Volume 233 — Federal Reporter

M. Morton, Judge. Suit in admiralty by Melville L. Cobb against the steam tug Coast-wise; Thomas J. Scully, claimant. Decree for libelant, and claimant appeals.

<p>1. Post Office @=>35 — Use of Mails to Defraud — Construction of Statute.</p> <p>The use of the mails in carrying out a scheme to defraud may constitute an offense under Criminal Code (Act March 4, 1909, c. 321) § 215, 35 Stat. 1130 (Comp. St. 1913, § 10385), although the scheme in its inception had no relation to any law of the United States, but related to state laws only, and the use of the mails may have been unpremeditated, and merely incidental.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. @=>35.]</p> <p>2. Post Office @=>48(4) — Use of Mails to Defraud — Indictment.</p> <p>An indictment against nine defendants for having devised a scheme to defraud by the organization of six connected banks in four different states, which were without substantial capital and were kept in operation by transferring money or securities from one to another, and for using the mails in furtherance of such scheme, construed.</p> <p>Il'M. Note. — For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. @=>48(4).]</p> <p>3. Conspiracy @=>47 — Indictment—Sufficiency of Evidence.</p> <p>A further count charging a conspiracy to use the mails in aid of a scliome to defraud construed, and on the only construction upon which it was sustainable held not supported by the evidence.</p> <p>[IM. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. @=>47.]</p> <p>4. Post Office @=>49 — Prosecution for Using Mails to Defraud — Evidence.</p> <p>On the trial of defendants, charged with using the mails in the execution of a scheme to defraud, the evidence to establish the existence of tho scheme charged may be extensive in its scope, and must rest largely in the discretion of the trial Judge.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. @=>49.]</p> <p>5. Post Office @=>49 — Prosecution foe Using Mails to Defraud — Evidence.</p> <p>Various rulings as to admissibility of evidence considered, in a criminal prosecution for using the mails to defraud against a number of defendants, who bore different relations to the matters in issue to which the evidence was directed, and held erroneous as to some of the defendants.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86; Dec. Dig. @=>49.]</p> <p>6. Criminal Law @=>449(1) — Opinion Evidence — Solvency.</p> <p>Where the question of the insolvency of a corporation at a given time is collaterally involved in a criminal prosecution, the opinion of a witness otherwise qualified, and who was in a position to know the facts, may be admissible on that issue.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1034, 1035; Dec. Dig. @=>449(1).]</p> <p>7. Courts @=>349 — Federal Courts — Following State Practice.</p> <p>The practice of the federal courts as to the scope allowed in cross-examination in criminal cases is not affected by the practice or rules of the courts of the state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 925; Dec. Dig. @=>349.]</p> <p>8. Criminal Law @=>881(2) — Trial—Verdict—Conformity to Indictment.</p> <p>A defendant cannot be charged with one crime and convicted of another merely because the latter is developable out of the proof, which fails to establish the crime charged in the indictment.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2093; Dec. Dig. @=>881(2).]</p> <p>9. Criminal Law @=>673(4) — Trial—Instructions.</p> <p>Where, in a criminal prosecution against a number of defendants, evidence is received which is properly admissible against some of the defendants, but not against others, it is essential that the jury Be expressly and carefully instructed in respect thereto.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1873; Dec. Dig. @=>673(4).]</p> <p>10. Criminal Law @=>770(2) — Instructions.</p> <p>While it is not error to refuse requested instructions in a criminal case which are clearly covered by the charge given, a defendant is entitled of right to have clearly stated to the jury each distinct and important theory of defense.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. @=>770(2).]</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by Fred W. Hagen against the Atlas Portland Cement Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Trial <3=219, 255(13) — Injuries to Servant — Instructions—Proximate C a use — Necessity—R® quest.</p> <p>In an action for the death of a railroad employé, who fell from a bridge, where the evidence was not clear that the negligence of the company in leaving one side of the bridge unguarded was the proximate cause of the accident, it was error for the trial judge to pass over the subject, of proximate cause with only an allusion to the fact that the jury must determine whether the death was the proximate result of defendant’s negligence, without defining “proximate cause,” though his attention was called to the subject by defendant’s requests for instructions that the com! pany was not liable, unless it had been guilty of negligence that was the proximate cause of the death.</p> <p>[Ifd. Noto. — For other cases, see Trial, Cent. Dig. §§ 489, 639; Dec. Dig. <3=219, 255(13).]</p> <p>2. Master and Servant <3=276(2) — Injuries to Servant — Evidence—Proximate Cause.</p> <p>In an action for the death of a railroad employé, who fell from a bridge one side of which was unguarded, testimony of the only witness to the accident that the employé crossed diagonally from the guarded to the unguarded side of the bridge, where ho seemed to stumble and then fell, and that 24 hours later there was no obstruction on the bridge over which he could have stumbled, is not sufficient to warrant the jury in finding that the negligence of the company in leaving the side of the bridge unguarded was the proximate cause of the death.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <3=276(2).]</p>

Libel of information by the United States of America against seventeen pieces of jewelry, claimed by Francisco Sierra. A demurrer to a paragraph of the answer was sustained, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.</p> <p>Suit in equity by Joseph Riederich against McCook County, S. D., and others. Decree for defendants, and complainant appeals.</p>

<p>In Error to the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Eleet, Judge.</p> <p>Action by Sylvia A. Brainard against the San Erancisco Breweries, Limited. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Corporations @=584 — Improper Consolidation — Value op Stock.</p> <p>Where the holders of the majority of the shares of two corporations improperly consolidated them, and the new company did not immediately declare dividends, that fact is not conclusive as to the value of the properties consolidated, and the master appointed to ascertain such value in a suit by the minority shareholders should not proceed by a capitalization on the first dividend declared after consolidation, but should consider all other competent evidence.</p> <p>[Erl. Note. — IPor other cases, see Corporations, Cent. Dig. §§ 2843-2347; Dec. Dig. @=584.]</p> <p>2. Corporations @=584 — Improper Consolidation — Value op Stock.</p> <p>In determining the value of corporate property which was consolidated, the master should not reject evidence as to the value of the properties consolidated, because it was not sufficient alone to show value.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2343-2347; Dec. Dig. @=584.]</p> <p>3. Corporations @=584 — Consolidation—Improper Consolidation.</p> <p>Where the holders of a majority of the shares of two corporations consolidated such companies in violation of the rights of the minority shareholders, the minority shareholders, npon recovering the value of their shares, are entitled only to interest at the statutory rate from the date of the improper consolidation, without annual stops in computation, and are not entitled to counsel fees necessarily expended in their suit, for their recovery does not inure to the benefit of the corporation in which they held shares, although such fees may be determined and paid out of the recovery, and the surplus distributed.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2343-2347; Dec. Dig. @=584.]</p>

Petition to Revise Orders of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of the Vanoscope Company. Petition by William D. Lowery to revise orders of the District Court made in such proceeding.

<p>1. Brokers @=>86(7) — Compensation—Actions—Evidence.</p> <p>•In a broker’s action for compensation for procuring a purchaser for standing timber, evidence held to warrant a finding that he relied on the vendor’s representations as to the amount of the timber, and was not responsible because the purchaser refused to pay the agreed price; a shortage being discovered.</p> <p>[Ed. Note. — For other eases, see Brokers, Cent. Dig. §§ 116, 117; Dec. Dig. @=>86(7).]</p> <p>2. Brokers @=>62 — Compensation—Right to Recover.</p> <p>Where a broker engaged to secure a purchaser for standing timber, relied on the vendor’s statements as to the amount of the timber, and secured a purchaser, but the purchaser, on discovering a shortage, refused to pay the price fixed, the broker’s right to commissions cannot be defeated because the vendor made his representations in good faith.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. @=>62.]</p> <p>3. Brokers @=>71 — Compensation—Subsequent Agreement.</p> <p>Where a broker, who procured a purchaser for standing timber, agreed to accept a reduction of commissions, the purchaser discovering the shortage and refusing to pay the price first fixed, the broker cannot recover more than the amount subsequently agreed upon, but is entitled to recover the reasonable value of his services up to that amount; the purchaser accepting the timber at a reduced price.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. . @=>71.]</p> <p>4. Brokers ©=>50 — Compensation.</p> <p>Where a broker procured a purchaser for standing timber, but the purchaser, on discovering a shortage, refused to accept the timber at the price fixed, and thereafter, the broker having consented to a reduction of commissions, the parties consummated the sale at the reduced price,' the fact that the sale was made after the expiration of an option given the purchaser will not defeat the broker’s recovery.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 68; Dec. Dig. ©=>50.]</p>

<p>1. Master and Servant <@=>13 — Hours op Service — Discharge op Train Crew.</p> <p>Where, after derailment, the crew of a freight train while awaiting the arrival of a derrick, proceeded about a mile and a half from the point of derailment to a farmhouse, where they left the engine in charge of a watchman and partook of a luncheon and rested under the trees, they were not released from duty, there being no superior present, within Hours of Service Act March 4, 1907, c. 2939, 34 Stat. 1415 (Comp. St. 1913, §§ 8677-8680), and that time must be included in determining whether they were' on duty for more than the 16-hour period allowed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <@=>13.]</p> <p>2. Master and Servant <@=>13 — Hours of Service — “Continuous Journey.”</p> <p>Where a freight train proceeded from Salt Lake City to a smaller town, and thence returned, and no crews were kept at the smaller town, and there was no person there competent to take charge of the train, such town must be treated as a way station and the round trip as a “continuous journey,” within the Hours of Service Act.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <@=>13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Continuous.]</p> <p>3. Master and Servant <@=>13 — Hours of Service — Defenses—“Casualty.”</p> <p>Under Hours of Service Act, § 3 (Comp. St. 1913, § 8679), making it unlawful for any common carrier, its officers, or agents to require or permit any employe to remain on duty for a longer period than 10 consecutive hours, provided that the act shall not apply in case of casualty or unavoidable accident, or the act of God, a railroad company, where the crew of a train which* was derailed remained on duty for more than 16 consecutive hours, is not liable to the penalty of the act, for, while the term “casualty” does not include ordinary accidents incidental to railroading, a derailment is not incident to good railroading, and in such case, for the protection of other employes and passengers, the crew in charge of a derailed train may be required to remain on duty for more than 16 hours.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <§=13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Casualty.]</p> <p>4. Master and Servant <§=13 — Hours of Service — Defenses.</p> <p>Where, without ascertaining when tracks would be cleared, trains were dispatched over tracks on which it was known there had been a wreck, so that the crews of such train: were kept on duty for more than 16 consecutive hours, the fact of the wreck furnishes no defense to a prosecution for the violation of the Hours of Service Act; it being the duty of the railroad company’s servants to ascertain such facts before dispatching trains.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dee. Dig. <@=13.]</p> <p>5. Master and Servant <§=13 — Hours of Service — Defenses.</p> <p>Where the watchman at an intermediate point, where a train was required to lay over, refused to watch the engine, claiming that he was afraid of the injector, and the fireman, who volunteered to watch the engine, was on duty more than 16 hours, the watchman’s unforeseen insubordination was a casualty, excusing the railroad company from any violation of the Hours of Service Act.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <§=13.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>At Law. Action by Mike Merko against the Sturm & Dillard Company. Judgment for defendant and plaintiff brings error.</p>

<p>1. Druggists @=>11 — Misbranding of Drugs — Forfeiture.</p> <p>Under Food and Drags Act (June 30, 1906, c. 3915, 34 Stat. 771) § 8, as amended by Act Aug. 23, 1912, c. 352, 37 Stat. 416 (Comp. St. 1918, fj 8724), declaring that drugs are misbranded if the package or label shall contain any statement regarding the curative effect of such drug which is false or fraudulent, the only question in a proceeding- to forfeit drugs on the ground that they were misbranded is whether statements on the label were false, and, if so, whether they wore fraudulent.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. @=>11.]</p> <p>2. Druggists @=11 — Drugs—Forfeiture—Evidence.</p> <p>In a proceeding to forfeit drags as being misbranded under the Food and Drugs Act, where there was evidence that the drugs were stated to benefit locomotor ataxia, testimony by a medical expert that in the opinion of doctors generally such drugs would not have any curative effect is admissible, over objections that it was opinion evidence.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. @=11.]</p> <p>8. Druggists @=11 — Drugs—Jury Question.</p> <p>Whether pills were misbranded under the Food and Drugs Act, and so subject to forfeiture, held under the evidence a question for the jury.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. @=11.]</p> <p>4. Druggists @=11 — Drugs—-Misbranding.</p> <p>In a proceeding under the Food and Drugs Act to forfeit pills on the ground that the labels staling their curative properties were false and fraudulent, charges that the jury should determine whether the pills were sold with an honest belief that they were efficacious for the purposes stated on the labels, and that, if the labels wore written with intent to create an impression that the pills were efficacious for diseases which the sellers know or must have known they were not, then the labels were false and fraudulent, were proper.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 10; Dec. Dig. @=11.]</p>

Wolverton, Judge. Bill by the E. J. Dodge Company, a corporation, against the First National Bank of P.ortland, Or., a corporation. From an order granting an injunction pendente lite, defendant appeals.

Suit in admiralty for collision by the Puget Sound Tugboat Company, owner of the tug Sea Dion, against the schooner Oceania Vance; the Coast Shipping Company, claimant. Decree for libelant, and claimant appeals.

of the United States for the Northern District of New York. In the matter of the bankruptcy of the Hunter Arms Company. From an order (226 Fed. 866) confirming the report of the master allowing a claim, Frank B. Hodges and others, trustees, appeal. The order appealed from confirmed the report of a special master, proving and allowing the claim of Arvin L,.

Niles, Judge. Bill by the Louisville & Nashville Railroad Company against the Western Union Telegraph Company. From a decree dismissing the original bill and the supplemental bill, complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvaniá; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by the General Electric Company against James A. Richardson and others, as receivers of Doak & Co., and the Thomas W. Evans Museum & Institute Society. Decree for defendants, and complainant appeals.</p>

<p>Internal Revenue @=>9 — Excise Tax on Corporations — Ascertainment of Net Income — “Deposit.”</p> <p>A corporation was engaged in the business of selling to investors so-called debenture bonds and guaranteed real estate securities, the former of which were its own obligations, with interest coupons payable to bearer and underwritten by a trust company, with which it deposited as collateral security farm mortgages payable to itself, and bearing a higher rate of interest than the bonds, and the latter being obligations payable to itself, bearing its guaranty and secured by farm mortgages, to which were attached interest coupons at the rate agreed upon with the purchaser, the corporation retaining separate obligations of the mortgagor securing additional interest. The difference in the interest rates thus paid and received represented the gross profit of the corporation on those two classes of transactions. Hold that though the corporation was chartered as a bank, yet, within Act Aug. 5, 1909, c. 6, § 38, par. 2, 36 Stat. 113 (Comp. St. 1913, § 6301), imposing an excise tax on corporations, to be computed on their net income, the interest paid on such obligations cannot be treated as interest paid on deposits which a banking company may, under such section, deduct from its gross income, the transaction in no way being a banking transaction.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <s=9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Deposit.]</p>

Grubb, Judge. Action by James Bowron, trustee in bankruptcy of the Southern Iron & Steel Company, against the Georgia Casualty Company. There was. a judgment for plaintiff (223 Fed. 673), and defendant brings error.

Van Fleet, Judge. Action by S. W. bevy against the Caledonian Insurance Company and others. There was a judgment for plaintiff, and defendants bring error.

Cushman, Judge. In the matter of the bankruptcy of the Blumauer Lumber Company, a corporation. T. H. MacLafferty filed a claim asserting priority, to which E. V. Wintermote, as trustee in bankruptcy, objected. The referee overruled the trustee’s objections, and, on review, his action was affirmed, and the trustee appeals.

Suit in equity by the General Electric Company against the EacoPhilips Company for infringement of claims 1, 2, and 3 of letters patent No. 1,018,502, for incandescent bodies for electric lamps, granted February 27, 1912, to Just & Hanaman. Decree for complainant, and defendant appeals.

<p>Appeal from the District Court of the United States for the Eastenn District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by the Michigan Engine Valve Company against the Monarch Manufacturing Company. From the decree, complainant appeals.</p>

In Eguity. Bill by the Champion Spark Plug Company against A. R. Mosler & Co. Decree for complainant. Rehearing in the above case, together with the rehearing in the suit by the same complainant against the Benford Manufacturing Company. This is a bill in equity, dependent on diverse citizenship, to procure an injunction against the defendant for unfair competition in the sale of spark plugs to be used in the Ford motor car.

At Daw. Action by Esther A. Hughes, as administratrix of the estate of Thomas F. Hughes, against the Delaware, Lackawanna & Western Railroad Company. There was a verdict for plaintiff, and defendant moved to set aside the verdict and dor a new trial.

