Volume 232 — Federal Reporter

<p>In Error to the District Court of the United States for the Southern District of Ohio; John E. Safer, Judge.</p> <p>Action by the Champion Fibre Company against the B. F. Sturtevant Company to recover damages for breach of warranty.. Judgment for' plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of South Carolina, at Greenville; Henry A. Middleton Smith, Judge.</p> <p>Suit by E. G. Steele and others against the Highland Park Manufacturing Company. From a decree in favor of plaintiffs (212 Fed. 972) defendant appeals.</p>

<p>1. Conspiracy <@=>22 — Judgment—Pleading—-Surplusage—Allegations as to Conspiracy.</p> <p>An averment that acts, were done in pursuance of a conspiracy does not change the nature of a civil action, or add anything to its legal force and effect; and if the conspiracy is not made out, the allegation may be disregarded as surplusage, and damages recovered against such of the defendants as are shown to be guilty of the tort without such agreement.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 24; Dec. Dig. ©=>22.]</p> <p>2. Conspiracy ©=>24 — Criminal Prosecutions — Elements ow Offense.</p> <p>In a criminal prosecution for conspiracy, the unlawful combination and confederacy, rather than the overt acts done in pursuance of it, constitute the essential element of the offense.</p> <p>[ICd. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 33, 31; Dec. Dig. ©=>24.</p> <p>For other definitions, see Words and Phrases, First,and Second Series, Conspiracy.]</p> <p>3. Appeal and Error ©=>1029 — Harmless Error — Theory of Case.</p> <p>In an action by the receiver of a corporation against its directors for an accounting and damages, on the theory that they conspired to sell’property to the corporation, which they owned and in which they had an interest, at an excessive price, it was immaterial, if time, that the trial judge misconceived the nature of the action, and erroneously took the position that proof of the alleged conspiracy was necessary, where the court not only found that there was no conspiracy, but also found that there was no fraud, and no intent to inflict; a wrong, or to get an undue or Illegal profit, as its conclusions expressly negatived the facts npon which complainant would have had. to rely to sustain a judgment in his favor under a correct understanding of the true nature of the action.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4035, 4036; Dec. Dig. ©=1029.]</p> <p>4. Corporations ©=317(6) — Liability of Directors — Persons Entitled to Enforce Liability.</p> <p>The general creditors of a corporation have as much right as stockholders or mortgage bondholders to be protected against the fraud and negligence of the directors, and have a right through a receiver to compel the directors to make good any loss resulting from the corporation’s purchase of valueless parcels of real estate, if occasioned by the fraud or negligence of the directors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§' 1413, 1414; Dee. Dig. ©=317(6).]</p> <p>5. Corporations ©=316(1) — Directors—Personal Transactions with Corporation.</p> <p>While, strictly speaking, the directors of a corporation are not trustees, they are the agents of the corporation, and because of this fiduciary relationship the dealings of a director in his own right with the corporation are regarded with great jealousy and subjected to close scrutiny.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1405, 1406, 1409; Dec. Dig. ©=316(1).]</p> <p>6. Corporations ©=314(1) — Directors—Personal Transactions with Corporation.</p> <p>The position of directors of a corporation which had only five directors was one of great trust, and their character as agents did not permit them to exercise their powers against the interests of the corporation, its stockholders, or creditors, and they were bound to exercise good faith, and not to permit their official conduct to be swayed by their private interest, and they could not derive any individual advantage at the expense of the corporation and" to the injury of its interests.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1393-1395; Dec. Dig. ©=314(1).]</p> <p>7. Corporations ©=316(1) — Directors—Personal Transactions with Corporation.</p> <p>A director is not disabled from selling his own property to his corporation, provided there are enough directors present who have no personal interest in the property, and the sale is open, fair, and honest.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1491, 1402, 1405, 1406, 1409; Dec. Dig. ©=316(1).]</p> <p>8. Corporations ©=316(1) — Directors—Personal Transactions with Corporation.</p> <p>If a director’s sale of his own property to his corporation is not open, fair, and honest, the transaction can be set aside, and the director called upon to make good any loss inflicted upon the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1405, 1406, 1409; Dec. Dig. ©=316(1).]</p> <p>9. Corporations ©=320(11) — Directors—Actions for Fraud or Negligence —Sufficiency of Evidence.</p> <p>In an action against directors of a corporation for an accounting and damages, evidence' held, insufficient to show that the price at which real estate owned by one of them and other real estate in which others of them had a beneficial interest was sold to the corporation was grossly excessive, or that they acted fraudulently or negligently, notwithstanding a large difference between the income which the sellers were obtaining from such property and tho interest on bonds of the corporation delivered in payment for the property.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1437; Dec. Dig. ©=>320(11).]</p> <p>10. CORPORATIONS ©=>316(1)-DIRECTORS — PERSONAL TRANSACTIONS WITH CORPORATION.</p> <p>Directors of a corporation, when dealing with themselves, must be scrupulous to see that they do not involve the corporation in a transaction unfair or not advantageous to it, and are bound to look out for the interests of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1405, 1408, 1409; Dec. Dig. ©=>316(1).]</p> <p>11. Corporations ©=>320(11) — Directors—Dealings with Corporation — • Burden op Proof.</p> <p>The burden is on directors of a corporation, dealing with themselves, to show that the transaction was perfectly fair to tho corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1437; Dec. Dig. ©=>320(11).J</p>

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller, Judge.</p> <p>Bill by the United Thacker Coal Company, a corporation, against the Red Jacket, Jr., Coal Company, a corporation, and others. From decree for defendants, complainant appeals.</p> <p>This is an appeal from a decree of the District Court of the United States for the Southern District of West Virginia, entered on the 6th day of February, 1915, in a suit in equity in which the United Thacker Coal Company, a corporation, was complainant, and the Bed Jacket, Jr., Coal. Company, a corporation, and Richard Torpin, George Wharton Pepper, and Bichard H. Harte were defendants-. The appellant will hereinafter be referred to as complainant, and the appellees as defendants, such being the respective ‘positions occupied by the parties in the court below.</p> <p>The complainant, being in the actual possession of the tract of land which it claims, filed its bill to quiet its title against the claims of the trustees and their lessee, the Bed Jacket, Jr., Coal Company, to any part of the tract. The bill avers that it is seised in fee simple and in the actual possession of the land in question. It states the grant of the same to the plaintiff by the state of West Virginia; avers that the trustees are claiming to own in fee simple a large part of said tract, containing by estimation about 250 acres; xstates that the claim of the trustees is derived under the grant of 440% acres to J. D. Sargeant, and that they claim said tract interlocks with said 382%-acre tract; sets out the said mining lease of January 1, 1909, from the trustees to the Bed Jacket, Jr., Coal Company, and avers said lessee claims the right under said lease to enter upon and mine the coal in said interlock; states that the trustees caused to be made what they claim to be a survey of said 440%-acre tract in such manner as to embrace about 250 acres of said 382%-acre tract, and caused to be marked the lines of such purported stiP^ey by painting trees alqng the same; avers that there is in fact no interlock between said 440% acres and said 382%-acre tract; avers that the claims made by the defendants of the existence of said interlock, their survey of such an interlock by painting the trees on the ground, and their claim of title by the execution of said mining lease have cast a cloud upon the title of the plaintiff; and avers that said land is valuable alone for its coal and timber. The prayer of the bill is that the plaintiff be decreed to have title to its said tract of 382% acres and be quieted in the possession thereof.</p> <p>The trustees and the Bed Jacket, Jr., Goal Company united in the answer filed to the bill. In paragraph 5 of the answer., a motion is made to dismiss the bill for want of jurisdiction, and in paragraph 6 an alternative motion was made to transfer the cause to the law side of the court, if the motion to dismiss should be overruled. The defendants filed their joint and several answer, wherein they admitted the pendency of the suit" of the state of West Virginia against the unknown heirs of John Green et al., the decree of sale therein on the 23d day of February, 1912, the sale thereunder and the purchase of the land in question by the complainant, the confirmation thereof by decree of April 20, 1912, and the conveyance pursuant thereto by S. B. Robertson, commissioner, to the complainant, but denied that the state of West Virginia had any authority, power, or jurisdiction to sell said land so claimed by the complainant, because she had at a former date and in a like proceeding parted with all her right, title, and interest therein to one J. D. Sargeant, from and through whom the trustee defendants had acquired title thereto, and were still the owners thereof.</p> <p>The owner alleged that on the 3d day of July, 1888, in a certain proceeding then pending in the circuit court of Logan county (of' which Mingo county was then a part), having for its object the sale of certain lands for the benefit of the school fund, a decree was entered directing the commissioner of school lands to sell a tract of 110% acres of land situate on Mate and Pigeon creeks; that, pursuant to said decree of sale, one L. D. Chambers, then the commissioner of school lands for Logan county, on the 2d of October, 1888, sold said land, and J. I>. Sargeant became the purchaser thereof; that afterwards— that is to say, on the 3d day of October, 1888 — a decree was entered in said cause confirming the sale so made to J. D. Sargeant, and directing the commissioner of school lands to execute to Sargeant a deed therefor by metes and bounds, conveying all the right, title, and interest of the state In and to said tract of land; that subsequently, and pursuant to said decree of confirmation, the said L. D. Chambers, commissioner of school lands as aforesaid, did, on the fith day of October, 1888, grant said land by metes and bounds unto the said J. 11. Sargeant by deed regularly executed, delivered, and recorded, and that the said Sargeant subsequently conveyed said land to Richard Tor-pin et al., trustees, which said trustees, by subsequent conveyances, transferred to tho present trustees, who are now vested with the title to said land and are the owners thereof; and that they were the owners of said land at the time of the decree of sale entered on the 23d day of February, ,11)12, in the suit of the state of West Virginia against the unknown heirs of John Green et al., as well as on the 20th day of April, 1912, when the decree of confirmation was entered in said siiit, and also upon the 2d day of May, 1912, when S. 1?. Robertson, commissioner of school lands, conveyed said 382%-aere tract unto the plaintiff.</p> <p>The owner further alleged that the complainant, the United Thacker Coal Company, which purchased finder the decree of February 23, 1912, its agent; and attorney, Edward C. Lyon, the special commissioner making the sale, and the commissioner of school lands, S. B. Robertson, who conveyed the same unto the complainant, one anil all knew that the state of West Virginia had theretofore sold said land, andl that the same, or so much thereof as conflicted or interlocked with the land now claimed by the complainant, had been regularly conveyed by L. D. Chambers, commissioner of school lands of the county of Logan, unto the said Sargeant, and that the title so vested in him had been transferred to the trustee defendants in this cause, and notice of said prior sale and the present ownership of the land in question was given by the trustee defendants to the said court commissioner, the commissioner of school lands, the United Thacker Coal Company, and its agents, on the day of sale under the decree of February 23, 1912, and before said sale was made, and that the United Thacker Coal Company purchased said land with full knowledge of the claim and ownership of the defendant trustees.</p> <p>The defendants further answered that they had entered upon said lands and caused the same to be surveyed, and had leased the same to their code-fendant, the Red Jacket, Jr., Coal Company, and that they had leased the same to said company in conjunction with another and adjoining tract of land, upon which the Red Jacket, Jr., Coal Company had already entered and was mining coal, and that said Red Jacket, Jr., Coal Company, by virtue of said lease, has the right to mine and remove all the coal from, the land in controversy.</p> <p>A general replication was entered, and evidence, both oral and documentary, was introduced. The regularity of tho proceedings by the state in both cases leading to the school land commissioner’s deed, in the one case to tho complainant, and in tile other to the defendants, was admitted, and tho location of the tract of land claimed by the defendants and described in the deed of October E5, 1888, from Chambers, school land commissioner, to J. D. Sar-geant, became tho sole issue.</p> <p>The court below located the land of the defendants embraced in the Sar-geant deed as contended for by the defendants, and entered a decree declaring that the complainant had no title to or interest in any portion of the 440%-acre tract of land claimed by the trustee defendants, except a small portion thereof where the line of the Chambers deed crosses the Pat Hatfield tract, claimed by plaintiff under another and undisputed title, which portion was excepted in the decree by metes and bounds.</p> <p>While, among other things, it is stated in the motion to transfer the case to the law side of the court that the bill does not show the plaintiff to be in possession of the land in controversy, yet there is no denial in the answer to the allegation in the hill that the complainant is in the actual possession of the 382%-acre tract</p>

<p>Appeal from the District Court of the United States for the District of'Kansas; John C. Pollock, Judge.</p> <p>Suit in equity by John W. Clendenin, trustee in bankruptcy for the Nevling Elevator Company, against J. M. Ratcliff. From a decree for complainant, defendant appeals.</p>

, Judge. In the matter of the bankruptcy of R. H. Richardson and others, partners trading as R. H. Richardson & Sons, and as individuals. Proceeding by Edward W. Wolcott and others, trustees of the bankrupt’s estate, against the Peninsula Bank of Williamsburg, Va., and others, to set aside a deed of trust as a preference. The referee found the trust deed to be a preference, and from a decree upholding his finding the defendants appeal.

<p>1. Limitation of Actions &wkey;>122 — Commencement of Action — Ineffective Sekvice.</p> <p>In an action in which the period of limitation expired on December 24th a summons was issued, dated December 21st, and an attempted service was made on December 27th. On motion this service was set aside, but a motion to dismiss was denied, and defendants subsequently appeared generally, without any further summons and service. Held that, under Gen. Code Ohio, § 11230, providing that an action shall be deemed commenced as to each defendant at the date of the summons served on him, the action was commenced on December 21st, and was not barred, especially in view of section 11233, providing that, if plaintiff fails otherwise than upon the merits in an action commenced or attempted to be commenced in due time, he may commence a new action within a year after such failure.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 527, 538; Dec. Dig. &wkey;122.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Commencement of Action.]</p> <p>2. Death <&wkey;44 — Parties—Substitution.</p> <p>In actions by administrators to recover for deaths occurring in another state, the petitions specified the surviving relatives, alleged that they had been injured by the deaths, and either stated expressly or showed by implication that the actions were brought for their benefit. On it appearing that under the law of the state where the deaths occurred the right of action vested in the surviving relatives, and not in the personal representatives, the court permitted a substitution of such surviving relatives as plaintiffs of record. Held, that this was not error, as the amendment made no change, except to substitute the real parties in interest for the plaintiff, who had supposed' he was their trustee.</p> <p>[Ed. Note. — For other cases, see Death, Dec. Dig. <5&wkey;44.]</p> <p>3. Pleading <&wkey;430(2) — Issues, Proof, and Variance — Waiver of Objections.</p> <p>Where, though the case was submitted to the jury and a recovery was permitted upon a theory of negligence not disclosed in the petition, defendant made no objection on the ground of variance to the evidence as it came in, or to the action of the court in submitting this theory, it waived any objection resting upon the variance.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1438-1441; Dec. Dig. &wkey;430(2); Trial, Cent. Dig. §§ 219, 266.]</p> <p>4. Master and Servant <&wkey;285(l) — Liability for Injuries — Explosions.</p> <p>Employes of a mining company were killed or injured by an explosion of blasting powder, stored in a boarding house for company workmen conducted by W., while a party was in progress. Though the company claimed that W. was a lessee under a formal written lease, and that it, as lessor, had no control over the premises, and that the powder was solely in control of miners boarding in such house and kept there for their own convenience, there was evidence tending to show that the lease was a mere form, that the boarding house was for the company’s benefit and completely under its control so far as it cared to exercise control, that the powder belonged to it and was kept there for its convenience, that the party was assembled with the assistance of its representative as a part of its policy of properly providing for the needs of its workmen, and that its agent knew of the presence of the powder on the occasion in question. There was also evidence that it was negligence to maintain so large a store of powder in the place where it was kept under the circumstances. Held, that defendant was not entitled to an instructed verdict.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1008; Dec. Dig. <&wkey;286(l).]</p> <p>5. Trial <&wkey;255(JLl) — Instructions—Bequest.</p> <p>While defendant was entitled to a charge making it clear to the jury that plaintiffs could not recover upon the theory upon which they did recover if the lease represented the contract between the company and W., and if the relations which it seemed to create were the ones actually existing, and while, if such charge had been requested, it would have been error to dispose of this matter with only the general statement that the jury must decide which party had the actual control and management of the premises and of the powder, the failure to give such instruction was not reversible error, in the absence of any request therefor.</p> <p>» [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-629*; Dec. Dig. &wkey;255(ll).]</p> <p>6. Appeal and Error <&wkey;216(l) — Reservation of Grounds of Review — Requesting Instructions.</p> <p>An exception to the failure to charge specifically as to some theory of recovery or defense is not sufficient upon which to predicate error, when there is no preliminary request for such instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;216(l); Trial, Cent. Dig. §§ 627, 628, 630.]</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern Division of the District of Idaho'; Frank S. Dietrich, Judge. Suit in equity by the Portland Wood Pipe Company, Maney Bros. & Co., a copartnership consisting of J. W. Maney, John Maney, Herbert G. Wells, and E. J. Wells, and others against the Crane Creek Irrigation, Land & Power Company, the Crane Creek Irrigation District, the Sunnyside Irrigation District, and others.

William H. Cooper was convicted of using the mails in furtherance of a scheme to defraud, and he brings error. This case cómes here on writ of error to review judgments of conviction on two indictments under sections 215 and 37 of the United States Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130, 1096 [Comp. St. 1913, §§ 10385, 10201]).

Dana, in behalf of himself and other stockholders, against Edwin D. Morgan and another. From a decree dismissing the bill (219 Fed. 313), plaintiff appeals. This cause comes here on an appeal from a decree of the District Court of the United States for the Southern District of New York, filed on January 14, 1915. The defendant company is a corporation organized and existing under the laws of the state of Colorado.

District of Louisiana; Aleck Boarman, Judge. • Action by the United States against Oneziphore Thibodeaux to recover the value of wood cut and removed from a homestead entry. Judgment for defendant on a directed verdict, and the United States brings error.

<p>1. Courts <§=j351 — Discovery <§==>4, 6 — Federal Courts — Bill of Discovery in Aid of Action or Defense at Law.</p> <p>Statutory provisions of a state, under which a party to an action at law may require the production of books or writings containing evidence In advance of trial, do not apply to procedure In the federal courts; but Rev. St. § 724 (Comp. St. 1913, § 1469), authorizes the court to require the production of such evidence “in the trial of actions at law.” While this provision does not deprive a court of equity of jurisdiction to entertain a bill of discovery in aid of an action at law before trial, it is intended as a substitute for such bill, and the equitable jurisdiction will not be exorcised to require a plaintiff to produce in advance evidence which is necessary to sustain his action, nor unless it appears that the party asking the discovery has good ground for asserting the fact sought to be proved by such evidence.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. <§=» 351; Discovery, Cent. Dig. §§ 5, 7; Dec. Dig. <@=>4, 6.]</p> <p>2. Champerty and Maintenance <@=54(8) — Champerty as Defense — Pleading.</p> <p>The defense of champerty need not be pleaded; hut, if it appears on the trial that a contract is void as against public policy, the court is bound to so declare, and deny relief.</p> <p>[Ed. Note. — For other cases, see Champerty apd Maintenance, Cent. Dig. § 19; Dee. Dig. <@=54(8).]</p> <p>3. Discovery <S=>6 — “Fishing Bill.”</p> <p>A discovery, sought upon suspicion, surmise, or vague guesses, is called a “fishing bill,” and will be dismissed.</p> <p>[Ed: Note. — For other cases, see Discovery, Cent. Dig.' § 7; Dec. Dig. <9==>6.]</p>

Newman, Judge. In the matter of tire Riverside Fertilizer Company, bankrupt. From a decree of the District Court, awarding priority to tire unrecorded mortgage of George S. Jones and another, Charles B. Lewis, trustee in bankruptcy, and another, appeal.

<p>Petition to Superintend and Revise Proceedings of the District Court of the United States for the Southern District of Georgia; William T. Newman, Judge.</p> <p>In the matter of the Riverside Fertilizer Company, bankrupt. Petition of Charles B. Lewis, trustee, from allowance of claim of George S. Jones and another.</p>

Sessions, Judge. Charles P. Uillie, tire assignee of a judgment, moved for an execution against Paul Dennert, one of tire defendants, who filed a petition praying the court to enter satisfaction of the judgment. Satisfaction of the judgment was ordered entered, and Charles P. Uillie brings error.

Sanford, Judge. Action by C. D. Curtis, administrator of Charles C. Curtis, deceased, against the Rouisville & Nashville Railroad Company. There was a judgment for defendant, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller, Judge.</p> <p>Suit by A. G. Miller against John Halfpenny and another, late partners trading as Halfpenny & Hamilton. From a decree, defendants appeal.</p>

<p>1. Trade-Marks and Trade-Names <®=>3(4) — Descriptive Marks — “Dip”— “Dry-Dip.”</p> <p>The compound word “dry-dip” cannot be appropriated as a trade-mark for a powder to be sprinkled over animals to rid them of vermin, since “dip” as a noun has a well-established meaning as a liquid preparation into which objects may be dipped or immersed, as for cleansing, coloring, and,the like, and in connection with animal husbandry means a liquid preparation into which infected animals may be plunged for treatment, and a “dry-dip,” therefore, presumptively means a dry or powdered preparation intended to perform the same service.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 7; Dec. Dig. <@=»3(4).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Dip.] ’ 4</p> <p>2. Trade-Marks and Trade-Names <g=>8 — Descriptive Marks — Arbitrary Spelling.</p> <p>Nor can there be an appropriation of the word “dridip” as a trade-mark for such a powder, since that is idem sonans with the other spelling, and Act March 3, 1881, c. 138, § 2, 21 Stat. 503, providing for the registration of trade-marks, requires as a condition to registration a showing that no other person has the right to use the mark sought to be registered, either in the identical form or in any such near resemblance thereto as might be calculated to deceive, thereby indicating the disapprobation of Congress to the use of any word as a trade-mark tending to deceive or confuse the public.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 12; Dec. Dig. <@=»8.]</p> <p>3. Trade-Marks and Trade-Names <@=»45 — Registration—Eeítect.</p> <p>The registration oí a trade-mark under Act March 3, 1881, c. 138, § 7, 21 Ktat. 303, is only prima facie evidence of ownership, and confers no right to the use as a trade-mark of a descriptive name, which could not be appropriated as such at common law.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 33, 39; Dee. Dig. <§=>45.]</p>

Middleton Smith, Judge. In the matter of the estate of Floyd & Hayes, bankrupts. From an order allowing in part the claim of the American Agricultural Chemical Company (225 Fed. 262), R. E. Ward, trustee in bankruptcy, appeals.

Dayton, Judge. Suit by J. J. Walsh, Jr., surviving partner of himself ami Frank G. Walsh, deceased, doing business as J. J. Walsh & Son, against the Grafton Hotel Company. From an order denying the petition of John T. McGraw to restrain a sale in, satisfaction of a mechanic’s lien, the petitioner appeals.

Petition to Revise and Appeal from Order of the District Court of the United States for the Southern District of New York. In the matter of H. B. Hollins & Co., alleged bankrujits. A petition by the bankrupts, asking that Crossman & Sielcken be required to pay over part of the proceeds realized from the sale of certain securities, was denied by the District judge, and petitioners appeal.

Niles, Judge. In the matter of H. P. Moliere, bankrupt. To review an order giving preference to a landlord’s lien in favor of J. P. Carter, the Bank of Hattiesburg appeals and petitions to revise said order.

<p>Fbatjdulent Conveyances &wkey;>57(4) — What Constitutes.</p> <p>Where a creditor of a solvent corporation agreed to take preferred stock under an express stipulation that it should bo redeemed within a given time, a conveyance of lands by the corporation, which was then solvent, to redeem the stock, is not fraudulent, though the corporation thereafter through bad investments became insolvent.</p> <p>[Kd. ‘Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 150-152, 154; Dec. Dig. <&wkey;>57(4).]</p>

Action by John Yanuszauckas against the Mallory Steamship Company. The complaint was ordered dismissed, and plaintiff’s motion for judgment by default denied, and he brings error.

Sessions, Judge. Petition by William U. Taylor and another against Charles H. Kim-merle, trustee in bankruptcy, for an order requiring Kimmerle to repay the sum they had paid in purchasing assets of the bankrupt estate. From an order dismissing the petition, petitioners appeal.

<p>Appeal from the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge.</p> <p>Suit in equity by W. F. Owen, receiver of New Orleans, Mobile & Chicago Railroad Company, against J. F. Clifton and others. Decree for defendants, and complainant appeals.</p>

Suit by the Sampson Cordage Works against the Puritan Cordage Mills. Decree for complainant, and defendant appeals. On motion to dismiss, because not taken within 30 days.

