcy proceeding against the Lewis Publishing Company. From an order of the District Court, affirming an order of the referee in bankruptcy, allowing Claud D. Hall and S. H. King a fee jointly for their services as attorneys for petitioning creditors, said Hall appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>In the matter of Louis Arkin and J. Lionel Guild, individually and as copartners composing the firm of Arkin & Guild, bankrupts. P'rom an order of the District Court, reversing an order of the referee which directed the surrender of a policy of life insurance upon the life of one of the bankrupts, Harry A. Goidel, as trustee in bankruptcy, appeals.</p> <p>On appeal by the trustee in bankruptcy from an order of the District Court for the Southern District of New York which reversed an order of the referee which directed the surrender of a policy of insurance isstxed by the Metropolitan Life Insurance Company upon the life of the bankrupt Guild.</p>

<p>Appeal from the District Court of the United States for the Northern District of New York.</p> <p>Proceeding by the United States against Chin Sing Quon for deportation as a Chinese person not entitled to remain in the United States. From an order for deportation (224 Fed. 752), defendant appeals.</p>

<p>1. Aliens <3=>.'il—Deportation op Chinese—Entering Country.</p> <p>A Chinese person, apprehended while in a rowboat on the American side of the Niagara river, admittedly attempting to land contrary to law, has already entered the country, and may be deported.</p> <p>[Ed. Note.—For other eases, see Aliens, Dec. Dig. &~>31.]</p> <p>2. Aliens <®=»32(10)—Deportation of Chinese—Country of Return.</p> <p>One who was bom in China, and came directly from there to Canada, whence he attempted to cross into the United States, can be deported to China.</p> <p>1 Ed. Note.—For other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. 32(30).]</p> <p><©=»For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Clarke, Judge. Suit in equity by the Kardo Company, substituted for the American Ball Bearing Company, against Henry J. Adams, dealing as Reo Motor Sales Company. From a decree dismissing the bill, complainant appeals.