<p>1. Admiralty <§=>124 — Proceedings—Proctor’s Fees.</p> <p>Under Rev. St. § 824 (Comp. St. 1913, § 1378), providing that for each deposition taken and admitted in evidence in a cause a fee of $2.50 shall he allowed the libelant’s proctor, the libelant’s proctor is not entitled to fees for the deposition of a witness whose testimony was immaterial.</p> <p>[Ed. Note. — For other eases, see Admiralty, Cent. Dig. §§ 836-857; Dec. Dig. <@=>124.]</p> <p>2. Admiralty <@=>124 — Proceedings—Witness Fees — “Court.”</p> <p>Rev. St. § 848 (Comp. St. 1913, § 1452), provides that witnesses, for each day’s attendance in court or before any officer pursuant to law, shall receive $1.50. Act May 27, 1908, c. 200, 35 Stat. 377 (Comp. St. 1913, § 1453), declares that witnesses and jurors in the United States courts of Washington shall be entitled to receive, for actual attendance in any court or courts and for the time necessarily occupied in going to and returning, $3 per day. Hold that, as at common law costs could not be taxed, statutes providing for taxation of costs should be strictly construed, and therefore, as a court is a place where justice is judicially administered, and includes the judge, jury, and necessary officers, a commissioner before whom testimony was taken is not a “court,” and a libelant, whose witnesses were examined before a commissioner, is not entitled to have Ms witness fees taxed under Act May 27, 1908, but tbe fees will be taxed under tbe old act at $1.50* per day.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 836-857; Dec. Dig. <@=>124.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Court.]</p> <p>3. Statutes <@=>219 — Construction.</p> <p>The construction of a statute given by the heads of the various departments of the government should be considered by the courts.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. <@=>219.]</p>

<p>At Law. Assumpsit by the United States against Simon Rubin and another. On hearing at trial without a jury.</p>

<p>At Law. Action by the Frontier Steamship Company against the Yanklin Steamship Company and another. On motion to quash service of summons.</p>

At Law. Action by Charles Jackson against the William Kenefick Company and William Kenefick, begun in the Supreme Court of New York, and removed to the United States District Court. The plaintiff, an alien, sued two citizens and residents of Oklahoma in the Supreme Court of the state of New York. The defendants removed for diverse citizenship.

At Law. Action by Henry L. Doherty, Frank W. Frueauff, and Charles T. Brown, partners doing business as Henry L. Doherty & Co., against Barton Smith, begun in the state court, and removed to the federal court.

In Bankruptcy. In the matter of the bankruptcy of Abraham Graboyes. Upon certificate for review of order of referee sur reclamation claim of the Goldberg Display Fixtures.

<p>At Law. Action by the Illinois Central Railroad Company against W. L. Hoopes & Sons and others, in which defendants counterclaimed.</p>

<p>At Law. Action by Francesco Lucchetti against the Philadelphia & Reading Railway Company. Sur motion for leave to amend statement.</p>

In Admiralty. Consolidated suits to enforce maritime liens against the Steamship Oceana; the Morse Dry Dock Company, claimant. On exceptions to report of special commissioner.

<p>1. Trade-Marks and Trade-Names <@=>3 (4) — Unfair Competition — What Constitutes Trade-Mark.</p> <p>Where manufacturers of brushes had previously used the terms “glue set” or “cement set” to indicate the substance in which the bristles were set, a manufacturer, the bristles of whose brushes were set in rubber, cannot, by adopting the phrase “rubberset,” acquire a trade-mark in that expression, for it is descriptive only.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 7; Dec. Dig. <@=»3(4).]</p> <p>2. Trade-Marks and Trade-Names <@=>71 — Unfair Competition.</p> <p>Where an expression used by a-manufacturer in connection' with his goods, although descriptive only, acquires a secondary signification, indicating that particular manufacturer’s goods, other manufacturers will be restrained from using such terms in such a manner as to palm off their goods as those of the original appropriator, though he had no trade-mark therein.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dee. Dig. <S=>71.]</p> <p>3. Trade-Marks and Trade-Names <@=>93(3) — Unfair Competition — Evidence — Burden of Proof.</p> <p>In such cases it is not necessary that actual intent to defraud be shown; but, if the expression which has acquired the secondary meaning, indicating a particular manufacturer’s goods, or one similar thereto, is used by another in such a way as would be likely to deceive the public in believing that the former’s goods are those of the latter, it will be conclusively presumed that it was intended to defraud.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 106; Dec. Dig. <@=>93(3).]</p> <p>4. Trade-Marks and Trade-Names <@=>71 — Unfair Competition — What Constitutes.</p> <p>Complainant acquired the patent for making brushes in which the bristles were set in rubber. After the time of the expiration of the patent, complainant adopted the name “rubberset” for its brushes and extensively advertised them. Some time after expiration of the patent, defendants began to manufacture similar brushes, and sold them under the name “set in rubber — Devoe.” The name “Devoe” was pari of the name of the defendant corporation. The name given by defendant to its brushes was placed on the ferrule of the brushes, the same place that complainant used for the word “rubberset.” Defendant’s catalogue advertised that its brushes were set in rubber and its advertising placards bore the legend “set in rubber,” and below “Devoe.” Held that, though complainant did not have a trade-mark in the name “rubberset,” yet, as its brushes had become known to the public as “rubberset,” defendant should not be allowed to use similar expressions in such a way as would tend to mislead tbe public, and to place tbe words “set in rubber” on the ferrule of its brushes, though it might use that expression on the handles, accompanied by its corporate name, showing that the brushes were not made by complainant, while similar restrictions must he imposed on its advertising placards, though not on statements made in the catalogue issued under its own name.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 82; Dec. Dig. ©=>71.]</p> <p>5. Tbade-Maeks and Tbade-Names ©=>98 — Uneaie Competition — Damages.</p> <p>Where defendant’s unfair competition did not appear willful and fraudulent, complainant, though entitled to an injunction, with damages and compensation, is not entitled to any accounting for profits obtained by defendant through its unfair methods.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. ©=98.]</p>

In Bankruptcy. In the matter of Fred A. Alden. On petition of Reddiugton & Co., a corporation, to review an order of the referee, disallowing petitioner’s chattel mortgage as a secured claim.

In Equity. Suit by Thomas J. Ryan against Will I. Ohmer, the Recording & Computing Machines Company, and the Canadian Car & Foundry Company, Limited. Defendants appeared specially moving to dismiss for want of jurisdiction, and the Recording Company and Canadian Company moved to quash the subpoena.

<p>Proceeding by the United States for the deportation of Fong Hong, a Chinese person. On appeal from the commissioner’s order of deportation.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Keystone Vulcanizing Company. Petition by the claimant, one Gale, for review of order of referee rejecting his claim.</p>

<p>1. Bankruptcy <§=212 — Referee—Authority of.</p> <p>Where the trustee filed petitions to determine the validity of bonds issued by the corporate bankrupt, and the bondholder appeared and contested that issue, the referee, in view of the broad powers of a court of bankruptcy to determine the validity of liens on property coming into its jurisdiction, had power to determine the validity of the bonds.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 286; Dec. Dig. <g=>212.]</p> <p>2. Corporations <§=469 — Bonds—Validity—Defenses.</p> <p>As the Negotiable Instruments Act (Laws 1899, c. 356) did not, as between a corporate bond obligor and its obligee, repeal Rev. St. Wis. 1878, § 1753, providing that no corporation shall issue any bonds, except for money or property, estimated at its true money value, actually received by it, equal to 75 per cent, of the par value thereof, and that all bonds issued contrary thereto shall be void, bonds issued in violation of the act are void, regardless of the immediate obligee’s lack of knowledge of a violation of the law.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1882; Dec. Dig. <@=469. ]</p>

<p>In the matter of the application of Vito Titone for admission to citizenship.</p>

<p> (Syllabus by the Court.) </p> <p>1. Appeal and Error @=954(1), 955 — Review—Discretion oe Court — Appointment of Receiver — Injunction.</p> <p>Interlocutory orders appointing receivers and issuing injunctions generally rest in the sound judicial discretion of the court of original jurisdiction, guided by the principles and rules of equity jurisprudence, and when the court has not departed therefrom its orders may not be reversed without clear proof of an abuse of its discretion.</p> <p>But when, in the consideration and decision of the issue, a court has departed from the principles and rules of equity established for the guidance of that court, the order may be reviewable on that ground without proof of abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3818, 3819, 3821, 3822; Dec. Dig. @=954(1), 955.]</p> <p>2. Receivers @=27 — Appointment—General Rules.</p> <p>It is the general rule that a court of equity will not appoint a receiver of real estate, or of its proceeds, in the possession of defendants holding under a regular title during the pendency of the suit, although it has the power to do so in exceptional cases.</p> <p>[Ed. Note. — For other cases, see Receivers, Gent. Dig. § 38; Dec. Dig. @=27.]</p> <p>3. Receivers <®=27 — Appointment—Grounds.</p> <p>In order to bring a case within the exceptions to this general rule there must be clear proof (1) that there is imminent danger that unless a receiver is appointed the property, or its proceeds, will be materially deteriorated in value or wasted; (2) that the plaintiff will suffer irreparable loss from such deterioration or waste, and he can rarely suffer such loss when the defendants are solvent and abundantly able to respond to any damage they cause, or where they will give a good bond of indemnity against it; (3) that upon the pleadings and preliminary proofs there is a strong probability that the plaintiff will ultimately recover.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 36; Dec. Dig. @=27.]</p> <p>4. Injunction @=36(2) — Receivers @=27 — Appointment—Grounds.</p> <p>A court of equity is sedulous to prevent the successful invocation of its preliminary injunction or appointment of a receiver to perform the function of a successful action of ejectment, while the plaintiff at the same time avoids the trial of titles indispensable to the success of such an action.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 83; Dec. Dig. @=36(2); Receivers, Cent. Dig. § 36; Dee. Dig. @=27.]</p> <p>5. Receivers @=27 — Appointment—Grounds.</p> <p>The United States, on behalf of the Creek Tribe of Indians, and that tribe, which owned the land in controversy before it was allotted and patented to Thomas Atkins, who was enrolled by the Dawes Commission a member of the Creek Tribe by blood, brought a suit in equity to avoid the enrollment, allotment, and patent under which the defendants were in possession of the land, upon the ground that there was no information or evidence before the Commission of the qualifications of Atkins to be enrolled, and especially that there was none that he was living on April I, 1899. Upon voluminous evidence the plaintiff secured, before a trial of the suit, the appointment of a receiver of the land and of all the improvements and property placed thereon by the defendants, as well as of all the oil the latter had produced at an expense of more than $125,000, while they had received in return only about $8,000, and an injunction against their interference with the property thereafter.</p> <p>Held, as there was no satisfactory evidence of imminent danger of deterioration, or waste of the property by the defendants, or of probable irreparable loss to the plaintiffs, or of the fact that there was a strong probability that the plaintiffs would ultimately prevail in the suit, while there was proof that the defendants were solvent and able to respond for any loss or damage they caused, and they offered to give a good bond of indemnity for the benefit of all parties which should be ultimately adjudged to be entitled to the land, or its proceeds, the order appointing the receiver could not be sustained.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 36; Dec. Dig. <§=27.]</p> <p>6. Indians <§=13, 27(6) — Lands—Conclusiveness of Adjudication.</p> <p>The adjudications by the Dawes Commission of the enrollment of Indians and the allotment of their lands and the patents issued thereon are conclusive and impervious to collateral attack.</p> <p>In suits in equity to avoid them by direct attack the burden is on him who attacks them, and he may successfully assail neither of them by doubtful evidence, or a mere preponderance of it. He may succeed only by full proofs, clear, convincing, unambiguous, and entirely satisfactory to the court on every material issue.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 19, 30; Dee. Dig. <§=13, 27(6).]</p> <p>7. Death <§=1 — Indians <§=13 — Enrollment—Presumption as to Continuance of Life.</p> <p>The Creek rolls of 1890 and 1895 constituted substantial evidence before the Dawes Commission that those named thereon were qualified for enrollment, that they were living when the rolls were made, and, in the absence of proof that the persons enrolled were, in 1895 or subsequent, in unusual danger of earlier death, that those persons continued to live for seven years after the roll of 1895 was made.</p> <p>In the absence of proof of earlier death, or of evidence of unusual danger of earlier death, the legal presumption is that a person living at a certain time continues to live for at least seven years thereafter.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. <®=1; Indians, Cent. Dig. § 80; Dec. Dig. <§=13.]</p> <p>8. United States <§=126 — Actions—Parties—Pecuniary Interest.</p> <p>Where the United States has no pecuniary interest in the litigation, but brings its suit as the representative of the real party in interest, in this case the Creek Tribe, the equities of the United States are no greater or less than those of the real party in interest. The stream may not rise higher than its source.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 115; Dec. Dig. <§=126.]</p> <p>9. Indians <§=3, 27(1) — United States <§=70, 126 — Estoppel—Actions.</p> <p>The equities of the Creek Tribe, or of the United States, appeal to the conscience of a chancellor with the same, but with no greater or less, force than would those of a private individual in like circumstances. The United States and the Creek Tribe are bound and estopped by their contracts, such as the Creek Agreement, to the same extent as private individuals would be.</p> <p>When the United States, or the Creek Tribe, or a state, submits its rights and claims to a court of equity and prays its relief, those rights and claims, laying aside mere delay, are governed, measured, and adjudicated by legal estoppel, by equitable estoppel, and by the other rules. and principles of equity jurisprudence that would be applicable to like rights and claims of individuals in similar circumstances.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 5-7, 11, 19; Dec. Dig. <g=»3, 27(1); United States, Cent. Dig. §§ 53, 115; Doc. Dig. €=570, 120.]</p> <p>10. Estoppel <3=587 — Equitable Estoppel — Elements.</p> <p>In equity no one may successfully deny to the damage of another the truth of his statements or representations by which lie has purposely or carelessly induced another to so change his situation that the assertion of the truth will irreparably or seriously injure him.</p> <p>LEd. Note. — For other cases, see Estoppel, Cent. Dig. §§ 230-234; Dec. Dig. €=587.]</p>

Rose, Judge. Petition by Wong Yee Toon against Bertram N. Stump, Commissioner of Immigration, for writ of habeas corpus. From a judgment denying the writ (227 Fed. 247), petitioner appeals. The facts which are not controverted in this case, are in substance these: The appellant, Wong Yee Toon (who will hereafter be referred to as Toon), came from China to the United States on the steamship Korea, landing in San Francisco, Cal., about October 19, 1913.