<p>Public Lands <&wkey;123 — Disposal by United States — Limitation of Actions.</p> <p>Act March 3, 1891, e. 561, § 8, 26 Stat. 1099 (Comp. St. 1913, § 5114), providing that suits to vacate and annul patents theretofore issued shall only be brought within five years from the passage of the act, and that suits to annul or vacate patents thereafter issued shall only be brought within six years after the issuance of the patent, gives to the patent, after the expiration of the term, the same effect against the United States that it would have had if it had been valid when issued, and therefore bars an action by the United States to recover from the purchasers of the patentee the value of lands alleged to have been fraudulently patented.</p> <p>TEd. Note. — For other cases, see Public Lands, Dec. Dig. <&wkey;123.]</p>

<p>On petition to modify opinion.</p>

<p>Appeals from the District Court of the United States .for the Eastern District of New York.</p> <p>Suits in admiralty for collision by Edward J. Phalen and by A. J. & J. J. McCullom against the steam tug Port Johnson Towing Company No. 7; Port Johnson Towing Company, claimant. ‘Decrees for libelants, and claimant appeals.</p>

<p>Alien's &wkey;>32(9, 10) — Deportation op Chinese — Place op Deportation.</p> <p>An order for deportation of an alien to China is not warranted, where the record does not show that he came from China, but that he entered the United States from an adjacent country; but in such case the order may bo amended.</p> <p>[I0d. Note. — For other cases, see Aliens, Cent. Dig. §§ 92, 94; Dee. Dig. &wkey;32(9, 10).]</p>

<p>Appeal and Error &wkey;?981 — Motion for New Trial — Review.</p> <p>Tile granting of a new trial on the ground of excessiveness of damages is a matter of discretion with the trial court, not subject to review.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3876; Dec. Dig. <&wkey;981.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Bill by the Burke Electric Company against the Independent Pneumatic Tool Company. ^ Decree for complainant, and defendant appeals.</p> <p>The following is the opinion of Learned Hand, District Judge, in the court below :</p> <p>In this case there can be no question of the defendant’s infringement, and therefore the case necessarily resolves itself into the issue of invalidity. The patent is attacked upon three grounds: Prior sale; improper specifications; lack of invention. -In the last defense are included the so-called Birtman and United States Standard Electric Company uses, which are not strictly such, but are rather anticipations. There are also included the Latour patent, and the claim that the patent is only for a new use of that patent.</p> <p>The first defense is that the patentee had the patented article “on sale” before September 9, 1907, the application being filed September 9, 1909. This defense rests upon the documents extracted from the plaintiff of his order to Barker for the first 100 motors ever made. Burke’s own testimony was extremely vague about the whole matter, but I cannot say that it was insincere; on the contrary, he impressed me favorably. It appears that on June 27, 1907, Barker had written to Burke, asking about getting some of these motors, and the letter had been awaiting an answer for Burke’s return. On June 6, 1907, the earliest fixed date, Burke wrote that the work upon the modified sample had been pushed along, and that the first motor would be sent on the 15th- for Barker’s approval. Burke in that letter “confirms our proposition” to furnish 100 motors, subject to approval of the first sample, showing that at some earlier time he had already made such a proposal. No sample motor had reached Barker by ,July 23d, and we have’ every reason to suppose that the “modified sample,” when actually sent, was motor No. 1, shipped with another on September 26, 1907. My reason for saying this is that the letter of July 6th does not, in my judgment, distinguish between “the modified sample” and “the first of these light-weight machines for your approval” ; on the contrary, it is “this first sample” which is to' be “subject to your approval.” On the entry of the order, No. 5114, appear the words “Date entered, August 29/07,” which the defendant urges to have been necessarily the date of the closing of the contract. It is, of course, possible that Barker had accepted before that date, but it is also possible that it was only a factory direction. If that direction was in pursuance to Barker’s acceptance, it still does not follow that he had passed upon the sample which he was to approve. We have, on the contrary, reason to suppose that he had not got such-a sample, since, as I have said, the sample was apparently to be only the first of the series ordered, and we know that the first of the series was delivered on Septembr 26, 1907.</p> <p>[1 ] The situation for the defendant at best is then only this: Before September 9, 1907, Barker and Burke had concluded an agreement to buy and sell 100 motors, subject to Barker’s approval of the kind to be delivered. This I cannot think to have been putting the motor “on sale” under any of the cases. In Plimpton v. Winslow, 14 Fed. (O. O.) 919, the skates on the price list were already completed; in Dittgen v. Racine Paper Goods Go., 181 Fed. (O. O.) 394, many pouches had been sold; in Covert v. Covert (C. C.) 106 Fed. 183, the jack was actually exposed for sale in a shop; in Burton v. Greenville (C. C.) 3 Fed. 642, Bruce had actually sold lamp posts as early asi November, 1874. The grain elevator in Bamett-MeQueen Co., Limited, v. Canadian Stewart Co., 13 Canadian Exch. 1S6, had been completed for over a year before the application. In National Cash Register Co. v. American Cash Register Co., 178 Fed. 79, 101 C. C. A. 569, Juengst had actually delivered the machine to the Kruse Company more than two years before application filed. None of these cases fit the ease at bar. Judge Lowell’s decision in McOreery Eng. Co. v. Mass. Fan Co. (C. C.) 186 Fed. 846, held that taking ,an absolute contract to erect a ventilating system was putting the invention “on sale”; but that was reversed (103 Fed. 498, 115 C. C. A. 408), and is not an authority. Judge Denison went so i'ar in tho other direction, in Mershon v. Bay Oitv (C. 0.) 189 Fed. 741, as to say that an actual sale was not enough, when the buyer had the right to reject, provided that the period for rejection had not passed before the two-year period came into effect. I do not think it necessary to decide the question whether it puts the invention “on sale,” if the inventor makes his first contract to sell the article as fully described therein, or by a. sample submitted at the time, though the seller does not deliver till within two years. In the case at bar there was no contract of that character; it was a sale by future sample, and, as every one knows, the sample is a part of the contract; It measures tlie obligations of each, just as though Its description were written in with the utmost particularity. The sample, so far as we can see, was not submitted till alter September 9, 1907; at least, there is. no proof that it was, and nobody was bound to furnish or accept anything till then. Burke could have changed the motor as he liked, Barker need not have accepted any motor at all. If Burke had found something quite different from the invention actually patented, he was as free to submit that as what he then had in mind. Nothing ivas sold or offered for sale till he was satisfied that he had got what would be successful. How, then, can it be said that he had agreed to sell any of the intermediate forms until the sample was actually sent on? I think tho defense fails.</p> <p>L2] The attack upon the specifications is threefold: That it is deceptive, in saying that the motor will run upon all frequencies of alternating current; that It is too vague to be followed, having no definite quantitative directions, and leaving tlie public to experiment; that the claims arc in form functional, and in effect only for a new use of Latour’s motor. I think that the first criticism is true, and that the language of the patent is broader than tho facts warrant as now disclosed. Thus (page 1, lines 68-70) the patentee says that his results “are substantially independent of the number of cycles the single phase alternation current.” Again (page 3, lines 68 -70): “The speed and the efficiency is also substantially independent of the frequency of the alternating current.” These statements, together with others, less explicit, indicating tlie same thing, are true only within certain limits. The commercial motors actually made will run successfully on alternating current up to 60 cycles, but not with satisfaction at 125 or 133. Indeed, it is tho defendant’s assertion that no practicable motor has yet been devised to run upon such frequencies and also on direct current. Still 1 cannot think that this has any effect upon the validity of the patent. There is no evidence that it was deliberately -introduced to deceive the public, and, so far as appears, it was an honest mistake. It does not concern the construction of the motor, but of the results to be obtained.</p> <p>Tlie next criticism is that the patent has not enough directions for practical use, and the objection comes down to the proportion between rotor and stator turns and 1o the angle of the brush position. In direct current motors the stator field is always stronger than the rotor; in alternating current motors the opposite is true. Burke wished to put his motor, which was to operate upon both currents, among the alternating current class. Naturally, he did not mean to limit himself to any exact proportion, but he did indicate a normal proportion, two to one, which gave an index of what he understood. I think that his reference was clear enough to an art which already knew weak stator fields. His description of any element of his combination might be of such latitude as tlie practice of tlie art admitted for that element, always assuming that the new result to he obtained did not require more definite limitation. If tlie defendant hoped to succeed with such a defense, it should have shown that a successful universal motor depended upon a certain definite proportion of turns. Were that so, then the description would be insufficient, but it has not been shown to be so. So far as appears, the motor will work successfully if. the elements are combined as described, though in size and proportion thoy stand anywhere within the limits which the art would recognize as included in their mention by name. When that is so, it is enough only to mention them by name. Particularly, and as regards tlie proportion of the stator to rotor turns, so far as appears the implied reference to the alternating current art has not been shown to be inoperative.</p> <p>As regards the brush position the defendant’s case is even weaker. The exact angle of the brushes could not be predetermined, because it varies with the general structure and relation of the parts. To give any angle would have been a miscue; the angle must be found experimentally when the rest of the motor is designed. That experiment is, however, not the kind which requires any independent invention by one who would follow the patent, and which thus leaves the specification imperfect. You need only plot the two curves on the respective currents, and you will always find an area of substantial coincidence, within which the brushes should be put. Westinghouse Electric Mfg. Oo. v. Montgomery Electric Light Co., 153 Fed. 890, 82 C. O. A. 636. It is as if a .chemist were directed to add enough of an element to secure 'precipitation. Such a recipe would be an absolutely accurate guide to the result though the quantity varied with temperature or atmospheric humidity; What men need is a path to the goal; they will not be curious of the country it traverses.</p> <p>The last objection is that the claims are functional. I can really see nothing in this exception that the second, third, and fifth claims conclude with the phrase, “whereby approximately the same speed and torque are maintained under either current,” or its equivalent. Nothing is gained or lost by these words; if they are surplusage, they are at least harmless surplusage, adding no element to the claim, which is just as good without as with them. Finally, the assertion that the patent is for a new use is surely untrue. It is one question whether there is any invention over Latour, and another whether the patent is for a new use of Latour. Assuming for the time being that La-tour showed the brush position, and that Burke’s invention was only a species of the genus Latour, it was a definite enough species, and its differentia, whether good or not in point of invention, consist in the addition of specific new structural elements. Every patent for an improvement forbids the world to use that exact species of a genus which is otherwise free; that form becomes monopolized even as against the very inventor of the genus. While it is true that an inventor is entitled to all the uses of his invention, it is a mistake to suppose that he is entitled to every structural form it may take, regardless of any new invention necessarily imposed upon his own work to produce it. Indeed, were there no structural differentia to serve in this case, it might perhaps be urged that the particular brush position obtained by Burke’s method could be said to be a species of Latour which he might not use. While he is entitled to all brush positions of his patent, and while his brushes might by accident be placed at the point predetermined under Burke’s patent, at least there could be a process patent in finding the position as Burke points out. Whether there could be a structural patent merely for a given brush position may be admitted to be doubtful, but the question is nowhere presented by any of the claims and is moot.</p> <p>[3] There finally remains the question of invention, upon which concededly the best reference is Latour, which is, therefore, the only one that need be considered. Before taking up Latour, it will be well to consider what- was Burke’s real invention. In direct current motors the problem of self-induction is substantially nonexistent. That phenomenon appears, it is true, whenever an electric circuit becomes charged with a current of electricity, but it exists only while the potential rises from zero to its maximum or when it falls again to zero. The period when this occurs with a direct current is so small that it can be disregarded for all practical purposes, for self-induction is a function of the change in potential, and there is no such change in a direct current. This is not wholly a correct statement in a series motor, of the type here in question. The rotor is made up of a number of coils of wire, each surrounding a core of iron and terminating at adjacent bars of the commutator. The current is fed to these coils through brushes touching the commutator bars, and the coils are so wound that, if the current come to one end of one coil, one-half of it will pass, not only through that coil, but through one-half the whole number of coils on the rotor, and will be taken off at the opposite brush. The other half of the coils will take the Other half of the current from the brush in e&actly the same way; thus the rotor is made into a magnet with a polo at each brush, the current being split in halt and going in opposite directions around the two sides of the rotor.</p> <p>Since, however, the brush is rigid and the rotor moves, each coil must at some time pass under the brush, and from being a coil which takes current ■around one side of the rotor must become one of those which takes it around the other. This involves a change of direction of the current, in that coil, and a subsidence of the potential from its maximum to zero and from zero to its maximum again, though of opposite sign. In this process is precisely illustrated in small proportion the phenomenon of self-induction which the Whole system illustrates when excited by an alternating current. Unless the brush is so narrow as not to span the interval between two bars, there must therefore be a moment when one of the coils is short-circuited, else the current in the whole rotor would be broken. As the current dies out in this short-circuited coil, there is established a counter pressure of self-induction, which causes a spark at the time the brush leaves one commutator bar. Thus, even in a direct current commutator motor, we have the problem of sparking, a. phenomenon, it is true, of self-induction, but nevertheless quite different in scale from the phenomenon of the general self-induction of the whole system when excited by an alternating current.</p> <p>Sparking, if uncorredted, causes serious damage to the motor; hence it had long been customary to correct it in direct current motors by a displacement of the brushes. Wore it not for this phenomenon, the most efficient work would be done by a direct current motor, if the brushes were placed at right angles with the stator flux. This is true, because at that point the two fields are normal to each other, and the mechanical advantage of the magnetic attraction and repulsion of the poles is at a maximum. This is, moreover, called the neutral position of the brushes, since the brushes are in the neutral plane of the stator flux. Generally in such motors the core of the stator does not completely surround the rotor and the poles are not gradually worked up to a point of highest magnetic activity; the coils come and go abruptly into and out of the stator flux of uniform strength, itself much stronger than the rotor flux. Now, the custom was to bring the brushes within the edge of this strong rotor flux, and by so doing to counteract and destroy the self-induction of the short-circuited coil, produced in the way I have described. This displacement of the brushes was therefore known in ¡the direct current motor art, but it was solely to correct sparking, and it always involved only slight angles of displacement, since the stator fluxes were always strong.</p> <p>Furthermore, it was also known that a continued displacement of the brushes affected the speed of the rotor, not, as one might exiieet, to increase it, but the reverse. This increase was, however, at the expense of the total efficiency of the motor, since, the angle of the two fluxes being changed, they operate at less mechanical advantage; part of the stator flux, indeed, being neutralized in its action by another part, as may be seen by plotting them out in diagram. Hence it was at a loss of energy that the added speed was acquired.</p> <p>Such was the knowledge respecting the direct current motor. The alternating current motor presented a different problem, because of the self-induction of the whole system. When the alternations of current are as high as even Ü5 to the second, the self-induction arising in the system will make the actual potential lag behind or out of phase with the impressed potential so much as greatly to injure the efficiency of the motor; lienee it became of cardinal consequence to overcome the self-induction of the whole system. This had nothing to do with sparking, which was a wholly independent phenomenon requiring separate consideration. It was generally effected by using what are called compensating coils, either in series or shunt, so arranged that, when excited, they would create a flux, opposite in direction to the self-induced flux of the system, and so allowing the potential of the system to operate unimpeded.</p> <p>Latour was the first, so far as appears in this record, to devise another means by which a, part of the stator coils themselves were set to oppose the self-induction of the rotor itself and to act as compensation. As I have al'ready noticed, any displacement of tile brushes from an angle of 90° to the-stator flux will affect the mechanical operation of the motor. Parts of both motor and stator will then produce torque in opposite directions; the effective-circumference of each for torque will be diminished by four times the angle of displacement. This would be all lost, as it is in the case of direct current, were it not for the fact that when the fluxes meet at an angle a certain component of the stator flux will oppose the self-induced flux of the rotor, thus allowing the flux itself to operate unimpeded. While, therefore, the proportion of the two fluxes which remain in operative mechanical position is less, that part which is thrown out of operation does not remain indifferent to the total effect, but contributes by neutralizing the self-induction of the rotor. There is an equation of gain and loss between these two-quantities which differs for every angle of the brushes. No one can say in advance just where the resulting energy will be greatest.</p> <p>This was Latour’s patent, but the defendant insists that his disclosure before-the International Electrical Congress showed a nearer approach to Burke. That was a short paper, quite unintelligible to a layman, dealing with alternating current machines having commutators. The sixth and last of these was a single-phase series motor with “perfect” commutation, in which, as the title implies, he seems to be concerned with the commutation only. His suggestion is that the best commutation point for the brushes will be found to be where the resultant field of the two fluxes is normal to the line through the brushes. If the self-induction of the whole system is low, then he thinks the power factor will be pretty high, which may mean — especially if we read the paper with his patent in mind — that the stator coils, which act as compensation, will be enough to counteract a good deal of the self-induction. The most that can be gathered from this I believe is that if you get a theoretically good commutation point, based upon the assumption that you operate by direct current, you may use it as a commutation point for alternating current, and if you have correctly built your system you will also have a good power factor. That Latour supposed the same commutation point would serve for both currents I agree, but he was not thinking about the way to produce power factor at all, and the injection of that element as part of the disclosure seems to- me gratuitous. What he meant was that, if the general design was good, the point where the line of the brushes was normal to the two fluxes would also be the point of highest power factor on alternating current. That he did not mean a motor like Burke’s is shown by the fact that he necessarily presupposed a stronger stator than rotor flux, which is, indeed, a condition of operability if the brushes are to be set normal to the resultant.</p> <p>If we assume, as perhaps we should, that he had his patent also in mind, and that he thought it insured a system of low induction, still in combination they show nothing more than that with his St. Louis disclosure you could find a perfect commutation, and with his patent you could get a pretty high power factor. That that power factor insured a coincidence of speed is a gratuitous assumption — first, because we cannot know that the power factor could in fact be made to approach unity; second,' because we do not know that power factor alone determines speed. We do not know that Burke reached his result by an opposite path to Latour, even when all these assumptions are made. He did not keep a strong stator flux, nor did he fix his brushes as Latour recommends. He did so design a motor as to secure that coincidence, which Latour does not even suggest, and, if he had suggested, did not achieve.</p> <p>The French paper contributes nothing more, except the statement regarding the relation of stator to rotor turns. Earlier in the same paper Latour has used his old diagrams, which presuppose a stronger stator flux without which the motor could not operate if the brushes were set normal to the resultant flux. I must confess that I have not been able to understand quite how Vree-land supposed the situation as shown, in Figure S of the St. Louis article to be changed when the motor was in action, so that it might still remain true of a weak stator field. However, he was right to seize upon the statement in the French paper to support his position, coupled as it was with exactly the same figure as that of the St. Louis paper! Just what was the meaning of the language I am afraid I cannot learn, but it seems to me to-refer to thé possibility of greatly increasing the rotor turns when the motor is to operate at high speeds. Such fiigh speeds will be secured when, as in Labour’s motor, the brushes are set where the full mechanical effect of the fluxesis not felt. Labour had just been saying that at high speeds there was not time for the establishment of induction in the short-circuited coils. I think he meant that you could therefore afford to increase the rotor flux and still keep your commutation good; but he does not say, and I do not know, why there should be a positive advantage in doing this. In any case the reference seems to me too obscure as a guide to the art, so far as I can accomplish the extremely difficult feat of putting myself in the position of one ordinarily skilled in the art.</p> <p>I can. therefore, regard Labour as doing no more than showing how part of the stator coils could be used for compensation. He had no idea of a motor which would operate upon either current at a brush position where the speed would be the same for each. The defendant leaps this gap by saying that the step was obvious. Its argument is as follows: Under direct current, for every position of the brush in a given system, there is a characteristic speed, given the voltage; this speed is dependent upon the amount of the field operative at that angle. If the motor be driven by alternating current, fo-r any supposed angle of the brush it would attain the same speed as under direct current, but for the self-induction of the system. The less the self-induction at a given angle, the nearer the two speeds will be at that angle; therefore it* requires no invention, nor anything hut common sense, to see that, if the self-induction can be neutralized at a given angle, the speeds will be the same. Hence, as soon as I.atour showed how the power factor could be raised by brush shifting, he left nothing more for the art to do to got a universal motor.</p> <p>Upon the assumption that the only element controlling speed was power factor, there is some force in this argument so far as it concerns the single element in the patent of securing the unity of speed. There are, however, a good many reasons to- suppose that power factor is not the only element controlling speed. Burke is decided to the contrary; he frankly concedes that he does not understand all that does control speed, and says that he worked it out empirically. Yreeland was least satisfactory upon that branch of the case, and I conclude that his opinion was based more upon a priori reasoning than upon observation in a field with which ho was confessedly not so familiar as in other branches of the art. Whether there be any “transformer action” which is independent of the self-induction of the system, whether the whole thing is as simple as Vreeland thinks, must remain to me a doubtful question. I must take it against the defendant.</p> <p>Moreover there are some other considerations which militate against such an easy explanation. In the first place, every one agrees that the power factor never does reach unity; if so, the curves should never meet, to say nothing of crossing. Yet we find that they do meet and cross, and have areas where the direct current speed is less than alternating. Something certainly has intervened in such a case. Again, if the matter be s:o easy, why does the defendant assert that no one has ever succeeded in solving the problem for high frequency currents? Upon them there must be some point where the power factor is highest and where the speeds coincide. Burke thinks he can build such a motor, but the defendant does not.</p> <p>Finally, though it be granted that power factor is all, how was it to be known that it could be brought so near unity as to give a practical coincidence? That certainly could not bo ascertained a priori, nor did it arrive until the general designing of the motor had been again and again modified, if Burke is to be believed. No one lias said that it will be bound to happen in every kind of motor, no matter what its design, and it is an assumption entirely unsupported by proof that the necessary designing was an obvious thing, open to every skilled artisan. Again, the commutation position is not a priori the same as the speed position, and how the two are to be made to coincide after the speeds have coincided is not shown to be obvious. I shall take Burke’s explanation as he gives it: That he reached his result by more or less chance experiment, trying out a number of possible alternatives, guided partly by hypothesis, partly by past experiment, without any authoritative and complete understanding of how he was to reach what he wanted.</p> <p>But the defendant says that Ells had no trouble in making such a motor without knowing Burke’s brush position. It is true that Ells so testified, but it is also true that, before making the infringing motor, he had had submitted to him the stator and rotor of Burke’s very motor itself. In spite of his present insistence that it was left for only a short while with him, the slavish imitation of every detail leaves no doubt that the short time was ample enough to give Ells the key to the structure. It may well be that the brush position Ells borrowed from Latour’s paper which he had heard: but it cannot be too often repeated that the defendant’s insistence upon brush position as the sole significance of this patent is quite mistaken. I qan well believe that, upon seeing the rotor and stator, it was obvious to any one skilled in the art that, *o obtain the necessary compensation upon alternating current, the brushes must be shifted. I decline to> believe that Ells, unassisted, learned that in that machine there would necessarily be a single position of the same speed upon either current; if he did, I believe it was after the event.</p> <p>The supposed prior uses of the Standard Electric Works and of Birtman need not occupy much time. Beach clearly did not know anything about brush position, and could not have told whether the brushes were back or forward of the neutral, because he did not know what the neutral was. His tests of speed were only by ear, arid amounted to nothing. „Lum says that the stator windings were substantially in excess of the rotor, and that the brushes were in conventional position for a direct current series motor. He does not pretend to have measured the speeds on each current, or even to know what they actually'were. Badtke’s tests are at least open to grave doubt; but, if they were not, they would not prove that Beach had built a motor which would run with equal speeds except either free or with a very small load. When the load became 10 or 15 grams, the divergence was very marked. It does not appear, so far as I have found, that these are overloads. The test for 5 grams is very doubtful, owing to Radtke’s change in his tables, upon the supposition that “he must have” used both kinds of current. Perhaps that is true, but his testimony has small probative force.</p> <p>It is clear enough that we know too little about Beach’s motor to regard it as the least of an anticipation. On the contrary, we know it‘had none of the features described in the claims — neither poles, nor brush position, nor neutral teeth, nor relative windings, nor incommensurate relation. Why it should lie thought relevant, except for the unsupported claim that it was a universal motor, I confess I cannot see.</p> <p>Birtman’s motor has even less bearing on the case, if possible, and is put forward with less confidence. There was no effort to show that the brush position had been discovered, or that any of the other features were known except the relative number of windings. To these English did testify, but his testimony is far from satisfying the rigorous tests applicable, and it is pretty evident that his memory, unsupported by any document, was of the haziest kind. Birtman’s testimony regarding the relation between the windings does not seem intelligible to me in any way; I can hardly believe that he had any recollection of the matter.</p> <p>It is of small consequence whether Birtman’s motor operated at the same speeds on alternating and direct currents, though I do not think that there is any valid testimony to'that effect. The claims in suit are very narrow, and if as good results can be obtained by using Birtman’s or Beach’s motor, they are open to the defendant. The evidence of Durand and Drake satisfies me that a substantial demand can and did exist, both here and in Europe, for a universal motor, and that no one knew anything to fill it. Neither of these supposed anticipations seemed to answer; but, if they do, they are still open. It is not necessary to decide that this is a pioneer patent, or to trouble about construction of the claims. The defendant must stand nakedly upon the proposition that Burke’s combination limited to the precise disclosure is a mere bit of ordinary craftsmanship. That really seems to me too obviously unreal a position to justify so long an opinion, had it not been for the elaborate attack made upon it. If this combination, reached after a series of patient and tentative experiments by an acknowledged expert of ability and ingenuity, is a part of the common heritage of the ordinary routineer, I can only say that I have been wholly blind to the proof.</p> <p>The usual decree will pass, with costs.</p>

Van Valkenburgh, Judge. Suits by the United States Envelope Company against the Sheridan-Clayton Paper Company and against the St. Joseph Paper Company. From orders issuing injunctions against defendants, they appeal.

<p>Patents <&wkey;328 — Vapidity and Inyrtngisment — Cigar Wrapper.</p> <p>The Fonseca patent, No. 655,549, for a wrapper for cigars, discloses patentable invention, the device, while simple, being novel and of considerable utility; also held infringed.</p>

<p>In Equity.- Suit by the Anchor Cap & Closure Corporation against Edward Pritchard. On final hearing.</p>

<p>In Equity. Suit by the Slip Scarf Company against Church, Webb & Close, Incorporated. On final hearing.</p> <p>This is the ordinary complaint in equity for the infringement of patent to Mills, No. 1,109,868, for a new kind of neckwear. The claims in issue are 4, 5, 6, and 7, which are as follows:</p> <p>4. “A necktie formed of suitable fabric folded and shaped in a flat tubular form, embodying a narrow neckband portion and tying-end portions at the ends of the neckband portion, the edges of the back fold of tho folded fabric in the tying ends being intermediate the edges of the tie, and interlining in the tying-ond portions, and stitches in the tying-end portions attaching the interlining to the back fold only of the tie throughout tlie tying ends of the tie whereby said stitches will not appear on the outer face of the tie.”</p> <p>5. “In a necktie having a neckband and two tying ends formed of a fabric material cut and folded to form, the face and back of said necktie, the edges of said material meeting on the back of the tie intermediate the edges of the tying ends and a reinforcing strip extending substantially throughout the length of said necktie and secured to the fabric of the back only of the tying ends of said necktie.”</p> <p>6. “A necktie formed of a folded fabric and comprising a narrow neckband portion, knot-forming portions at the end of the neckband- portion and enlarged ends, the edges of the folded fabric forming a longitudinal seam at the back of the tying ends of the necktie in combination with'a longitudinally extending, relatively strong, inelastic flexible reinforcing strip reinforcing the back of the scarf throughout the neckband and a substantial portion of the tying ends thereof, longitudinal stitching connecting said reinforcing strip to the back fold only of the said folded fabric throughout the said knot-forming portions, and lines of stitching connecting said reinforcing strip to back and face folds of the tie throughout the neckband portion thereof.”</p> <p>7. “A necktie formed of suitable fabric folded and shaped in a flat tubular form, embodying a narrow neckband portion and wider tying-end portions at the end of the neckband portion, the edges of the back fold of the folded fabric in the tying ends being intermediate the edges of the tying ends of the tie, an interlining in said tying-end portions, a reinforcing strip extending throughout the neckband and the tying-end portions, said strip being substantially equal in width to the neckband portion, and stitches attaching the interlining of the tying ends, to the back fold only, of the said folded fabric throughout the tying-end portions, so arranged that said stitches will not appear on the outer face of the tie.”</p> <p>Nothing need be said regarding infringement, since tlie ease goes off upon the issue of validity. The patentee is a lawyer, associated with the well-known firm of Kenyon & Kenyon, who had charge of the conduct of another litigation in this court before Judge Mayer concerning a patent to Kays, a large manufacturer of neckwear, whom Kenyon & Kenyon represented. During the course of that litigation Mills devised the patent now in suit, the novelty of which consisted in introducing a strip of unyielding material, like muslin, within the scarf proper, usually made of soft material, such as silk, and frequently cut on the bias. In addition there was put within the tying ends of the scarf an interlining, such as light flanel. The muslin “reinforcing strip,” as it is called, was stitched to the interlining and the two stitched to tlie back of the scarf in the tying ends, so that no stitching should be seen from the front. In the neckband the reinforcing strip was stitched firmly through the material of the scarf. The result was to put the strain of the pull upon the reinforcing strip and to relieve the flimsier fabric of the scarf. Claim 4 is for the interlining alone in the tying ends, stitched to the fold of the scarf; the fold being at the bach and between the scarf edges. Claim 5 is for the reinforcing strip, stitched to the bach only, of the tying ends in the same way as the interlining in claim 4. Claim 6 is for the reinforcing strip stitched to tlie fold at the bach only of the tying ends, and through both front and bach of the scarf over the neckband, portions. Claim 7 is for the conibination of reinforcing strip, interlining, and stitching to the bach only of the folds of the tying ends.</p> <p>At the trial the issue of infringement was not seriously contested, hut the defendant put in evidence numerous patents for scarfs, approaching more or less near to the patent in suit, and also attempted to prove five distinct prior uses. These were of scarfs made in New Yorh before the date of the invention, May 31, 1912, by the following neckwear manufacturers; Bachrach, C. Stem & Mayer, Oppenheimer, Franc & Langsdorf, James It. Keiser, Incorporated, and J. J. Biher & Co. The plaintiff does not dispute that these scarfs, if proved, would anticipate, but does assert that no one of them has been proved. In addition the defendant insists that Mills borrowed his indention from an exhibit in the former suit, a scarf made by Blanchard & Price, in professed accordance with a patent to Blanchard,’No. 954,017, which was put in evidence.</p>

In Equity. Suit by the International Curtis Marine Turbine Company and the Curtis Marine Turbine Company of the United States against the William Cramp & Sons Ship & Engine Building Company. On rehearing sur defendant’s motion to exclude evidence before special master.