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Suit in equity by Edwin P. Hutten and Karl A. Zimmerman, known as E. P. Hutten & Co., against the Frank Krementz Company. Decree for defendant, and complainants appeal.</p> <p>The following is the opinion of Haight, District Judge, on final hearing:</p> <p>Patent No. 1,016,153, upon which this suit is based, was issued to Edwin P. Hutten and John McDougall January 30, 1912, on an application filed May 18, 1911, and was subsequently assigned to the plaintiffs. It relates to a form of folding eyeglasses, the distinctive feature of which is an “offset” or “an-, guiar” nose guard or clip. Infringement is not denied, but the validity of the patent is challenged. In support of this defense it is urged by the defendant that the eyeglasses of the patent were “on sale” for more than two years prior to the application for the patent. The patentees were employe's of Geoffroy & Co., who were manufacturing jewelers in New York City. There is no doubt that some of these glasses were sold by Geoffroy & Co. as early as May 22, 1909. This, however, was not two years prior to the application for the patent. But the defendant contends that at least one pair were sold on May 14, 1909. The only evidence to support this contention is a memorandum made on a bill head or order blank of Geoffroy & Co. and dated May 14, 1909. It contains this statement, viz.: “Deliver the article specified, for inspection of Mr. Paul A. Meyrowitz and with the express understanding that the value thereof or the goods are to be returned upon demand.” Then follows a specification of the article, as follows: “One gold Oxford offset guards—left to show.” This, as well as the date and name “Paul A. Meyrowitz,” is admittedly in the handwriting of the patentee, Ilutten. The other parts of the memorandum, except as hereinafter noted, are printed. Hutten professes to have no recollection of this transaction other than that he identifies his handwriting. No other witness was called to explain it.</p> <p>It is quite true, as the plaintiff contends, that the memorandum does not show that the glasses there referred to were of the folding type; but, without attempting to review the evidence, I think it is clearly demonstrated that they were of such type and were those covered by the patent. The only evidence, however, to show that they were sold either absolutely or conditionally is that supplied hy- the memorandum. Geoffroy & Co. had teen manufacturing and selling what was known as a “straight guard folding Oxford” eyeglass, for about two years previously. Meyrowitz, among other customers, had suggested to Hutten, the salesman Of the company, that there would be a more extensive demand for and sale of these folding Oxfords if they could be supplied with “offset” guards or nose clips, instead of the “straight” guards. Hutten and McDougall had thereupon, and shortly before the date of the memorandum, set to work to make this change, and devised the glasses of the patent. A sample was completed a few days before the 14th of May, 1909. Shortly after this date a number of these glasses were sold and delivered to Meyrowitz. and others. These facts, taken in connection with the additional fact that no price was named in the memorandum, and that the glasses were subsequently returned to Geoffroy & Co., and the words “left to show” on the memorandum, lead me to the conclusion that these glasses were merely left with Meyrowitz as a sample, so that he might examine them, and, if found .satisfactory, Geoffroy & Co. might secure orders from him for that kind of glasses. Thus they were not sold to Meyrowitz, nor left with him to sell for Geoffroy & Co., nor were they offered to him for sale; no title ever passed, either absolutely or conditionally; and there is nothing to show that they were left with Meyrowitz to buy if he approved of them. He did not subsequently buy them but returned them. Under these circumstances this pair of glasses were not, within the meaning of the statute, “on sale.” Mershon & Company v. Bay City Box & Lumber Company (C. C.) 189 Fed. 741; National Cash Register Company v. American Cash Register Company, 178 Fed. 80, 101 C. C. A. 569; Covert v. Covert (C. C.) 106 Fed. 183; Craig v. Michigan Lubricator Company, 72 Fed. 173; Campbell v. New York (C. C.) 36 Fed. 260. The defendant having failed to show that the patented eyeglasses were “on sale” earlier than two years before the patent was applied for, the defense based on this ground fails.</p> <p>But it is further contended by the defendant that, in ,view of the prior art, the plaintiff’s patent does not involve invention. Broadly stated, the invention is claimed to consist in applying to a folding eyeglass “offset” or “angular” nose guards or clips and so arranged as to permit of folding one lens over the other without hindrance by the projecting clips, and without unduly straining the spring connecting the lens frames with each other. The patent contains four claims, none of which define the shape of the lenses, although in the drawings they are shown as circular. The “offset” guard, in one form or another, is an element of each claim. The first three claims do not contain as an element, or mention the means by which the lenses are to be held in folded position, but the fourth claim does, viz., “a handle on each of the lens frames and having a guideway for receiving the other lens frame, and a spring catch on the said handle for engagement with tbie entering lens frame to lock the lens frames in folded position.” Each of the claims called for “posts” on the lens frames, on which the nose guards are fastened. In the first claim the guards are designated as “on said posts” and in the others as “integral on said posts.” In claim 2 the “terminals of the nose clips” are stated as “being free of the lens frames and projecting inwardly.” In claim 3 this feature is stated thus: “The inner edges of the nose clips being inclined and the lower terminals of the clips being adjacent to the lens frames.” It'is not disputed that as early as the spring of 1907, Geoffroy & Go. were manufacturing and selling an eyeglass embodying all of the elements of all of the claims of the patent, with the exception of those relating to the “offset” guards. They were fitted with what is known as a “straight” nose guard; that is, one located in the same plane as the lens. But even in these the edges of the guards protruded slightly beyond the sides of the lens frames. Long before the patent in suit was applied for, many forms of eyeglasses having ‘'‘offset” nose guards and which could be folded were on the market, and were shown in patents both domestic and foreign. In none of these, however, was there the guideway of claim 4, but the familiar hook and post was used to retain , them in folded position. In all but two the spring connecting the lenses was not pivotally connected with the lens frame, as called for in each of the claims of the patent in suit. This latter feature appears in tlie Dorn patent of 1868 and in the eyeglasses illustrated in the French catalogue of the “Société des Runetiers,” published in 1887.</p> <p>It had for years been the custom of opticians to change the type, shape, and position of nose guards on glasses to suit purchasers, and very frequently “offset” nose gxtards were attached to the folding eyeglasses of the prior ait. The latter, however, do not appear, so far as the evidence shows, to have been attached to the GeofCroy folding Oxfords of the 1907 type; but at least one optician did, on several occasions, bend the “straight” guards of these glasses into “offset” position, so as to fit the nose of customers, without interfering with the folding and automatic opening of the glasses. The type or shape of the “offset” guards shown in the patent wore also old in the art. Glasses made in accordance with those shown as Figure 55 on page 54 of tiie English edition of the French catalogue were sold and used in this country between 1887 and 1909 quite extensively. On some of these the nose guards were “offset.” They were designed to fold and were held in folded position by the usual hook and pin. The “offset” guards on these did not have posts separate and distinct from the guards, but a loop was made in the upper part of the guards, the end of which was fastened to the upper part of the lens frame, and the lower end was, without any loop, fastened to the lower part of the lens frame, in the same manner as on one style of glasses manufactured by the plaintiffs under their patent. The inner edges of the nose guards were inclined. It thus appears that “offset” guards on folding eyeglasses with pivotally connected springs were not now when the patent in suit was applied for. The loop of the French glass might readily bo said to be the post of the patent; but, assuming that it is not, the question at once arises whether it constituted invention to substitute posts for the means by which the guards of the French glasses were fastened to the lens frames, or to use a guard, the terminals of which were free of the lens frame, instead of one whose terminals were fastened to the lens frame. I cannot conclude that it did. I think that it falls within the well-settled rule that it was at the best merely the substitution of an equivalent. It therefore follows that there is no invention in the combinations of claims 1, 2 and 3.</p> <p>The remaining question is whether the combining of these elements with the guideway of claim 4 involves invention. As before stated, all of the elements of claim 4 wi1h the exception of the “offset” nose guards were present in the eyeglass made and sold by GeofCroy & Co. as early as the spring of 1907. As “offset” guards on folding eyeglasses with pivotally connected springs were old, it required, in order to apply the “offset” guards to the GeofCroy glass of 1907, merely an adjustment of the location and shape of the guards. The evidence, I think, demonstrates quite conclusively (without referring to the opinions expressed by witnesses as to whether they could have done it if they had been called upon) that this was within the skill of any ordinary optician. No new idea was involved. In fact, the suggestion that such a change in the 1907 glasses would be advisable-was not original with the patentees. I appreciate that courts have in many cases decided that slight variations from the prior art constituted invention, hut I think the improvements of this patent fall within that class of cases discussed in Mr. Justice Bradley’s classic opinion in Atlantic Works v. Brady, 107 U. S., 192 at 199, 2 Sup. Ct. 225, 27 L. Ed. 438, et seq. It follows, therefore, that all of the claims of the patent are void lor want of invention, and that the hill must accordingly be dismissed.</p> <p>One other matter requires mention. The plaintiff has moved to strike out the evidence given- by witnesses who were examined in Southbridge, Mass., and Chicago, Ill. This motion seems to be based upon the ground that it was assumed by counsel before these witnesses were examined that they would testify regarding the prior use, knowledge and sale of the patented eyeglasses by two optical companies, located respectively at Southbridge and Chicago. Their testimony actually related to the prior state of the art and the practice of opticians in changing and adjusting nose guards. The testimony in Chicago was taken pursuant to section 863 of the Revised Statutes (Comp. St. 3913, § 1472), and the testimony in Southbridge pursuant to an order of this court which did not limit the character of the testimony. I know of no principle that would make the testimony, if otherwise relevant and material, incompetent because counsel misapprehended the purpose for which the witnesses were to be sworn. As above shown, the decisive question in the case was whether the patent involved invention. This necessitated the ascertainment of the prior state of the art and evidence tending to show it was of course admissible. The defense of want of invention, including the right to introduce evidence of the prior art is always open and it is not necessary to set it up in the answer. Dunbar v. Myers, 94 U. S. 187, 198, 24 L. Ed. 34; Slawson v. Railway Company, 107 U. S. 649, 2 Sup. Ct. 663, 27 L. Ed. 576; Eachus v. Broomall, 115 U. S. 429, 6 Sup. Ct. 229, 29 L. Ed. 419; Baldwin v. Kresl, 76 Fed. 823, 22 C. C. A. 593 (C. C. A. 7th Cir.).</p>