<p>1. Appeal and Ebbob <3=51053(2) — Review—Harmless Error.</p> <p>Even in a jury trial, the admission of incompetent evidence will be regarded as harmless error, if the jury are instructed to disregard it, unless the evidence was so impressive that it probably affected the verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4179; Dec. Dig. <3=1053(2); Trial, Cent. Dig. § 977.]</p> <p>2. Contempt <®=66'(8) — Review—New Trial — Incompetent Evidence.</p> <p>In a contempt case, tried to the judge, the erroneous admission of incompetent evidence does not necessitate new trial, and it is sufficient protection to defendants, if the reviewing court reverse the judgments and direct the trial judge to reconsider/the proceedings and indicate what incompetent evidence it disregarded.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 213, 215, 232; Dec. Dig. <3=66(8).]</p> <p>3. Evidence <3=48(8) — Judicial Notice.</p> <p>The court may take judicial notice of an injunction order which defendants were charged with having violated, and a reference thereto in a judgment in contempt proceedings is unnecessary.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 64; Dec. Dig. <3=43(3).]</p> <p>4. Contempt <3=66(3)--Review — Presentation op Grounds of Review in Court Below — Necessity.</p> <p>Where judgments in contempt proceedings were reversed, and thereafter the trial court on reconsideration indicated what evidence it rejected as incompetent, defendants, if desirous of the rejection of other evidence, should call it to the attention of the court.</p> <p>LEd. Note. — For other cases, see Contempt, Cent. Dig. § 229; Dec. Dig. <3=66(3).]</p> <p>5. Contempt <3=66(7) — Review—Harmless Error.</p> <p>In contempt proceedings, where there were findings showing defendants’ guilt, the fact that the trial court made immaterial findings is not prejudicial.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 232-237; Dec. Dig. <3=66(7).]</p> <p>6. Contempt <3=»60(3) — Criminal Contempt — Evidence.</p> <p>To convict of criminal contempt, the trial court must be convinced of the guilt of accused beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 185-187; Dec. Dig. <3=60(3).]</p> <p>7. Contempt <3=66(7) — Review—Findings.</p> <p>In criminal contempt, a finding of the trial court on conflicting evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 232-237; Dec. Dig. <3=66(7).]</p> <p>8. Injunction <3=223(2) — Violation—Contempt.</p> <p>Where all the defendants were enjoined from using threats, force, intimidation, or persuasion to induce an employer’s servants to break their contract or leave their work, defendant, who with a number of strikers went on a ferryboat upon which there were employés, with the intention of persuading them to quit, and, if they failed, to fight them, defendant was guilty of contempt in violating the injunction, though thé employés were removed from the boat to avoid friction.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. @=>223(2).]</p> <p>9. Contempt @=>58(3) — Purging Contempt — Mode op.</p> <p>Where defendants did not deny the contempt charged, but merely put in a plea of not guilty and went to trial on that, they did not purge themselves of any contempt in violating the injunction.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 172, 173; Dec. Dig. @=>58(3).]</p> <p>10. Contempt @=>58(3) — Purging Contempt — Mode op.</p> <p>A defendant, who by personal and overt acts violates an injunction, cannot purge himself of his contempt by a denial under oath of the contempt „ charged.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 172, 173; Dec. Dig. @=>58(3).]</p> <p>11. Contempt @=>68 — Proceedings—Imposition op Costs.</p> <p>Under Rev. St. § 974 (Comp. St. 1913, § 1615), providing that, on every conviction for any offense not capital, the court may in its discretion award that defendant shall pay the costs of the prosecution, costs may bé assessed against defendant, convicted in a criminal contempt proceeding, regardless of Judicial Code, § 268 (Comp. St. 1913, § 1245), authorizing punishment by fine and imprisonment.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 238-241; Dec. Dig. @=>68.]</p> <p>12. Contempt @=>66(7) — Review—Harmless Error — Admission to Bail.</p> <p>In criminal contempt proceedings, where the writ of error was granted and defendants were admitted, to bail on the same day sentence was pronounced, they cannot complain that the trial court refused to suspend sentence pending application for a writ of error.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 232-237; Dec. Dig. @=>66(7).]</p> <p>13. Injunction .@=>232 — Criminal Contempt — Sentence.</p> <p>In proceedings for contempt for violating an injunction, the sentence is within the discretion of the trial court.</p> <p>[Éd. Note. — For other cases, see Injunction, Cent. Dig. §§ 519-528; Dec. Dig. @=>232.]</p>

<p>Appeal from Supreme Court of Porto Rico.</p> <p>Suit in equity by Trujillo & Mercado against the succession of Bias Rodriguez. Decree for defendant, and complainants appeal.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Louis Solomon and others, administrators of the estate of Max Solomon, deceased, for the use of Louis Solomon, and others, against the American Temperance Life Insurance Association of the city of New York. There was a judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Western District of South Carolina, at Greenville; Joseph T. Johnson, Judge.</p> <p>Bill by the City Council of Augusta, Ga., against J. R. Timmerman, Auditor of Edgefield County, S. C., and others. From an order (227 Fed. 171) denying a temporary injunction, complainant appeals.</p>

<p>1. Aliens @=32(5) — Chinese Persons — Burden of Proof.</p> <p>The burden is always upon an alien to show his right to be and remain in the United States; therefore, where a Chinese person, after securing a certificate of residence, departed from the country and returned, he has the burden of showing that his re-entry was legal, and not fraudulent, and, upon deportation proceedings being instituted, his original certificate .of residence is not prima facie evidence of his right to remain.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. @=32(5).]</p> <p>2. Aliens @=32(9) — Chinese Persons — Deportation—Time for.</p> <p>Under Immigration Act Feb. 20, 1907, c. 1134, § 21 (Comp. St. 1913, § 4270), requiring the Secretary of Labor to cause an alien subject to deportation under the laws of the United States to be taken into custody within 3 years after landing or entry and returned to the country whence he came, the Secretary has three full years in which to institute proceedings, and where he causes the arrest of a Chinese person and the institution of deportation proceedings within that time, such Chinese person is not entitled to discharge because not actually deported within 3 years.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dee. Dig. @=32(9).]</p> <p>3. Aliens. @=32(10) — Deportation—Chinese Person.</p> <p>Where a Chinese person entered the United States, remained there for some years, went to Mexico, and thereafter fraudulently re-entered the United States, so that he was subject to deportation, he will be deported to China, and not to Mexico.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 92; Dec. Dig. @=32(10).]</p> <p>Ross, Circuit Judge, dissenting.</p>

, Judge. Action by T. Gilbert Wood, suing for the benefit of himself, the Roanoke Sheet Metal Company, and J. D. Wood, against the Spring Garden Insurance Company of Philadelphia, Pa. There was a judgment for plaintiff, and defendant brings error.

<p>In Error to the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Hiram Pepper, otherwise called Charles Strailia, otherwise called George Briggie, was convicted of counterfeiting, and he brings error.</p>

<p>1. Contracts <©=248 — Actions foe Breach — Evidence—Sufficiency.</p> <p>In an action for breach of contract with defendant’s predecessor, the question whether defendant had adopted the contract held for the jury.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1140; Dec. Dig. <3=248.]</p> <p>2. Contracts <3=240 — Assumption—Mode.</p> <p>For a stranger to assume a contract, it is not necessary that he should do so expressly;' it being sufficient if he conducts himself so as to lead others to believe that he intended to make the contract his own.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1125; Dee. Dig. <3=240.]</p> <p>3. Principal and Agent <3=171(1) — Ratification—Equitable Estoppel.</p> <p>Where defendant apparently recognized a contract made by its predecessor, making deliveries and accepting substantial benefits thereunder, it is thereafter estopped from questioning the authority of the agent who apparently recognized the contract.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 644, 645, 653, 654; Dec. Dig. <@=171(1).]</p> <p>4. Principal and Agent <3=119(1) — Authority of Agent — Presumption.</p> <p>Parties dealing with an agent have the right to presume that his agency is general, and that he is acting within the scope of his authority, and, as regards third persons, the authority of the agent depends, not on the instructions given, but upon the character of the authority bestowed.</p> <p>[Ed. Note. — For other casos, see Principal and Agent, Cent. Dig. §§ 391, 393, 898, 399, 401; Dec. Dig. <3=119(1).]</p> <p>5. Corporations <3=425(4) — Agents—Authority of.</p> <p>When one deals with a corporation without knowledge of any 'irregularity on the part of the corporation’s agents, the corporation cannot deny the authority of its agents to make contracts apparently within the scope of their authority, where such contracts are not ultra vires.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §8 1700, 1701; Dec. Dig. <3=425(4).]</p>

Bill for injunction by Henry U. Mudge and Jacob M. Dickinson, receivers of the Chicago, Rock Island & Pacific Railway Company, against J. F. McDougal, Sheriff and Tax Collector of St. Francis County, State of Arkansas. From an order granting a temporary injunction (222 Fed. 562), defendant appeals.

<p>In Error to the District Court of the United States for the Northern' Division of the Western District of Washington; Jeremiah Neterer. Judge.</p> <p>Action by William Raymond against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, dismissing the petition, and plaintiff brings error.</p>

<p>1. Mandamus <@=>172 — Pkohibition <@=>28 — Absence oe Jueisdiction.</p> <p>On application for writ of prohibition or mandamus to prevent a lower court from exercising jurisdiction, neither the merits of the main ease nor whether the action of the trial court is equitable is involved, but the sole inquiry is whether that court is clearly without jurisdiction; the writs being extraordinary remedies, which should, not issue, unless the absence of jurisdiction be clear.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385; Dec. Dig. <@=>172; Prohibition, Cent. Dig. § 77; Dec. Dig. <@=>28.]</p> <p>2. Appeal and Error @=>1170(1) — Review.—Harmless Error.</p> <p>Rev. St. § 954 (Comp. St. 1913, § 1591), declaring that no summons or other proceeding, etc., shall be abated or reversed for any defect or want of form, hut the court shall proceed and give judgment according to the right of the case and matter, covers every step of the case from summons to judgment, and is independent of state statutes and procedure, though it cannot supply a lack of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4454, 4540; Dec. Dig. @=>1170(1).]</p>

<p>1. Jury ©=131(15) — Selection—Questioning of Veniremen.</p> <p>It is not, an abuse of discretion of the court to refuse to allow counsel to ask the veniremen questions calculated to induce a misunderstanding.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 579; Dec. Dig. ©=131(15).]</p> <p>2. Criminal Law ©=385 — Evidence—Custom-Mailing of Letters.</p> <p>The mailing of letters may be shown by evidence of the custom and course of men’s private offices and business.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 865-868, 870, 878; Dec. Dig. ©=385.]</p> <p>3. Criminal Law ©=323 — Presumptions—Mails.</p> <p>The mailing of a letter, postage prepaid, raises a presumption of receipt by the addressee.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 724, 726, 730-751; Dec. Dig. ©=323.]</p> <p>4. Criminal Law ©=402(1) — Secondary Evidence — Copies of Letters.</p> <p>Proved copies of letters sent to accused, who was charged with using the mails to defraud, may be received in evidence, without otherwise accounting for the originals.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. $ 887; Dec. Dig. ©=402(1).]</p> <p>5. Post Office ©=49 — Postal Offenses — Use of Mails to Defraud.</p> <p>Where accused was charged with using the mails in aid of a scheme to defraud in connection with disposing of the stock of a loan company, letters written by stockholders in the company seeking information regarding its affairs while the scheme of accused was in progress are admissible.</p> <p>[Ed. Note. — For other eases, see Post Office, Cent. Dig. §§ 84-86; Dec. Dig. ©=49.]</p> <p>6. Criminal Law ©=444 — Evidence—Identification of Letters.</p> <p>Where accused was charged! with using the mails with intent to defraud, a stenographer in his office may testify as to the significance of, typewritten initials on the letters, and that they showed who dictated them and who took the dictation and transcribed the letters.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. ©=144.]</p> <p>7. Criminal Law ©=830 — Trial—Instructions.</p> <p>Where a requested instruction was not in proper shape, and would have to be recast by the court, it may be denied for that reason.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. ©=830.]</p> <p>8. Post Office ©=35 — Offenses—Use of Mails to Defraud.</p> <p>Where, by organizing a corporation, accused intended ultimately to defraud stockholders, the legality of the corporation’s object and chárter purpose is no defense to prosecution for using the mails in connection with the scheme to defraud.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. ©=35.]</p> <p>9. Post Office <3=>35 — Offenses—Use of Mails to Defraud.</p> <p>Where accused used the mails to dispose of corporate stock, and subsequently appropriated the property of the corporation, he is not guilty of usingtthe mails with intent to defraud, unless there was a fraudulent intent a£ the time the mails were used.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. <S»35.]</p>

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy; Jas. M. Morton, Judge. In the matter of bankruptcy of the Wellmade Gas Mantle Company. Petition by Oscar O. Friedlaender against Philip W. Jacobs, as the trustee in bankruptcy, to revise a decree of the District Court (230 Fed. 502) affirming an order of the referee.

<p>In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.</p> <p>Action at law by Thomas E. Kilby against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Bill by R. L. Christy, as County Treasurer, and others, against the Atchison, Topeka & Santa Fé Railway Company. From a decree dismissing the bill (214 Fed. 1016), complainants appeal.</p>

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Eugene Buchanan, Irving Monette, Gilbert Schwartzlander, August Sindt, John Sindt, O'le Simonson, and Frank Miller were convicted of crime, and they separately bring error.</p>

<p>1. Bankruptcy <§=327(1) — Claims—Priority.</p> <p>.Where, at the time of the hearing in the court below, no claim by a county against a bankrupt’s estate for taxes had been filed, and there was nothing to show that such claim was over allowed or brought to the attention of the trial court, an allowance to a receiver appointed by the state court to conserve the bankrupt’s propei-ty is not improper, as denying priority of claims for taxes.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 515; Dec. Dig. <§=327(1)J</p> <p>2. Bankruptcy <§=347 — Claims—Claims op Receiver.</p> <p>Where, before bankruptcy, a receiver is appointed by the state court to conserve the bankrupt’s property, and thereafter the property is transferred to the trustee in bankruptcy, the claim of the receiver for compensation is entitled to priority; it being considered that the assets come to the trustee charged 'with such claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 538; Dec. Dig. <@=347J</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>Suit in admiralty by R. H. Holmes against the schooner Mettacomet. Decree for respondent, and libelant appeals.</p>

<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 Erederick A. Anton and others against the Hauser Awning Arm Company. Decree for complainants, and defendant appeals.</p>

<p>1. Patents <@=>328 — Validity and Infringement.</p> <p>The Tamow patent, No. 985,075, for fastening device for ribbon bows, is strictly limited to tlie device sliown and described, and, as so limited, held not infringed.</p> <p>2. Trade-Marks and Trade-Names <@=>93(3) — Unfair Competition.</p> <p>To justify an injunction against alleged unfair competition, which will operate as restraint in the mercantile field, the case must be unmistakably clear and beyond question.</p> <p>I Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 106; Dec. Dig. <s=>93(3).]</p>

<p>In Equity. Suit by Joseph B. Singer against the American Druggists’ Syndicate.</p>

<p>In Equity. Bill by the United States against the Louisville Bridge Company.</p>

In Equity. Suit by the Crescent Manufacturing Company against Charles S. Wilson, Commissioner of the Department of Agriculture of the State of New York. On application for preliminary injunction. Application for a preliminary injunction on order to show cause.

<p>In Equity. Bill by Caroline E. Hogg against Eascelles C. -Maxwell and Thomas Y. Crafts, as executors of Charles B. Hogg, deceased, and others.</p>

<p>Navigable Waters @=>20(8) — Injury to Vessel from Collision with Bridge —Negligent Operation of Draw.</p> <p>A tug approaching a drawbridge maintained by the city over the Harlem River signaled for the opening of the draw and a following tug with a tow signaled immediately afterward. On receiving an assenting signal from the bridge, both tugs proceeded, and the first passed in safety; but when the second was within the draw it began to close, and before she could escape her tow was struck and injured. When the draw was open the bridgetender could not see up or down the river, and a lookout, usually kept on duty, was not at his post. Held, that the absence of such lookout was negligence, which rendered the city liable for the injury; that under the circumstances the tug was not in fault for assuming the bridge signal was intended for her, as well as the preceding boat, and proceeding accordingly.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 96; Dec. Dig. <§=»20(8).]</p>

<p>At Law. Action by Julius W. Jones and wife against the Western Union Telegraph Company, a corporation, begun in state court and removed on account of diversity of citizenship. On demurrer.</p> <p>Plaintiffs, husband and wife, brought suit in the state court, claiming damages in the aggregate sum of $3,050; $2,500 being laid in the first cause of action in the complaint, and $550 being laid in the second cause of action. On the ground of diversity of citizenship the cause was removed to this court, and the matter is before the court on a general demurrer only, interposed by the defendant to each of the two separate causes of action.</p> <p>In the first cause of action it is alleged that in July, 1915, the plaintiff's were residing in Los Angeles, and that in that month defendant delivered a telegram to plaintiff Elvira Jones, purporting to come from her brother, then living in the town of Hammond, state of Louisiana. The telegram as actually delivered to plaintiff read: “Father died this morning, will be buried to-morrow.” As actually delivered to the defendant by the sender thereof, the telegram read: “Norman died this a. m., will be buried to-morrow.” Plaintiffs allege that immediately upon the receipt of the telegram, worded as first above set forth, the wife took steps to make the trip from the city of Los Angeles to said town of Hammond, in the state of Louisiana; that she left Los Angeles on the following day, and in due course arrived at her destination. Upon her arrival there she found that her father had not been ill, and that no telegram had ever been sent by any one to her in the words or terms hereinabove set forth, but that the defendant had, as above stated, incorrectly transmitted the message to her, and had been grossly negligent in that regard, and had not exercised the necessary, or proper, or any, care in the transmission of the telegram delivered to it by plaintiff’s brother. Plaintiff alleges that she would not have made said trip to said town of Hammond, save that she believed her father to have been dead, and also alleges “that by reason of the gross negligence and want of care on the part of the said defendant in transmitting the message hereinabove mentioned the plaintiff did undergo grievous mental suffering and anguish of mind and was rendered sick; her father was very dear to her, and she, the said Elvira Jones, was prostrated upon receiving notice of his death; that by reason thereof plaintiff Elvira Jones has suffered damage in the sum of $2,500.”</p> <p>In the second cause of action plaintiffs refer, to the paragraphs with respect to the sending of the telegram as hereinabove recited, and in addition allege that, during the time plaintiff Elvira was engaged in making the trip to and from the said town of Hammond, her husband was compelled and did employ a nurse for the purpose of caring for the minor son of plaintiffs, and did pay therefor the sum of $20; that during said trip, and in consequence thereof, she was compelled to and did spend money for meals, car fare, and other incidental expenses necessarily incurred on said trip, amounting in all to the sum of $30, and in addition it is alleged that during the time the plaintiff was engaged in making said trip her husband, plaintiff Julius W. Jones, lost the services of the said wife and the comfort and convenience of her society, in consequence of which it is alleged he has been damaged in the sum of $500.</p> <p>There is no ground of demurrer other than that no' cause of action is stated in either count of the complaint.</p>

<p>1. Bankruptcy <§=>175 — Fraudulent Conveyances — What Constitutes.</p> <p>A conveyance by a bankrupt to his daughter held one in fraud of creditors, which might he set aside.</p> <p>[Ed. Note. — For other (¡ases, see Bankruptcy, Cent. Dig. §§ 247, 248; Dec. Dig. <§=>175.]</p> <p>2. Trial <§=>396(4) — Evidence—Failure to Introduce.</p> <p>Where defendant rested on the evidence' introduced by plaintiff, she cannot complain that the court found the facts against her in accordance with plaintiff’s evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 935; Dec. Dig. <§=>396(4).]</p> <p>3. Bankruptcy <§=>303(1) — Fraudulent Conveyances — Burden of Proof.</p> <p>A defendant, asserting the validity of a conveyance by one in failing circumstances, who thereafter became a bankrupt, has the burden of proving it was not in frand of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458, 459; Dec. Dig. <§=>303(1).]</p> <p>4. Bankruptcy <@=>279 — Courts of Bankruptcy — Jurisdiction.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 23b, 30 Stat. 552, as amended by Act Feb. 5, 1903, c. 487, § 8, 32 Stat. 798, and Act June 25, 1910, c. 412, § 7, 36 Stat. 840 (Comp. St. 1913, § 9607), declaring that suits by the trustee shall only he brought or prosecuted in the courts where the bankrupt whose estate is being administered, might have brought or prosecuted them, except suits for the recovery of property under' section 70, subd. “e” (section 9654), providing for the avoidance of preferential and fraudulent transfers, the trustee in bankruptcy may sue in the bankruptcy court to set aside a conveyance in fraud of creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 419-424; Dec. Dig. <§=>279.]</p>

In Equity. Suit by Archibald Palmer, as trustee in bankruptcy of the Venus Silk Glove Manufacturing Company, Incorporated, bankrupt, against the Doull Miller Company, Incorporated. On'motion to strike out a counterclaim contained in the answer.