<p>1. Aliens <&wkey;60 — Naturalization—Right.</p> <p>The admission of aliens to citizenship is a privilege, not a right, and Congress may prescribe the conditions under which the privilege may be enjoyed; but when the alien has compiled with the prescribed conditions the privilege ripens into a right.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 117, 118; Dee. Dig. <&wkey;60J</p> <p>2. Aliers <&wkey;71%, New, vol. 7 Key-No. Series — Natubalization—Pboceed-inos to Cancel — Findings of Fact.</p> <p>In proceedings to cancel a naturalization certificate because illegally granted, the finding of the court which granted the certificate that the applicant had continuously resided within the United States for the pre scribed time will not be reviewed, even if, on the evidence, the court hearing the petition to cancel would have reached a different conclusion.</p> <p>3. Aliens <&wkey;71%, New, vol. 7 Key-No. Series — Naturalization—Petition to Cancel — “Illegally Procured.”</p> <p>A naturalization certificate can be canceled, because “illegally procured,” where any of the jurisdictional facts necessary to the granting of the certificate are absent from the record.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Illegally.]</p> <p>4. Aliens <&wkey;62 — Naturalization—“Kesided Continuously.”</p> <p>The requirement of the naturalization laws that the applicant shall have “resided continuously” in the United States for the prescribed time does not require his unbroken physical presence during that time, but only that he maintain a bona fide residence and domicile here, and is a question of fact, into which intention enters as a controlling element.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 123-125; Dee. Dig. <®=»62.</p> <p>For other definitions, see Words and Phrases, Second Series, Kesided Continuously.]</p>

<p>At Paw. Action by Todor Ivanoff against the Mechanical Rubber Company. On motion to remand.</p>

<p>In Admiralty. Suit by Frank G. Hammer and William H. Hammer, copartners, against the British steamship Cetriana; William Eadie, claimant. On exceptions by Sudden & Christensen, claimants of the steamship Mazatlan, to petition of respondent for bringing in such vessel.</p>

Criminal prosecution by the United States against Franz Bopp, E. H. Von Schack, Wilhelm Von Brincken, J. F. Van Koolbergen, Margaret W. Cornell, Charles C. Crowley, and Louis J. Smith. On plea in abatement, motion to quash indictment, and demurrer to plea.

<p>1. ALIENS <5&wkey;5G— IMMIGRATION-CONTRACT LABORERS-PREPAYMENT OP Transportation.</p> <p>A railroad company, which sent its duly authorized agent into Canada to employ men to work on its section in the United States, and furnished the agent with free transportation over its own lines for the men he should employ, is guilty oí a misdemeanor, under Act Feb. 20, 1907, c. 1134, § 4, 34 Stat. 800 (Comp. St. 1913, § 4248), making it a misdemeanor for any person or corporation in any manner whatsoever to prepay the transportation of any contract laborer into the United States.</p> <p>|Ed. Note. — Por other cases, see Aliens, Cent. Dig. §§ 113-116; Dec. Dig. <&wkey;56.]</p> <p>2. Aliens <&wkey;5G — Immigration—Contract Laborers — “Solicit.”</p> <p>The corporation was also liable to the penalty imposed by section 5 of that act (Comp. St. 1913, § 4250) on any corporation which ■ knowingly solicits the immigration of any contract laborer, though the laborers employed were denied admission by the immigration authorities, since to “solicit” does not imply success, but merely means to incite.</p> <p>[Ed. Note. — Por other cases, see Aliens, Cent. Dig. §§ 113-116; Dec. Dig. &wkey;>56.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Solicit.)</p> <p>3. Words and Phrases — “Persuade.”</p> <p>While the primary meaning of “persuade” is to advise or counsel, it has a secondary meaning, which is to prevail upon by demonstration, exposition, or argument, and implies the completed act.</p> <p>[Ud. Note. — Por other definitions, see Words and Phrases, First and Second Series, Persuade.]</p>

In Equity. Suit by George G. Gideon against the Representative Securities Corporation and another. Plaintiff moves to join Roy Curf-man, a resident of another state, as party defendant, and for a temporary injunction.

<p>Shipping <&wkey;52 — Charters—Breach.</p> <p>The charterer of a steamship for carrying a cargo of wheat from Baltimore to one of a number of European ports, in August, 1914, held not justified in refusing to load the vessel because of the war; it appearing that none of the named ports was blockaded, and that other vessels ear-ried cargoes safely at about the same time.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 211-213; Dec. Dig. <&wkey;52.]</p>

<p>In Admiralty. Suit by Furness, Withy & Co., Limited, a corporation, against John T. Fahey, J. Frank Reilly, and Edgar F. Richards, co-partners trading as John T. Fahey & Co.</p>

<p>In Bankruptcy. On demurrer of James Clark, as trustee in bankruptcy, to the plea of J. Hamilton Grimes to the trustee’s petition to recover the amount of a preference.</p>

<p>1. Criminal Law <&wkey;2S0(2) — Plea in Abatement — Qualification of Grand Jurors.</p> <p>A plea in abatement to an indictment, on the ground that a grand juror was disqualified under Gen. Laws R. I. 1909, c. 279, § 1, providingthat all persons over 25 years of age, qualified to vote in the election of'the city council or upon any proposition to impose a tax for the expenditure of money in any town or city, shall be liable to serve as jurors, and amended Const. R. I. art. 2, § 2, providing that no person shall vote in the election of the city council or upon any proposition to impose a tax for the expenditure of money in any town or city unless he shall within the year next preceding have paid a tax assessed upon his property therein valued at least at $134, which alleged that the juror had not within the year next preceding the time he was summoned for service paid a tax, was insufficient, as npt showing whether the calendar year or the 12 months preceding summoning was meant.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. §§ 647, 648; Dec. Dig. &wkey;280(2).]</p> <p>2. Criminal Law <&wkey;280(l) — Plea in Abatement — Construction Against Pleader.</p> <p>An equivocal expression used in the plea in abatement to an indictment is to be taken against the pleader.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 645, 646; Dee. Dig. <&wkey;280(l).J</p>

In Bankruptcy. In the matter of Goldberg & Sagman, bankrupts. Petition by Samuel Teitclbaum to review an order of the referee dismissing a petition to apply assets in the hands of the trustee to the payment of petitioner’s judgment. This is a petition to review an order of a referee in bankruptcy dismissing the petition of the petitioner below.

<p>At Law. Action by the United States against the Atchison, Topeka & Santa Fé Railway Company to recover penalties under the Hours of Service Act.</p>

At I/aw. Action by the Franco-American Chemical Company against the McKee Glass Company, which was removed to the federal court. On defendant’s motion to set aside the service of the summons. Motion to set aside the service of a summons in a removed case upon a Pennsylvania corporation, making glassware and sending it in part to sell in New York.

<p>BANKRUPTCY (&wkey;43— CORPORATIONS ENTITLED TO BENEFITS — -“INSURANCE Corporation.” v</p> <p>A corporation which, merely collects from such of its members as are willing to contribute funds which it thereafter distributes to the beneficiaries of deceased members, which was not an insurance company under the laws of the state where and when it was organized, and which belonged to a class of corporations well known at the time the Bankruptcy Act was passed as fraternal benefit associations, is not an “insurance corporation,” within the provision of the Bankruptcy Act excepting such corporations from the benefits thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 38; Dec. Dig. <&wkey;>43.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Insurance Company.]</p>

In Bankruptcy. ín the matter of the San Jose Baking Company, alleged bankrupt. On motion by one of the petitioning creditors that the respondent be adjudged a bankrupt upon'the pleadings and record.

At Law. Action by J. Lewis Grant, as trustee in bankruptcy of the Cayuga.Construction Company, against the National Bank of Auburn, tried by a referee on stipulation of parties. Application for an order vacating and setting aside report of referee, and for a new trial and an order directing judgment for defendant.

<p>At Law. Action for damages by the United States against Willard N. Jones. On demurrers to special answers of the defendant.</p> <p>This is an action to recover damages, based upon fraud and deceit. By Act Aug. 15, 1891, c. 290, § 15, 28 Stat. 286, 326, provision was made for disposition of certain ceded lands, formerly a part of the Siletz reservation, in language following: “The mineral lands shall be disposed of under the laws applicable thereto, and the balance of the land so ceded shall be disposed of until further provided by law under the townsite law and under the provisions of the homestead law: Provided, however, that each settler, under and in accordance with the provisions of said homestead laws shall, at the time of making his original entry, pay the sum of fifty cents per acre in addition to the fees now required by law, and at the time of making final proof shall pay the further sum of one dollar per acre, final proof to.be made within five years from the date of entry, and three years’ actual residence on the land shall be established by such evidence as is now required in homestead proofs as a prerequisite to title or patent.” Subsequently, by Act May 17, 1900, c. 479, 31 Stat. 179 (Comp. St. 1913, § 5013), the Congress provided in effect that, upon payment to the local land officers of the usual and customary fees, no other •or further charge of any kind whatsoever should be required from such settler to entitle him to a patent to the lands covered by his entry. This was designed as an amendment of the act of August 15, 1894, and relieved the entryman from payment of $1.50 per acre as a prerequisite to obtaining bis patent from the government.</p> <p>In general, the complaint avers that the defendant, Jones, with the view of acquiring title in himself and persons associated with him to lands subject to disposition under the act of August 15, 1894, entered into fraudulent arrangements with certain persons, nine in number, whereby each of such persons should make application to homestead a certain tract of the lands subject to entry under said act, and that each should make fraudulent and false proofs as to settlement, residence, improvements, cultivation, etc., at the time of making final proofs, so as to entitle him to patent; that said persons accordingly pretended to make settlement upon the lands selected as their homesteads, and offered and made homestead proofs, and submitted the same to the proper officers of the United States land office at Oregon City; “that in and by said homestead proof each of said entrymen by himself and two witnesses falsely and fraudulently represented that he had, as required by law, established a residence upon and resided upon the land embraced in his said entry continuously after the alleged establishment of residence thereon until the time of said proofs, and had made substantial improvements thereon as set forth in said proof; that he had been only temporarily absent from said lands' for a short time for the purpose of earning money to improve the same. And those entrymen having families each further falsely gave proof by himself and witnesses that his family resided on the claim in the absence of the entryman; th^t he had cultivated that portion of said lands specifically set out in his said proof, and that he had not conveyed any part of said lands and had not made any contract, directly or indirectly, whereby the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself; and that he was acting in good faith in perfecting the entry,’ when in truth and in fact, as each of said entrymen and his witnesses then and there well knew at the time of making said proofs, had not established a residence upon said lands, and had never resided thereon, and had no improvements thereon, and none of the said entrymen, as they and their witnesses well knew, had, cultivated that part of his said entry set forth in his homestead proof, or any part thereof, for the time set forth in said proof, or at any time; but, if any part of any of said homestead entries was cultivated, the same was done by the defendant, Willard N. Jones, and all improvement made thereon was made by the defendant, Willard N. Jones, and not by any of said entrymen. And plaintiff alleges that none of said entrymen had acted in good faith, or was acting in good faith, in perfecting said entry, but was making the same upon speculation, and not for the purpose of making or securing for himself or his family a home;' that in truth and in fact all of said entrymen, after the making of their respective entries as aforesaid, continued at all times during the life of their respective entries to reside at Portland, Or., except Benjamin S. Hunter, who resided at all said times at Dundee, Or., as aforesaid; that no improvements were made upon any of said lands during the life of said homestead entries, with the exception that the said defendant, Willard N. Jones, for the purpose of falsely and fraudulently making it appear that each of said entrymen resided upon his respective entry, had a house thereon built, a small, flimsy, uninhabitable shack upon the lands within each of said entries, shortly before said proofs were made. And the said Willard N. Jones, also in furtherance of said fraudulent and collusive purpose, caused a small tract upon each of said entries, in extent less than an acre, to be scratched over in order to give a semblance of a foundation for the statements of the entrymen and their witnesses that a portion of their respective entries had been cultivated.” By further averment it appears that, relying upon the false and fraudiilent representations thus made by the entrymen, the officers of the government were induced to issue final certificates to them, and eventually patents covering the lands comprised by the homesteads thus entered. The prayer is for damages in the sum of $133,000.</p> <p>The defendant, for a second further and separate answer, has set up the statute of limitations of 6 years. For a third" further and separate answer it is averred in effect that, as to eight of the entrymen, none of them, either by himself or by his final or homestead proof witnesses, or any witness produced by him, claimed, represented, or testified that he had' resided upon said land by him entered for a period of 3 years, or for any other or greater period than as set out at length; the proofs showing that length of residence ranged from 13 to 20 months after entry, supplemented by proof of service in the Army or Navy of the United States for the remaining period of the 3 years. Thereupon it is alleged: “That the plaintiff and its agents and officers, in considering and passing on said final proofs, well knew that each of said entrymen and Ms final proof witnesses bad therein testified, stated, and Claimed less than 2 years’ aciual residence on the part of such entryman, and neither the said plaintUI nor any of its agents or officers, in considering said final proofs, believed or understood, or had any reason to believe or understand, that any of said entrymen had represented or claimed to have resided upon said lands, or any thereof, for 3 years, hut, on the contrary, the plaintiff and each and all of its agents and officers, by mistake of law, gave and allowed to each of said entrymen credit for military service as aforesaid, as a major part of the 3 years’ actual residence required by law, and by reason of such mistake of law, and not otherwise, issued the final certificates and patents mentioned and referred to in the complaint.” As to Wells, the remaining one of the nine entrymen, it is alleged that he committed, but that his proofs show on their face that ho was not an actual resident on his pretended homestead- to exceed 10 weeks. And in this relation defendant further avers, in effect, that the plaintiff and its officers and agents, in considering said final proof, and in issuing the final certificate and patent referred to in the complaint to the said Wells, fully and well knew and understood that Wells had not resided upon said land to exceed 10 weeks, and, notwithstanding this knowledge and understanding, issued such certificate and patent to Wells. A fourth further and separate answer is interposed, which relates wholly to the measure of damages that should be applied, if recovery be had.</p> <p>The plaintiff demurred to each of these three further and separate answers, on the ground that the facts stated are insufficient in law to constitute a defense.</p>

<p>At Raw. Action by Robert E. Gibson against the Victor Talking Machine Company. On demurrer to second amended declaration.</p>

<p>1. Bankruptcy <§=>205 — Preferences—Remedy by Trustee.</p> <p>The fact that creditors of a bankrupt obtained a preference by attaching in another state notes due the bankrupt and selling them under the order of the court does not entitle the trustee in bankruptcy to recover the notes from the purchasers, but only to recover from the creditors the amount they received.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 284, 303; Dec. Dig. <§=205.J</p> <p>2. Bankruptcy <§=>102 — “Preference”—Sauk by Court.</p> <p>A sale in attachment proceeding's in another state of notes given, to a bankrupt is not a “preference,” where there was no transfer by the bankrupt, and he did not procure or suffer the judgment to be rendered.</p> <p>[Ed. Noto. — For other cases, see Bankruptcy, Cent. Dig. §§ 278-281; Dec. Dig. <§=>162.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Preference.!</p> <p>3. Bankruptcy <3=>200(3) — Attachment—Judgment oe Sauk.</p> <p>A judgment rendered by a state court, directing the sale of notes of a bankrupt which had been attached, is void, where neither the bankrupt nor his trustee were before the court when it was rendered, and the bankrupt was insolvent when the attachment suit was begun, so that the attachment was void under Bankr. Act July .1, 1898, c. 541, § 67f, 30 Stat. 564 (Comp. St. 1913, § 9G51).</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 296-300; Dec. Dig. <§=>200(3).]</p> <p>4. Bankruptcy <§=>293(1) — Jurisdiction oe Courts — Suit to Recover Debt.</p> <p>Bankr. Act, § 23b, as amended by Act June 25, 1910, c. 412, § 7 (Comp. St. 1913, § 9007), providing- that suits by a trustee in bankruptcy shall be brought in- the courts where the bankrupt might have brought them, unless by consent of the proposed defendant, except suits for the recovery of property under the sections forbidding preferences by procuring or suffering judgments and fraudulent conveyances, does not give the United States courts jurisdiction over a plenary suit by the trustee ‘to recover a debt due the bankrupt, where the amount was insufiiciont to give jurisdiction because of diversity of citizenship.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Cent. Dig. § 411; Dec. Dig. <©=>293(1).J</p> <p>5. Bankruptcy C=>293(1) — Jurisdiction oe Courts — Recovery oe Debt.</p> <p>Bankr. Act, § 2, cl. 20 (Comp. St. 1913, § 9586), giving courts of bankruptcy ancillary jurisdiction over persons and property within their resixxitive territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceeding pending in any other court of bankruptcy, gives such ancillary jurisdiction only over summary proceedings which would have been within the jurisdiction of the court appointing the trustee if within its territorial limits, and does not give it jurisdiction over a plenary suit by a trustee in bankruptcy appointed, in another district to recover a debt due the bankrupt from a debtor residing there.</p> <p>[Ed. Noto.- — For other cases, see Bankruptcy, Cent. Dig. § 411; Doc. Dig. <§=>293(1).]</p> <p>6. Bankruptcy <§=>293(1) — Jurisdiction oe Courts — Injunction Agatnst Claim to Property.</p> <p>A court of bankruptcy has summary jurisdiction to enjoin the assertion of a claim to notes in the possession of the trustee based on a sale on at-taehment thereof, which was void under the Bankruptcy Act, where because of such claim the debtor refused to pay the notes and the trustee could not sell them to others, and therefore a court of another district has ancillary jurisdiction over a suit for such injunction under Bankr. Act, § 2, cl. 20.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 411; Dec. Dig. @==>293(1).].</p>

In Equity. Suit by Philip Klein, as executor, and Lillian Klein, as executrix, of the will of Charles Klein, deceased, against Rex Reach and the Selig Polyscope Company, Incorporated. On motion to dismiss bill. This is a joint motion on behalf of the defendants to dismiss the complaint, on the ground that it does not allege facts sufficient to constitute a cause of action.

<p>In Bankruptcy. In the matter of Benton D. Smith, bankrupt. On report of the special master against the discharge of the bankrupt.</p> <p>This is a hearing on the application of the bankrupt to set aside the report of the special master, who reports against the discharge of the bankrupt, on the one hand, and an application by the trustee in bankruptcy and a creditor to confirm and approve such report, and, pursuant to the report of the special master, refuse a discharge.</p>

<p>ADMIRALTY &wkey;>2 — JURISDICTION—SAVING OP COMMON-DAW REMEDY.</p> <p>Under Judicial Code (Act March 3, 1911, e. 231) § 24(3), 36 Stat. 1091 (Comp. St. 19.13, § 991), which gives the federal District Courts original jurisdiction of all civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it,” a right of action in personam for a tort, given by a state statute, may be enforced by an action at law in a state court, or in a federal court where there is a diversity of citizenship, although the tort was committed on shipboard within the navigable waters of the state, and a remedy might also be had in a court of admiralty.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 18-28; Dec. Dig. <&wkey;>2.]</p>

<p>In Equity. Suit by Cyrus Townsend Brady against tlie Reliance Motion Picture Corporation, the Mutual Film Corporation, and the Frank A. Munsey Company. On motion to dismiss bill.</p>

<p>In Equity. Suit by the Motion Picture Patents Company against the Universal Film Manufacturing Company, the Universal Film Exchange- of New York, Incorporated, and the Prague Amusement Company, Incorporated. On appeal from clerk’s taxation of costs.</p> <p>Appeal from clerk’s taxation of costs. The items in question are as follows:</p> <p>'Cost of certified copy of ále wrapper and contents of application of</p> <p>Copy of opinion of District Court... 1 00</p> <p>Copy- of decree of District Court.'.... 1 00</p> <p>Thirteen copies of United States patents... 00</p> <p>Three copies of Drench patents; one copy of British patent. 9 50</p> <p>Certified copy of opinion of District Court for the Eastern District of Pennsylvania, United States v. Motion Picture Patents Company et al.. 9 90</p> <p>Translations of Drench patents Nos. 208,617 and 249,875 . 20,00</p> <p>Certified copy of decision of the examiner in chief of October 17, 1899, . Interference No. 18,461. 6 53</p> <p>Certified copy of decision of the Acting Commissioner of Debruary 5, 1900, in above interference.’. 3 32</p> <p>Certified copy of decision of Court of Appeals of District of Columbia on appeal from above interference. 5 10</p>

<p>At Law. Audley Elder and others were charged with violation of the oleomargarine law. On objection to evidence.</p>

In Bankruptcy. t In the matter of Charles J. Ballantine, bankrupt. Application by Harriet K. Ballantine to review the decision of the referee, rejecting her claim and refusing to allow her to vote on the question o.f the election of a trustee.

<p>1. Bankruptcy <@=>229 — Examination of Bankrupt — Contempt—“Refusal to be Examined.”</p> <p>The “refusal to be examined” according to law, for which a bankrupt may be committed for contempt, may be manifestéd by a formal refusal, by standing mute, by evasive or inconclusive answers, or by palpably false and flagrantly untruthful answers; but it always involves the element of contumaciousness, and must be distinguished from mere lack of candor or frankness, and from untruthfulness and plain perjury.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. <@=>229.1</p> <p>2. Bankruptcy <@=>229 — Examination op Bankrupt — Contempt—Proceedings por Commitment.</p> <p>Before a bankrupt is committed for contempt for refusing to be examined, he should ¿e first admonished and given an opportunity to purge himself, after which a specific question should be asked and a specific answer required; and where the record shows merely that he answered questions put to him as to the acquisition and sale of property by saying that he did not know, or that he did not recollect, and was not informed that his answers were insufficient until a petition was filed asking for his commitment, the commitment will be refused.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 385; Dec. Dig. <@=>229.1</p>

Proceeding by the United States against Jew Sung Gwong, alias J. S. Song, alias Joe, for deportation. From an order of the United States commissioner, directing that defendant be deported, defendant appeals.

<p>Attorney and Orient <§=60 — Disbarment—Eeeect.</p> <p>A contingent fee contract to prosecute a ease for personal injuries, which, under the laws of Ohio, is valid only when not coupled with a provision giving the attorney the exclusive control of the case, or preventing the claimant from adjusting the case without the consent of the attorney, and which gives him only an equitable interest in the subject-matter, does not make tbe attorney a party in interest, and entitled as such to appear to advocate his cause in person, so as to entitle him to appear therein after the case was removed to a federal court, which had disbarred tbe attorney from practice before it for misconduct involving moral turpitude.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 83; Dec. Dig. <S=60.]</p>

In Bankruptcy. In the matter of F. M. Smith, bankrupt. On motion ®f the alleged bankrupt to approve the report of the master that the petitioning and intervening creditors did not hold provable claims against the respondent in the sum required.

<p>1. Courts <@=>270 — Jurisdiction or Federal Courts — District of Suit.</p> <p>An action to recover damages for personal injury is not one of a local nature, and, where plaintiff is an alien, can be brought only in the district whereof defendant is an inhabitant, unless the question be waived.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 810; Dec. Dig. <©=270.]</p> <p>2. Courts <@=34:4 — Federal Courts — Service in Another District.</p> <p>In a suit of a local nature, where process is served on a defendant residing in a different district in the same state under Judicial Code (Act March 3, 1911, c. 231) § 54, 36 Stat. 1102 (Comp. St. 1913, § 1036) the summons must issue to the marshal of such, district.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. @==>344.]</p> <p>'3. Appearance <©=>10 — “Special Appearance.”</p> <p>A special appearance by a defendant to challenge the jurisdiction of the court by a motion is not rendered a general appearance by the fact that he also obtains an order extending the time to plead until the motion shall be disposed of, where the order recites the fact and states that the extension is without prejudice to the motions.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 53, 54; Dec. Dig. <@=10.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Special Appearance.]</p>

At Law. Actions by Frank Vitkus against the Clyde Steamship Company. On motions to set aside service of summons and to dismiss for want of jurisdiction.