<p>Patents <§=>328—Invention—Carbureter.</p> <p>The Parkin patents, No. 968,597, for a carbureter, and No. 1,082,762, for an» improvement thereon, held void for lack of invention, in view of the prior art.</p> <p>•@£5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in equity by the Automatic Recording Safe Company against the Burns Company. From the decree (224 Fed. 513), complainant appeals. This cause comes here upon appeal from a decree of the District Court, Southern District of New York. Several patents were involved, but the only questions argued before us are concerned with the patent to Charles Fisher, No. 793,779, issued July 4, 1905, for a savings bank.

<p>1. Patents <©=>328—Validity—Gearing for Washing -Machine.</p> <p>The Phillips patent, No. 950,402, for a gearing device especially adapted to the operation by power of washing machines and wringers, by means of which the washing parts of the wringer may, when desired, be operated at the same time by the same power shaft, MM void as merely1 an aggregation of old elements.</p> <p>2. Patents @=>26(1)—“Invention”—Combination of Old Elements.</p> <p>It is not “invention” to combine old devices into a new machine or manufacture, without producing any new mode of operation.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. @=>26(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Invention.]</p> <p>3. Patents @=>26(1)—Invention—Combination or Aggregation.</p> <p>To constitute a patentable combination, it is essential that there should be some joint operation performed by its elements producing a result due to their joint and co-operating action.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. @=>26(1).]</p> <p><@=>For other .cases see same topic & KBY-NOMBER in all Key-Numbered Digests & Indexes</p>

G. Haight, Judge. Suit in equity by Robert F. Rice (Walter Ottel, as administrator, substituted) against the Palisades Realty & Amusement Company and another. Decree for defendants, and complainant appeals.