Morris Friedberg was charged with violating the internal revenue laws. Upon petition and rule for order on United States agents to return books and papers.

<p>In Bankruptcy. In the matter of the bankruptcy of Julius A. Hosiner. The claim of Polk County to priority for taxes on property subject to liens was denied by the referee, and the county petitioned for review.</p>

In Equity. Bill by the Churchward International Steel Company against the Bethlehem Steel Company. Sur motions to produce documents and to strike out affirmative defenses of answer.

<p>In Admiralty. Suit by the Union Petroleum Company against the Swedish steamship Ada.</p>

<p>In Admiralty. Suit by J. C. Rudbach against the steamer South Coast; the South Coast Steamship Company, claimant.</p>

<p>In Equity. Bill by Herman L. Wright against Cynthia E. Barnard, executrix of the last will and testament of Remsen C. Barnard, deceased, and others. On defendants’ motions for dismissal of the bill, and for transfer of the case to the law docket.</p>

<p>Perjury ©=>5 — Oeeknsks—Nature oe Oeeionse.</p> <p>Penal Code (Act March 4, 1909, c. 321) § 125, 35 Stat. 1111 (Comp. St. 1913, § 10295), declares that whoever, having taken an oath in any case in which a law of the United States authorizes an oath to be administered, that he will testify truly, who shall willfully and contrary to such oath state or subscribe any matter which he believes untrue, shall be guilty of perjury. The Civil Service Act (Act March 3, 1871, c. 114, 16 Stat. 495) authorizes the President, with the aid of the Civil Service Commission, to prescribe such regulations for the admission of persons into the civil service as will best promote the efficiency thereof, while Act Aug. 23, 1912, c. 350, § 1, 37 Stat. 372 (Comp, St. 1913, § 3273), authorizes members of the civil service and its duly authorized representatives to administer oaths to witnesses in any matter depending before the commission. An applicant for a position in the civil service made false statements in an application under oath before the recorder. Held that, as the civil service commission was entitled to make inquiries concerning the applicant’s qualifications, such false testimony constituted perjury; the right to administer oaths, in matters depending before the commission not being limited to witnesses at formal hearings.</p> <p>[Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 4-6, 35; Dec. Dig. ©3j5.]</p>

In Bankruptcy. In the matter of the bankruptcy of Abraham Menzin. Lewis Frank & Sons filed specifications to the bankrupt’s application for discharge, and the bankrupt moves to stay the creditor from proceeding with the specifications and to expunge all proceedings taken thereunder, as well as the claim.

<p>1. Injunction @=>85(2) — Unconstitutional Statute — Enforcement.</p> <p>Tile federal District Court lias jurisdiction of a suit by one affected against state officers to enjoin enforcement of an unconstitutional statute.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 156; Dec. Dig. @=>85(2).]</p> <p>2. Injunction @=>135 — Temporary Injunction — Issuance.</p> <p>The granting of an interlocutory injunction is within the sound discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 304; Dec. Dig. @=>135.]</p> <p>3. Injunction <@=151 — Proceedings—Merits.</p> <p>The federal District Court, composed, under statutory requirements, of the judge of the District Court, a judge of another district, and a Circuit Judge, is not, on application for an interlocutory injunction against enforcement of a state statute, called upon to decide the merits of the case.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 336; Dec. Dig. <@=151.]</p>

<p>Railroads <@=192 — Foreclosure of Mortgages — Sale.</p> <p>The upset price required to be bid for railroad property at a foreclosure sale may fairly be based on tbe present earning capacity of the road and the value of property not used in its operation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 391, 634-642; Dec. Dig. <@=192.]</p>

H. Seward Thomson, J udge. Action by J. A. Paisley against the Rail & River Coal Company and others. There was a judgment for plaintiff, and defendants bring error.

<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 Cuyahoga Contracting Company against the City of Port Huron. Decree for defendant, and complainant appeals.</p>

<p>Courts <g=».‘U9 — Procedure—Witnesses—Competency—Comity.</p> <p>As the federal courts are courts of an entirely different sovereignty and are wholly independent of the states, a conviction of an infamous crime in the state court rendering a person incompetent to testify in the state court does not render him incompetent to testify in the federal courts any more than it would in the courts of a foreign jurisdiction, for the federal courts, while following the state laws, do not give effect to a conviction by a state court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 925; Dec. Dig. <®=s319.]</p>

<p>1. Statutes <3=226 — Construction—Intkepbetation.</p> <p>In construing a statute adopted from another state, the decisions of that state may be considered.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 307; Dec. Dig. <3=226.]</p> <p>2. Attorney and Client <@^>175 — Rights of Attorney — "Action.”</p> <p>Rev. Laws Nev. § 5376, gives an attorney a lien upon his client’s cause of action, or counterclaim, attaching to a decision, or judgment in his client’s favor, and the proceeds thereof. In proceedings before the General Land Office in the Department of the Interior, an attorney represented a corporation, which resulted in its obtaining title to 480 acres of land. Held that, as the statute refers only to an “action,” which is a legal prosecution by a party complainant against a party defendant to obtain the judgment of the court in relation to some rights claimed to be secured or some remedy claimed to be given by law to the party complaining, plaintiff has no lien on such land, particularly as there was not even a formal contest in the Department of the Interior; such proceeding not being an action.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 394-398; Dec. Dig. <@=?175.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Action.]</p>

B. Witmer, District Judge. Action by the United States, for the use of Csesar Erancini, the Pennsylvania Marble & Granite Company, and others, against the American Bonding Company of Baltimore and others. There was a judgment for use plaintiffs, and defendants bring error.

<p>1. Appeal and Error ©=1010(1) — Review—Action Tried to Court.</p> <p>Where an action at law is by stipulation tried, to the court without a jury, under the provisions of Rev. St §§ 649, 700 (Comp. St. 1913, §§ 1587, 1668), the findings of fact made by the court are not reviewable by an appellate court, if there is any competent evidence on which they could have been made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8379-3981; Dec. Dig. ©=1010(1).]</p> <p>2. Appeal and Error ©=977(1) — Review—Ruling on Motion for New Trial.</p> <p>In the federal courts, the ruling on a motion for new trial is not reviewable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3800; Dec. Dig. ©=977(1).]</p> <p>3. Evidence ©=498% — Opinion Evidence — Grounds for Admission.</p> <p>Admission of the opinion of a witness, who was in a position to form an intelligent estimate as to the proportion of the total number of subscriptions to a-magazine in a given year which had been secured by plaintiff and defendant, respectively, hold within the discretion of the court, where it was practically impossible to ascertain the precise number secured by each.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2290, 2291; Dec. Dig. ©=498%.]</p> <p>4. Set-Off and Counterclaim: ©=29(1) — Breach of Contract — Right to Recover for Part Performance.</p> <p>By a contract denominated a lease, plaintiff turned over to defendants for a term of years the publication of a magazine. The contract provided that, in case the property should revert to plaintiff, it should pay to defendants a sum, based on the number of subscriptions obtained by defendants during the preceding year. After a number of years defendants refused to further perform the contract, and the property and business were taken over by plaintiff. Held, in an action by plaintiff to recover for breach of the contract, in which it was awarded the damages claimed, that defendants were entitled to recover, by way of counterclaim, the sum stimulated in the contract for subscriptions.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. § 49; Dec. Dig. <@=529(1).]</p>

Cross-Appeals from the District Court of the United States for the Southern District of Ñew York. Bill in equity by Edmund K. Stallo against Petro E. Wagner, as receiver of the Mt. Vernon National Bank. Erom the decree, complainant appeals, and defendant files cross-appeal. Stallo wa's a depositor in the Mt. Vernon (Westchester County, N. X.) National Bank from October 2, 1909, until it was closed by the Comptroller of the Currency on or about March 24, 1911. .

<p>In Error to the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>On motion for rehearing.</p>

Sater, Judge. Action by the Groveland Mining Company, a corporation, against the Hamilton Iron & Steel Company, in which J. B. Courtney, trustee in bankruptcy, was substituted as plaintiff. There was a judgment for plaintiff, and defendant brings error.

<p>1. Aliens <S=s>23(2) — Chinese Persons — -Deportation—Laborers.</p> <p>Where a Chinese person, who lawfully entered the United States as the minor son of a merchant, thereafter became a laborer, such fact will not deprive him of his right to remain in the country.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 77; Dee. Dig. <@=>23 (2).]</p> <p>2. Aliens @=32(8) — Chinese Persons — Deportation.</p> <p>On application by a Chinese person for writ of habeas corpus against the immigration inspector, evidence held to warrant a finding by the inspector that such Chinese person was addicted to gambling when he left China, and that he entered the United States intending to make his living by gambling, and not by profitable industry.</p> <p>fEd. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. <@=332(8).]</p> <p>3. Aliens <@=332(12) — Deportation—Findings of Immigration Authorities.</p> <p>Where supported by competent evidence, a finding by the immigration authorities with regard to an alien is conclusive on the courts.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. <@=332(12).]</p> <p>4. Aliens @=21 — Chinese Persons — Immigration Act.</p> <p>Th Immigration Act applies to aliens bom in China, and the minor son of a Chinese merchant cannot lawfully enter the United States, if at that time he be a person likely to become a public charge.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 74; Dec. Dig. <@=321.]</p> <p>5. Aliens <@=349 — Immigration Act — Construction—“Persons Likely to Become a Public Charge.”</p> <p>The Immigration Act, excluding persons “likely to become a public charge,” is not limited to paupers or those liable to become such, but includes those who will not undertake honest pursuits, or who are likely to become periodically the inmates of prisons, and so includes one who intends to make his living by gambling, instead of honest labor.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 107; Dec. Dig. @=49.]</p> <p>6. Aliens @=49 — Deportation—Persons Likely to Become a Public Charge.</p> <p>That petitioner, when he entered, was the son of a Chinese merchaht, and as such liable to be supported by his father during minority, does not except him from the Immigration Act, excluding persons likely to become a public charge, where it was clear that at the end of his minority he was likely to become such a charge.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 107; Dec. Dig. @=49.]</p> <p>7. Aliens @=49 — Deportation—Right to Deport.</p> <p>Immigration Act Feb. 20, 1907, c. 1134, § 2, 34 Stat. 898 (Comp. Stj 1913, § 4244), excludes persons likely to become a public charge; section 20 (Comp. St. 1913, § 4269) makes it the duty of the Secretary of Labor to cause to be deported at any time within three years after entry any alien who shall enter in violation of law, and as such become a public charge from causes existing prior to landing; while section 21 makes it the duty of the Secretary, when satisfied that an alien has been found in the United States in violation of law, to deport him. Held, that the act is not limited to persons who shall from existing causes become a public charge within three years after entry, but warrants the deportation of one who is likely thereafter to become a public charge.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 107; Dee. Dig. @=49.]</p>

Bill by Thomas S. Napier against Peter D. Westerhoff and Henry Westerhoff, individually and as members of the firm of Westerhoff Bros. & Napier and as directors of the Westerhoff Bros. & Napier Company, and another. From a decree dismissing the bill, complainant appeals. The final decree appealed from was entered June 20, 1912, dismissing the bill and supplemental bill.

<p>1. Municipal Corporations <©=950 — Bonds por Public Improvement— Pledge op Future Assessments.</p> <p>Under Kirby’s Dig. Ark. § 5683, which provides that no single improvement shall be undertaken by a sewer district which alone will exceed in cost 20 per cent, of the value o’f real property in the district as shown by the last county assessment, and section 5720, which authorized the board of improvement of a district in order to hasten the work to borrow money and pledge all uncollected assessments for the repayment thereof, where a district has issued bonds for the construction of a sewer system which together with the interest paid and to accrue thereon and the expense of collecting future assessments exceeds 20 per cent, of the assessed value of the real property in the district, its officers have no power to divert any part of such assessments made for the improvement to the payment of claims other than the bonds.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 902-910; Dee. Dig. <3=950.]</p> <p>2. Municipal Corporations <S=>950 — Bonds—“Pledge” op Assessments for Public Improvement.</p> <p>In a statute authorizing a municipal corporation to issue bonds for a public improvement and to pledge assessments to be made therefor for their payment, the word “pledge” is not used in a technical sense so as to create a lien which may be enforced in equity, but 5s nevertheless effective to prevent a diversion of the assessments when collected to any other purpose.</p> <p>LEd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 902-910; Dec. Dig. <3=950.</p> <p>For other definitions, see Words and Phrases, First and Second Scries, Pledge.]</p>

<p>1. Injunction <@=136(2) — Preliminary Injunction — Right to.</p> <p>Where a preponderating majority of the shareholders of a corporation agreed to a sale of its property, and complainant acquired only a few shares after the stockholders had been notified that a meeting would be held to consider the question of sale of corporate property and dissolution of the corporal ion, a preliminary injunction on the ground that the salo would violate the federal Anti-trust Act (Act July 2, 1890, c. G47, 26 Stat. 209), as well as state statutes, and that payment would not be made _as required by state law, is properly refused in the discretion of the trial court; the affidavits offered not clearly sustaining such contentions, and complainant being protected by an order that a sum of money should bo deposited for his protection.</p> <p>LEd. Note. — Por other cases, see Injunction, Cent. Dig. § 306; Dec. Dig. <3=136(2).]</p> <p>2. Appeal and Error <3=31033(8) — Harmless Error — Preliminary Injunction.</p> <p>Where complainant did not establish his right to enjoin the sale of corporate property and dissolution, he cannot complain that the court ordered the depositing of a sum of money for his protection in lieu of a preliminary injunction against such proceedings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4000; Dec. Dig. <@=1033(8).}</p>

<p>1. Bankruptcy <@=>328 — Claims—Allowance.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 560 (Comp. St. 1913, § 9641), declaring that claims shall not be proved against a bankrupt estate more than one year after adjudication unless they are liquidated by litigation, and the final judgment is rendered within 30 days before or after the expiration of that time, then within 60 days after the rendition of such judgment, a creditor may, after a payment by the bankrupt had been adjudicated a preference, present his claim within 60 days though the judgment was rendered more than a year after adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. <^=328.]</p> <p>2. Bankruptcy <@=>311(1) — Preferences—Allowance.</p> <p>Under Bankr. Act, § 57, declaring that the claims of creditors who have received preferences shall not be allowed, unless such creditors shall surrender their preferences, a creditor who received a voidable preference may, after the preference is set aside, prove his claim, though he resisted suit to recover such preference, the original transaction being untainted by any fraud.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 497-499; Dec. Dig. <@=>311(1).]</p>

Tuttle, Judge. Bill by Franklin J. Russell, trustee in bankruptcy of the estate of Alexander R. Navarre and others against the Feilbach Company and another. From a decree for complainant, defendants appeal.