<p>1. Courts <@==274 — Federal Courts — Service of Process — Foreign Corporations.</p> <p>In an action against a corporation in the Eastern district of New York, a valid judgment cannot he rendered unless defendant is served within “the district, or voluntarily appears, and service in the Southern district on an agent designated under the laws of the state for service of process is not a good service.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dea Dig. <§=>274.]</p> <p>2. Courts <§=>274 — Federal Courts — District in Which Suit Must be Brought.</p> <p>An action by an alien against a corporation must be brought in the district where defendant is incorporated, or in which it can be found having a general office or doing business, if it waives the right to insist on trial in the district of its home office.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. <§=> 274.]</p> <p>3. Courts <§=>276 — Process <2=166 — Service—Waiver op Objections.</p> <p>In an action in the Eastern district of New York against a corporation served in the Southern district, it appeared specially, but, in addition to objecting to the method of service, offered several objections going to the merits, of the right to proceed with the suit, based upon the pendency of other actions, alleged that its time to answer would expire before the matter could be disposed of, applied for an extension of time to plead, demur, answer, or take such steps as it might be advised, submitted an affidavit of merit, and presented objections based on the federal Constitution. Held, that it waived the right to object to being brought into the Eastern district, and waived the defect in the service of the papers.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. <&=276; Process, Cent. Dig. §§ 250-255; Dee. Dig. <§=>166.]</p>

<p>At Law. Action by George Tanza against the Pennsylvania Railroad Company. On motion to set aside the service.</p>

• At Law. _ Action by' Julian Harasimowicz, also known as Louis Harris, against the Pennsylvania Railroad Company and others. On motion by the defendants Mineral Railroad & Mining Company and another to set aside the service of process.

<p>Post Ofmce <&wkey;4á — Postal Oemnses — Statute—Construction.</p> <p>Act March 4, 1909, c. 321, § 194, 35 Stat. 1125 (Comp. St. 1913, § 10304), making it an offense to extract from or out of a letter box or authorized depository mail matter which has been deposited therein, does not apply to the act of taking mail matter which has been placed on and outside the box.</p> <p>[Ed. Noto. — For other cases, see Post Office, Cent. Dig. §§ 60, 61; Dec. Dig. <&wkey;44J</p>

<p>At Law. Action by Brown & McCabe, Stevedores, Incorporated, against the London Guarantee & Accident Company. On demurrer.</p>

In Admiralty. Suit for collision by Harry Cossey against the steamship Crown of Galicia, the Crown Steamship Company, IJmit-ed, claimant, and the tugs M. Moran and Helen B. Moran, the Moran Towing & Transportation Company, claimant, with cross-libel by the Crown Steamship Company against the tugs, Dry Dock Section No. 6, Harry Cossey, claimant, and others.

Appeals from the District Court of the United States for the Eastern District of New York. Suit for collision by Harry Cossey against the steamship Crown of Galicia, the Crown Steamship Company, Limited, claimant, and the tugs M. Moran and Helen B. Moran, the Moran Towing & Transportation Company, claimant, with cross-libel by the Crown Steamship Company against the tugs, Dry Dock Section No. 6, Harry Cossey, claimant, and others.

<p>1. Master and Servant &wkey;>21 — Contracts of Employment — Construction. '</p> <p>Where an employé agreed to perform the services required of him to the satisfaction of the employer, the employer is justified in discharging him if his services are not satisfactory, and the employer has absolute discretion in determining that question, and is not guilty of a breach of contract, because, though the services rendered should have been satisfactory, they tvere not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. &wkey;21.]</p> <p>2. MASTER AND SERVANT @=>21— CONTRACT OF EMPLOYMENT — EIGHT OF EMPLOYER.</p> <p>Where a contract of employment required the employé to perform the services required of him as manager of a business to the satisfaction, of the employer and to devote all his working time, labor, and skill, giving his attendance and best endeavors to the business of the employer, the added clause did not qualify the right of the employer to discharge the em-ployé because his services were not satisfactory by prescribing a criterion regulating whether the services were satisfactory.</p> <p>LEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. @=>21.]</p> <p>3. Master and Servant @=>21 — Contract of Employment — Construction— Discharge of Servant.</p> <p>Where a contract required services of an employe to be to the satisfaction of the employer, the employer is liable for a breach of contract, whore he discharged the employé for other reasons, and not because his services were unsatisfactory.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. §§ 20, 21; Dec. Dig. @=>21.]</p> <p>4. Master and Servant @=>43 — Wrongful Discharge — Jury Question.</p> <p>Whether the services of an employé were satisfactory to an employer, or whether the employer discharged him because of other reasons, held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 57, 58; Dec. Dig. @=>43.]</p> <p>5. Master and Servant <&wkey;40(2) — Construction—Actions—Evidence.</p> <p>Where a contract for services required the employe to render services required, evidence of what services were required is admissible in an action for the employer’s breach.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 48; Dee. Dig. @=>40(2).]</p>

Killits, Judge. Bill by Edward H. Cady, trustee for the Ohio Savings Bank & Trust Company, against John E. Barnes and others. From a decree (208 Fed. 361) for complainant, defendants appeal. This is an appeal from a decree ordering a foreclosure of a mortgage on certain land and the sale of such land to satisfy such mortgage.

<p>1. Banks and Banking &wkey;*61 — Officers—Offenses—“Bilí, of Exchange” —Cashier’s Check.</p> <p>A cashier’s check, dj|awn by the cashier of a bank, payable to the order of a named person, is a bill of exchange, within Rev. St. § 5209, Comp. St. 1913, § 9772), providing that every president, director, cashier, or agent of any banking association, who, without authority from the directors, draws any order or bill of exchange with intent to injure or defraud the association and every person who with like intent aids or abets, shall be guilty of crime; a “bill of exchange” being a written order or request by one person to another for the payment of a specified sum-of money to the order of a third person absolutely and at all events.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 121; Dec. Dig. <&wkey;61.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Bill of Exchange.]</p> <p>2. Banks and Banking <&wkey;62 — Officers—Offenses—Feaud—Bills of Exchange-Evidence.</p> <p>Evidence held to warrant a finding that a cashier drew cashier’s checks with intent to defraud a banking association, contrary to Rev. St. § 5209, and that plaintiff in error aided and abetted him with like intent.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 122-124; Dec. Dig. <&wkey;62.]</p> <p>3. Criminal Law &wkey;>110 — Offenses—Accessories—Jurisdiction of Court — > “Principal” — “Felony.”</p> <p>The Penal Code which went into effect January 1, 1910 (Act March 4, 1909, c. 321, 35 Stat. 1152) provides in section 332 (Comp. St. 1913, § 10506) that whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, or procures its commission, is a “principal,” while section 335 (section 10509) declares that all offenses which may be punished by death or imprisonment for a term exceeding one year shall be deemed felonies. Rev. St. § 5209, provides that every cashier, officer, or agent of any banking association, who without authority shall draw any order or bill of exchange with intent to injure or defraud the association and every person who shall aid or abet him with like intent, shall be guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten years. Hold that, after the enactment of the Penal Code, the offense mast be deemed a “felony,” and therefore, under the rule that where a statute provides that an accessory may bo prosecuted and convicted as for a substantive felony, one who aided and abetted in the offense, though he was at the time without the district in which the offense was actually committed, may be convicted in the district where the offense was commuted, if such court had jurisdiction over the principal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. | 228; Dec. Dig. <&wkey;>110.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Felony; Principal.!</p> <p>4.Criminal Law <&wkey;98 — Oimíenses-—Aockssokies.</p> <p>Where a statute provides that an accessory may be prosecuted and convicted as for a substantive felony the crime is cognizable in any court having jurisdiction over the principal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 192-195; Dec. Dig. &wkey;98.j</p> <p>5. CbimiNal Law <&wkey;829(l) — Trial-Instructions.</p> <p>It is Improper to single out individual facts, and call the jury’s special attention to them, where the whole matter can be satisfactorily given in the general charge; therefore, in a prosecution of a bank cashier for drawing and issuing bills of exchange with the intent to defraud a banking association, and of other defendants for aiding and abetting 1 herein, contrary to Rev. St. § 5209, special instructions relating to kiting of checks, which singled out isolated matters presented by the general charge were properly refused.</p> <p>. [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829(l)J</p> <p>6. Criminal Law <&wkey;S29(l) — Trial—Instructions—-Refusal.</p> <p>The refusal of special instructions, though correct in law, which were covered by the general charge, is proper.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829(l).]</p> <p>7. Criminal Law <&wkey;371(l)-7EvrnEN0E — Similar Transactions.</p> <p>In such prosecution, evidence of other drafts and transactions between the parties to the scheme, issued and occurring about the same time, is admissible; all the occurrences being related.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 831; Dec. Dig. <&wkey;>371(l).]</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Action by Julia B. Vogel against the Pacific Mutual Life Insurance Company of California. There was a judgment for plaintiff, and defendant brings error.</p>

Niles, Judge. Action at law by Davis & Pleasants against the Cotton States Life Insurance Company. Judgment for defendant, and plaintiffs bring error.

Pollock, Judge. Action by the United States against the St. Joseph & Grand Island Railway Company. Judgment for the plaintiff on an agreed statement of facts, and defendant brings error. The United States, plaintiff in the court below, instituted a civil action against the defendant, plaintiff in error, to recover penalties for violations of the Hours0 of Service Act of Congress, approved March 4, 1907. 34 Stat. 1415.

<p>1. Master and Servant <&wkey;265(2) — Injuries to Servant — Burden of Proof —Negligence of Master.</p> <p>In an action for the death of a railroad brakeman in a collision between a work train and a hand car, the burden is on the plaintiff to prove negligence of the railroad company. Whitney v. New York, N. II & II. R. Co., 102 Fed. 850, 43 C. C. A. 19, 50 It. R. A. 615, applied.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 878, 895, 896; Dec. Dig. &wkey;265(2).]</p> <p>2. Commerce <&wkey;27 — Federal Employers’ Liability Act — “Employed in Interstate Commerce.”</p> <p>A brakeman on a work train of an interstate and foreign railroad which was engaged in picking up rails along tracks used for interstate traffic, to transport them to other points on. the interstate tracks, was “employed in interstate commerce,” within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <&wkey;>27.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

Niles, Judge. Bill iti equity by W. E. Owen, receiver of the New Orleans, Mobile & Chicago Railroad Company, against E. J. Alford and others. From a decree for defendants, plaintiff appeals.

Action by John Paterlini and wife against the Memorial liospital Association of Monongahela City, Pa., and others. From a judgment (229 Fed. 838) sustaining a demurrer to the statement, plaintiffs appeal.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; Clarke, Judge.</p> <p>Suit in equity by Reinhold Herman against the Youngstown Car Manufacturing Company and John P. Young, impleaded. From a decree against defendant Young, he appeals.</p>

<p>1. Patents <§==>328 — Validity and Invention — -Structure fob Hold in & Plate Glass.</p> <p>The Plym patent, No. 852,450, for a structure for holding heavy plate glass in position, was not anticipated and discloses patentable invention; also held infringed.</p> <p>2. Patents <@=>66 — Anticipation—Priob Patent to Same Inventor.</p> <p>The test to he applied as to the validity of a patent with reference to an earlier patent to the same inventor is a comparison of the scope and breadth of the claims of the two patents.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§.79, 81; Dec. Dig. <@=>66.]</p> <p>3. Patents <@=>35 — Evidence of Invention — Commercial Success.</p> <p>Difficulties encountered by a patentee in attempting to introduce his patented device, followed by its later commercial success, are persuasive evidence of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 39; Dec. Dig. <§=> 35.]</p> <p>4. Patents <§=>227 — Suit tor Infringement — Defenses.</p> <p>The intention of a defendant is immaterial on tlie question of infringement.</p> <p>LEd. Note. — Por other cases, see Patents, Cent. Dig. § 358; Dec. Dig. <§=> 227.] _</p> <p>5. Patents <©=>234 — Infringement—Impairment of Function of Device.</p> <p>Infringement is not avoided by impairment of the functions of a patented device in degree, if the features are retained.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 370, 381; Dec. Dig. <§=>234.]</p> <p>6. Patents <§=>327 — Suits for Infringement — Effect of Prior Decisions.</p> <p>Decisions respecting the validity of a patent are entitled to consideration in a subsequent suit in a court of equal jurisdiction, the weight to be given them depending on the circumstances in each case.</p> <p>TEd. Note. — For other cases, see Patents, Cent. Dig. §§ 620-625; Dec. Dig. <§=>327.]</p>

<p>Bankruptcy <@=3408(1) — Discharge—Grounds fob Refusal — Perjury in Other Proceedings.</p> <p>No perjury committed by a bankrupt in any bankruptcy proceedings except those against himself is ground for refusal of a discharge, notwithstanding the literal reading of Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 (Comp. St. 1913, § 9598), denying a discharge to one who has committed an offense punishable by imprisonment as therein provided, and section 29 (section 9613), making it an offense punishable by imprisonment to make a false oath in relation to any proceedings in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 732; Dec. Dig. <©=j408(1).]</p>

<p>1. Bankruptcy <§=>400(1) — Powers of Trustee — Exemptions.</p> <p>While a trustee in bankruptcy cannot arbitrarily refuse to set aside an exemption to which the bankrupt is entitled, he has discretion, and represents all the creditors, and may in a proper case himself raise the question of the bankrupt’s right to a claimed exemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 671, 673; Dec. Dig. <§=>400(1).]</p> <p>2. Bankruptcy <§=>143(12) — Property Passing to Trustee — Life Insurance Policy.</p> <p>Life insurance policies, originally payable to the insured or his estate, but later assigned to his wife, with full reservation of right to change the beneficiary at will, and which had cash surrender values at the time of the bankruptcy of the insured, pass to the trustee, unless exempt.</p> <p>[Ed. No.te. — For other eases, see Bankruptcy, Cent. Dig. § 201; Dec. Dig. <§=>143(12).] ■</p> <p>3. Exemptions <§=>50(1) — Statute—Retroactive Operation.</p> <p>Act La. No. 189 of 1914, exempting the proceeds of life insurance policies from execution for debts, could not constitutionally be given retroactive effect, so as to exempt life insurance policies which could have been seized by creditors whose claims originate prior to the enactment of that statute.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 75; Dec. Dig. <§=>50(1).]</p> <p>4. Bankruptcy <@=>143(12) — Exemptions <§=>50(1) — Property Passing to Trustee — Life Insurance Policy.</p> <p>Prior to the enactment of Act La. No. 189 of 1914, exempting the proceeds of policies on the life of a bankrupt of which his wife was bene-fieiary, one which gave the insured the power to change the beneficiary, and which had a cash surrender value, could, under Oiv. Code La. art. 3183, making all the property of a debtor the common pledge of his creditors, and Code Brae. La. art. 647, providing that an incorporeal right might be seized under execution, bo seized under execution, and therefore passed to the trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 201; Dec. Dig. @=»143(12); Exemptions, Cent. Dig. § 75; Dec. Dig. <§A>50(1).]</p>

<p>1. Bankruptcy @=>159 — “Votoadle” Preference — What Constitutes.</p> <p>To be voidable as a preferential transfer, under Bankr. Act 3uly 1, 1898, c. 541. § 60b, 30 Stat. 562 (Comp. Bt. 1913, § 9644), it must appear that the transfer was made within four months before petition for bankruptcy was filed, that the bankrupt was insolvent, and that the transferee had reasonable cause to believe that the enforcement of the transfer would effect a preference.</p> <p>[Ed. Note. — Dor'other eases, see Bankruptcy, Cent. Dig. §§ 247, 248, 262, 268-281; Dec. Dig. @=>159.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Voidable.]</p> <p>2. Bankruptcy @=3308(3) — Preference—Evidence.</p> <p>In a suit to set aside a transfer as a preference under Bankr. Act, § 00b, evidence hold insufficient to show that the transfer occurred within four months before the filing- of the petition.</p> <p>1 Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 462; Dec. Dig. @=>303(3).]</p> <p>8. Bankruptcy @=>181 — Fraudulent Conveyance-Fraud of Creditors— What Constitutes.</p> <p>Whore a debtor, more than four months before the filing of a petition in bankruptcy, transferred corporate stock to his brother, wiio had made Mm large advances, equal to, if not in excess of, the value of tiie stock, the transfer was not fraudulent as to other creditors.</p> <p>[lid. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 260, 271. 273, 274; Dec. Dig. <§=>181.]</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Breakwater Company. Sur certificate of referee of order striking off proof of claim of Tony D’Allessandro.</p>

<p>1. Aliens @=42 — Immigration—Board or Special Inquiry — “Official.”</p> <p>Immigration Act Feb. 20, 1907, c. 1134, § 24, 34 Stat. 906 (Comp. St. 1913, § 4273), provides that immigration inspectors and other immigration officers, clerks, and employfis may thereafter be appointed and their compensation fixed by the Secretary of Labor. Section 25 (section 4274) provides that each board of special inquiry shall consist of three members selected from such of the inmigrant officials as the Commissioner General of Immigration shall designate as qualified to serve,'provided that'at ports where there are fewer than three immigrant inspectors the Secretary of Labor may designate other United States officials for service on such, boards. At a place where there were more than three immigrant inspectors a clerk in the immigration service was designated to serve on a board of special inquiry which refused admission to petitioner. Held, that the term ‘‘officials,” in the latter section, is not used in contradistinction to “clerks,” as is the term “officers” in the former section, and the construction by the department that it includes clerks will be valid.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 101; Dec. Dig. <§=342.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Official.]</p> <p>2. Aliens <@=»53 — Immigration—-Wins of Resident Alten — Hospital Treatment.</p> <p>The wife of a Japanese domiciled in this country, who had not and could not file his declaration of intention to become a citizen, is not entitled. as a matter of right, to hospital treatment under Immigration Act, § 37 (Comp. St. 1013, § 4286), providing that if the wife of an alien, who has tallen up his permanent residence and filed his declaration of intention to become a citizen, is found affected with any contagious disorder, she shall be held until it shall be determined whether she can be cured or permitted to land without danger to others.</p> <p>[Ed. Note.- — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <g=»53J</p>

<p>1. Bankruptcy <§=3414(1) — Discharge—Refusal—Burden of Proof.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 (Comp. St. 1913, § 9598), providing that the judge shall discharge the applicant unless he has, among other things, obtained money or property on credit upon a materially false statement in writing for the purpose of obtaining credit, the burden is on the creditor, objecting to discharge, to sustain the allegations in his specifications of objection.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 720; Dec. Dig. <§=3414(1).]</p> <p>2. Bankruptcy <§=3407(5) — Discharge—Refusal—False Statement.</p> <p>One who made a materially false statement of his assets and liabilities to a mercantile agency, and who testified that he made it for the purpose of having the agency distribute it among his creditors, made the agency his agent to circulate the false statement, and where it was sent to a creditor, who sold goods in reliance thereon, the discharge in bankruptcy will be refused.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 760, 761; Dec. Dig. <§=3407(5).]</p>

In Bankruptcy. In the matter of the bankruptcy of Anthony Du-bosky. Onv petition for review of order of referee denying priority to a mechanic’s lien claimant.

Petition for naturalization by one Lampitoe. The petitioner is the son of a Filipino mother and of a father whose mother was a Filipino and whose father was a full-blooded Spaniard, resident in Manila. The petitioner has served one full term of enlistment in the United States Navy and is now .serving another; he is in every way qualified for citizenship, unless his race prevents.

In Admiralty. In the matter of the petition of the Capitol Transportation Company, as owner of the steamer Benjamin Noble, for limitation of liability. Claim of the Cambria Steel Company, cargo owner.

In Bankruptcy. In the matter of Harry Rothleder. On application by certain creditors to review the action of the referee in bankruptcy in appointing a trustee after failure of election.

In Admiralty. Suit by the Aktieselskabet Korn-Og Foderstof Kom-pagniet against the Rederiaktiebolaget Atlanten. This is a libel in admiralty to recover damages for the breach of a charter party against the owner. On January 8, 1915, the owner without excuse withdrew the ship from the charter and employed her upon another voyage. Thereupon the charterer libeled her, and set up the charter party and the letter of withdrawal as part of his libel.

In Bankruptcy. In the matter of Interocean Transportation Company of America, bankrupt. On motion by Robert P. Lewis, receiver in bankruptcy, to stay suits in a state court and in a court of admiralty. The facts in this case are as follows: Palin, Evans & Co., Limited, the libelant in admiralty, chartered the ship Brinkburn to the Hellenic Transatlantic Steamship Company, the plaintiff in the action in the state court, on a time charter, reserving a lien on subfreights.

<p>1. Pleading @=>194(4) — Special Traverses — Effect.</p> <p>Where a party incorporates special traverses with matter in confession and avoidance, the traverses cannot be disregarded, and may render the plea good as against demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 450; Dec. Dig. ©=>194(4).]</p> <p>2. Pleading ©=>364(1) — Motion to Strike.</p> <p>As the improper incorporation of special traverses with matter in confession and avoidance may render the plea good as against demurrer, motion to strike such traverses will be sustained.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1156,1158, 1160; Dec. Dig. <@=>364(1).]</p> <p>3. Pleading ©=>!)() — Teaveeses—Anticipatory Traverse — Bight to.</p> <p>Where the opposite party has already incorporated a traverse of a possible plea in avoidance in his own pleading, his adversary may incorporate in his plea in avoidance a traverse of such anticipatory traverse.</p> <p>[Ed. Note.' — For other cases, see Pleading, Cent. Dig. §§ 184, 185, 187, 190, 194; Dec. Dig. ©=>90.]</p> <p>4. Pleading ©=>804(1) — Motions to Strike — Teaverses.</p> <p>Defendant counterclaimed on the theory that plaintiff while in its employ-, had delegated Ms authority, and had become financially interested in the business of a competitor, by which disloyalty, and his consequent inattention, defendant had been injured. The counterclaim then also averred that this was done without the knowledge or consent of defendant. The reply, in a confession and avoidance, alleged that all the acts complained of had been done with defendant’s consent and then traversed the allegation that defendant had no knowledge and gave no consent to plaintilf’s conduct. Held, that such traverse should not be stricken, for, though anomalous, it avoids the result of a plea inconsistent in substance, though not in form, with the counterclaim.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1156, 1158, 1160; Dec. Dig. @=>364(1).]</p> <p>5. Pleading ©=364(5) — Traverses—Conclusions of Daw.</p> <p>In such case traverses of the allegations that plaintiff had acted contrary to the agreement, or in violation of his duty, and that it was because of plaintiff’s violation of the agreement that defendant had rescinded the agreement, should be stricken, for, being mere conclusions of law, they raise only immaterial issues.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 1159; Dec. Dig. ©=364(5).]</p> <p>6. Pleading ©=>364(6) — Striking Out Traverse.</p> <p>In such case, a traverse of the allegation that defendant suffered damage from plaintiff’s breach is properly stricken, for, the action being in contract,- no allegation of damage is necessary to withstand demurrer; hence such traverse is unnecessary to the validity of the plea.</p> <p>[Ed. Note. — For other cases, see Pleading,- Cent. Dig. §§ 1161, 1162; Dec. Dig. <®=s>364(6).]</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Continental Building & Roan Association. Petition to review an order of the referee disapproving the selection of a trustee, and to review his action in allowing shareholders of the bankrupt to vote as creditors.</p>

In Bankruptcy. In the matter of the bankruptcy of Leonard G. Sclnimm, bankrupt. Petition by the bankrupt for review of an order of the referee refusing to set apart to him as exempt an auto truck.

<p>BANKRUPTCY -PROCEEDINGS — PAYMENT Olf FEES.</p> <p>As, under tile statute, payment of the clerk’s filing fees has priority over payment of attorney’s fees, a bankrupt cannot reverse this order, and, after paying his attorney a fee, file his petition and schedules as pauper.</p> <p>[ltd. Note. — For other cases, see Bankruptcy, Dec. Dig. <§^45.]</p>

' In Bankruptcy. In the matter of the bankruptcy of Washington I. Starr. Petition by Josephine Starr for review of an order of the referee postponing her claim.