In Equity. Suit by Gustav C. Gennert against Burke & James, Incorporated. On motion by the defendant to compel the plaintiff to answer certain interrogatories, which would require plaintiff to state what elements in the defendant’s machine he asserts correspond with the several elements in the claim sued on.

<p>In Equity. Suit by William Crawford, as trustee, against the New South Farm & Home Company. On master’s request for instructions.</p>

In Bankruptcy. In the matter of Joseph J. Price, bankrupt. On, motion of the Wyoming Apartment Company to dismiss the voluntary petition in bankruptcy for lack of jurisdiction. In this case the bankrupt is a traveling salesman for one Glass, of White stroet, in the city of New York. His only compensation consists of commission on sales, which average about §700 a year. The territory in which he does business is throughout the United States.

<p>Maeitime Liens <@=>37—Peioeity—Forty-Day Habboe Rule.</p> <p>The 40-day rule regulating priority of liens'on tugs and other vessels engaged in harbor navigation, even though extended backward in 40-day periods, will not be applied to give priority between claims all of which are so old that the rule of reasonable diligence and laches controls.</p> <p>[Ed. Note.—For other cases, see Maritime Liens, Cent. Dig. §§ 58-70; Dec. Dig. <@=>37.]</p> <p>@=:>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the American Steel Foundries against the Chicago, Rock Island & Pacific Railway Company. On petition of Frances F. Hidden and another for a modification of the order previously entered appointing an ancillary receiver.

<p>1. Injunction @=>98(2)—Subjects of Protection—Injunction Against Li- , BEL.</p> <p>Equity will not restrain by injunction the publication in the public press of a libel, even though its effect will be to injure complainant ■ in reputation, property, or business.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 170; Dec. Dig. @=>98(2).]</p> <p>2. Injunction @=>118(4)—Subjects of Protection—Injunction Against Libel.</p> <p>Allegations in a bill that libelous charges made by defendant in his newspaper against customers of complainant who have signed testimonials to the merit of the article he sells will prevent other customers from giving like testimonials, and thus injure complainant’s business, and that a judgment against defendant could not be collected, do not warrant the granting of an injunction by a court of equity.</p> <p><@=»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 236-288; Dec. Dig. @=118(4).]</p> <p>3. Jury @=12(1). 21(1)—Libel and Slander <3=68—Form of Remedy—Right to Jury Trial.</p> <p>Tinder the Constitution of the United States the only remedy of one injured by a libelous publication is by criminal prosecution or an action at law, in which the defendant is entitled to a trial by jury.</p> <p>[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 27, 28, 34, 82, 99, 101. 103, 134, 136, 137, 141; Dec. Dig. <3=12(1), 21(1); Libel and Slander, Cent. Dig. §§ 169, 170; Dee. Dig. @=6S.J</p> <p>4. Equity <@=46—Jurisdiction—Adequate Remedy at Law—“Irreparable Injury.”</p> <p>The more fact that a defendant cannot be compelled to pay a judgment at law cannot make the plaintiff’s remedy there inadequate, or his injury irreparable, in such sense as to give a federal court of equity jurisdiction.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 151, 152, 157, 159-163; Dec. Dig. <@=46.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Irreparable Injury.]</p> <p>5. Libel and Slander @=48(1)—Privilluk—Comments on Proprietary Medicines.</p> <p>It is within Hie rights of the publisher of a newspaper to question the eiiicacy of a proprietary medicine offered to the public, and to advise the public" against it, within the limits of the law, which prescribes penalties, civil and criminal, for libelous publications.</p> <p>[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 144, 147; Dec. Dig. <S=48(1).]</p> <p><£s»For other cases see same topic & KEY-NUMBEK in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. Beaumont, Smith & Harris and Donnelly, Lyster.</p>

<p>Cross-Appeals from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>

Trespass to try title between J. II. Herndon and others and T. S. Sloan and others. From a judgment for Sloan and others, Herndon and others bring error.

<p>In Error to the District Court of the United States for the District of New Jersey; William H. Hunt, Judge.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p>

<p>In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.</p>

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

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

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge.</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge. Action by the United States against Benjamin H. Williams and another to vacate a patent for land. Decree for the defendants, and the 'United States appeals.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>