In Bankruptcy. In the matter of the alleged bankruptcy of Charles H. Kehoe, in which the Hayden Company and others filed an involuntary petition. On petition to revise an order of the District Court vacating an order permitting two other persons to intervene as petitioning creditors.

In the matter of the bankruptcy of Uillian B. Kennedy Wray. From an order allowing in part a claim of Martin Zimmerman against' tire estate, James E. Wheeler, as trustee, appeals. Modified and affirmed.

Suit by the Central Trust Company of New York against the United States Light & Heating Company, in which Adrian H. Larkin and others, solicitors of record for complainant, petition for allowance of fees and payment of disbursements. From an order granting in part the prayer of their petition, they appeal.

Action by Charles Sewchulis against the Lehigh Valley Coal Company. There was a judgment or order setting aside service of summons, and plaintiff brings error. . Writ of error to review & judgment or order which set aside the service of a summons issued out of the District Court in an action at common law, and served by delivering a copy thereof to an authorized ageut of the defendant at his office in the Southern district of New York.

Action by Edward C. Galle and others against the Hamburg Amerikanische Backetfahrt Actien Gesellschaft. Judgment for defendant, and plaintiffs bring error.

Bill by Ellsworth E. Cook against Jared Flagg. From an order appointing a receiver pendente lite of a fund consisting of moneys and securities in the hands of defendant, defendant appeals.

<p>1. Receiving Stolen Goons <@==>2 — Property Subject — Interstate Commerce.</p> <p>Act Feb. 13, 1913, c. 50, 37 Stat. 670 (Comp. St. 1913, §§ 8603, 8604), readies goods that are being transported, although the property of the carrier transporting them.</p> <p>[Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 4; Dec. Dig. @^>2.]</p> <p>2. Receiving Stolen Goods <S=»2 — Interstate Commerce.</p> <p>Goods that have been transported are under the protection of Act Feb. 13, 1913, unlil they have reached their ultimate destination, and the act in this light is constitutional.</p> <p>¡Fj<1. Note. — For other cases, see Receiving Stolen Goods, Gent. Dig. § 4; Dec. Dig. <S=2.]</p> <p>3. Receiving Stolen Goods <S=»2 — Statutes—Oekenses.</p> <p>One receiving goods knowing them to bo stolen takes the risk of their having been stolen while in the course of interstate commerce, so as to bring the receiver within Act Feb. 13, 1913.</p> <p>[Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 4; Dee. Dig. <S=>2.]</p>

In Equity. Bill by George S. Gordon and others against the Turco-Halvah Company, Incorporated, and another. On motion to punish for contempt of an injunction issued pursuant to a consent decree.

In Equity. Suit by the President Suspender Company against Plugh. G. Macwilliam, who counterclaimed. Decree for complainant. Final hearing in equity; suit between citizens of different states; action for unfair competition,- for infringement of trade-mark, and also for infringement of Adams patént 687,188, assigned to plaintiff.

In Equity. Bill by the Baldwin Company against the R. S. Howard Company, which counterclaimed.

In Bankruptcy. In the matter of the bankruptcy of the Schmick Handle & Lumber Company. Proceedings to review the order of the referee, denying the claim of Hollingsworth & Whitney Company to a fund in possession of the trustees in bankruptcy.

<p>1. Assignments <@=34 — Validity—Book Accounts.</p> <p>Under the Pennsylvania laws there can be no valid assignment of book accounts without delivery of a written assignment or other equivalent.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 67-71; Dec. Dig. <©=34.1</p> <p>2. Assignments <©=115 — Priority—Several Assignments.</p> <p>Between two assignments of the same book account under otherwise like circumstances, the assignee who first gives notice to the debtor is first in right.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 161, 163, 171. 181; Dec. Dig. <©=115.]</p> <p>3. Assignments <©=57 — Rights of Assignees — Creditors.</p> <p>A creditor assignee of a book account is, in respect to giving notice to the debtor, in tlxe same position as an assignee for value.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 116-120; Dee. Dig. <3=57.1</p> <p>4. Garnishment <©=51 — Right of Assignee.</p> <p>A paper assignment, without other delivery, is valid as against the assignor, and because of this is good against the plaintiff in foreign attachment or other appearance process.</p> <p>[Ed. Note.- — For other cases, see Garnishment, Cent. Dig. §§ 74, 97-101; Dee. Dig. <©=51j</p> <p>5. Assignments <©=48 — Rights of Assignees — Equitable Assignment.</p> <p>The only difference between an assignment, which by compliance with the statute carries the legal title, and an equitable assignment, is that in one case the assignee may sue in his own name, but in the other must sue in the name of the assignor.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. § 133; Dec. Dig. <©=48.]</p> <p>6. Bankruptcy <©=155 — Trustee—Right of.</p> <p>The trustee in bankruptcy merely takes rights which the bankrupt may have had, coupled with those any creditor might have asserted against the bankrupt’s property; but third persons may assert against the trustees any rights which they might have asserted against the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <©=155.1</p> <p>7. Bankruptcy <©=184(1) — Assignments of Choses in Action.</p> <p>There is no difference between transfers of tangible personalty and choses in action, but both must be followed with delivery, and on assignment of book accounts notice to the debtor is necessary to complete a title against the trustee in bankruptcy, who represents the assignor, as well as the assignor’s creditors.</p> <p>¡Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 275; Dec. Dig. <©=184(1).]</p>

In Bankruptcy. In the matter of the bankruptcy of Cobb’s Consolidated Companies. Petition by John C.' Clapp, Jr., to share in certain assets. On certificate of review after decree of the referee in favor of the trustee.

- In Bankruptcy. In the matter of the bankruptcy of Jesse Davidson. Proceeding to review the finding of the referee allowing the preferential claim of Dora Davidson.

<p>In Equity. Bill by the Hudson Navigation Company against Edward E. Murray. On motion to vacate an order, made pursuant to Judicial Code, § 57, directing defendant, a nonresident of the district of New Jersey, to appear and plead, and to set aside the substituted service made upon him by virtue of such order.</p>

In Equity. Bill by the Rodman Chemical Company against E. E. Houghton Company. Sur defendant’s objections to plaintiff’s interrogatories and plaintiff’s motion to enforce answers objected to as evasive. Defendant required to answer interrogatories as indicated.

<p>1. Bankruptcy <@=164r — Voidable Preferences.</p> <p>Payments by a bankrupt to relatives within four months prior to his bankruptcy held to have been made while he was insolvent, with intent to giro preferences, and with knowledge of such facts on the part of the persons paid as to constitute voidable x>references.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 267; Dec. Dig. <@=164.]</p> <p>2. Bankruptcy @=>166(1) — Fraudulent Preferences.</p> <p>The knowledge of a creditor that payment to him is out of fund which, if the debtor became bankrupt, would be needed equally by other creditors, renders the. transfer to him voidable, under Act July 1, 1898, c. 541, § 60b, 30 Slat. 562 (Comí). St. 1913, § 9614), where bankruptcy intervenes within four months.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 250, 251: Dee. Dig. <S=166(1).]</p>

In Bankruptcy. In the matter of the bankruptcy of Trendafil Ylia. On review of an order of the referee in bankruptcy, holding that a certain chattel mortgage is not void for usury and directing that same be paid from the proceeds of the sale of the mortgaged property; the property having been sold and the proceeds held for determination of the question of title or right under such mortgage.

<p>1. Aliens <§=>32(9) — Admission—Proceedings.</p> <p>The examination of an alien for admission to the United States is necessarily summary and informal, and where he was denied neither right to produce testimony and summon witnesses to establish his right, nor Counsel, the fact that counsel was not present, or was not given opportunity to cross-examine witnesses, furnishes no ground for complaint.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 94; Dec. Dig. <@=>32 (9).]</p> <p>2. Aliens <@=>32(13) — Admission—Authority of Court.</p> <p>As Chinese Exclusion Act Feb. 20, 1907, e. 1134, § 25, 34 Stat. 906 (Comp. St. 1913, § 4274), declares that, in every ease where an alien is excluded from admission into the United States, the decision of the immigration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Commerce and Labor, the courts, having only such power as conferred by law, cannot review an order of the immigration officials excluding a Chinese person, where there is any evidence on which to predicate it.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. <@=>32 (13).]</p> <p>3. Aliens <@=>32(13) — Exclusion—Pbesumptions.</p> <p>In the absence of a showing to the contrary, a memorandum decision excluding a Chinese person from the country will be -held the decision or the Secretary of Labor within the Chinese Exclusion Acts.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 98; Dec. Dig. <@=>32(13).]</p>

Jared Flagg was convicted of devising a scheme to defraud and using the mails in furtherance thereof, contrary to Criminal Code, § 215, and he brings error. This writ of error seeks to review a judgment of conviction upon six counts of the indictment charging the defendant with having violated section 215 of the Criminal Code, in that he devised a scheme to defraud and used the mails in furtherance thereof.

Bean, Judge. In the matter of the estate of W. D. Newerf, doing business as the W. D. Newerf Rubber Company, bankrupt; the Citizens’ Trust & Savings Bank, trustee. From an order, made on the petition of the Miller Rubber Company and the Miller Rubber Company of California to reclaim property, both petitioners and the trustee appeal.

<p>1. Criminal Law @=>1043(2) — Appeal—Objections.</p> <p>Where testimony Is inadmissible, and could not under any state of facts be rendered admissible, a general objection is sufficient to present for review the question of the admission of such evidence.</p> <p>[Ed. Note. — For other casos, see Criminal Law, Cent. Dig. § 2654; Dec. Dig. @=>1043(2).]</p> <p>2. Criminal Law @=>417(10) — Evidence—Declarations.</p> <p>A woman, who charged that the prosecuting witness seduced her, was accused of using the mails with intent to defraud. Defendant was charged with perjury in identifying, at the examining trial before the United States commissioner, the prosecuting witness as the man who stojiped with tlie woman at a hotel in which defendant was clerk. Held, that testimony of the prosecuting witness that a third person had visited him, and told him he was the man guilty of the seduction, and had promised to assist the prosecuting witness in defending a civil action brought against him by the woman, was hearsay, and was improperly received.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 950; Dec. Dig. @=>417(10).]</p> <p>3. Witnesses @=>287(4) — Cross-Examination—Rebuttal.</p> <p>In such case, cross-examination of the prosecuting witness as to whether he had presented to his wife a man, stating that he was the one who took the excursion with the woman, and whether he had delivered to such man letters written by the woman to Mm, did not justify tbe admission of tbe hearsay testimony as rebuttal*</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1002; Dec. Dig. <@=>287(4).]</p> <p>4. Witnesses <@=>287(1) — Cross-Examination—Scope.</p> <p>In such case, where the prosecution brought out on cross-examination of the woman that she had admitted she falsely charged the prosecuting witness with her seduction, defendant is, on redirect examination, entitled to bring out her explanation, if any, for the statement, which the witness then testified was false.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000; Dec. Dig. <@=>287(1).]</p> <p>5. Criminal Law <@=>663 — Trial—Examination op Documents.</p> <p>Where the prosecution introduced in evidence a diary of the prosecuting witness to show that he could not have been at the place which accused, who was charged with perjury, had testified that he was, accused’s counsel is entitled to examine the book to determine whether it is a diary.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1602; Dec. Dig. <@=>663.]</p>

<p>In Error to the District Court of the United States for the Eastern District of. Michigan; Arthur J. Tuttle, Judge.</p> <p>Action at law by Thomas F. Heckler and John Bechill, copartners under the firm name of Lakeside Dredging Company, against John C. Carland. Judgment for plaintiffs, and defendant brings error.</p>

<p>In Error to the District Court of the United States.for the Southern District of New York.</p> <p>Charles E. Stager was convicted under Criminal Code, § 37, of conspiring to defraud the United States, and brings error.</p>

Trippet, Judge. Suit in equity by the Security Trust & Savings Bank, trustee in bankruptcy of. the Fielding J. Stilson Company, against the William R. Staats Company and the Title Insurance & Trust Company. Decree for defendants, and complainant appeals.

Appeals from and Petitions to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of J. Fred Pierson, Jr., and Ciarence E. Fell, individually and as copartners doing business as J. F. Pierson, Jr., & Co. Hela Van Thyn and others appeal from and petition'to revise an order (225 Fed. 889) determining the rights of various claimants in an omnibus proceeding to reclaim property in the hands of a receiver.

Petition for Revision of Order of the District Court of the United States for the District of Connecticut, in Bankruptcy. In the matter of the bankruptcy of the Barker Piano Company. Petition by Stewart N. Dunning, as trustee, to revise an order of the District Court directing payment of moneys to the Commercial Securities Company and another.

<p>In Error to the District Court of the United States, for the Eastern District of Pennsylvania.</p> <p>Action by the United States against Mabel H. Robb, executrix of the last will and testament of Henry B. Robb, deceased. There was a judgment for plaintiff, and defendant brings error.</p>

Action by the Fisher Hydraulic Stone & Machinery Company against Henry P. Warner. There was a judgment for plaintiff for nominal damages (188 Fed. 465), and -plaintiff brings error.

In Equity. Suit by Andrew G. Pierce, Jr., against the Combined Heat & Sprinkler Company. On final hearing. The following are the diagrams referred to in the opinion of the court: W. B. Hammond Patent. No. 1,058,968. Nutter and Chatman Patent. No. 1,087,136.

<p>1. Counties @=>47 — County Commissioners — Powers of.</p> <p>County commissioners, being administrative officers of the county, and given by Rem. & Bal. Code Wash.- § 3890, the care of county property and management of county funds and business, should be allowed full ■ scope in administrative power, even though it is not expressly granted.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 55; Dec. Dig. @=¿>47.]</p> <p>2. Counties @=>113(6) — County Commissioners — Contracts of.</p> <p>A contract by county commissioners, agreeing to pay for the cruising and estimating of the timber on lands in the county, is valid and enforceable, in view of Rem. & Bal. Code Wash. § 3890, giving the commissioners care and management of county property, funds, and business, even though the information would be for the benefit of the county assessor, for under sections 9200-9207 the commissioners are required to equalize assessments, and they are not bound to accept valuations made by the assessor.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 180; Dec. Dig. <Ss»118(6)J</p>

<p>In Admiralty. Poreign attachment by the American Potato Corporation against the Boca Grande Steamship Company. On motion to quash writ.</p>

<p>1. Bankruptcy <@=>192 — Liens—Protection—Contracts.</p> <p>Petitioner contracted with a bankrupt to furnish labor and materials for putting in a chain and railing at the bankrupt’s place of business. While this work was in progress, another contractor agreed to build tables for the bankrupt, and such contractor being unable to obtain the materials, and having no credit, the bankrupt agreed that, if the petitioner would furnish the materials, he would pay him directly. Petitioner did so, and, after all of the work was finished, filed under Rem. & Bal. Code Wash. §§ 1154, 1155, providing for liens on chattels, and that the statement shall state the terms of the contract, a claim for a lien on the several articles as if they had been constructed under a single contract. Held, that the two contracts were entirely distinct, and therefore the lien must be denied.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 294; Dec. Dig. <@=>192.]</p> <p>2. Bankruptcy <@=>205 — Rights of Trustees — Attack on Liens.</p> <p>As Bankr. Act July 1, 1898, e. 541, § 47a(2), 30 Stat. 557, as amended by Act June 25, 1910, c. 412, § 8, 36 Stat. 840 (Comp. St. 1913, § 9631), vests title to all property of the bankrupt in the trustee with all rights, remedies, and powers of a person holding a lien by legal or equitable proceedings, the trustee may contest the validity of a lien sought to be asserted against the bankrupt’s property.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. <@=>205.)</p>

<p>Tillie Reinheimer was indicted for sending obscene matter through the mails. On 'demurrer to indictment.</p>

<p>In Equity. Suit by the Clark-Montana Realty Company and others against the Butte & Superior Copper Company.</p> <p>The following is a general sketch of the claims involved: ■</p> <p> </p>