<p>Appeal from the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Suit in equity by Will Robinson against the Eee Line Steamers. Decree for complainant, and defendant appeals.</p>

<p>1. Cohpobations ®=»639 — Salk of Property — Purchase by Trustees.</p> <p>Under Civ. Code, S. C. 1912, § 2S15, providing that upon the dissolution oí a corporation the directors shall he trustees, with full power to settle the corporation's affairs, sell its property, etc., directors of a corporation, so selling its property as statutory trustees could not buy the property for themselves, or a new corporation organized by them, where the amounts of their bids were less than the value of the property, and the sales would-be set aside, as the positions of buyer and seller are inconsistent, and a trustee will not be permitted to assume both positions.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 24.59, 2460; Doe. Dig. <©=3619.]</p> <p>2. Corporations <§=»63 9 — Sale of Property — Purchase by Trustees.</p> <p>A purchase of property by the attorney for such directors would also be set aside, though he was also acting for other parties interested, and with, the best intentions towards all concerned, especially where his purchase was in conjunction with the purchases by the directors, and so closely connected with them that it would add to the existing confusion to allow it to stand while setting aside the others.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2459, 2460; Dee. Dig. <@=619J</p>

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by Bettie S. Parrish against the Order of United Commercial Travelers of America. . Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Florida; Wm. B. Sheppard, Judge.</p> <p>Suit in admiralty by Walter H. Gaskill against the American steamship Wilhelmina, the A. H. Bull Steamship Company, claimant, with the Moore Timber Company, impleaded. Decree for libelant against respondent, and dismissing the. suit as against the Timber Coiqpany, and claimant appeals.</p>

<p>Appeal from the District Court of the United States for the District of South Dakota; James D. Elliot, Judge.</p> <p>Suit in equity by Clement F. Porter against the Browns Valley State Bank and Peter Nelson. Decree for complainant, and defendants appeal.</p>

Hollister, Judge. Petition by E. Blackwell, administrator of James Brown, deceased, for an order directing Judson Harmon and another, receivers of the Cincinnati, Plamilton & Dayton Railway Company, to surrender to the administrator a sum of money upon his release of a compromised claim. From an order granting the petition, the receivers appeal.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by Herbert M. De Witt against Mark A. Skinner, as Collector of Internal Revenue. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and Error &wkey;>1003 — Review—Questions op Fact — Verdict.</p> <p>Where there is substantial evidence in support of a verdict and judgment, the fact that the weight of all the evidence is strongly against the plaintiff does not authorize an appellate court to substitute its opinion for that of the trial court and jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3913; Dec. Dig. &wkey;1003J</p> <p>2. Master and Servant &wkey;>185(12) — Injuries to Servant — Fellow Servants — Nature op Employment.</p> <p>Workmen, engaged in clearing up a coal mine after a blast of explosives, so l'ar as they are intrusted with the performance of the primary duty of their employer in respect of a safe working place, are not the fellow servants of an employé who operates a machine for undercutting a vein of coal.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 399; Dec. Dig. &wkey;185(12).]</p> <p>3. Trial <&wkey;260(l) — Instructions—Requests—Inclusion in Charge Given.</p> <p>The refusal of an instruction, which so far as proper is embraced in the charge given, is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. § 651; Dec. Dig. &wkey;260(l).]</p> <p>4. Master and Servant <&wkey;291(l) — Injuries to Servant — Actions—Instructions.</p> <p>In an action for injuries to a servant, while operating a machine for undercutting a vein of coal, caused by the fall from the roof of coal which had not been removed after the preceding'blast, an instruction which did not distinguish between the face of the coal at which plaintiff was engaged and the roof above him was properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1133; Dec. Dig. &wkey;>291(l).]</p> <p>5. Master and Servant <&wkey;295(7) — Injuries to Servant — Actions—Instructions — Assumption of Risk.</p> <p>In an action for injuries to a servant, an instruction including among the dangers assumed by plaintiff those which should have been known to and appreciated by him in the exercisei of ordinary care was properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1176; Dec. Dig. &wkey;295(7).]</p> <p>6. Witnesses <&wkey;269(l) — Cross-Examination—Scope and Extent.</p> <p>The right of cross-examination is not limited to the precise, narrow scope of the questions in chief, but extends to the subject-matters of the direct examination.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 949; Dec. Dig. &wkey;269(l).]</p> <p>7. Appeal and Error <&wkey;1048(6) — Review—Harmless Error — Cross-Examination of Witness.</p> <p>In an action for injuries to a servant in a coal mine, where plaintiff had testified positively that he did not examine the roof of the place where he worked on the occasion in question, the exclusion of questions on his cross-examination as to how long it took to sound the roof of a working place, whether he ever examined it for loose coal, in thei absence of the mine foreman, before setting up his machine, and how long he drove his machine before he looked around at top and walls of his working place, was without prejudice to defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. &wkey;1048(6).]</p> <p>8. Witnesses <&wkey;280 — Cross-Examination—Trick Questions.</p> <p>In an action for injuries to a servant by the fall of coal from the roof of the mine, a question to plaintiff on cross-examination as to how long he drove his machine before he looked around at top and walls of his working place might properly be excluded, as being framed unfairly and calculated to trick the witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 988, 990-993; Dec. Dig. <&wkey;>280.]</p>

<p>1. Collision <&wkey;90 — Rules fob “Nabrow Channels” — East Rivek.</p> <p>The East River is not a “narrow channel,” within article 26 of the Inland Rules (Act June 7, 1897, c. 4, § 1, 30 Stat. 101 [Comp. St. 1913, § 7899]), and the only regulation as to navigation between the Battery and ¡Blackwells Island is Laws N. Y. 1882, c. 410, _§ 757, which requires vessels going up or down to keep as near as possible in the center of the channel.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. §§ 181-186, 196; Dec. Dig. <S=>90.</p> <p>For other definitions, see Words and Phrases, Second Series, Narrow Channel.]</p> <p>2. Collision <&wkey;95(2) — Tows Meeting — Navigating with Long Tows.</p> <p>A tug with a tow of 18 loaded canal boats extending 650 feet beyond her stern, passing up East River on a flood tide near the Brooklyn shore, held solely in fault for a collision between one of two tugs coming down with a car float nearer the shore and one of the tail-end boats of her tow, which she permitted to swing around toward the meeting tugs.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. &wkey;95(2).]</p> <p>3. Collision <&wkey;95(l) — Tidewaters—Navigating with Long Tows.</p> <p>Tugs which have long tows in tidewaters must see to it that they control their tows sufficiently to prevent them from doing harm to other vessels.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 200-202; Dee. Dig. &wkey;>95(l).]</p>

Appeals from the District Court of the United States for the Eastern District of New York. Suits in admiralty for collision by Albert E. La Veck, owner of the barge Goldie, and John H. Flannery, owner of the barge Mary F. Flannery, against the tug Wyomissing, the Philadelphia & Reading Railroad Company, claimant, with the M'orris & Cumings Dredging Company impleaded. Decree against the Wyomissing, and her claimant appeals.

<p>Appeal from the District Court of the United States for the Eastern Disti'ict of New York.</p> <p>Suit in admiralty for collision by James Morrow and Herman Harjes, owner of the barge Meta Harjes, against the tug Wyomissing, the Philadelphia & Reading Railroad Company, claimant, with the Morris & Cumings Dredging Company impleaded. Decree against the Wy-omissing, and her claimant appeals.</p>

<p>1. Partnership <&wkey;318 — Mutual Rights and Liabilities — Accounting.</p> <p>In Pennsylvania partnership accounts must be adjusted and settled, • and the liability of one partner to another ascertained, by an action of account render or by a bill in equity.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 735-738; Dec. Dig. &wkey;>318.]</p> <p>2. Partnership &wkey;>105 — Mutual Rights and Liabilities — Right op Action.</p> <p>Where a partnership has been willfully and wrongly broken up by a partner, the other partner, if he has kept his covenants, may bring an action at law; the measure of damages being the value to him of the continuance of the agreement during its covenanted term.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 168; Dec. Dig. &wkey;>105.]</p> <p>3. Courts <&wkey;328(l) — Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Where a partnership was insolvent, and had only ten days to rym, when its assets were sold on an execution on a judgment obtained in a state court for money due one of the partners from the firm, nothing more than nominal damages could be allowed in an action by the other partner for wrongful termination of the contract of copartnership, and no such damages could have been involved as the sum required to confer jurisdiction on the federal court in controversies between citizens of different states.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 890; Dec. Dig. &wkey;328(l).]</p>

<p>Appeal and Cross-Appeal from the District Court of the United States for the Southern Division of the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>In Equity. Suit by the American Automotoneer Company and the Electric Service Supplies Company against Joseph Y. Porter, doing business as the Porter Manufacturing Company and the Porter Railway Switch Company. From the decree, both parties appeal.</p>

<p>1. Patents &wkey;> 168(2) — Construction—Estoppel' by Proceedings in Patent Ofpice.</p> <p>An applicant, wlio acquiesces in the rejection, of claims by tlie Patent Office on references to prior» patents, and accepts narrower claims, is es-topped from broadening, such claims beyond the natural import of their terms, even though the examiner may have been wrong in insisting on the limitation.</p> <p>[Ed. Note. — Ebr other cases, see Patents, Cent. Dig. § 244; Dec. Dig. &wkey;168(2).]</p> <p>2. Patents <&wkey;170 — Construction—Combination Patent.</p> <p>Although all of the elements of a patented combination are not found in a single structure in the prior art, so as fully to anticipate, in determining the scope of the patent and its place in the art, as affecting the question of infringement, prior patents, showing separate elements of the combination, may properly be considered.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 245; Dec. Dig. &wkey;170:]</p>

Appeals from the District Court of the United States for the Southern District of New York. Suits in equity by Ludwig Wertheim against Louis J. Lefkowitz and Abraham Fisher, doing business under the name of Lefkowitz & Fisher, and against Louis Ritter, Jacob Ritter, and Samuel Ritter, doing business as Ritter Bros. Decrees for defendants, and complainant appeals.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Action by the Consolidated Rubber Tire Company and another against the Diamond Rubber Company of New York. Decree for plaintiffs (226 Red. 455), and defendant appeals.</p> <p>The decree of the District Court confirmed the report of the master finding that the infringement of the Grant patent, No. 554,675, beginning wi1h the year 1905 and continuing until February 17, 19.13, was “deliberate, continuous and wanton.” The master also found that a minimum license fee of five cents per pound for rubber tire was established by the complainant and this license fee was adopted by the master as a fair measure of the damages sustained by the complainant on account of the infringement. At the rate of five cents per pound upon 2,607,836 pounds of rubber tire used by the defendant, the amount due the complainant was found by the master to be $130,391.76.</p> <p>The master also made ah alternative finding to the third finding which is as follows: “Fourth. That the complainant be entitled to recover from the defendant as its damages on ai reasonable basis amounting to five cents a pound on 2,607,835 pounds of rubber tire $130,391.75.”</p> <p>This report was reviewed by Judge Learned Hand upon exceptions filed by the defendant and a careful opinion considering all the questions now mooted was rendered with the result that he not only agreed with the master as to the amount awarded but added thereto $50,000, “to pay the costs of the litigation and give the plaintiffs smart money, in addition to the actual damages, as damages.” He also added $26,869.89' as interest. 226 Fed. 455.</p> <p>On this appeal taken by the defendant, from the decree entered upon the master’s report, to quote from defendant’s brief: “The only questions in the case are as to what damages, if any, the plaintiffs are entitled to recover, and (if damages are to be recovered) from what date interest is to begin to run.”</p>

In Equity. Suit by David E. Kennedy, Incorporated, against the Beaver Tile & Specialty Company and Isaac R. Russell. On final hearing. This is the usual bill in equity for infringement of a patent to David E. Kennedy, No. 1,054,423, for a method of laying cork tiles in floors.

In Bankruptcy. In the matter of the bankruptcy of Fook Woh & Co., a partnership, and Jair Foo. Lew Yee Floy moved for a jury trial on the issue as to whether he was a member of the firm, and the “Nanking” Fook Woh Company prayed a dismissal as to it.

<p>Bankruptcy '<&wkey;228 — Orders of Referee — Petition to Review — Time for Filing.</p> <p>. Where a rule of tbe District Court provided that a petition for review by tbe judge of an order by tbe referee as provided in General Order No. 27 of tbe General Orders in Bankruptcy (89 Fed. xi, 32 C. C. A. xxvii) must be filed with tbe referee witbin 10 days from tbe date of notice, unless for good cause shown sucb time be extended, a petition for review, not filed witbin 10 days, must be'dismissed, where the time of filing was not extended.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 659; Dec. Dig. <&wkey;>228.]</p>

In Equity. Suit by the King Tonopah Mining Company against.T. J. Lynch and others for relief against a default judgment, under which property was sold at sheriff’s sale.

<p>In Equity. Suit by the United States against tbe Quaker Oats Company and others for an injunction. On final hearing.</p>

In Equity. Suit by the Consolidated Rubber Tire Company and the Rubber Tire Wheel Company against the Diamond Rubber Company of New York. On motion by defendant to quash execution. Motion to q,uash execution. A decree for $209,954.97 wás entered in this court on August 2, 1915. See 226 Fed. 455. An appeal w,as taken from that decree to the Circuit Court of Appeals, which affirmed the same and remitted its mandate to this court. 232 Fed. 475,-C. C. A. —-.

<p>1. Internal Revenue <@=»38 — Tkanseer Taxes — Recovery of Tax Paid. ■</p> <p>Where the corpus of legacies under a will have not vested, and are not subject to tax in gross under War Revenue Act June 13, 1898, c. 448, 30 Stat. 448, but the present value of the rights given the beneficiaries to receive the income of the legacies is taxable, the remedy given by Refunding Act June 27, 1902, c. 1160, § 3, 32 Stat. 406, authorizing the Secretary of the Treasury to refund so much of a tax paid by an executor, administrator, or trustee as may have been collected on contingent beneficial interests, which should not have become vested prior to July 1. 1902, is available to the trustees under the will in question, who have paid the tax on the entire corpus of legacies, for the recovery of the excess over the tax due on the value of the annual income.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <S=»38.]</p> <p>2. Internal Revenue <®=>8 — Tjbansfer Tax — Amount.</p> <p>Under a will creating a trust to continue for 11 years, during which period the beneficiaries were to receive the annual income, and at its expiration they were to receive the principal or corpus of their respective legacies, the vested interest of each' of the beneficiaries subject to the war revenue tax is the income for life, not merely for the term of 11 years.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 11, 12; Dec. Dig. @=»8.]</p>

Proceeding by the United States of America against Patrick Mulvey to cancel and set aside a decree of naturalization. From an order dismissing the petition, petitioner appeals.

<p>1. Criminal Law &wkey;279, 280(2) — Pleas in Abatement — Time or Filing— Sufficiency.</p> <p>Á plea in abatement, filed nine months after the return of an indictment, on the ground that the order of the court required 30 names to be drawn from the jury box, and that 24 of the persons summoned attended, from whom the grand jury was selected, was properly overruled, where it contained no allegation excusing the delay in filing the same, nor of„ any facts showing that any of the grand jurors were disqualified, or that defendant was in any way prejudiced by the manner in which they were selected.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 643, 644, 647, 648; Dec. Dig. <&wkey;279, 280(2).]</p> <p>2. Post Office &wkey;48(4) — Usura of Mails to Promote Fraud — Sufficiency OF INDICTMENT.</p> <p>An indictment under Criminal Code (Act Marcli 4, 1909, e. 321) § 215, 35 Stat. 1130 (Comp-. St. 1913, § 10385), for using the mails to promote a scheme to defraud, is sufficient, where it sets out all the particulars constituting the offense of devising a scheme to defraud, and the use of the mails to promote such scheme, and the intent to defraud is manifest from the nature of the scheme itself.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. <§=^>48(4).]</p> <p>3. Post Office <&wkey;48 — Usure Mails to Promote Fraud — Evidence.</p> <p>Evidence in a prosecution for using the mails to defraud that a letter was caused to be mailed by defendant, and that it was placed in a rented box at the post office to which it was addressed, from which it was obtained by tlie addressee, held sufficient to establish the allegation that defendant caused it to be delivered by mail.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. &wkey;>-19.]</p> <p>4. Criminal Daw &wkey;>371(l) — Evidence—'Subsequent Acts of Defendanjc.</p> <p>In cases involving fraud, or the intent with which an accused does an act, collateral facts and circumstances, and his other acts of a kindred character, both prior and subsequent, not too remote in time, are admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 830, 831; Dec. Dig. &wkey;371(l)J</p> <p>5. Criminal Law <§&wkey;570 — -Evidence—General Scope of Inquiry.</p> <p>Evidence should be admitted, if competent and relevant, upon any issue or any phase of the case, and the party offering it need not explain the point or matter to which it is addressed, unless required to do so by the court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 757, 1593-1596; Dee. Dig. &wkey;{>70.]</p> <p>6. Criminal Law &wkey;>824(8) — -Trial—Limiting Effect of Evidence.</p> <p>It is not the duty of the court in a criminal case to explain and limit the bearing of evidence to the jury, in the absence of an appropriate request by the party desiring it done.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 1999; Dec. Dig. &wkey;82-l(8).]</p> <p>7. Post OiFrcs <&wkey;49 — Prosecution for Using Mails to Defraud — Evidence.</p> <p>Where an alleged scheme to defraud, to be carried out by the use of the mails, consisted of mailing circulars intended to induce the addressees to buy stock in an oil company, and which contained many representations as to the proved character of the property of the company, that the wells would continue to produce for many years, etc., evidence to show the condition of the wells and property within a reasonable time afterwards was admissible.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. <&wkey;49-.]</p> <p>8. Post Office <&wkey;35 — Using Mails to Defraud — Elements of Offense.</p> <p>Criminal Code, § 215, making it an offense to use the mails to promote a scheme to defraud, is not confined to cases where false representations are made as to existing facts, but includes as well schemes to defraud by means of representations and promises as to the future.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. &wkey;35.]</p>

<p>1. Indictment and Information <&wkey;98 — Rules for Determining Sufficiency.</p> <p>In determining the sufficiency of an indictment, each count must be treated as a whole, and not merely as a part thereof.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 269; Dec. Dig. <&wkey;98.]</p> <p>2. Post Office <&wkey;48(4) — Using Mails to Defraud — Indictment.</p> <p>In an indictment, under Criminal Code (Act March 4, 1909, c. 321) § 216, 35 Stat. 1130 (Comp. St. 1913, § 10385), for using the mails to promote a scheme to defraud, it is not necessary to use the word “knowingly,” in charging the deposit of letters in the mails by defendant, where that is necessarily implied from the other averments.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. &wkey;48(4).]</p> <p>3. Post Office <&wkey;48(4) — Using Mails to Defraud — Indictment.</p> <p>That a defendant, charged with using the mails to defraud by sending out letters and circulars containing false representations as to the virtues of a medicine made and sold by him, as shown by the letters set out in the indictment, merely copied testimonials, obtained from users, containing statements as to benefits derived from such use, does not render the indictment insufficient, where it is alleged that he knew the representations made therein to be false.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. <&wkey;48(4).]</p> <p>4. Criminal Law <&wkey;>371(l) — Prosecution for Using Mails to Defraud— Evidence of Other Offenses.</p> <p>In a prosecution for using the mails to promote a scheme to defraud, evidence of other advertisements by the defendant besides those contained in the letters set out in the indictment, but of a similar nature, as also of other false claims, is admissible on the question of fraudulent intent, especially when committed continuously and for a long period of time.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 831; Dec. Dig. &wkey;371(l)J</p> <p>5. Post Office <&wkey;49 — Prosecution fob Using Mails to Defraud — Evidence.</p> <p>In such case the fact that letters sent by defendant through the malls were In response to decoy letters sent by post office inspectors does not render them inadmissible.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86; Dec. Dig. &wkey;>49.]</p> <p>f». Criminal Law &wkey;479 — Opinion Evidence — Competency of Experts.</p> <p>An experienced chemist held,, under the facts .sliown, qualified to testify as an expert as to the therapeutic value of a medicine which he had analyzed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1067, 1068; Dec. Dig. i&wkey;479.]</p> <p>7. Criminal Law <&wkey;439 — Prosecution for Using Mails to Defraud — Evidence.</p> <p>On the trial of a. defendant, charged with using the mails to promote a scheme to defraud, by sending through the mails letters and circulars containing false representations as to the value of a medicine made and sold by him, and also that he was a great scientist, a book published by him, treating of the eye, was inadmissible to prove the latter claim, which could only be established by witnesses who were competent to testify on the subject.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1025; Dec. Dig. <&wkey;>439.'J</p> <p>8. Criminal Law &wkey;676- — Trial—Limiting Number of Witnesses — Discretion of Court.</p> <p>It is within the discretion of the trial court to limit the number of witnesses a defendant charged with a criminal offense may introduce on a single point in issue, and unless it appears clearly that there has been an abuse of discretion, which was prejudicial to defendant, an appellate court will not consider it cause for reversal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1608; Dec. Dig. <&wkey;676.]</p> <p>9. Criminal Law <&wkey;711 — Trial—Limiting Time for Argument.</p> <p>It is within the discretion of the trial court to limit the time for argument in a criminal case.</p> <p>[Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 1657; Dec. Dig. <i&wkey;711.]</p> <p>10. Post Officio <&wkey;49--PROSECUTiON for Using Mails to Defraud- — Sufficiency of Evidence.</p> <p>Evidence in a prosecution for using the mails to promote a scheme to defraud held sufficient to require the submission of the case to the jury.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84 — 86; Dec. Dig. <&wkey;19.]</p> <p>11. Post Office <&wkey;50 — Prosecution fob Using Mails to Defraud--Instructions.</p> <p>In a prosecution for using the mails to promote a scheme to defraud, by making representations in letters and circulars sent through the mail as to the curative properties of an article made and sold as a medicine, a vital issue is as to the Intent of defendant, to which his knowledge of the truth or falsity of the representations is pertinent; and the testimony of users of the remedy as to its beneficial effect, while admissible, is not determinative of such issue, and a refusal to instruct to that effect is not error.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 87-89; Dec. Dig. <&wkey;5G.j</p> <p>12. Post Office <&wkey;50 — Prosecution fob Using Mails to Defraud — Instructions.</p> <p>Instructions given in a prosecution for using the mails to promote a scheme to defraud considered, and held without error.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ S7-S9; Dec. Dig. <&wkey;50.]</p>

Clarke, Judge. Suit in admiralty for collision by G. A. Garretson and S. P. Shane, receivers of the Gilchrist Transportation Company, against the steamer W. H. Gilbert; the Pittsburgh Steamship Company, claimant. Decree for libelants (211 Fed. 754), and claimant appeals.

<p>In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Criminal prosecution of Frank Cihak. Judgment of conviction, and defendant brings error.</p>

<p>1. HUSBAND AND WIFE &wkey;>333(9) — ACTION FOB ALIENATION OF WIFE-SUFFICIENCY of Evidence.</p> <p>Evidence held insufficient to show that defendants, who were the parents of plaintiffs wife, through malice or other improper motives, alienated her affections from plaintiff, or in fact that they tried in any way to so alienate her affections.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1124; Dec. Dig. &wkey;333(9).]</p> <p>2. Husband and Wipe <&wkey;324 — Alienation of Wife — Eight of Action Against Wife’s Pakents.</p> <p>Parents are justified in giving counsel and advice to a daughter, who has contracted, a marriage with a man who is believed by them to be wholly unfitted to make her happy and to support her properly, and if they act without malice, and are prompted by affection for their daughter and solicitude for her health and happiness, they cannot be held liable for alienation.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1118: Dec. Dig. <&wkey;324.]</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by William Ulysses Stein against the Continental Public Works Company. There was a judgment for plaintiff, and defendant brings error.</p>

Appeals from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. Suit in admiralty for collision by the Meaford Transportation Company, owner of the steamer Bothnia, against the steamer S. S. Curry, the Hawgood & Avery Transit Company, claimant, and Ellen- Williams, administratrix of the estate of William Arthur Williams, deceased, intervener. Decrees for libelant and intervener, and claimant appeals.

Appeals from the District Court of the United States for the Southern District of New York. Bills by John W. Crim, as trustee in bankruptcy, against Edwin T. Rice and others, and against Hans Triest and others. From decrees dismissing the bills, complainant appeals.

Action by the United Copper Securities Company against the Amalgamated Copper Company and others. The complaint was ordered dismissed, and plaintiff brings error.

<p>1. Highways <§=>148 — Assessments—Enforcement—Injunction—Jurisdiction — Adequate Remedy at Law.</p> <p>Road Law Ark. (Acts 1918, p. 882) § 13, provides that the findings of a county court, fixing the assessments ol: benefits or damages on account of the building of a road, shall have the effect of a judgment against all property in the district, and that any landowner may appeal therefrom to the circuit court. The general laws of the state provide for appeals from the latter court to the Supreme Court of the state. Held, that a federal court of equity is without jurisdiction of a suit by a landowner to enjoin enforcement of such an assessment, where the jurisdiction of the county court to make it is not questioned; the remedy at law being plain, adequate, and complete.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 399-403; Dec. Dig. <§=>148.]</p> <p>2. Courts <§=>259 — Jurisdiction—Federal Courts — Effect of State Legislation.</p> <p>Provisions of the Constitution or statutes of a state cannot enlarge the jurisdiction of a federal court of equity, as restricted by Judicial Code (Act March 3, 1911, c. 231) § 267, 36 Stat. 1163 (Comp. St. 1913, § 1244).</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 795, 796; Dec. Dig. <§=>259.]</p> <p>3. Highways <§=>148: — Assessments—Enforcement—Injunction—Jurisdiction — Adequate Remedy at Law.</p> <p>The law of Arkansas, as established by the decisions of its Supreme Court, does not give a court of equity jurisdiction' to enjoin collection of a tax based on an excessive or erroneous assessment, where the statute provides an adequate remedy by appeal from the assessment.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 399-403; Dec. Dig. <§=>148.]</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by the Central Trust Company of New York, trustee, against the Wheeling & Lake Erie Railroad Company. From an order made on application of W. M. Duncan, receiver, for instructions, the Pittsburgh & Buffalo Company appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Arthur L. Sanborn, Judge. _</p> <p>_ Suit'in equity by the Elliott Varnish Company against Sears, Roebuck & Co. Decree for complainant, and defendant appeals.</p> <p>Eor opinion below, see 221 Fed. 797.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the United States of America against the Oceanic Steam Navigation Company, Limited. There was a judgment for the United States, and defendant brings error.</p>

<p>Bankruptcy &wkey;M84(2) — Property Vesting in Trustee — Unrecorded Conditional Sale Contracts.</p> <p>Bankr. Act July 1, 1898, c. 541, § 47a(2), 30 Stat. 557, as amended by Act)June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9031), which, vests a trustee, as to property coming into bis possession, with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon, does not entitle him, as against the seller, to hold property delivered to the bankrupt under a conditional sale contract preserving title, which, although unrecorded, is good under the state statute (Personal Property Law N. T. LConsol. Laws, c. 41] §§ 62, 63), except as against subsequent purchasers, pledgees, or mortgagees in good faith, for the trustee merely stands in the shoes of an attaching creditor, who would only have acquired the interest of the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 276; Dec. Dig. <&wkey;184(2).]</p>

<p>Bankruptcy &wkey;>140(3) — Ownership op Property — Trust.</p> <p>Petitioner, an importer, desiring to obtain assistance for the carrying on of his business, applied to che bankrupts, a copartnership, and they agreed that orders by petitioner for goods should be submitted to the bankrupts; that, on approval, the bankrupts should remit to the foreign manufacturers the net amount of the consular Invoices and iihould pay the duties on the goods; that they should he delivered to petitioner, who might sell them with the approval of the bankrupts, but that the bills should show an assignment to the bankrupts; that the bankrupts should guarantee the solvency of the customers; that the moneys collected should be received by the bankrupts; and that they should account semiannually. Under this arrangement, the bankrupts were allowed to deposit money so received with their general funds. Held, that no trust in such funds was created, and therefore, on bankruptcy, petitioner was entitled to no lien, on funds derived from such transaction for which an accounting had not been had.</p> <p>1'Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. <&wkey;140(3).]</p>

<p>1. Aliens <&wkey;32(8) — Chinese—Exclusion—Evidence.</p> <p>Where a Chinese person, who claimed that he was born in San Francisco and iived there till 16, demonstrated his ignorance of the city, such fact is sufficient to warrant a finding that he was horn, not in San Francisco, but in China, and to justify his deportation.</p> <p>TEd. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. &wkey;32(8).]</p> <p>2. Aliens <g=s32(10) — Chinese Persons — Deportation.</p> <p>Under Act Feb. 20, 1007, c. 1134, § 35, 34 Stat. 908 (Comp. St. 1913, § 4284), declaring that deportation of aliens arrested within the United States after entry and found to be illegally therein, shall be to the transAtlantic or trans-Paciiic ports from which said aliens embarked for the United States, or, if such embarkation was for foreign contiguous territory, to the foreign port at which such aliens embarked for such territory, a Chinese person, who resided for a number of years in Canada before seeking entry into the United States, should, though a native and subject of China, be deported to Canada, instead of being returned to China,</p> <p>TEd. Note. — For 'other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. <&wkey;> 32(10).]</p>

- Appeal from the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Max Loeb and Solomon Diban, doings business as M. Loeb & Co. From an order dismissing the petition of Max Loeb for a discharge, and refusing to grant a discharge to said bankrupt, he appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the American Shoe Machinery & Tool Company against Nathan Apple. Decree for complainant, and defendant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Sttit in equity by Norman Marshall against Herbert C. Wirt. Decree for defendant, and complainant appeals.</p>

In Equity. Suit by Harper Bros, and Henry h. Wallace against Marc Klaw and Abraham L. Erlanger, to restrain threatened infringement of copyright, with counterclaim for an injunction to restrain violation of contract. On final hearing.