<p>1. Indians —Constbuction of Treaty — Fishing Rights.</p> <p>In 1855 the United States concluded treaties with the different Indian Tribes occupying the territory now comprising the states of Washington and Oregon, by which it sought to extinguish their title to all the land in such territory excepting that included within the reservations therein delimited. The boundaries between the lands claimed by the different tribes were indefinite, and those fixed by the treaties were more or loss arbitrary. The tract ceded by the Yakima tribes by the treaty of June 9, 1855 (12 Stat. 951), was hounded on the south by the Columbia river. Such treaty reserved to the Indians the right of taking fish “at ali usual and accustomed places in common with the citizens of the territory.” Held, that such provision should not be construed as limited in its application to places within the boundaries of the land ceded, and that the right thereby secured to the Indians extended to their usual and accustomed fishing places on the south side of the Columbia river.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 5-7,11; Dee. Dig. <®=^3.]</p> <p>2. Treaties <§=>7 — Rules of Construction.</p> <p>Treaties, like contracts, must bo construed as a whole to ascertain their true meaning and intendment.</p> <p>[Ed. Note. — For other cases, see Treaties, Cent. Dig. § 7; Dec. Dig.</p> <p>3. Indians <§=»3 — Treaties—Rules of Construction.</p> <p>A treaty with Indians should be construed as nearly as may be ascertained'as the Indians understood it, and they should be given the benefit of any doubt as to the meaning of its provisions.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 5-7, 11; Dec. Dig. <©=^>3.)</p> <p>4. Indians <S=>6 — Status—Termination of Government Guardianship.</p> <p>An Indian who, although he received an allotment on a reservation which he still holds, has ceased to live on the reservation, has acquired a homestead on which he resides, and has adopted the habits of civilized life and become a citizen by virtue of Act Feb. 8, 1887, c. 119, § 6, 24 Stat. 390, is no longer a ward of the government in such sense that the United States m'ay maintain a suit to protect fishing right claimed by him, under a treaty with the tribe of which he was a member.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 12; Dec. Dig. <S=»6.]</p> <p>5. Indians <§=>3 — Treaties—Fishing Rights.</p> <p>Indians, given by treaty the right of taking fish at all usual and accustomed places, are not limited in fishing at such places to methods used by them in times before the treaty, but may adopt and use any modern method.</p> <p>[Ed. Note. — For other eases, see Indians, Cent. Dig. §§ 5-7,11; Dec. Dig. <S=>3.]</p>

<p>1. Shipping <§=>207 — Limitation op Liability — TJnseawoethiness — Improper Manning.</p> <p>Petitioner, under a contract with the government to blast ledges in Boston Harbor, had a drill boat stationed over a ledge in the center of the channel. One night, when the boat was not being operated, but was in charge of two watchmen, some of the spuds by which it was held became jammed in the housings as the tide fell, and, the watchmen being unable to free them, it overturned and sank. The watchmen left in a scow which was alongside, and which was brought back in the morning by a boat which picked them up, did nothing to mark the wreck, nor did the day crew, which came out, and after 8 o’clock a steamer entering the port came into collision with the wreck and was severely damaged. There were 26 feet of water over the ledge, and vessels of moderate draft gave it no attention while navigating the channel. The watchmen were mechanics, but not seamen. Held, that the boat was unseaworthy, because improperly manned, and that because of such fact, and also because of the failure of petitioner to at once mark the wreck, it was not entitled to a limitation of liability.</p> <p>[Ed. Note. — -For other cases, see Shipping, Cent. Dig. §§ 555, 643, 644; Dec. Dig. <§=>207.]</p> <p>2. Collision <§=109 — Loss op Vessel — Duty op Chew to Mark Wreck.</p> <p>It is the duty of the crew of a vessel which sinks in a harbor channel to take reasonable precautions to prevent injury to their own and other vessels from collision with the wreck.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 232; Dec. Dig. <§=>109.]</p> <p>3. Navigable Waters <§=>24 — Wreck—Duty op Owner to Mark.</p> <p>The duty to immediately mark the position of a sunken vessel, imposed by Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (Comp. St. 1913, § 9920), is a personal duty of the owner, which cannot be delegated, so as to relieve . him from responsibility.</p> <p>[Ed. Note. — For other eases, see Navigable Waters, Cent. Dig. § 66; Dec. Dig. <@=^24.]</p>

At Law. Hans Tauscher and others were charged with conspiracy to commit an offense against the United States. On demurrer to the indictment.

<p>1. Copyrights <@=28 — Registration in Patent Office — Lithograph— “Chromo.”</p> <p>Rev. St § 4952, as amended by Act March 3, 1905, c. 1432, 33 Stat. 1000, provides that the proprietor of any engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing, or chromo intended to be perfected as works of the fine arts, shall have the sole liberty of vending the same. Act June 18, 1874, c. 301, § 3, 18 Stat. 79, which seems not to have been repealed, declares that no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but shall be registered in the Patent Office. Held that, as the act of 1874 plainly omits chromos, which are known as chromolithographs and are pictures produced from drawings on stones, each color being represented by a different stone, registration of such pictures in the Patent Office is not necessary to obtain a copyright.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 27, 28; Dec. Dig. <@=>28.</p> <p>Por other definitions, see Words and Phrases, Chromo.]</p> <p>2. Copyrights <@=10 — Right to — Pictures.</p> <p>That chromos were intended for advertising articles of commerce does not prevent the proprietor from obtaining a copyright thereof.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 8, 13; Dec. Dig. <§=10. ]</p> <p>3. Copyrights <@=10 — Right to — Pictures.</p> <p>That chromos possess little artistic merit will not prevent the proprietor from obtaining a copyright, it being enough that they were originated by the proprietor.</p> <p>LEd. Note. — For other cases, see Copyrights, Cent. Dig. §§ 8, 13; Dec. Dig. <@=10.]</p> <p>4. Copyrights <@=31 — Notice of Copyright — Purpose.</p> <p>The purpose of requiring publication or notice of copyrights is to prevent innocent persons from suffering the penalty of the statutes for reproduction of the copyrighted articles.</p> <p>[Ed. Note. — -For other cases, see Copyrights, Cent. Dig. § 31; Dec. Dig. <S=31.]</p> <p>5. Copyrights <@=29, 31 — Notice of Copyright — Samples.</p> <p>The sending of samples of chromos out to the trade Is not a publication, and the fact that such samples were not stamped with notice of copyright does not authorize another manufacturer to reproduce them.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 29-31,; Dec. Dig. <@=29, 31.]</p> <p>6. Copyrights <@=29 — Violation of Copyright — Omission of Notice.</p> <p>Under Comp. St. 1913, § 9541, providing that, where a copyright proprietor has sought to comply with the provisions of the act with respect to notice, the omission by accident or mistake of such notice from particular copies does not invalidate the copyright or prevent recovery for infringement after actual notice of the copyright, and that no damages are recoverable against an innocent infringer who has been misled by the omission, one infringing a copyright on chromos cannot escape liability because some were Issued without notice, where that fact did not come to the knowledge of the infringer until after its infringement, which was committed knowingly.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 29, 30; Dec. Dig. <S=29.]</p> <p>7. Copyrights @=10 — Subject-Matter oe Copyright.</p> <p>A proprietor of a ehromo depicting vegetables may acquire copyright in his particular arrangement, which another cannot violate, though the proprietor cannot prevent others from publishing chromos depicting the same vegetables.</p> <p>[Ed. Note — For other cases, see Copyrights, Cent Dig. §§ 8, 13; Dec. Dig. @=>10.]</p>

In Bankruptcy. In the matter of Gay & Sturgis, bankrupts. The claim for priority for unpaid salary by an employé of the bankrupts was by order_ of the referee disallowed as a preferred claim, and the claimant petitions for review.

<p>In Equity. Bill by the Western Union Telegraph Company against the Nashville, Chattanooga & St. Louis Railroad Company. On motion to dismiss.</p>

<p>At Faw. Action by the Baldwin Co-operative Creamery Association against Burt Williams, Collector of Internal Revenue.</p>

<p>1. Appeal and Ekboe ©=>1009(1) — Review—Equity Suit — Pbayeb fob Damages.</p> <p>Under Copyright Act March 4, 1909, c. 326, § 27, 35 Stat. 1082 (Comp. St. 1913, § 9548), providing that all proceedings contemplated, including those for injunction, damages, profits, and for the seizure of infringing copies, may be united in one action, a proceeding to enjoin an infringement and ro recover damages for the several infringements should be treated on appeal as an equity suit; the prayer for damages not changing its nature, and the parties having adopted the forms of an equity suit.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970, 3978; Dec. Dig. ©=>1009(1).] '</p> <p>2. Appeal and Erbob ©=>1009(1) — Review—Findings—Equity Cases.</p> <p>In an equity suit, the appellate court will review questions oí fact, subject to the rule that the findings of the trial court will not be lightly disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970, 3978; Dee. Dig. ©=>1009(1).] •</p> <p>3. Coubts ©=>356 — Recobd—Statement of Evidence.</p> <p>YVhere, in an equity suit, the defeated party appealed and also brought error, and the evidence was brought up in a so-called bill of exceptions, it will, the intention being clear that it should be treated also as a statement of evidence under equity rule 75 (198 Fed. xl, 115 C. C. A. xl), be so regarded.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. ©=>356.]</p> <p>4. Appeal and Ereok ©=>934(1) — Review—Presumptions.</p> <p>Where defendant did not appeal, and complainant only appealed from the award of damages, claiming it inadequate, it will be presumed that the determination of the trial court that defendant was liable was correct, although such matter might be reviewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8777, 3780, 3781; Dec. Dig. ©=>934(1).]</p> <p>5. Copyrights ©=>87 — Infringement—Damagf.s—Newspaper Publications.</p> <p>Copyright Act, § 25 (Comp. St. 1913, § 9546), declares that, if any person shall infringe a copyright, he shall be liable to pay the proprietor such damages as may have been suffered, or, in lieu of actual damages, such damages as to the court shall appear just, and in assessing damages the court may, in its discretion, allow the amounts stated, but in case of a newspaper reproduction of a copyrighted photograph, the damages shall not exceed the sum of $200, nor be less than $50, and that such damages shall in no other ease exceed the sum of $5,000, nor be less than $250, which shall not be regarded as a penalty. The section supplanted prior statutes making somewhat similar provisions for award of damages. Held that, where the copyright proprietor did not seek actual damages, but sought those provided in lieu thereof, he was, in case of a newspaper reproduction of copyrighted drawings, entitled to at least $250 damages for the infringement.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 81; Dec. Dig. ©=>87.]</p> <p>6. Copyrights <@=87 — “Infringement”—What Constitutes.</p> <p>Under Copyright Act, § 25, authorizing recovery of damages for infringement,' and providing that if the proprietor does not seek recovery of actual damages, he may recover in lieu thereof fixed damages for each infringement, an “infringement” will be treated as those acts, whether one or many, constituting a connected and fairly unitary invasion of the proprietor’s rights.</p> <p>[Ed. Note. — Eor other cases, see Copyrights, Cent. Dig. § 81; Dec. Dig. <@=87.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Infringement.] ■<</p> <p>7. Copyrights <@=87 — Infringement—Damages.</p> <p>The proprietor of numerous sketches showing women’s styles for an approaching season, who disposed of them to the trade, contracted with a retail dealer at one town, giving him the exclusive right to reproduce any sketches which he desired in his newspaper advertising. The defendant newspaper company published advertisements for other retail dealers, reproducing such copyrighted sketches. The proprietor sued, seeking an injunction, and claimed, under Copyright Act, § 25, that the publication of each separate sketch constituted an infringement entitling him to the minimum damages provided. Held that, while the sketches were separately copyrighted,' yet as, under the act, the notice of copyright and not registration is all-important, and separate registration would give no greater rights, the several publications constituted only one infringement, entitling the proprietor only to a single award, for the several copyrights involved a related subject-matter, and, if suits for infringement of the copyright of each picture had been brought, they would have been consolidated.</p> <p>■ [Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 81; Dec. Dig. <@=87.]</p>

Elliott, Judge. Bills by George A. J'ewett and by A. H. McVey against John Cooper, who filed cross-bills; the suits being consolidated. From a decree for complainants, defendant and cross-complainant appeals.

<p>1„ Aliens <©=>49 — Deportation—Public Charges.</p> <p>In a proceeding for the deportation of an alien woman and her minor son, where there was uncertainty of continuing support of the son by the father alone, who was a resident of the United States, the son must be ordered deported, as one likely to bebome a public charge, if the mother be deported.</p> <p>IJM. Note. — For other cases, see Aliens, Cent. Dig. § 107; Doc. Dig. <§=>-9.1</p> <p>2. Aliens <©=>46 — Death <@=>2(2)-~Presumptions — Remarriage.</p> <p>Where a female subject of Great Britain, who had not heard from her husband for over 2 years, and believed him to be dead, contracted a second marriage and thereafter had not heard of the first husband for over 11 years, there was a presumption of his death and the legality of the second marriage, and her conduct cannot be said to involve moral turpitude, warranting her deportation from the United States on that ground.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 105; Dae. Dig. <©=>16; Death, Cent. Dig. § 3; Poe. Dig. ©-=>2(2).]</p> <p>8. Aliens <©=>19 — Deportation—Public Charges.</p> <p>Where an alien woman entered the United States for an immoral purpose, making her subject to possible prosecution and imprisonment at public expense, or naturally tending to a life not supported by honest work, she may be deported on the ground that she is likely to become a public charge.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 107; Dee. Dig. <©=>49.J</p> <p>4. Aliens <©=>54 — Deportation—-Proceedings.</p> <p>Where, after a hearing on the charge whether she was entering the United States for an immoral purpose, an alien woman was ordered' admitted by the Secretary of Labor, the Secretary on a subsequent hearing may order her deportation on the testimony at the first hearing, provided it was properly brought into the second deportation proceedings.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §\ 112; Dec. Dig. <@=>54.]</p> <p>5. Aliens <@=>54 — Deportation Proceedings — Testimony.</p> <p>An alien, woman and her son, who returned to this country, were held for examination as persons likely to become public charges and suspected of entering for immoral purposes. At the hearing the -woman’s husband appeared and promised to provide for her support and that of her child. On such showing an order of exclusion was sot aside and she was admitted. Thereafter the woman, acquired lucrative employment in the United States, and with the aid of. her husband furnished a suitable home for her minor child, but separated from her husband, intending to procure a divorce on the ground that the first marriage might have been illegal, and to subsequently remarry. Thereafter deportation proceedings were instituted, and the woman was ordered deported on the ground that she had committed a crime or misdemeanor involving moral turpitude, had entered the United States for immoral purposes, and was at that time likely to become a public charge. In the second deportation proceedings, the evidence considered in the first proceeding was not introduced, and there was nothing- in the record to show that the Secretary of Labor's order of deportation was based on such evidence; the order reciting that it was based on the evidence taken at the second hearing. On petition for habeas corpus, the evidence at the first hearing was put into the record, and the woman was asked if her testimony on such proceeding, which also involved the matters in issue in the second proceeding, were true. ■ This she answered in the affirmative. Held that, though in the second proceeding an alias given the woman was the name of the man with whom she was charged in the first proceeding with intending to assume immoral relations, there was nothing to show that the Secretary of Labor intended to base his order on such evidence; it appearing that the second proceeding was instituted when the immigration' authorities discovered that the woman had not been frank about her marital' relations.</p> <p>[Ed. Nóte. — Fon other cases, see Aliens, Cent. Dig. § 112; Dec. Dig-<@=?54.]</p> <p>6. Aliens <@==>54 — Deportation Proceedings — Testimony.</p> <p>In such case the evidence heard at the first proceeding was not made part of the record, so that it could be considered against the woman in the second proceeding.</p> <p>[Ed. Note. — Fon other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. ®=?54.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Bill by Richard B. Kelly against Thomas J. Dolan and others. From a decree (218 Fed. 966) dismissing the bill, complainant appeals.</p>

<p>1. Appeal abd Error <@=>23G(2) — Review—Harmless Error.</p> <p>The function of pleadings being to give notice and prevent surprise, plaintiff cannot complain of the introduction of evidence that defendant was incompetent to contract, where, though the pleadings did not clearly raise that defense, no claim of surprise or application for postponement was made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3385; Dec. Dig. <@=>236(2).]</p> <p>2. Contracts C=>346(9)~Plea — Non Assumpsit- — Mental Capacity.</p> <p>Mental incapacity to contraed; may be shown under the defense of non assumpsit.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1726; Dec. Dig. <@=>316(9).]</p> <p>8. Contract's <3=>338(3) — Plea—Defenses—Pleading Rules oe Court.</p> <p>3n assumpsit on a contract, plaintiff, while filing its affidavit of claim, served no copy on defendant, so as to attempt to lay the foundation for a judgment for want of an affidavit of defense. Under a rule on defendants to plead and to furnish a bill of particulars of the defense, defendants filed a idea of non assumpsit and one of set-off, and also denied the several averments of the complaint. Plaintiff made the guardian of the principal defendant a party defendant. The rules of the district court provide for verification of plaintiff's statement in assumpsit, and that no evidence shall be admitted save as set forth in defendant’s affidavit in traverse of the statement of claim. Held that, as defendant’s counterclaim for moneys paid under the contract asserted the defendant’s incapacity, there was a substantial compliance with the rules, entitling- defendants to assert the defense of want of capacity.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1704; Dec. Dig. <@=>338(3).]</p> <p>4. Appeal and Error <@=>1046(5) — Harmless Error — Comments oe Judge.</p> <p>Where defendant’s mental incapacity was not contradicted, and there was no conflict of medical testimony, a remark by the trial judge in his charge that an alienist called by defendant was one of the ablest in the locality is no ground for reversal though the jury found want of capacity to contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4134; Dec. Dig. <@=>1046(5).]</p>

Action by Ernest O. Jacobsen, doing business as E. O. Jacobsen & Co., against the Tri-Bullion Smelting .& Development Company. There was a judgment for plaintiff, and defendant brings error. Writ of error to the District Court for the Southern District of New York to review a judgment in favor of defendant in error (plaintiff below) for $5,847.31 after a verdict by direction of the court. Plaintiff below will he referred to as “Jacobsen” and defendant as “Tri-Bullion.”

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge. . ,</p> <p>Suit by the Richmond Guano Company, a corporation, against J. M. Long and W. S. Mauldin, each individually and as partners doing business as Long & Mauldin, the W. D. Spearman Company, a corporation, and another. Prom a judgment deling part of the relief sought, complainant appeals.</p> <p>The opinion of Smith, District Judge, referred to, is as follows:</p> <p>On July 25, 1914, the hill was filed in this cause against the defendants for an accounting, and to hold them liable for the failure to account for certain fertilizers shipped by the complainants to the defendant W. D. Spearman Company. The defendants answered, and the case was referred to J. J. Mc-Swaln, Ésq., as special master, to take the testimony and accounting and report to the court, with leave to report his conclusions of fact upon the testimony. The special master has taken the testimony and reported, and exceptions have been filed to his report by both complainant and defendants. The cause has now come on to be heard upon the pleadings, the testimony, the report of the special master, and the exception thereto, and has been duly heard; counsel on both sides having been heard.</p> <p>It appears that in December, 1908, the corporation known as the W. D. Spearman Company was engaged in a general mercantile and fertilizer business, in which corporation the defendants W. D. Spearman, W. S. Mauldin, and J. M. Long were all stockholders, and W. D. Spearman and W. S. Mauldin were directors; W. D. Spearman being the president, and W. S. Mauldin secretary of the company. Prior to that time the defendants W. S. Mauldin and J. M. Long appear to have been engaged in the business of buying and selling fertilizers under the firm of Long & Mauldin, but there is no evidence that they were so doing after their connection with the W. D. Spearman Company. On December 28, 1908, the complainant, through one of its agents, proposed to W. D. Spearman Company to furnish fertilizers at the prices named in the proposal; the said proposal 'containing the provision that the proposal, when accepted by the "W. D. Spearman Company, should not become a binding contract between the plaintiff and W. D. Spearman Company until the complainant had accepted the same. The W. D. Spearman Company on December 28, 1908, accepted the said offer in writing, but the complainant appeared to be unwilling to accept the offer, apparently from an unwillingness to rely upon the financial responsibility of the W. D. Spearman Company, and some correspondence ensued, and on January 19, 1909, the defendant W. S. Mauldin, who was the secretary of the W. D. Spearman Company, wrote a personal letter to Hie complainant, in which he stated that they wore mailing under a separate cover ail official statement of W. D. Spearman Company, adding: “I will say for your information that the store and fertilizer will liave separate account. They will not take any joint notes. You will get the collateral notes that your guano is sold for. Mr. Spearman has management of the store and I have management of the fertilizer business. We will have separate bank account. We propose to furnish you with the collateral that we sell your fertilizers for. And under our conservative way of putting out fertilizers I don’t see as you could possibly sustain a loss under this contract.”</p> <p>To this letter the complainant answered on January 21, 1909, in a letter to W. S. Mauldin individually, saying that they had his letter “in reference to the W. D. Spearman Company’s contract, and as you are going to handle this fertilizer business separately and distinctly yourself, and give us the collateral notes properly, beg to say it gives me pleasure to accept the contract, which I have just done.” The contract, however, was made with W. 1). Spear-man Company alone. W. S. Mauldin was the secretary of that company, and while the correspondence would appear to indicate that he appealed to the complainant to confirm the contract with W. D. Spearman Company, suggesting as a persuasive reason that he (Mauldin, with whom the complainant apparently had had previous business transactions) was going to handle the fertilizer part of the business of W. D. Spearman) Company, and that, as the complainant would receive as collateral notes of the purchasers of the fertilizers from W. D. Spearman Company, properly indorsed by W. D. Spear-man Company, he thought they would not lose. This, however, was no undertaking personally to guarantee the payment of the debts of W. D. Spear-man Company. It was simply a statement offered by way of persuasion that ho (Mauldin, who was the secretary of the Company) would have the personal looking after of the fertilizer part of the business, and that as complainant would receive, ás collateral for- the amounts due it on the shipment of fertilizers, the collateral notes given by the purchasers of fertilizers, he did not see how they could lose.</p> <p>[1] The complainant shipped the fertilizers to the D. Spearman Company. It charged the W. D. Spearman on its own books with the cost of the fertilizers. It made no entry showing it gave credit to or relied upon Maul-din, and when later, on the I5th of May, 1909, notes were given to the complainant in payment for the fertilizers at the agreed prices, the notes given were the notes of W. D. Spearman Company, and no indorsement by Long or Mauldin was either demanded or received. It is found, therefore, as a conclusion of law, that there was no promise or guaranty or undertaking on the part of W. S. Mauldin or J. M. Long, defendants, personally to pay for the fertilizers shipped to the W. D. Spearman Company, but that the complainant sold its fertilizers upon the credit of W. D. Spearman Company alone, trusting to the active management for that company of its fertilizer business by W. S. Mauldin, in addition to the collateral notes it would receive.</p> <p>Nor does it appear, as argued for complainant, that the agreement for compensation between the W. D. Spearman Company and the defendants Long and Mauldin constituted the two latter copartners with W. D. Spearman Company in the fertilizer business, so as to render them liable as copartners with' W. D. Spearman Company for the debts of that concern. The testimony is not clear, but it appears that for looking after the fertilizer business of W. D. Spearman Company the defendants J. M. Long and W. S. Mauldin were each to receive $100 per month, to be paid out of the profits of the fertilizer business, and then the balance of such profits was to be a part of the general assets of W. D. Spearman Company. Any share in the balance of the profits outside of their fixed monthly compensation could only be had by Long and Mauldin in like manner as other stockholders in W. D. Spearman Company, by a dividend on their stock. The testimony is not even clear that their monthly compensation was to come out of the “profits” of the fertilizer business. It seems to have been considered that profits were certain, and that really what was meant was that the fertilizer side or department of the business of W. D. Spearman Company was to bear as part of its expenses the payment of tbe monthly compensation of the two defendants, J. M. Long and W. S. Mauldin. In this light the compensation to Mauldin and Long was a fixed compensation to them as employés of W. D. Spearman Company for looking after the fertilizer business. It is accordingly held that there was no copartnership existing such as would make the defendauts Mauldin and Long liable to the complainant for the debts due by W. D. Spearman Company for the fertilizers shipped under the contract.</p> <p>[2] The next and main question is as to the liability of the defendants for the collections made from the collaterals of the complainant in their hands. The total amount of fertilizers shipped aggregated, according to the agreed prices under the proposal, the sum of $13,020.53, and on or about the 15th day of May, 1909, a settlement was had between the plaintiff and the defendant W. D. Spearman Company, whereby the plaintiff accepted from W. D. Spear-man Company, as representing the amount due by W. D. Spearman Company on the shipment of fertilizers, four notes, all dated May 15, 1909, and aggregating the sum of $13,020.53. To secure these notes W. I>. Spearman Company delivered and assigned to the complainant notes, mortgages, and open accounts of purchasers of fertilizers from W. D. Spearman Company to the aggregate of $13,010.09, as being the’ collateral to be transferred to the complainant under the contract as representing the obligations given by the purchasers of the fertilizers from W. D. Spearman Company. This amount was accepted upon the settlement in May by the complainant as being the collateral to which it was entitled under the agreement, and the court holds that on the facts as a conclusion of law that the complainant, in the absence of fraud, is bound by that settlement as showing its acceptance of the amount of collateral that it was entitled to receive under its agreement with W. D. Spear-man Company. All this collateral was returned to W. D. Spearman Company for the purpose of collection; the proceeds of this collateral, and the collateral, to be held by W. D. Spearman' Company in trust for the complainant, to which the proceeds of all collections were to be paid, TV. D. Spearman. Company having undertaken that collection.</p> <p>TV. JD. Spearman Company becoming financially embarrassed, and it being apparently desired by all parties that the fertilizer accounts should not become involved in the mercantile business, the defendants J. M. Long and. W. S. Mauldin, on November 6, 1909, gave an acknowledgment to the plaintiff; that all the collateral notes and accounts were in the hands of said Long and Mauldin vo be collected for the account of the plaintiff. This substituted the defendants J. M. Long and W. S. Mauldin as the trustees to collect these accounts for the complainant, and to turn the same over to the complainant; they assuming in that respect the obligations that had theretofore rested upon TV. D. Spearman Company under the agreement to collect these collateral obligations as trustees for the complainant. On this total amount of $13,040.09 it appears that there has been paid out of the collections $10,321.83. It appears further from the testimony that the defendants Long and Mauldin, have produced as ready to deliver to the complainant and accounted for of these collaterals, which they have been unable to collect, $1,840.03, making a total of $11,981.80 so accounted for. The difference between this amount of $11,901.80 and the total collateral in the hands of W. D. Spearman Company and Long and Mauldin for collection of $13,04.0.09 is $1,078.23, for which the defendants Long and Mauldin have wholly failed to account in this case.</p> <p>It is thereupon adjudged and decreed that the defendants .1. M. Long and W. S. Mauldin are indebted to the complainant in the sum of $1,078.23, with interest at the rote of 7 per cent, per annum from the 6th of November, 1909, and that upon failure of the said defendants J. M. Long and W. S. Mauldin jointly or severally to pay the same, together with the costs of these proceedings, within 30 days from the date of this order, the complainant may enter up judgment against the said defendants for the amount thereof, and issue execution thereon or enforce the same as it may be otherwise entitled to do under the rules and practice of this court. Nothing herein to be construed however to affect the liability of the defendant TV. D. Spearman Company upon its nole referred to and set out In the bill of complaint, as to which application may be made at the fool of this decree for any order in regard thereto to which the complainant may be entitled..</p>

<p>Insurance <©=>508%, New, vol. 4 Key-No. Series — Liability Insurance— Policy — Construction.</p> <p>In 1906 defendant insured plaintiff bank from any and all loss or damage on account of wrongful acts of the cashier of a branch, by reason of fraud or dishonesty of such employé in connection with the duties of his office or position amounting to embezzlement or larceny committed during the continuance of the term or any renewal thereof, and discovered within such continuance or six months thereafter. 'As an inducement to be allowed to write the bond, defendant agreed to from time to time renew it without any additional cost, expense, trouble, or annoyance, and to save plaintiff bank harmless during the whole period. In 1913 a new bond insured the bank against any pecuniary loss growing out of any act of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction, or misappropriation,, or any criminal act, of the cashier of the branch bank. Defalcations and embezzlement by such cashier were not discovered until more than six months after the expiration of the last renewal of the 1906 bond. Seld, that the bond of 1913 was not a renewal of the 1906 bond, the two bonds containing different conditions, and so no recovery for defalcations occurring prior to such bond could be had, on the theory that it renewed the original bond.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. <©=>508%.J</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Benj. F. Bledsoe, Judge. _</p> <p>_ Petition by Wong Back Sue for writ of habeas corpus against Charles T. Connell, as Immigration Inspector in Charge. From an order denying the writ, petitioner appeals.</p> <p>The petitioner was ordered deported to China, and was held pursuant to a warrant issued by the Secretary of Labor, which charged that appellant had entered the United States, landing near Calexico, Cal., on or about December 18, 1914, and in violation of section 7, Chinese Exclusion Act of September 13, 1888 (25 Stat. 477, c. 1015 [Comp. St. 1913, § 4308]), being a Chinese laborer who failed to produce to the proper officer the return certificate required by the aforesaid section.</p> <p>The appellant makes these contentions: (1) That there was no fair hearing accorded petitioner by the immigration officials; (2) that there was no evidence that petitioner entered the United States near Calexico, Cal., on or about December 18, 1914, as charged, or at any other time or place, without inspection; (3) that there was no evidence that petitioner entered the United States at any time of place in violation of the act of Congress heretofore referred ’to; and (4) that, if petitioner was properly ordered deported, the order should have required deportation to Mexico, and not to China.</p> <p>The record shows that at a warrant hearing before the immigration inspector at Yuma, Ariz., on January 24, 1915, warrant was “presented, read, and explained to the alien, who is advised of the nature of the proceedings and that he may be released from custody during the pendency of the case upon furnishing a satisfactory bond in the sum of $2,500.” The testimony before the immigration official was substantially as follows: The alien testified that he was 66 years old, a subject of China, and that he came to San Francisco many years ago; that he had been a cook, and that he had a certificate of residence, issued in the name of Wong Back Sue, dated at Los Angeles, March 31, 1894; that he never had been back to China, never had been to Mexico, and knew no one in Mexicali, Mexico; and denied that he had come from El Centro, Cal., to Los Angeles, on the train on the 19th of December, 1914. He was shown the train inspection card, reciting that he had been inspected by Inspector Palmer on a train from El Centro, Cal., to Los Angeles, Cal., at El Centro on December 19, 1914, and also the card of Inspector Ellis on< the same date and train at Indio, Cal.; but he denied that he took a train from El Centro to Los Angeles, and said it was a mistake, as lie was in Los Angeles all the time; denied that he had met certain persons, who had made sworn statements that they had seen him in-Mexicali, Mexico, during part of the years 1913 and 1914. He identified a photograph of himself, attached to an exhibit certification of the inspector, and said that he had left Yuma. Ariz., to go to Los Angeles, about 1910, and that in a previous statement to the officials he had made a mistake as to the time when he left Yuma. He said that he had received a certificate of residence in 1894; and that he had been treated at Los Angeles by a Chinese doctor, Hr. Wong, for a tad leg. The record further shows that at the hearing before the inspector, and as soon as the alien liad made these statements, he was advised by the immigration inspector that he was now afforded an opportunity to inspect the, warrant of arrest and all the evidence upon which the same veas leaned, and that he had a right to be represented by counsel at tire hearing, and was asked if he wished to avail himself of the right. After stating that he desired to talk with Ms countrymen, adjournment was had for three days. When the three days had expired and the hearing was resumed, lie said he had tried to secure a lawyer, hut the one he wished was too busy, and lie asked tor another day in which to secure an. attorney and to talk with him. Again the hearing was adjourned for a day, and, when resumed, petitioner stated that he had no money, and his countrymen were not able, or did not care, to help him, and that he could do nothing more. He was then asked if he waived all right to be represented by counsel at the hearing. His answer was, “Yes; 1 can’t help it.” He was also'asked whether lie had any other evidence to offer. He replied, “No; I have told you everything- I know.”</p> <p>Among the exhibits attached to the application for the warrant of arrest was a statement made by the alien on January 1G, 1915, before O. B. Franklin, Inspector, in which the petitioner said that he had gone direct from Yuniu, Ariz., to Los Angelos, three years before the date of the examination, which would be January, 1012; that he had been in Los Angeles ever since; that he loft Yuma because, blood poisoning in his leg having developed, he went to Los Angeles for medical treatment for his leg, and that he had remained in Los Angeles continually thereafter until about January 8, 1915, when lie went to Yuma, Ariz.; that he had been treated at Los Angeles by Hr. Wong Leng Woon, doctor for the Yick Sang Tong drugstore. Petitioner produced a certificate of residence issued to him in California in March, 1904.</p> <p>Appended also to the application for warrant of arrest were several sworu statements. William M. Tomkins, a stenographer living at Calexico, Cal., was shown the photograph which had been identified by the alien as a photograph of himself, and said that he had seen the Chinaman represented by the photograph about February, 1914, on the Loftus ranch in Mexico. George Henry, a Ohiuese merchant residing in Mexicali, Mexico, also recognized the photograph, and said that he had seen the Chinaman it represented in Mexicali, Mexico, about October, 1914. O. L. Hockenberry stated that he had seen the Chinaman represented by the photograph in Mexico during 1914, and that the Chinaman had worked on the Wavis ranch. Jim Lee, a China-man, in Ms statement said that he lived in Mexicali, Mexico; that he recognized the Chinaman represented by the photograph, and that he had seen him In Mexicali, Mexico, about December, 1914. Wong Yut, a Chinese merchant in Los Angeles, Cal., said he knew the man represented by the photograph, and that he had left Los Angeles, saying lie was going to Yuma, Ariz. Dr. Wong Bal Gin recognized the photograph of the petitioner, and said that he had mot the man in 1906 at Los Angeles, and that just a few days before January 15, 1915, he had treated him for a cough, and that nothing was said about an injury to the leg, and that-the man had told him he had come from some country town and was going to Yuma, Ariz.</p>

<p>On petition for rehearing.</p>

Petition to Revise an Order of the District Court of the United States for the Southern Division of the Eastern District of Washington, in Bankruptcy; Frank H. Rudkin, Judge. In the matter of the bankruptcy of J. C. Kennedy and A. J. Kennedy, doing business as J. C. Kennedy & Son.