<p>At Law. Action by Enos A. Wall and another against the United States Mining Company.</p>

<p>In Equity. Suit by the E. Speidel Company against the N. Barstow Company.</p>

<p>In Equity. Suits by the United States against the Midway Northern Oil Company and others, against the Consolidated Midway Oil Company and others, against the American Oilfields Company and others, against David Kinsey and others, against the Midlands Oilfields Company, Limited, and others, and against the Associated Oil Company and others. On final hearing.</p> <p>Case No. 47:</p> <p>Case No. A-2:</p> <p>Case No, A-3:</p> <p>Case No. A-13:</p> <p>Case No. A-31:</p> <p>Case No. A-30:</p>

<p>At Daw. Action by David D. Hough against the Société Electrique Westinghouse de Russie and Robert D. McCarter, as liquidator of said Société Electrique Westinghouse de Russie. On motion to remand to state court, and on motion to dismiss as to the corporation. Motion to remand granted as to the liquidator, and denied as to the corporation.</p>

<p>In Admiralty. Suit for collision by Joseph Robinson, master of the British steamship Begonia, against the American Steamship John G. McCullough, Lars P. Nelson, .master, with cross-libel against the Begonia.</p>

<p>Monopolies &wkey;>28 — Price Discrimination — Action for Damages — Jurisdiction.</p> <p>An action may sometimes be maintained in a federal District Court to recover damages for alleged price discriminations by defendant against plaintiff in violation of Clayton Act Oct. 15, 1914, c. 323, 38 Stat. 730, although the Federal Trade Commission has taken no action in the premises.</p> <p>[Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 18; Dec. Dig. &wkey;>28'.]</p>

<p>1. Appeal and Error <&wkey;80(l) — Appealable Decbee — Finality.</p> <p>A decree of a federal court, directing its receiver in a foreclosure suit against a corporation to turn over the mortgaged property to a receiver of a state court, made on application of the latter, is final and appealable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 491 - 500, 503, 505-509; Dec. Dig. &wkey;80(l).]</p> <p>2. Courts <&wkey;493(3) — Federal and State Courts — Priority of Jurisdiction.</p> <p>Where si state court, in which a suit was pending for the dissolution of a corporation and a distribution of its assets under a state statute, had made no order appointing a receiver, and had taken, neither actual nor constructive possession of the defendant’s property at the time a suit against it to foreclose a mortgage was commenced in a federal court and a receiver appointed, who took possession of the mortgaged property, the federal court acquired priority of jurisdiction with respect to such property, and an order directing its receiver to surrender it to a receiver subsequently appointed by the state court was erroneous.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1349-1352; Dec. Dig. <&wkey;>193(3).]</p> <p>8. Courts &wkey;>500 — Federal and State Courts — Priority of Jurisdiction.</p> <p>The actual possession of property by a receiver appointed by one court, or his constructive possession by having been appointed and qualified, although he has not reduced the property to actual possession, cannot be disturbed by another court of concurrent jurisdiction; but such rule does not apply in its strictness where the first court, although having acquired jurisdiction of a cause which may require possession of the property for its disposition, has not obtained such possession either actually or constructively. In such case the rule is one of comity, which requires a. surrender of both possession and jurisdiction to the court first acquiring jurisdiction, if the issues and subject-matter of the two suits are essentially tho same, but not where they are different, and where there is therefore no conflict of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. <S=^500J</p> <p>Walker, Circuit Judge, dissenting.</p>

<p>Petition for Temporary Restraining Order and Injunction to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p> <p>Suit by Floyd McGown, receiver of the San Antonio Land & Irrigation Company, against S. J. Brooks, receiver. On petition for temporary restraining order and injunction.</p>

<p>1. Conspiracy <&wkey;28 — Preventing Voting at Congressional Election-Scope op Civil Rights — Statute.</p> <p>The right of a qualified elector to vote at an election for Members of Congress or United States Senators is a right secured to him by the Constitution and laws of the United States, and a conspiracy to deprive an elector of such right constitutes an offense, under Criminal Code (Act March 4, 1909, c. 321) § 19, 35 Stat. 1092 (Comp. St. 1913, § 10183).</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. &wkey;>28.]</p> <p>2. Conspiracy @=»43(6) — Conspiracy to Injure Persons in Exercise op Civil Rights — Indictment.</p> <p>A count of an indictment which aptly charges a conspiracy by defendants to injure and oppress electors named in the free exercise of their right to vote at an election for United States Senator and Representative in Congress is not bad because it also charges that a further object of the conspiracy was to injure and oppress certain of the citizens in the exercise of their right to act as election officers and to be free from arrest without due process of law, whether or not the latter charges alone state an offense under Criminal Code, § 19.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 86; Dee. Dig. &wkey;43(6).]</p> <p>3. Conspiracy <&wkey;>43(6) — Conspiracy to Injure Persons in the Exercise of Civil Rights — Indictment.</p> <p>An indictment under Criminal Code, § 19, charging defendants with conspiracy to injure, oppress, and intimidate persons named and other persons unknown, alleged to be “qualified voters and entitled to vote at said election,” in the exercise of their right to vote at an election for Senator and Representative in Congress, is not insufficient because it does not contain an averment that such persons were registered, which ¡under the law of the state was required to entitle them to vote.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 86; Dee. Dig. &wkey;43(6).]</p> <p>4. Conspiracy &wkey;43(6) — Indictment—Description op Cítense.</p> <p>In an indictment for conspiracy to do an unlawful act, the unlawful act which is the object of the conspiracy is not required to he set forth with such particularity as in case of a prosecution for the commission of the substantive offense.</p> <p>[Ed. Note. — Por other cases, see Conspiracy, Cent. Dig. § 86; Dec. Dig. &wkey;43(6).j</p> <p>5. Criminal Daw <&wkey;1134(3) — Appeal and Error — Review.</p> <p>Where one count of an indictment under which defendants were convicted is good, and the sentence is no greater than could lawfully be imposed upon such count, the question of the sufficiency of other counts becomes immaterial in a reviewing court.</p> <p>[Ed. Note. — P'or other cases, see Criminal Law, Cent. Dig. §§ 2989, 2990, 3056; Dec. Dig. &wkey;1134(3).]</p>

Action by Paul Tomljanovich, per pro. ami, against the Victor American Fuel Company. There was a judgment for plaintiff, and, motions for new trial (227 Fed. 951; 230 Fed. 467) being overruled, defendant brings error.

Sessions, Judge. Suit in equity by the Kalamazoo City Savings Bank against the National City Bank of Chicago. Decree for complainant, and defendant appeals. The Michigan Buggy Company, a corporation, suspended payment August 1, 1913. It had been doing business with the Kalamazoo City Savings Bank, a corporation under the Michigan banking law, and Palmer, one of the Buggy Company’s officers, had guaranteed the bank against loss on the company matters.

<p>1. Trade-Masks and Trade-Names <&wkey;33 — Requisites of Assignment — Necessity of Transfer of Business.</p> <p>A trade mark or name cannot he assigned, except in connection with the transfer of the particular business in which it has been used, with its good will, and for continued use upon the same articles or class of articles.</p> <p>[Ed. Note. — Por other cases, see Trade-Marks and Trade-Names, Ceiit. Dig. § 37; Dec. Dig. &wkey;33.J</p> <p>2. Trade-Marks and Trade-Names &wkey;>85 — Assignment—Validity.</p> <p>A verbal agreement by the owner of a milling business in which he used a trade-mark, in giving a mortgage on the mill jiroperty, that the trade-mark should pass to the mortgagee in aid of the mortgage, did not give the mortgagee title to the trade-mark, where the mill was destroyed by fire, the business discontinued, and the mortgage was never foreclosed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 39, 40; flee. Dig. <&wkey;35.]</p> <p>8. Trade-Marks and Trade-Names i&wkey;68 — Unfair Competition.</p> <p>There can be no unfair competition, where there is no competition in fact, as where the parties do not sell their goods in the same territory.</p> <p>[E'd: Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 79; Dec. Dig. &wkey;6S.]</p>

Dooling, Judge. Suit in admiralty by Carl Patsel and others against P. M. Nelson, charterer of the schooner Roy Somers, for short'allowance of food furnished libelants as seamen. Decree for libelants, and respondent appeals.

Day, Judge. Suit in admiralty for collision by J. Joseph McTigue, owner of the barge Plymouth, against the steamer Eangham, John J. Adams, claimant, with cross-libel. Decree against the Plymouth, and libelant appeals.

McCall, Jttdge. Suit in equity by the Illinois Central Railroad Company and others against John H. Watkins and others. Decree for complainants, and defendants appeal.

<p>Pood <&wkey;3 — Meat Inspection — Statutory Provisions.</p> <p>' Under Meat Inspection Acts (Act June 30, 1906, c. 3913, 34 Stat. 674; Act March 4, 1907, c. 2907, 34 Stat. 1260), the Secretary of Agriculture made regulations that a- shipper of meat food products must certify that the product is not capable of being used as food by man, is suitable only for industrial purposes, and is of such character, or for such use, that denaturing is impracticable. The act declares that no meat food product can be shipped or carried in interstate commerce unless it has been first inspected, examined, and marked as inspected and passed in accordance with the terms of the act and the rules and regulations prescribed by the Secretary of Agriculture. 1 Complainant rendered oil from beef fat in machinery which had been used to produce oleo oil, used in making oleomargarine. Reid,, that complainant’s oil was a food product, though it was not used for making oleomargarine, but was shipped abroad for other purposes, and therefore could not be shipped under, the act, unless inspected or denatured; the fact that the oil was uncooked, and would not be eaten until mixed with other substances, not preventing it from being a “food.”</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. §§ 3, 4; Dec. Dig. <&wkey;3.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Food.]'</p>

A. Marshall, Judge. Action by H. M. McCartney and others against the Clover Valley Land & Stock Company. There was a judgment for defendant, and plaintiffs bring error.

Sater, Judge. Suit in equity by the Chartiers Oil Company against the Hocking Valley Products Company and others. Decree for complainant, and defendants Frank M. Sharpe, Uudwig Koempel and others, and defendants Sidney S. Schuyler, John R. Chadwick, and Charles L. Burnham, copartners, James W. Murphy, William F. Osborne and .others, separately appeal.

McCall, Judge. Actions by J. W. Bobo, administrator of the estate of Walter Owens, deceased, by S. C. Moore, administrator of the estate of Ivy B. Douglas, deceased, and by E. O. McCoy against the Memphis S’treet Railway Company. There were judgments for plaintiffs, and defendant brings error.

Suit in admiralty for collision by Abraham J. Balaban, owner of the steam tug Robert White, against the ferryboat Suffern; the Erie Railroad Company, claimant. Decree for claimant, and libelant appeals.

Dickinson, Judge. Suit in equity by George W. Todd and Libanus M. Todd, doing business as G. W. Todd & Co., against John Whitaker, doing business as the J. Whitaker Manufacturing Company. Decree for complainants, and defendant appeals.

<p>Patents <®=o32S — Anticipation-—-Incandescent Lamp Socket.</p> <p>The Jones patent, No. 818,253, for an incandescent lamp socket consisting of three parts, claim 1, is too broad, in view of the prior art, and void for anticipation.</p>

Suit in equity by the Keuffel & Esser Company against the Eugene Dietzgen Company. Decree for complainant, and defendant appeals. This cause comes here upon appeal from a decree in favor of complainant. The suit is the-usual one in equity for infringement of patent. The patent sued on is No. 758,381 granted April 26, 1904, to Octave Payzant for a fountain lettering pen.

<p>In Equity. Suit by John W. Sherman, and Julia Louise Sherman against H. P. Marinelli, Limited, the United Booking Offices of America, and L. Auerbach. On final hearing.</p>

<p>In Equity. Suit by Guy I. Towle against the Great Shoshone & Twin Falls Water Power Company, in which the Boise Title & Trust Company petitioned for allowance of a preferred claim.</p>

In Equity. Suit by Christopher E. Williams, as receiver of the First National Bank of Bayonne, against Bernard Brady and others. On motions to dismiss amended bill, for bill of particulars, and to stay the suit.

<p>In Equity. Suit by- the Destructor Company against the city of Atlanta. On exceptions to master’s report.</p> <p>The report of the commissioners for making test as to completion of the plant, referred to in the opinion, is as follows:</p> <p>Pursuant to an order from Judge Win. T. Newman, of the District Court of the United Slates, Northern District of Georgia, dated May 14, 1915, for us to make an observation, test, etc., of the refuse destructor supplied by the New York Destructor Company for the city of Atlanta, for the week beginning May 24, 1915, and on one day of that week to make a special 24-hour test of the operation of the destructor when dealing with the refuse mixture as stated in the contract for said destructor, we respectfully beg to inform you that, to the best of our ability, we have endeavored to carry out the instructions of the court.</p> <p>As our instructions were to make observation for the entire week, you will understand this has involved the collection of a»large amount of data, the careful working up of which will require considerable time. Since it seems desirable that you should have in your hands the results of such data, observations, etc., as are pertinent to the issues involved as soon as possible, we beg to inform you that this report is preliminary to our final report, involving the whole week. Said final report will in no wise alter or modify in any way the statements, data, results, etc., as given in this preliminary report. In this report, when we refer to the city of Atlanta, we shall mean those officers, employes, or other persons authorized to speak for or represent the interests of said city. When we speak of the Destructor Company, we shall mean those officers, employes, or other persons authorized to speak for or represent the interests of said Destructor Company.</p> <p>In order to get an intelligent understanding of the question at issue between tlie city of Atlanta ana tlie Destructor Company, we at first held joint conferences with representatives of the interested parties. We soon discovered that this would not do, as there was an inevitable tendency to “try the case” before us. So we held conferences with each side separately, and later talked freely with representatives of each sideP getting in this way as clear an idea as we could of the contentions of each. Some of the questions in dispute are involved in the results of the test of the plant. These contentions will be discussed when we come to speak of the results of said tests. Other contentions relate to subjects which may be discussed from an observation of the plant. We will take up these latter first.</p> <p>We do not understand that we are to give an opinion as to the wisdom, or otherwise, of the city of Atlanta entering into a contract with the Destructor Company for the construction of the plant. We understand our business to be to help you in an advisory way in deciding as to whether the city of Atlanta should accept the Destructor plant as it stands and pay the balance due the same.</p> <p>One of the contentions of the city was that the plant could not run a week without breaking down. We beg to advise you that we have found such contention not true. We have been at the plant ourselves, or had trustworthy representatives there, night and day throughout the week specified in the court order, and no breakdown has occurred, and during much of that time the plant was disposing of the city’s refuse at a rate far in excess of that specified in the contract.</p> <p>A specific contention of the city was that the trolley hoists operating the grab buckets which hoist the refuse from the garbage pit and dump it into the furnace hoppers frequently break down, and thus cause delay, trouble, and needless expense. It is needless to state that these hoists operate under very trying conditions. They must be dust and heat proof. If these hoists are not the very best that can be procured, the Destructor Company should be required to furnish them. In our opinion the city should require the De-structor Company to provide for these hoists completely inclosed motors with waste-packed bearings.</p> <p>Another contention by the city is that the building is not properly ventilated ; that, as a consequence, the upper portion, about the charging platform, is very dusty and very hot. It is our opinion that no system of ventilation could remove this dust and take it to the chimney. As to the quantity of dust present, if the entire roof of the building were removed, and every particle allowed to escape freely to the atmosphere, it could not possibly create one-tenth the nuisance that is now created by a plant immediately to the eastward, or by a certain other (manufacturing) plant not far to the westward. Please go and look for yourself. But, in our opinion, if humidifiers were installed in the peak of the roof, they could largely settle the dust that stands there, and thus make it more endurable, or less unendurable, than it now is for the men who operate the charging hoppers.</p> <p>As to the heat, great heat cannot help being hot. The contract calls for the liberation and bringing into evidence about 1,850,000,000 British units of heat every 24 hours, and the generation of over 750,000' pounds of high pressure steam. In the nature of things the place is bound to be hot.</p> <p>Another contention of the city is that the furnaces have been changed since they were originally constructed, and that they now contain features not embraced in the contract, and that, therefore, the city is not getting what it contracted for. The contract explicitly states that the builders shall have the right to make suelT changes as they shall find necessary to the successful working of the plant. We are unable to see that the city has just ground for complaint in this respect.</p> <p>Specifically, complaint is made that air is admitted at the sides of the cooling chambers, as well as through the grate on which the clinker rests while being cooled, instead of solely through the bottom grate, as originally constructed, and that this change has rendered the furnaces less efficient as a refuse destructor. As we have been able to observe the plant only as it now is, we cannot give positive evidence on this point. The presumption would be, however, that since this plant has not yet been accepted by the city, and the Destructor Company is trying to get the city to accept it, self-interest would prevent the city’s claims.</p> <p>The question has been raised as to when the plant was completed. This, perhaps, admits of argument. It might be claimed that it was completed when it began to consume, to destroy, the city’s refuse; or it might be claimed that the plant was completed when ail changes and additions had been made, substantially as it presented itself to us on May 24, 1915. Mechanically, of course, this would be true; but there are also ethical and legal questions involved. We may presume to discuss the ethics of the case. Suppose the litigation should go on and on, with no decision, until, in the very necessities of the case, the plant were worn out. On that basis it never would have been completed. This would obviously be grossly unfair to the Destructor Company. In our opinion the Destructor Company should be credited with having completed the plant mechanically on that date, which the records can show, when It stood structurally and mechanically as it did May 2-1, 1915, at which time a test would, in our opinion, have shown the same results as that held May 26, 1915.</p> <p>A reasonable cost of supervision should be allowed the Destructor Company from such date as the plant could have been accepted by the city up to the time the city assumes operation of same; this over and above the 25 cents per ton labor charge. The Destructor Company state that they were ready for a test in December, 1913, and called on the city for a test at that time, which the city refused to give. The Destructor Company claim that, therefore, the plant was completed at that time. We respectfully submit this nice point in morals to you to decide. It is not a mechanical question. It is a question of law and ethics. Perhaps a decision which would leave both parties dissatisfied would be most nearly equitable.</p> <p>It is contended by the city that the rate of combustion on the grates, as specified in the bid, 115 pounds of refuse burned per square foot of grate per hour, is too high a rate for a reasonable life to the grates. This is equivalent to the liberation of about 425,000 British thermal units per hour per square foot of grate. In steam boilers fired with coal this would be equivalent to about 30 pounds of coal per hour per square loot of grate. While such a rate for coal is high, it is by no means excessive. But the burning of coal is a very different operation from the burning of refuse. The burning of refuse, in so far as character of the combustion and the manner of the liberation of heat are concerned, is almost identical with the burning of bagasse. As to the burning of bagasse, see Louisiana Bulletin No. 117, Louisiana State University Agricultural Experiment Station, by Prof. E. W. Kerr, its the result of numerous experiments of burning bagasse, Prof. Kerr places the lowest economical limit at 100 pounds per square foot of grate per hour, lie gives experiments as high as 197 pounds per square foot of grate per hour, with no adverse comment. This latter would represent a liberation of heat at a rate of over 700,000 units of heat per hour per square foot of grate.</p> <p>The Babcock & Wilcox Company, who have supplied a very large number of boilers to sugar mills, and hence have had wide experience in the burning of bagasse, state that a rate of burning of 300 pounds bagasse per hour per square foot of grate is, in their experience, the most economical, although they state that a rate of 450 pounds can easily be obtained. The 300-pound rate, at 4,000 British thermal units per pound, calls for a liberation of neat at tile rate of 1.200,000 British units per hour per square foot of grate. The 450-pound rate calls for 1,800,000 British thermal units per hour, per square foot of grate. This latter rate is more than four times the rate specified in the contract.</p> <p>Bagasse and refuse are similar as to physical and / chemical properties, and both are very unlike coal. Both are high In water content, low in fixed carbon, and high in volatile matter. A study of the literature on the burning of bagasse is conclusive as to the prodigious rate at which fuels of the character of bagasse and refuse can be economically made to liberate heat for the generation of steam in boilers. As you are perhaps aware, very little fuel save bagasse is used about a sugar- mill for the generation of the large quantity of steam required in the manufacture of sugar.</p> <p>As we see it, the only difference between the burning of bagasse and the burning of city refuse, is in the residue — the ash, the clinkers. The ash in-bagasse is small. In refuse it is large’. We went inside the furnaces and combustion chambers' on Sunday, May 30th, after the week of our observation of the working of the plant, and carefully inspected them. The combustion chambers become thickly coated with the residue, a foot thick on the sides, and thicker in th,e bottom. If the temperature were carried too high, say as high as 2,000° F., this would form a glazed mass so hard it would have to be removed with chisels and drills. If the temperature is not carried so high, the deposit is less dense, and can be removed with picks. This deposit has to be removed every Sunday, or the chambers would choke. The density of the deposit is entirely within the control of the furnace operator. He-controls it by admitting more or less air, as the case requires. It is necessary to have this deposit as a protection to the furnace lining. In short, we do not find that the city’s contention is sustained.</p> <p>•We have thought best not to burden you with any fine-spun theoretical discussion on combustion, as likely you have an ample supply to draw on in the testimony you have had submitted to you. We have preferred to present to you the simple, practical conditions as we see them. As to the condition of the residue, the clinker, as it is withdrawn from the cooling chambers, we had a man whose sole duty it was to carefully inspect the residue throughout the week of our observations on the plant. We have had many interviews with that man, and have gone over carefully the notes he took during the week, and give you the summary of those observations. We will give only one day,, that of Friday, following the test. This was by far the worst day for unconsumed organic matter, as revealed by his observation. He. states that the total quantity of unconsumed organic matter he observed on that day was about 30 pounds. It consisted of potatoes, tomatoes, potato peelings, a bunch of feathers, a chicken carcass, and kitchen refuse. How these objects could pass through that inferno of heat we do not attempt to explain. They did. On that day the destructor burned about 300 tons of refuse. Thirty pounds is about .005 of 1 per cent, of the refuse burned, or say .025 of 1 per cent, of the clinker.</p> <p>The city contends tha't this clinker is not a good road-making material. How does the .city know? Where has the city attempted to make a road of it? We know of no such effort. On Sunday, May 30th, we walked over Emett, Vine, and several other streets in that section of the city, where the clinker had been deposited in the streets; but we saw no place where any effort whatever had been made to make a road of it, much less a street. The clinker had apparently been left just as it was dumped from the carts. To our personal knowledge, clinker is a first-class road-making material. To our personal knowledge, the finest road in a certain county in New York state, where so many millions have been spent for good roads, was, two years ago, a clinker road, and nothing else. It would be a simple matter to rake the sheet metal and wire off the broken clinker, and it seems unfair that no attempt has been made to construct a road from this material.</p> <p>The foregoing are the principal contentions that have been presented to us; but, after careful investigation, we find that they are not supported by the facts.</p> <p>We now come to the results of the test. In order to obtain the refuse mixture called for in the contract, viz., 45 per cent, garbage, 15 per cent, ashes, 5 per cent, manure, and 35 per cent, rubbish, it was necessary for Chief John Jentzen, of the sanitary department, to save up the garbage for several days prior to the test, and even then he was not able to secure enough to run a 24-hour test, as called for in the contract. The weather was dry and hot, and, when the test began, Wednesday at 1 p. m., May 26th, the garbage heap,, about 90 tons, had become a reeking, seething mass of literally tons of maggots. Whether the calorific value of this garbage, in such a condition, had. been increased or diminished, we do not know. It is certain that a good deal of water had drained out of it.</p> <p>Date of test, May 26-27, 1915.</p> <p>Test began at 1 p. m., May 26, and closed at 6:10 a. m., May 27, 1915.</p> <p> </p> <p>The contract calls for the plant to “be capable of destroying in normal operation 250 tons of refuse per 24 hours.” The test gave a rate of 275.5. The contract rate is thus exceeded by about 9.4 per cent. If the Destructor Company had chosen to do so, they could have burned up all the refuse over an hour before they did, thus raising its capacity, on the specified mixture, to about 293 tons per 24 hours. They delayed the rate of combustion in order to raise the rate of evaporation. They consulted us as to whether they would be permitted to do this and we consented to it. This was at about 4 a. m. ,,</p> <p>There has been a great deal of contention over the feed water heater. The contract states that “the rate of evaporation in the boilers, from and at 212° If. per pound of refuse consumed, shall not be less than 1.96 pounds.” By ref■erence to line 25 in results of test, it will tie seen that the rate of evaporation in the boilers, including the superheater (about which latter there has been no contention), per pound of refuse fed into the furnace, less the clinker, is 2.151 pounds, thus exceeding the contract guaranty. See note at close of report.</p> <p>This interpretation of the wording of the guaranty thus eliminates all contention as to whether the heat of the feed ^ water heater should or should not be credited to the boiler. We do not admit'that the heat of a feed water heater should be credited to the evaporative performance of a boiler. The performance of a boiler, its evaporating ability should be reckoned on the boiler only. The contract states that the temperature of the combustion chambers m'ust not drop below 1,250° IT. At no time during any of the runs did we observe its temperature as low as this. During the special mixture test the average temperature was 1,615° F. As previously stated, the temperature of these chambers is within the control of the furnace operatives. '</p> <p>If the refuse be credited with an available heat value of 3,700 British Thermal Units per pound, the efficiency of the boiler alone, with steam at 190.05 pounds, abs., feed water at 190.3°, and an evaporation of 1.3558 pounds water per pound of refuse fired, efficiency of boiler equal 38 per cent. Including the superheater, efficiency of boiler and superheater equals 40.6 per cent. Now the efficiency of these boilers is a good deal higher than above figures. The conclusion is, therefore, inevitable that the available heat value of one pound of the refuse fired during the test is much below 3,700 British Thermal Units. This accounts for the comparatively low evaporation per pound of refuse fired.</p> <p>The question has been asked us apparently in good faith, as to whether the steam now flowing to waste into the atmosphere has any commercial value. That seems to us an odd question. If we allow that the plant auxiliaries use 15 per cent, of the steam generated (which is too high an allowance if the steam were properly utilized by the city), there flowed to waste in the atmosphere, during the 17.16 hours of the special mixture test, 450,000 pounds of high pressure highly superheated steam which, at a valuation of 3 cents per 100 pounds, was worth $135. This corresponds also to a valuation rate for electric current of one-half a cent per kilowatt hour. Counting 300 days to-the year, this amounts to $40,000 per year, absolutely thrown away. With the plant working 24 hours per day at contract capacity, it amounts to $52,-000 per year.</p> <p>We are not aware that our duties call upon us to make any suggestions as to the use which could be commercially made of this steam. We may state, however, that we know of no adequate reason why the citizens of Atlanta should not receive the money value of this steam now flowing to waste. There are ways of accomplishing this without doing injustice to men who have in- . vested their money in the public utilities and industrial enterprise's of the city. If such ways cannot be found, then we say: Let it flow to waste.</p> <p>Finally, we do not know, we have been unable to discover, no adequate reasons have, in our judgment, been presented to us, why the city of Atlanta should not accept the destructor plant on such equitable legal and ethical basis-of settlement as you shall determine. In making this statement at least two of us are aware that we are going counter to the wishes of very dear friends, m'en whom we have loved and respected, and whose friendship we have highly valued for a quarter of a century.</p> <p>In closing, we beg to extend to the chief, John Jentzen, and his staff, of the sanitary department, to the officials and employSs of the New York Destructor Company, to the officials of the city of Atlanta, and to Prof. E. T. McCarthy and his corps of students from Georgia Tech., and Mr. Rapp, of the water department, our sincere thanks for their hearty co-operation and invaluable assistance throughout the work of our observations and test.</p> <p>Supplement,</p> <p>In deciding upon the rate of evaporation with which the boilers should be-Credited, we have construed the words “refuse consumed” to mean refuse fed into the furnaces, less clinker taken out. The contract explicitly states that all clinker and refuse shall be weighed. There cannot be any possible object in weighing the clinker and refuse, unless this interpretation be accepted. In no other place in the contract is the word “consumed” used.</p> <p>We protest against the wording of the contract in this manner. Tt is unscientific, inexact, and leaves a chance for differences of opinion, where none should exist. It is not in accordance with standard engineering practice.</p>

<p>1. Equity &wkey;>359 — Voluntary Dismissal Before Hearing — Conditions.</p> <p>The right of a complainant to dismiss without prejudice, at least before the case has reached a stage where the court could render a final decree on the merits, is not subject to the imposition of conditions other than the payment of costs.</p> <p>[Éd. Note. — For other cases, see Equity, Cent. Dig. §§ 749-755; Dec. Dig. <&wkey;>359.]</p> <p>2. Depositions <&wkey;99 — Admissibility—Depositions Taken in Prior, Suit.</p> <p>A party is protected under the general rules of evidence in the right, to use depositions taken in a former case between the same parties, where the testimony would not otherwise be procurable; hut the relevancy of such, testimony must be determined in the case in which it is offered.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 288-296; Dec. Dig. <&wkey;99.]</p>

<p>In Equity. Bill by Charles H. Moyer, as trustee for the Western Federation of Miners, and others, against the Butte Miners’ Union, a corporation.</p>

In Equity. Suit by the Bobbs-Merrill Company against the Equitable Motion Pictures Corporation and another. On motion for preliminary injunction to restrain defendants from producing a motion picture photo-play.

<p>ALIENS <&wkey;68 — NATURALIZATION-EMKCT OF JUDGMENT IN PRIOR PROCEEDING —“Cask”</p> <p>A proceeding for naturalization is a “case,” within the meaning of article 3, § 2, of the Constitution of the United States, and the denial of the petition of an applicant on the ground that he is not a person of good moral character is an adjudication of that fact, binding upon him, and which bars a second application until he can prove that since that time he has been a person of good moral character for at least five years.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 138-145; Doc. Dig. <&wkey;>68.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Case (in Practice).]</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Action at law by Henry W. Pursel, Parker C. Pursel, Dina P. Sawyer, and Margaret A. Dawson against the Reading Iron Company. Judgment for defendant, and plaintiffs bring error.</p> <p>The following is the opinion of Dickinson, District Judge, on final hearing:</p> <p>Our fast duty is to make clear the status of this cause as a pending case. An attempt was made to agree on a case stated upon which the ruling of the court could be asked. The attempt failed because of the inability of the parties to agree upon all the facts. The case has now taken form or is heard as if it were an agreement for an amicable action, tried by the court under the provision of the Revised Statutes, without the intervention of a jury, with the added feature of a stipulation of all the facts, except those which are in controversy. The evidence consists of the admission of some of the facts and evidence and testimony bearing upon the facts in dispute.</p> <p>The Character of the Controversy.</p> <p>The case belongs to that large class of controversies the necessity of the intervention of the court in which would not be anticipated. The controversy is over the existence of the obligations of a contract which either party might have terminated practically at will. The obligation was born in 1862, and has shown no signs of life since 1889, except that an effort was made to galvanize it into life through an action in the state court. Had the contract not been made under the formality of a seal the statute of limitations would have given it its quietus three times over.</p> <p>The History of the Case.</p> <p>Part of the cost of this litigation is that any one interested in it will be obliged,' or at least must, be given the option, to read a somewhat lengthy historical narrative. The history of the case properly begins with the statement of the facts that in 1862 Daniel Pursel owned a tract of undeveloped ore lands, situate in Montour county, Pennsylvania, and Isaac S. Waterman and another were interested in the Pennsylvania Iron Company, which was the operator of certain furnaces for smelting ores. The furnaces were located near the Pur-sel lands, and were the only furnaces in that locality. Having thus a common business interest, the parties entered into the contract which is the basis of this action. For present purposes, it will suffice to say that under this agreement Waterman acquired whatever ore there was on the lands and undertook to mine it. It will be observed that the rights of the landowner thus became, like ancient Gaul, divided into three parts. Pursel retained what may be termed the surface rights. Waterman acquired all the mineral rights. Pur-sel in turn had the right to receive whatever became due under the contract. The interest not granted by Pursel was clearly a real estate interest. Whether the other interests were estates in land need not be decided. It is also to be noted as bearing upon one feature of the ease that the Pennsylvania Iron Company was the owner and operator of the furnaces. An agreement in writing, under seal, and subsequently recorded, was entered into June 27, 1862. The owner of the furnaces was not a party to this agreement.</p> <p>We will first find what the contract was and hqw it was subsequently modified, and will then endeavor to trace its life history, in-the first instance, as if there had been no change in the original parties to it. An effort will be made to trace this history down to the commencement of this action if, as plaintiffs vigorously asseverate, it be still alive or will endeavor to learn the date of its demise and find the place of its interment if, as defendant asserts, it has long since been dead and buried. We will next follow the chain of title to these several interests and to the furnaces in order to show the relations of the parties, plaintiffs and defendant, to the original parties to the contract and to its subject-matter and how far they are privies in persón or estate. We will finally give a number of minor facts as to which evidence has been produced or which counsel have discussed as having a bearing upon the questions involyed in the case. Many of them, however, are of little and some of them of no evidential value.</p> <p>The ores upon these lands were of three kinds or qualities. One of them is called the soft ore, another the hard — limestone—ore, and the other is un-designated. The hard ore is found at the lower levels. For convenience we call the parties to the contract lessor and lessees. The lessor granted to lessees, in addition to the ore and the right to mine it, the right to occupy and use parts of the property for the construction of its mining plant, and for railroads and other roads, and to take timber and other material required for mining operations. The lessees agreed to take out the or'e through a slope, the construction of which was provided for, and to pay a fixed price by way of rental or royalty per ton for the ore taken out. There was a different price fixed for each kind of ore. There was a further minimum quantity of mine output requirement of 5,000 tons per annum for which they were to make advance payment at the highest price per ton. The contract was fairly and clearly drawn. There is nowhere in it a doubtful meaning. The parties had in contemplation three contingencies. The ores might become exhausted, or what was the same thing, could not be profitably worked. The lessees might not be able to have the ore smelted without shipping it a prohibitive distance. The lessees might default in payment. Á like protection was given against any one or all of them by providing that the contract might be ended upon notice by either party. If the furnaces shut down, the minimum quantity requirement was proportionately reduced. If the mines were abandoned the lessees might reserve all of their property upon making full settlement to that date.</p> <p>The contract was in such form as to be within the recording acts and was in fact promptly recorded. If, therefore, the lessees exercised their right of cancellation by anything short of a clear and unequivocal act, the recorded deed might leave a cloud upon the title of lessor. It was, therefore, provided that the act of cancellation, if by lessees, couldi be made effective solely by giving the formal written notice prescribed and following this with a recon-veyance. The lessor, however, might cancel by simply posting notice on the premises and could then exercise his right of ouster and retake possession of the whole property as it was in him before indenture made. The agreed and all necessary preparations for mining were made by the lessees, and mining operations were carried on in compliance with their contract for a period of over twenty years. By this time the deposits of ore in sight had been exhausted or the end of profitable operations had been otherwise indicated. In the right to declare a cessation the parties had a motive and inducement to meet any new situation in an accommodating spirit. This disposition was manifested by a new or modifying agreement which was entered into under date of February 16, 1883. The fact of the old agreement is recited. The further fact is disclosed that the old workings wore about exhausted and that nothing but the extension of the old slope and the opening up of deposits of the hard limestone ore and the reduction of the royalty would make the mine worth further working. The old agreement was in consequence modified in several of its features. Those with which we are now concerned are these:</p> <p>The minimum quantity requirement was suspended until 1885. The royalties were reduced, and other now past concessions were made to the lessees in consideration of the extension of the slope by them. In all respects not changed the old agreement was declared to be in force. The lessees made the extension, and the mining operations were resumed, or rather, continued until June, 1889. The accounts were then settled in full to that time, and all further mining ceased. Payments which were made after the new agreement was entered into were made on the basis of ore actually taken out. For a part of the time less than the minimum quantity was mined. The difference, however, was not large. Why the minimum was not exaeted the evidence does not disclose. It is as likely to have been thought of no consequence either because of the smallness of the amount or because it would be allowed for anyhow through an increased output as because the lessor thought he could no longer claim a minimum. Moreover, we do not know whether the furnaces were out of blast and the minimum had been thereby reduced. From the time the June, 1889, settlements were made not only was no mining done, but this was followed up in September with the dismantling of the mining plant and the removal of all of the property of the lessee, and this in turn, later on, beginning in 1891, with the dismantling of the furnaces. Since 1889 the property has been an abandoned mine property. No payments of royalties were maue and none demanded from that day to this except that in May, 1909, suit was brought in the county courts of Montour county by one claiming to be the administrator of Daniel Pursel, and, of course, by the bringing of the present action. In the Montour county action three defenses were interposed. One was a denial of a right of action in the administrator. The second a denial that the plaintiff was the administrator. The third a defense to the merits which, for the present purposes, may be stated to be that now interposed including an averment that the agreement was a dead thing. The case went off upon a variance in allegata and probata. The original statement based the right of action upon the agreement of 1862. It was amended so as to base the claim upon the agreement of 1883, which disclosed that the right of action was in the heirs of Daniel Pursel. The action was by the administrator, and the right of action averreci to he in him. The proofs showed a right of action in the heirs. The case reached tire Supreme Court of the state, and may be found reported in Pursel v. Reading Iron Co., 236 Pa. 79, 84 Atl. 659.</p> <p>Nothing was afterwards done by the plaintiff until the bringing of the present action in 1914. Title to the interest of the lessor in the mining agreement of 1862 is deduced to the plaintiffs after this manner. Daniel Pursel died in about the year 1868, intestate, leaving six heirs. These heirs entered into the modifying agreement of 1883. A two-sixths interest is in the plaintiffs.</p> <p>The mining rights title of lessees passed from them to the Pennsylvania Iron Company, which, as already mentioned', was the owner of the furnaces. The title to the mineral rights, together with the ownership of the Lurnaces, then again passed from the Pennsylvania Iron Company to the Montour Iron & Steel Company, which latter company was in possession as owner of mining rights and furnaces at the time of the execution of the 1883 agreement, and also at the time of the last payment of royalties, and the abandonment of the mines in 1889, and until after the dismantling of the furnaces.</p> <p>The Montour Iron & Steel Company became insolvent. Judgment for a large sum was obtained against the company by 'the Reading Iron Company, the present defendant. Under a vend. ex. issued upon this judgment and another writ of vend. ex. several tracts of land belonging to the defendant in the judgment were sold by the sheriff in 1S95, together with whatever real estate interest the defendant had in the Pursel lands, and a sheriff’s deed was m'ade to the Reading Iron Company therefor. The sheriff’s vendee entered into possession of the lands sold to it other than the Pursel lands. Of these lands it never took possession by possessory proceedings, action or otherwise, and never exercised any right of ownership therein. The Reading Iron Company, the defendant in this action, was also the defendant in the prior action brought in 1909. By its affidavit of defense filed in that action it disclaimed title to the property, for the reason that no title had passed to it by the sheriff’s deed, all interest of the defendant in the property which had been sold having ended long before the entry of judgment.</p> <p>Title to what we have called the surface rights descended upon the death of Daniel Pursel to his six children, of whom William R. Pursel was one. The whole title later vested in William R. Pursel through conveyances from the other heirs before the, agreement of 1883, and he was in the possession and occupancy as owner-and living in person upon the property from before that date to long after the abandonment of the mine and the dismantling of the mining equipment in 1889.</p> <p>The minor facts referred to other than those incidentally stated in the foregoing recital of facts and the significance attached to them by the party advancing the evidence by which they are made to appear, are these:</p> <p>On May 17, 1883 (shortly after the agreement of 1883), William R-. Pursel was constituted the attorney in fact of all the other lessors. The significance of this, in the view of defendant, is that he thus became their representative, so that they are bound by anything which would bind him. The letter of attorney, however, is restricted to the sole power to demand and collect the royalties. He was also at the time cotenant with them of the estate in common which they all had in the land. His declarations by word or act would there-, fore be evidence against all so far as such relation makes them evidential. William R. Pursel had knowledge of what was done in the way of the abandonment of the mine, and the dismantling of the mining equipment, and the removal of the property of the lessees, and of all that transpired upon the premises.</p> <p>The Reading Iron Company, after the sheriff’s deed to them, operated rolling mills at Danville, in Montour county. These mills were in charge of a superintendent. The road supervisors of the township, in which the Pursel lands are situate, complained to this superintendent at Danville that travel on the public highway was endangered by the sinking of the land over the abandoned Pursel slope. By direction of the superintendent workmen of the present defendant filled in the depressions complained of. .Whatever significance this fact might have is lessened, if not destroyed, by the agreed fact that the superintendent had no authority outside the rolling mills, and that .the defendant neither authorized nor knew of these acts, and the further agreed fact that the defendant “never entered into possession of the premises or did any act to care for or conserve the property in any way whatever.”</p> <p>On September 25, 190-5, William R. Pursel sold the stone which had been part of the railroad construction in the abutments and culverts and the stone in the mine.</p> <p>Discussion.</p> <p>The claim sued for in this action is the two-sixths shar$ of the plaintiffs in the minimum1 royalties reserved by the indenture ,of 1S62. No question is raised of the right to thus divide the claim for royalty. The total' claim, exclusive of interest, is apparently $15,000. As the claim is for one-third of 17 years’ royalties, it is not clear why claim has been made for this sum. This, however, is of no importance as the parties have agreed upon the correctness of the figures. A number of very interesting questions, which in the view of counsel arise out of this record, have been discussed. We do not feel called upon to follow counsel in this discussion, because in the view we take of the case, it is disposed of by findings of fact. With the exception of certain features of the agreements of 1862 and 1883, we are in accord with the construction placed upon these contracts by counsel for plaintiff. We see no Justification in this record for finding- the fact which is the- necessary support of one of the m'ain positions of the defense. We think it clear there was no obligation on the part of the lessees to .mine after the mining operations had been found to be unprofitable. The indenture of 1862 gave them, however, the ores, and to this extent an interest in the lands. The obligation to pay the minimum rental was coterminous with this interest. This obligation could be ended, by their act, only by a reconveyance or relinquishment of this interest. This surrender, so far as the evidence discloses, they never made by the deed or notice required. Whether there is such a privity of estate between the original lessees and the present defendant as to visit upon the latter responsibility for the performance of the covenants of the íorrnér (which the defendant denies), we do not feel required to find. Wo, therefore, do not pass upon this question.</p> <p>There are two facts (either of which is decisive of this case), each of which we think too clearly appear. When the lessees ceased mining operations and refused to pay further royalties (which we find as a fact they did), we think if was the right of the lessors to re-enter and oust the lessees. Whether it uas their light or not, they might in fact do it.- After ouster, lawful or otherwise, the lessors could not exact the payment of the rent. This ouster and re-entry we think beyond all question took place and so find. This is one of the decisive facts to which reference is above made. All the facts and circumstances of the case and the situation of the parties indicate this, and certain' evidential facts prove it to a moral certainty. Two will suffice to make this clear. If the relation of the parties as lessors and lessees had ended and only in that event and upon the payment of all rentals due, the lessees might remove their property from the premises. A settlement .was made in 188!) of all accounts to that date, and lessees dismantled the wining plant and removed all their property from the premises. This was so done that we not only feel justified in finding, but feel compelled to find, that it was with the full knowledge and consent of the lessors, and It is admitted in substance, if not formally, that such was the ease. The estate of the lessees could have been ended by lessors only by a re-entry. Such a re-entry did in fact fake place, and the lessees acquiesced in this assertion of the right of the lessor. The consequences must be accepted by both, one of which is that the lessor could not thereafter claim any future rent.</p> <p>The other of the two evidential facts is this: One of the lessors took possession of and sold a part, of the railroad construction erected by the lessees. There Is no presumption that this act was tortious. The assertion of the right to this material was therefore a declaration by one cotenant (which is evidence against all) that the lessors had re-entered into possession, and the estate of the lessees was gone. Again, the agreement of 1883 clearly meant that no rental should be paid for unmined ores when the furnaces were out of blast continuously for a time exceeding one month. During the whole period covered by this claim the furnaces were out of blast. This is the other decisive fact indicated. Nothing more is required than to state this fact.</p> <p>The conclusion to which these views lead is that judgment be entered against the plaintiff and in favor of the defendant, with costs. We cannot, however, withhold the observation that the conclusion reached has the sanction of common sense judgment. The claim is not only one which without unfair characterization may be termed stale, but there is this feature of it worthy of remark. The claim is now a large one. It had bócn allowed to accumulate without demand until after it had been running against this defendant for 13 years. If it had been promptly made the opportunity would have been afforded the defendant either to have secured possession or to have surrendered the property. If the sheriff’s grantee had sought to enforce possession it could not have been successful if the lessors had resisted the attempt. The consequence of requiring the defendant to now pay would he to compel them to pay this large sum' for which they would have received nothing.</p> <p>We append the only findings of fact and conclusions of law which are thought necessary.</p> <p>Findings of Fact.</p> <p>1. The facts stated in the foregoing opinion are found as stated.</p> <p>2. On or about June, 1889, a full settlement of all royalties or rentals was made between the parties,' and there was a re-entry upon the demised premises by the lessors and an ouster of the lessees which was acquiesced in and accepted by them.</p> <p>3. The smelting furnaces referred to in the agreement of 18S3 were all out of blast continuously during the whole time for which royalties or rent is claimed in this suit.</p> <p>Conclusions of Law.</p> <p>1. The ouster of lessees and re-entry by lessors upon the demised premises ended all interest and estate of the lessees in the lands of lessors and lessees’ right to the ores in or upon the land and their right to mine the same and no rental or royalties were thereafter payable.</p> <p>2. No rent or royalty was payable by the lessees or defendant during the time the smelting furnaces were out of blast and none claimed in this action is payable.</p> <p>3. The defendant is entitled to judgment, with costs.</p>

15, 1915, c. 22, 38 Stat. 803. Action by George E. Ward against the Inter-Island Steam Navigation Company, Limited, a Hawaiian corporation. A judgment for plaintiff was affirmed on writ of error to the Supreme Court of Hawaii, and defendant brings error. Action at law by plaintiff (defendant in error) for damages on- account of injuries sustained as a result o£ alleged negligence on the part of defendant (plaintiff in error, and hereinafter referred to as defendant company).

Petitions for Revision of Proceedings of the District Court of the United States for the Southern District of Florida, in Bankruptcy; Rhydon M. Call, Judge. In the matter of H. R. Finn, bankrupt. Separate petitions by H. R. Finn, Richard R. Silsbe, and William F. Clarke to revise the orders of the District Court overruling objections by the petitioners to the jurisdiction of the court over petitions in involuntary bankruptcy by the Carolina Portland Cement Company and others.

<p>1. Habeas Corpus <§=¿>90 — Proceeding—Hearing on Petition.</p> <p>On the filing of a petition for a writ of habeas corpus, setting out the facts and cause ot' detention, the court may properly consider, and determine upon the facts so presented, whether the prisoner, if brought before it, would be discharged.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 80; Dec. Dig. <@=590.]</p> <p>2. Carriers <§=538 — Interstate Transportation — Carriage of Explosives.</p> <p>Criminal Code (Act March 4, 1909, c. 321) §§ 232-236, 35 Stat. 1134-1136 (Comp. St. 1913, §§ 10402-10406), making it unlawful to transport explosives in interstate commerce on any vessel or vehicle operated by a common carrier and carrying passengers, are important regulations of commerce, designed for tbe protection of passengers and others, and as a safeguard for the prevention of the use of instrumentalities of interstate and foreign commerce in aid of crimes which involve the use of high explosives, and their violation was regarded by Congress as of such serious character as to rank as a felony.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. <@=538.]</p> <p>3. Carriers <@=538 — Offenses Against Interstate Commerce — Carriage of Explosives.</p> <p>It is no defense to a charge of carrying, explosives in a passenger vehicle operated by a common carrier in interstate commerce, in violation of Criminal Code, § 235, that the accused was an officer in the army oí a foreign country engaged in war, and that the explosive was so carried for the purpose of being used in an alleged act of war in the enemy territory.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 90, 97; Dec. Dig. <@=>38J</p> <p>4.Carriers <@=>38— Offenses Against Interstate Commerce.</p> <p>The mere fact that the accused held a commission in the army of his country raises no presumption that he was acting under the authority of his government, so as to raise any question of international law.</p> <p>[Ed. Note. — For other -cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. <@=>38.]</p>

Petition for Revision of an Order of the District Court of the United States for the First Division of the Northern District of California; Maurice T. Dooling, Judge. In the matter of the bankruptcy of the Continental Building & Doan Association, a corporation. Petition by W. L. Wilson and others for revision of an order of the District Court (232 Fed. 413), affirming an order of the referee disapproving the selection of a trustee.

Petition for Revision of an Order of the District Court of the United States for the Northern District of California; Maurice T. Dooling, Judge. In the matter of the bankruptcy of the Continental Building & Doan Association, a corporation. Petition by the Merchants’ National Bank of San Francisco for revision of an order of the District Court (232 ■ Fed. 413), affirming an order of the referee denying petitioner’s claim to vote for a trustee.

Action by James R. Watts against the S. M. Hamilton Coal Company. On application of plaintiff, a judgment of dismissal was vacated (219 Fed. 1003), and the case was set for hearing, and defendant brings error. This is a writ of error to review aa order of the District Court vacating a judgment of dismissal and setting the cause down for trial upon the docket of the court.

Petition for Writ of Mandamus to the Judge of the District Court of the United States for the Second Division of the Northern District of California. Petition by the Equitable Trust Company of New York, as trustee, for a writ of mandamus to be directed to William C. Van Fleet, Judge of the United States District Court.

Dietrich, Judge. Bill by the American Surety Company of New York, a corporation, against Clara Mills and George F. Steele, Insurance Commissioner of the State of Idaho and others. From interlocutory orders giving only partial relief by injunction, complainant appeals.

<p>1. Banks and Banking <@=5256(3) — Offenses—Intent.</p> <p>Under Kev. St. § 5209 (Comp. St. 1913, § 9772), declaring that every clerk of any national banking association who abstracts any of the credits of the association with intent to injure or defraud, and every person who with like intent aids or abets any clerk, shall he guilty of a misdemeanor, the intent of accused to injure, defraud, or deceive by the abstraction of credits is an essential element of the offense.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 964; Dec. Dig. <@=5256(3).]</p> <p>2. Criminal Law <&wkey;>390 — Evidence—Intent;</p> <p>Where the intent with which accused aided a clerk of a national bank to abstract credits was material, in a prosecution therefor, accused may testify as to his intent.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <&wkey;390J</p> <p>3. Banks and Banking &wkey;>257(4) — Jttex Question — Intent.</p> <p>While the law presumes that every person intends the natural consequence of his acts knowingly committed, the question whether accused, who participated in a clerk’s abstraction of credits from a national banking association,' intended to injure or defraud the association, and so was guilty of aiding and abetting, under Rev. St. § 5209 (Comp. St. 1913, § 9772), is a question for the jury in connection with other evidence, and cannot be decided by the court as a matter of law, and therefore an instruction that accused is conclusively presumed to have intended to injure the association by reason of the abstraction is erroneous.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 965; Dec. Dig. &wkey;257(4).]</p> <p>4. Criminal Law <@=5753(3) — Trial—Instructions.</p> <p>In a criminal prosecution, the court cannot peremptorily instruct the jury to find accused guilty, and an instruction which in effect requires a conviction is improper.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1728, 1729; Dec. Dig. &wkey;753(3).]</p> <p>5. Criminal Law <&wkey;907 — Trial—Acquittal.</p> <p>An acquittal cannot be set aside by the court.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2130; Dec. Dig. <&wkey;907.]</p>

<p>1. Trusts <@=372(3) — Trust Funds — Pursuit or — Evidence.</p> <p>Where plaintiffs sought to hold defendant banks for funds, resulting from the sale by the cashier of one of the banks of forged notes to plaintiffs, evidence held insufficient to trace the funds and establish a trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 602, 003; Dec. Dig. <®=»372(3).1</p> <p>2. Trusts @=»85S — Constructive Trust — Trust Funds.</p> <p>Defendant cashier sold forged notes to plaintiffs, and then drew sight drafts for the proceeds. These drafts were in the main used to transfer funds to reserve agents, but there was no showing as to the state of defendant’s accounts with such reserve agents, or that in all case's the accounts were maintained. Held that, it appearing that the cashier juggled the accounts and used the proceeds of forged paper to take up prior forged paper, no trust fund can be established in the accounts with reserve agents, which were grouped under the title “Gash and Sight Exchange” ; there being no showing that plaintiffs’ moneys were applied to any specific account, which is an essential to maintenance of such claim.</p> <p>| Ed. Note. — For other cases, see Trusts, Gent. Dig. §§ 523, 553; Dec. Dig. <&=53o8,]</p>

<p>Appeal from the District Court of "the'United States for the District of Arizona; Wm. H. Sawtelle, Judge.</p> <p>Application by Ong Seen, alias Ong Chung Dung, for writ of habeas corpus against Alfred E. Burnett, Inspector in Charge of United States Immigration Service at Tucson, Ariz. From a judgment denying the writ, applicant appeals.</p> <p>The appellant, a native of China, had been ordered deported, and a warrant of deportation had been issued, when he sued out a writ of habeas corpus in the court below, and on the hearing he was ordered remanded to the custody of the inspector in charge at Tucson, Ariz. In his return to the writ, the inspector annexed a full transcript of the proceedings on which the appellant was ordered deported. The facts are in substance the following: The appellant arrived at San Francisco from China on April 8, 1006, and he was permitted to land upon the strength of á certificate which had been issued to him under Act May 6, 1882, o. 126, § 6, 22 Stat. 001, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 (Comp. St. 1913, § 4293), in which it was represented that ho was a merchant and that he had $2,000 (gold) interest in the firm of Hop Yiek Loong in China, and on the representations contained in a. letter from the American Consul (tenoral at Canton to the Commissioner of Immigration at San Francisco, stating that the appellant’s certificate had been viséed, that the appellant would take with him $1,000 in gold and would have about $3,000 sent lilm later by draft, and that Ms father was known to have $70,000, while the appellant himself was worth $50,000 (Mexican), and it was stated that the appellant was going to set up a wholesale sundry goods shop in San Francisco. From the time of his arrival until January 23, 1912, the appellant resided in San Francisco and Oakland, and during the first four years of that time he was occupied as a peddler of herbs from house to house. In July, 1908, he invested $500' in a drug store in San Francisco, but did not become an active member of that firm until November 1, 1910. He still retains his interest in the firm, but has never received any dividends. On January 23, 1912, after securing a pre-investigation of his status as a lawfully domiciled Chinese merchant, the appellant departed for China. He returned to San Francisco a year later, and was admitted by the Commissioner of Immigration, who issued to him a certificate of identity. Thereupon he returned to his old occupation of peddling herbs. In February, 1914, ho went to Phoenix, Ariz., and remained there a few days, and then went to Mesa, Ariz., making the Arizona Restaurant his headquarters. He testified that he came to Arizona looking for a location for business. He admitted that he had no money, and that no one owed him money, but he said that if he found a suitable location he could borrow money and start a store. In March, 1914, he was seen working in a restaurant, at Mesa, where it appeared that he worked as an employs for a period of three or four weeks. In April of that year he was arrested, and upon the hearing was ordered to be deported.</p>

II. Sawtelle, Judge. Application by Ong Chew Rung, also known as Ong Gin Lung, for a writ of habeas corpus against Alfred E. Burnett, Inspector in Charge of United States Immigration Service at Tucson, Ariz. From a judgment denying the writ, applicant appeals. The appellant came to the United States from China in 1908, when he was less than 18 years of age, and he acquired a domicile here as the son of Ong Hung, a resident merchant of San Francisco.

Dooling, Judge. Application of Chan Kam, alias Cham Kam, for a writ of habeas corpus, against the immigration officers of the United States. From a judgment denying the writ, applicant appeals. On rehearing.

<p>Í. Courts <3= 405(12) — Circuit Court or Appeals — Review—Decisions Re-viewabijo.</p> <p>The Circuit Gourt of Appeals can only review final judgments other than injunction orders.</p> <p>[Ed. Note — For other cases, see Courts, Cent. Dig. §§ 1099, 1100; Dec. Dig. <@=105(12).]</p> <p>2. Appeab Aro Error <©=78(1) —Review—Decisions Reviewabde.</p> <p>An order denying a motion to vacate an order of arrest is not a final judgment, disposing of the case on the merits, and cannot be reviewed on writ of error.</p> <p>LEd. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 426, 470, 472; Dec. Dig. <§=78(1).]</p>

<p>Depositions <3=>83(3) — Refusal to Answer — Exclusion ov Testimony.</p> <p>Where a witness refuses to answer pertinent questions, stating she acts on advice of connsel, thus evading proper inquiry, her whole testimony may be stricken.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 221; Dec. Dig. <3=383(3).]</p>

<p>1. Public Lands <§=»103(1) — Contest—Rights of Contestant.</p> <p>Plaintiff, who was not a party to a contest by his father against the entry of defendant on public lands, can take no advantage of his father’s contest upon claiming the land Under a subsequent entry.</p> <p>[Ed. Note.- — For other cases, see Public Lands, Cent. Dig. § 298; Dec. Dig. @=>103(1).]</p> <p>2. Public Lands @=102 — Entry—Rights of Entbymen.</p> <p>Plaintiffs application to enter public land stated that by reason of his adoption of a minor child he was the head of a family, though plaintiff was not of age. Plaintiff’s application was suspended for proof of adoption, and he was notified that, unless proof was made within a given time, it would be denied. Plaintiff failed to appeal from the order, and did not furnish the required proof. Held that, the land having been subsequently patented to another, plaintiff could not complain.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 294-297; Dec. Dig. @=102.]</p>

<p>Appeal from District Court of the United States for the Southern District of New York.</p> <p>Ten suits in equity by Emil Steffens, Jr., and Homer A. Jones, co-partners as Steffens, Jones & Co., against Henry Steiner, Isidor Stein-<cr, and Joseph Kopperl, copartners as Wm. Steiner, Sons & Co. Decrees lor complainants in three cases, and defendants appeal, all being heard on one record as one appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge.</p> <p>Suit in equity by Charles M. Zimmerman and the Instantaneous Glue Converter Company against the Advance Machinery Company. Decree for defendant, and complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by the Ft. Pitt Supply Company and another against the Ireland & Matthews Manufacturing Company. Decree for defendant, and complainants appeal.</p>

<p>1. Patents &wkey;>328 — Validity op Reissue — Match Box.</p> <p>The Dodge reissue patent, No. 12,290 (original No. 749,639), for a match, box, claims 6 and 10, which were added in the reissue, are void, as broadening the claims of the original patent by the omission of limitations imposed by the Patent Office and acquiesced in by the patentee. ■</p> <p>2, Patents <&wkey;141 — Reissues—Broadening op Claims.</p> <p>A reissue cannot embrace a claim presented on the application for the original patent and rejected, the omission of which could not have been the result of inadvertence, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dee. Dig. <&wkey;141.]</p>

<p>In Equity. Suit by the De Laski & Thropp Circular Woven Tire Company and others against the United States Tire Company for infringement of letters patent No. 822,561, for apparatus for making wheel tires, granted to Peter D. Thropp. On final hearing.</p>

<p>In Equity. Suit by the D’enny Renton Clay & Coal Company and Bruce C. Shorts, trustee, against the Portland Cement Pipe & Tile Company and C. H. Bullen. On final hearing.</p>

<p>1. Corporations <@=>553(1) — Receivers—Appointment.</p> <p>Where a corporation, which was unable to immediately discharge its debts, secured an extension from its creditors, and they were given representation on the board of directors, a receiver will not be appointed at the suit o£ a dissatislied creditor, though the appointment was concurred in by the president of the corporation, except upon a clear showing of wrongful acts, or threatened injury to the creditors and stockholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201, 2210, 2213-2216; Dec. Dig. &wkey;553(l).]</p> <p>2. CORPORATIONS <&wkey;552 — President—Powers of.</p> <p>The president of a corporation, who, before the corporation got into difficulties, was allowed to conduct corporate affairs, cannot, after creditors, who extended time of payment, were given representation on the board of directors, authorize the appointment of a receiver to liquidate the corporate affairs.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2201; Dec. Dig. <&wkey;552.]</p> <p>3. Corporations <&wkey;547(l) — Directors—Mismanagement.</p> <p>Whore there is a mismanagement by corporate directors, or premature disposal of corporate property on liquidation, the creditors and stockholders liable to be injured thereby will be given relief in equity.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2178; Dec, Dig. <@=>547(1).]</p>

<p>1. Bankruptcy <&wkey;342% — Proceedings—Petition to Review.</p> <p>A petition for review of an order of a referee, which under General Order 27 (89 Fed. xi, 32 O. C. A. xxvii) is "necessary to review and must under the rules of court be filed with the referee within 10 days after the order, is to all intents and purposes an appeal, and the petitioner is an appellant for whose benefit it alone inures; therefore the petitioner is entitled to dismiss, in case he deems it to be to his benefit.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. <&wkey;>342%.]</p> <p>2. Bankruptcy <&wkey;342% — Petition to Review — Right to File.</p> <p>One who filed no petition to review an order of a referee, but relied on a petition of another, is not, the original petitioner desiring, to dismiss, entitled to intervene for that reason; the time for the petition having expired, for, while no particular delay would result, the original petitioner is entitled to treat the petition as an appeal taken for his own exclusive benefit.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. &wkey;342y2.]</p>

<p>1. Master and Servant <&wkey;228(2) — Master's Liability foe Injury to Servant — Unguarded Machinery — Effect of Statute.</p> <p>A failure to comply with, the requirements of the Pennsylvania statute of 1905 (P. L. 355, § 11), requiring dangerous machinery to be guarded, is negligence, or at least may justify a finding of negligence, and, while the statute does not shut out the defense of contributory negligence, the negligence of an injured plaintiff must be negligence in fact, and consent to work at an unguarded machine is not negligence per se, but may or may not justify a finding of negligence in fact.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 671; Dec. Dig. <&wkey;22S(2).]</p> <p>2. Master akd Servant <&wkey;121(2), 286(22) — Action foe Injury to Servant — . Questions eor Jury.</p> <p>Evidence in an action for injury to an employs from an unguarded maclrine, which was required by statute to be guarded, held sufficient to justify the submission ol" the case to the jury, both upon the question of negligence of the defendant and of contributory negligence of plaintiff.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 229, 3028; Dec. Dig. &wkey;121(2), 286(22).]</p>

<p>1. BANKRUPTCY <&wkey;262(3) — Sat.es op Property — Authority of Court.</p> <p>The bankruptcy court may sell property of the bankrupt discharged of liens.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 365; Dec. Dig. &wkey;262(3).]</p> <p>2. Bankruptcy <&wkey;174 — Authority of Court — Jurisdiction.</p> <p>Where a bankrupt’s property is sold free from liens with the consent of the lienholders, necessary costs of sale, including commissions of the referee and trustee, may be allowed, regardless of whether there is a surplus above the amount of the lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 878-881; Dec. Dig. &wkey;474.J</p> <p>3. Bankruptcy &wkey;>474 — Sam of Proi’erty — Liens.</p> <p>Where holders of liens against property of a bankrupt made no protest at its sale discharged of liens, and bought it in, their consent is presumed from their acquiescence, and reasonable and necessary costs incurred in the sale should be paid out of the proceeds, though the amount realized be insufficient to satisfy the lien.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 878-884; Dec. Dig. <&wkey;474.]</p> <p>4. Bankruptcy <&wkey;368 — Sales—Commissions of Trustee.</p> <p>Where a trustee in bankruptcy sold property free from liens, and the lienholders who bought it in paid only part of the purchase price in cash, the remainder being credited upon the amount of their liens, the trustee is entitled to commissions computed on the sale price, and not the price paid in cash.</p> <p>[Ed. Nole. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <S&wkey;308.]</p> <p>5. Bankruptcy <&wkey;474 — Sales—Counsel Fees.</p> <p>Where property of the bankrupt is sold free from liens, reasonable counsel foes may bo allowed out of the proceeds, though they did not equal the amount of the liens; the lienholders acquiescing.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 878-884; Dec. Dig. <&wkey;474.]</p>

<p>At Daw. Action by William R. Watson against the Pennsylvania Railroad Company. On motion to quash service of summons and statement.</p>

In Equity. Bill by the National Circle, Daughters of Isabella, against the National Order of the Daughters of Isabella. On application by complainant for an injunction pendente lite.

<p>Suit by one Jennings and others against one Smith and others.</p>

<p>1. Receivers <&wkey;152 — Claims Entitled to Preference — Trust Funds.</p> <p>A sum due from one railroad company to another for traffic balances on interchange of business on account of item's omitted from its reports to the other company, and which sum was retained and used in the operation and maintenance of its road, cannot be recovered from its receiver as a trust fund, to take precedence over its bonded indebtedness, where it cannot be traced into any specific property. ></p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 272-275, 278; Dec. Dig. &wkey;3l52.]</p> <p>2. Receivers @=3152 — Insolvent Railroad Company — Claims Entitled to Preference.</p> <p>Where, however, the bondholders were in control of and operating the road when such sums were withheld, and they were necessary and used to keep the road in safe operating condition, the claim therefor is entitled to preference over the indebtedness to the bondholders.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 272-275, 278; Dec. Dig. &wkey;>152.]</p> <p>3. Receivers <@=3152 — Claims Entitled to Preference — Operating Expenses of Railroad.</p> <p>The rule usually applied, limiting preferential claims against the receiver of an insolvent railroad company for operating expenses to those arising within six months prior to the receivership, is not arbitrary, but the giving of such preference rests in the discretion of the court.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 272-275, 278; Dec. Dig. <&wkey;152.]'</p>

<p>1. Commeecb <&wkey;33 — “Interstate Commerce” — What Constitutes.</p> <p>The essential- character of the commerce and the real and ultimate destination of the shipment, and not the billing, determines whether it is “interstate commerce.”</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. &wkey;>33.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Carriers <&wkey;38 — Interstate Carriers — Offenses.</p> <p>- An indictment, charging that the defendant carrier participated in the interstate transportation of coal over a route partly by rail and partly by water without having filed with the Interstate Commerce Commission tariffs for thd rate of water transportation, averred that a shipment of coal from a point in Pennsylvania to a port in that state was from thence shipped by water to a point in a foreign state. The indictment further averred that defendant owned the railroad and the barge line by means of which the coal was transported. It was averred that the coal was rebilled at the port to the point of ultimate destination, but no consignor or consignee at that point was stated. that, while the mere billing would not determine the character of the 'shipment, yet the indictment was insufficient to show an interstate shipment of coal over a route partly on land and partly by water; for, there being no averments showing that there were not two separate shipments, the original shipment between the two points in Pennsylvania may be taken as an intrastate shipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96,. 97; Dee. Dig. <&wkey;38.]</p> <p>3. Carriers &wkey;>38- — Carriage of Goods — Discrimination—Indictment.</p> <p>An indictment charged that defendant, which operated a line of railroad and a barge line by means of which coal was carried' from Pennsylvania to adjoining states, gave special privileges to a particular shipper of anthracite coal, in that the rates for the barge line transportation of anthracite coal had been fixed and unchanged for more than five years, while the rates for the transportation of bituminous coal had been subject to frequent fluctuation; that other' coal shippers than the one favored were required to make special arrangements as to each shipment; that the favored shipper was given facilities for securing information concerning shipments of coal by other shippers; and that such shipper was also favored in the assignment of barges and barge space. Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380, as amended by Act June 29, 1006, c. 3591, § 2, 34 Stat. 586 (Comp. St. 1913, § 8569), declares that no carrier shall engage or participate In the transportation of property unless the rates have been filed and published, nor shall it extend to any shipper or person any privileges or facilities except such as are specified in the tariffs. Held, that the indictment was insufficient to charge a discrimination, not showing the filing of tariffs or why the rates for shipments of anthracite coal should not have been stationary while those for shipments of bituminous coal fluctuated.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 90, 97; Dec. Dig. t&wkey;38.]</p> <p>4. Carriers <&wkey;38 — Carriage of Goods — Discrimination—Indictment— CONC-LtrsiONS.</p> <p>In such case, the indictment is insufficient to charge any offense with respect to assigning barge space or divulging information to the favored shipper; there being no averments of facts in respect thereto.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. &wkey;>38.]</p>

<p>1. Caeiuers &wkey;38 — Oabriage of Goods — Discrimination—Indictments.</p> <p>The tariffs filed by defendant railroad company, an interstate carrier, with the Interstate Commerce Commission, provided for demurrage charges of one dollar per day for each car for each day’s detention after 15 days from the date notice of arrival of coal cars should be sent to the consignee. The indictment, charging that defendant knowingly granted concessions to consignees in respect to interstate commerce shipments of coal, averred that coal cars were held up at a point some miles from point of destination where the coal was to be reshipped; and that no demurrage charges were made, though the coal was kept for periods beyond the 15 days allowed. Held,, that as an indictment should contain averments of every fact necessary to constitute the crime charged, and as nothing can be charged by implication, the indictment was insufficient to show a discrimination, in that it did not show that the delay was at tlie request of the consignees or for their benefit, or that such delay was had at the point before the shipment reached destination to evade the terminal charges.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. 4&wkey;88.]</p> <p>2. Caeeiebs <&wkey;100(l) — -Demurrage—Right to Charge.</p> <p>Demurrage charges cannot be imposed by a carrier, though notice of arrival of goods or car shipment is given, until the shipment has actually arrived.</p> <p>[Ed. Note. — For other cases, sec Carriers, Cent. Dig. §§ 427-430, 432, 433; Dec. Dig. &wkey;>100(l).)</p>

<p>1. Trade-Marks and Trade-Names §=>75' — Unfair Competition.</p> <p>A jeweler designed a friendship bracelet, consisting of numerous small links, which could be interchanged by friends, and until the bracelet was completed and united by metal wires should be worn on a velvet band. The company which originally manufactured the bracelets ceased manufacturing when the designer assigned to complainant the right to make and sell such bracelet. The completed bracelet was patented, but the links were not. Thereafter defendant began to make and sell similar links for bracelets. There was nothing in the nature of the links manufactured by the original manufacturer or by complainant to indicate the origin of the goods, nor did defendant’s links purport to be made by the original manufacturer or complainant Held that, as defendant advertised itself as the manufacturer of its own product, and as the separate links were not patented and the patent was not relied on, there was no actionable deceit of customers which would warrant the enjoining of defendant’s continued manufacture.</p> <p>[Ed. Note. — For other coses, see Trade-Marks and Trade-Names, Cent Dig. § 86; Dec. Dig. <@=>75.]</p> <p>2. Trade-Marks and Trade-Names §=»78 — Unfair Competition — Advertising .</p> <p>In such case, where complainant and defendant were competitors before complainant began its advertising campaign, the fact that defendant might have reaped benefit from the advertising does not warrant an injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 88; Dec. Dig. §=>78.]</p> <p>3. Tbahe-Marks and Trade-Names <§=>32 — Unfair Competition — Dedication of Product to Public.</p> <p>As the designer and original manufacturer, after describing the bracelet generally in trade journals abandoned manufacture, the public had the right to manufacture the article, and complainant could acquire no exclusive right, so as to prevent others from making bracelets.</p> <p>[Ed. Note. — -For other casos, see Trade-Marks and Trade-Names, Cent. Dig. § 36; Dec. Dig. §=>32.]</p> <p>4. Trade-Marks and Trade-Names <§=>75 — Unfair Competition — What Constitutes.</p> <p>In such case the fact that links sold by defendant were at times connected with wires furnished by complainant to jewelers does not warrant an injunction, in view of the fact that defendant also furnished similar wires to connect the friendship links.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 86; Dec. Dig. §=>75.1</p>

Criminal prosecution by the United States against Simon A. Akers. On demurrer to indictment. Certain counts of the indictment are as follows: United States of America, Northern Division, Northern District of Georgia.

At Law. James J. Johnston and others were indicted for crime. On demurrer to the indictment by all defendants, except James J. Orkeny.

<p>RaixRoads <&wkey;218 — Carriage of Persons — Facilities—Public Service Commission — “Public Necessity.”</p> <p>Complainant operated a line of railroad between Oswego and Buffalo, N. Y. Passengers were carried by four trains daily, each way. Owing to other modes of travel and to the competition of an interurban road, travel decreased and the trains were being operated at an ever-increasing deficit. All of the principal towns on the route were served by the interurban road, and the other smaller agricultural communities were within a few miles of the road, and passengers desiring such service might board the cars after a short drive. Other railroads furnished facilities through the district. Held that, as the interurban cars ran at intervals of one-half hour, the complainant railroad company could not be required to run four trains daily each way, but might withdraw two of the trains each way every day; there being no “public necessity,” which means great or urgent public convenience requiring the operation of additional trains, and so an order requiring the maintenance of four trains daily each way is confiscatory.</p> <p>FEd. Note. — For other cases, see Railroads, Cent. Dig. § 715; Dec. Dig. <&wkey;218.</p> <p>For other definitions, see Words and Phrases, First and Second Series,, Public Necessity.]</p>

<p>In Equity. Suit by the United States against Canyon County, Idaho, E. C. Knowlton, Auditor, Sarah J. Handy, Treasurer, C. Q. Adams, C. B. Ross, and Carl W. Giesler, County Commissioners, and A. O. Christopher, Assessor of said County. On final hearing.</p>

<p>In Admiralty. Suit by Corie Simmons against John Doe and Richard Roe, unknown .owners of the steamship Horsa. On motion to dissolve attachment.</p>

<p>1. Carriers @=>30 — Carriage of Goods — Rates.</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 .(Comp. St. 1913, § 8569), a shipper is liable for the rate fixed by the tariff filed, regardless of a mistake of the carrier’s servant, or the fact that the shipper made prices in reliance on the rate quoted to him, for all persons are charged with notice of such rates.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. @=>30.]</p> <p>2. Commerce @=>33 — “Interstate Commerce” — What Constitutes.</p> <p>Where cotton was shipped to a point within the state where the shipments originated and there compressed, from thence being carried to . points without the state, the shipments to the point where the cotton was compressed were not intrastate commerce shipments, there being no change of ownership, but were part of an interstate shipment, and interstate rates should be charged;, the mere fact that the cotton was not always billed to its ultimate destination until after compression not affecting the matter.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. @=>33.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>3. Carriers @=>30 — Carriage of Goods — Rates—Validity.</p> <p>Under Interstate Commerce Act, § 6, requiring carriers to file joint rates when they have been agreed upon, if not, the separate rates when ' no joint rates have been agreed upon, and requiring them to charge and receive no greater compensation than the rates prescribed, plaintiff, an interstate carrier, which had filed with the Interstate Commerce Commission a through rate for interstate shipments from points in one state to a point in another, must charge such rate, though the connecting carrier filed an intrastate tariff of local rates to the point of intersection of the two lines within the state, and there was a considerably less rate to the point of destination without the state from the point of intersection; the local rates not having been filed with the Interstate Commerce Commission.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. @=30.]</p>

In Bankruptcy. In the matter of All Star Feature Corporation. On review of order of referee allowing claim of Willat Film Manufacturing Company to a lien on certain assets. This is a petition by a trustee in bankruptcy to review the order of a referee in bankruptcy allowing a claim of the respondent upon certain assets of the bankrupt kept from the trustee under assertion of a pledge or lien.

<p>1. Corporations <§=>319(8) — Action to Enforce Liability of Director— Question for Jury.</p> <p>Tile question of the negligence of a director of a corporation in the performance of his duties held, on the evidence, one for the jury.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1415; Dec. Dig. <§=319 (8).]</p> <p>2. Trial <§=214 — Instructions—Duty to State Law.</p> <p>The standard of duty of a director of a corporation is one prescribed by . law, and in an action by a receiver against a director to recover for losses due to mismanagement, it is the duty of the court to instruct the jury as to such standard.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dec. Dig. <§=214J</p> <p>3. Corporations <§=310(2) — Liability of Director for Mismanagement-Standard of Duty.</p> <p>The standard of duty by which the acts or omissions of a director of “a corporation is to be measured is that set by the ordinary director, and not that of the ordinary man.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1353-1357, 1359-1361; Dec. Dig. <§=310(2).]</p> <p>4. Trial <§=295(1) — Instructions.</p> <p>A charge to a jury is to be considered as a whole, and not tested by the standard of absolute verbal accuracy in every isolated phrase. ■</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 713, 714, 1717; Dec. Dig. <§=295(1).]</p> <p>5. Corporations <@=319(8) — ‘Action to Enforce Liability of Director — Instructions.</p> <p>Instructions in an action by the receiver of a corporation against a director to recover for losses alleged to have resulted from negligent management considered, and held without error.</p> <p>[Ed. Note.- — For other cases, see Corporations, Cent. Dig. § 1415; Dec. Dig. <§=319 (8).]</p>

In Bankruptcy. In the matter of the bankruptcy of Gurler & Co., a copartnership composed of G. H. and C. H. Gurler. Petition by Blunter, Walton & Co., a copartnership, to set aside the order of adjudication and dismiss the proceedings.

<p>In the matter of the application of Witold Markun for leave to file a petition for naturalization under Rev. St., § 2166 (Comp. St. 1913, § 4355).</p>

<p>In Error to the United States District Court for the Eastern District of Louisiana; Rufus E. Foster, Judge. Action at law by John Ibbs against the MeOIintic-Marshall Company, with John B. O’Leary as interpleader. Judgment for plaintiff, and defendant brings error.</p>

<p>Upon motion of Mr. John H. Miller, counsel for the appellee, ordered, appeal dismissed for noncomplianee by appellant with rules 23 and 24, 150 Fed. xxxii, xxxiii, 79 C. C. A. xxxii, xxxiii (failure of appellant to print record under rule 23, and to file a printed brief under rule 24), with costs in favor of the appellee and against 'the appellant.</p>

<p>Upon motion of Mr. Siinm Hellenthal, counsel for the appellee, ordered appeal dismissed for noncompliance by appellant with rules 23 and 24, 150 Fed. xxxii, xxxiii, 79 C. O. A. xxxii, xxxiii (failure of appellant to print record under rule 23, and to file a printed brief under rule 24), with costs in favor of appellee and against appellant.</p>