<p>Appeal from the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Suit in equity by the Rectigraph Company against the Cameragraph Company. Decree for defendant, and complainant appeals.</p>

<p>Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suits in equity by William B. Hanlon, the Anderson Electric Car Company, and others against the Rauch & Dang Carriage Company, and against the National Automobile Chamber of Commerce. Decrees for complainants, and defendants appeal.</p>

<p>Patents <@=o93 — Ownership—Agbeement to Assign.</p> <p>Defendant assigned patents to complainant, and entered its employment on a salary for the purpose of perfecting and improving the patented article; any invention or patent therefor made during the employment to be the property of complainant. His salary was not paid, but, having made patentable improvements on the device, complainant paid the arrears, and a new contract was made, by which the employment was continued on the same terms, except that defendant was to receive a royalty, instead of a salary, and was given the right to terminate the contract for any default of complainant, which he subsequently did by giving notice of rescission. Held, that by accepting the salary under the first contract he waived the prior default, and any invention made during its term belonged to complainant; that the notice of rescission was only effective from the time of complainant’s default under the second contract; and that any invention made prior thereto, or patent therefor, was the property of complainant, but that any made after that time belonged to defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 125; Dec. Dig. €=>93.1</p>

In Equity. Suit by the Stahlbrodt Company against the Ford Motor Company for infringement of reissue letters patent No. 13,574 (original No. 879,195), for a weather screen for motor and similar vehicles, granted to Henri Saul Samuel June 10, 1913. On final hearing.

<p>1. Patents <§=>328 — Validity and Infringement — Sulky Plow.</p> <p>The Wiard patent, No. 865,141, for a sulky plow, construed, and field infringed.</p> <p>2. Patents <§==>226 — Infringement.</p> <p>Infringement is not avoided because the infringing construction is not adapted to attain all the benefits of the patented device.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 357; Dec. Dig. ®=^226.]</p>

<p>Habeas Corpus. Petition by the United States of America, on relation of John D. Lynn, for a writ against Frederick W. Hamilton and others.</p> <p>Habeas corpus to inquire into the legality of the arrest and imprisonment of Wilford Kennedy .and Nelson Hare, charged with violation of the Conservation Law of the state of New York. Upon the hearing the relator appeared by George P. Decker, F,sq., and the respondents by A. F. Jenks, Deputy Attorney General. After hearing oral arguments, the court held the case to enable counsel to prepare and file with the court written briefs on the law questions involved. The Attorney General, having reached the conclusion that the prisoners. should be discharged, Jhas prepared the following memorandum to be filed with the other papers herein:</p> <p>General Statement.</p> <p>'Wilford Kennedy and Nelson Hare are Indians by blood and members of tbe Seneca Nation, residing on tbe Cattaraugus reservation, located in tbe counties of Erie and Cattaraugus in the state of New York. These Indians were arrested April 21, 1915, by Leon W. Paxon and Albert Stadelmeir, state game protectors, while fishing with a net in Cattaraugus creek and within the boundaries of the Cattaraugus reservation, and were charged with fishing with a net or seine without a license, and in violation of section 176 of the Conservation Law of the sljate of New York (Laws 1911, c. 647, as amended by Laws 1913, c. 508). While said Indians were being arraigned before Chief Justice William Brennan in the City Court of Buffalo, a writ of habeas corpus was sued out at the instance of the .United States government to test the legality of the arrest and imprisonment. The facts, as above outlined áre undisputed.</p> <p>[1] The precise question is whether the Conservation Law of the state of New York extends to Indians maintaining their tribal relations and residing upon an Indian reservation within the limits of the state. The status of Indian tribes and their relation to the federal and state governments have frequently been subjects of judicial investigation. It is necessary to examine somewhat in detail the early history of these tribes and the dealings of the general and state governments with them.</p> <p>At the time of the formation of the federal government several of the Indian tribes found herd were powerful and warlike, and it was found expedient to treat them as possessing some of the attributes of sovereignty, and to deal with them as nations by entering into treaties with them. Later treaties with the Indian tribes were superseded by federal legislation, by which the remnants of the tribes were subjected to the general government and located upon Indian reservations.</p> <p>• It has been the policy of the general government to guarantee to the Indian tribes cohtrol over their internal and social affairs, including juisdiction, in certain cases, to punish crimes when committed upon the reservations. This policy was manifested by Congress in the enactment of section 2146 of the Revised Statutes (Comp. St. 1913, § 4149); and for the purpose of their protection, and to allow them to pursue their accustomed life unmolested, Congress, under its constitutional power to regulate commerce with the Indian tribes, passed appropriate legislation forbidding general intercourse between them and the whites.</p> <p>I. The attitude of certain states.</p> <p>Several of the states, however, did not concede that the power granted to the federal government to make treaties and to regulate commerce with the Indian tribes deprived them of jurisdiction over them when residing upon reservations within their borders, and therefore sought by statute to extend their laws over them. Thus in State v. Tassels, Dud. 239, a Georgia case, it was held that Indians were not constitutional objects of the treaty-making power of the United States, but were wards of the state within whose boundaries they were domiciled. In State v. Ta-cha-na-tah, 64 N. C. 614, it was held that the criminal laws of North Carolina extended over the Indian tribes. A similar doctrine was laid down by the Supreme Court of Wisconsin. State v. Doxtater, 47 Wis. 278, 2 N. W. 439; State v. Harris, 47 Wis. 298, 2 N. W. 543. And in New York it was held by the County Court of Cattaraugus County that Indians residing upon reservations within the state were subject to the Forest, Fish and Game Law of the state. People v. Pierce, 18 Misc. Rep. 83, 41 N. Y. Supp. 858.</p> <p>II. The federal government has always claimed guardianship and control over the Indian tribes.</p> <p>It clearly appears from the federal decisions that the Indian tribes, while maintaining their tribal organizations and residing on reservations set apart for them by, or with the consent of, the general government, have always been regarded as wards of the nation, and not subject to state laws, even when their reservations are located within the borders of a state.</p> <p>One of the first cases in which the status of Indian tribes was considered by the Supreme Court of the United States is Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 L. Ed. 25. This was a case where the Cherokee Nation moved for an injunction to prevent the enforcement of certain acts of the Legislature of the state of Georgia in the territory of the Cherokee Nation. This tribe claimed the right to proceed in the Supreme Court of the United States as a foreign state against the state of Georgia. The injunction was denied. The court said: “The condition of the Indians in relation to the United States is, perhaps, unlike that of any two other people in existence. * * * Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles thal of a ward to his guardian. They look to our government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their great father.”</p> <p>And so in the ease of Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483, where the plaintiff had been convicted of the offense of residing in the Cherokee Nation without a license, contrary to a statute of the state of Georgia. The United States Supreme Court set aside the conviction. Chief Justice Marshall in a most able and exhaustive opinion said: “The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force. * * * The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.”</p> <p>Later the states of New York and Kansas passed statutes taxing the lands of Indians within their borders, which statutes were upheld by the courts of those respective states. These decisions were both reversed by the United States Supreme Court. In the case of The Kansas Indians, 5 Wall. 755, 18 L. Ed. 0f»7, the court said: “If the tribal organization of the Shawnees is preserved intact, and recognized by the political department of the government as existing, then they are a ‘people distinct from others,’ capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union. If under the control of Congress, from necessity there can be no divided authority. If they have outlived many things, they have not outlived the protection afforded by the Constitution, treaties, and laws of Congress. It may be that they cannot exist much longer as a distinct people in the presence of tho civilization of Kansas, *but until they are clothed with the rights and bound to all the duties of citizens’ they enjoy the privilege of total immunity from state taxation.”</p> <p>The case of The New York Indians, 5 Wall. 701, 18 L. Ed. 708, was decided at the same time.</p> <p>III. The power of Congress to govern Indian tribes by legislation, and thereby to abrogate or supersede Indian treaties has been upheld by the Supreme Court.</p> <p>[2] This power was first exercised in 1871. By an act of Congress of March 3d of that year section 2079 was added to the Revised Statutes (Comp. St. 1913, § 4034), as follows: “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.” Since 1871 Congress has governed the Indian tribes by direct legislation.</p> <p>For many years Indian tribes residing on reservations were permitted to have jurisdiction over their internal and social affairs, and were not in this respect interfered with by the federal government. The policy of the government in this respect has been uniform. Later, however, it appeared to Congress that the policy of allowing the tribes to deal with their criminals according to their local customs' was not conducive to the best interest of the tribes themselves or the white population surrounding them. Crimes of a more serious nature, committed by one tribal Indian against another, were not dealt with so as to meet the seriousness of the situation.</p> <p>The necessity for some action on the part of the federal government was forcibly brought to its attention in the case of Ex parte Crow Dog, 109 U. S. 556, 3 Sup. Ct. 396, 27 L. Ed. 1030. In that case the petitioner, a member of the Sioux Nation of Indians, was convicted in the District Court of Dakota for the murder of a member of the same tribe. On appeal to the Supreme Court of the United States the conviction was set aside, for the reason that under section 2146 of the Revised Statutes one Indian committing a crime against another Indian could not be punished in the ^courts of the United States.</p> <p>This case gave rise to. the passage of section 9 of the Act of Congress of March 3, 1885, now known as section 328 of the United States Criminal Code (Act March 4,1909, c. 321,35 Stat. 1151 [Comp. St. 1913, § 10502]). That act provides: “All IndiaAis committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to. kill, arson, burglary and larceny, within any territory of the Unitgd States, and either within pr without an Indian Reservation, shall be subject therefor to the laws of said Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person toithm the boundaries of any state of the United States, and within the limits of an Indian Reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.” This enactment specifically vested the federal courts with exclusive jurisdiction of the crimes therein mentioned, even when committed upon reservations wholly within the states.</p> <p>The constitutionality of this act was immediately tested in the United States Supreme Court in the case of United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228. The question arose upon a demurrer to an indictment against two Indians for the murder of another Indian on the Hoopa Valley reservation in the state of California. The defendant in error contended that the act was unconstitutional as being an invasion of state .rights. The court held the act to be constitutional. In this case the status of tribal Indians in their relation to the federal and state governments is completely developed and defined in plain and unmistakable language.</p> <p>In the learned opinion delivered by Mr. Justice Miller, upholding the constitutionality of the statute, he says: “It seems to us that this [meaning the act of 1885, above referred to], is within the competency of Congress. These Indian tribes are the wards of the Ration. They are communities dependent on the United States; dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the ‘states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their yery weakness and helplessness, so largely due to the course of dealing of the federal government * * * and the treaties in which it has been promised, there arises the duty of protection,-and with it the power. This kj^s always been recognized by .the executive, and by Congress, and by this court, whenever the question has arisen.” In concluding his opinion he says: “The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its existence is within the geographical limits of the United States, and because it has never been denied, and because it alone can enforce Its laws on all the tribes.”</p> <p>The opinion also makes it clear that the decision is not placed upon the ground of the constitutional grant of power to regulate commerce with the Indian tribes, but upon the broad ground that the federal government., because of its peculiar relationship to the Indian tribes, is bound to assume exclusive control over them. This case has been repeatedly cited with approval by the United States Supreme Court in recent decisions, and the policy of the federal government therein laid down has been strictly followed.</p> <p>In the case of Cusick v. Daly, 212 N. Y. 183, 105 N. E. 1018, the Court of Appeals followed the Kagama Case. It was contended in that case that there was a distinction between Indian tribes whose reservations are the direct gift o£ the federal government and those whose reservations are derived from a state or from other sources. Judge Werner, writing for the court In this connection, said : “Wo find no such distinction in the statute, and we can think of none that logically differentiates one from the other.”</p> <p>IV. The principle that a state may act in the absence of affirmative legislation on the part of Congress is not applicable to the government of tribal. Indians.</p> <p>[3, 4] it might be claimed that a state may exert its authority over tribal Indians, except as to those major crimes specifically mentioned in section 32S of the United States Criminal Code, on the theory that, there being no express inhibition against the state. Congress by inaction has tacitly authorized it so to act. This is a doctrine well recognized and often applied to cases which involve questions of interstate commerce, and even to other matters. It is predicated upon the theory that where the states have original jurisdiction over a subject, but, by adopting the federal Constitution, granted to the federal government power to deni with that subject, the jurisdiction of Congress is not exclusive until Congress has, by appropriate legislation, exercised its power.</p> <p>This doctrine was applied in the case of Manchester v. Massachusetts, 139 IT. £3. 240, 11 Sup. Ct. 559, 35 L. Ed. 159, where the Supreme Court upheld the right of the state, in the absence of federal legislation upon the subject, to control the menhaden fisheries in Buzzards Bay, a place concededly within the admiralty and maritime jurisdiction of the United States. It has never been applied to matters which, from necessity, rest exclusively with the federal government — for example, the power to coin money, establish post offices, declare war, etc. The application of this principle to the government of Indian tribes has never found support in the decisions of the courts, but the doctrine was alluded to in the opinion of Judge Werner In the Daly Case, supra. No support for such a contention can be found in the opiuion of Mr. Justice Miller in the ICagama Case. If the Indian tribes are wards of the federal government and owe no allegiance to any state, and if the power over the Indian tribes rests with the federal government because it exists nowhere else, and if from necessity there can be no divided authority, then the jurisdiction of Congress must be exclusive.</p> <p>Y. Federal and state authorities hold that state laws do not apply to Indians living in their tribal relations.</p> <p>In the case of In re Blackbird (D. C.) 109 Fed. 139, where an attempt was made to punish a tribal Indian for a violation of the game laws of the state of Wisconsin, Judge Bunn, of the United States District Court, after fully reviewing the Kagama Case, said: “This case should and does settle the question by the highest authority that, Congress having taken jurisdiction of crimes committed by Indians within the limits of an Indian reservation, that jurisdiction is exclusive, and that the state laws do not extend to these cases."</p> <p>The doctrine is well enunciated in the case of State v. Campbell, 53 Minn. 354, 55 N. W. 553, 21 L. R. A. 169, where an attempt was made to punish a tribal Indian for committing adultery. Judge Mitchell, speaking for the court, said: “It would never do to have both the United States and the state legislating on the same subject. By the act of 1885, presumably, Congress has enumerated all the acts which in their judgment ought to be made crimes when committed by Indians, in view of their imperfect civilization. For the state to be allowed to supplement this by making every act a crime on their part which would be such if committed ,hy a member of our more highly civilized society would be not only inappropriate, but also practically to arrogate the guardianship over these Indians which is exclusively vested in the general government</p> <p>_ In the case of Peters v. Malin (O. C.) Ill Fed. 244, was involved the question whether the plaintiff, a tribal Indian, had violated a statute of the state of Iowa. It was there held that “so long as these Indians retain their tribal relation and continue to be wards of the national government, the control and management of them with respect to their tribal affairs is in the federal government, irrespective of the question of the title of the lands upon which for the time being they may be located.” In this opinion Judge Shiras advances a most cogent reason for upholding the exclusive jurisdiction of the federal government when he says: “It is apparent that, if the various provisions of' the laws of Iowa are to be held applicable to these Indians and; their property, then their tribal condition will be speedily broken up, not in pursuance of the acts of the national government, but through the enforcement of the laws of the state. * * * ” And further on in his opinion he adds: “Although these Indians reside within the territorial limits of the state of Iowa, they are, so far as their ordinary life is concerned,- without the plane of the' legislative jurisdiction of the state.” . .</p> <p>VI. Power to terminate federal guardianship of tribal Indians and to break up the tribal organization is exclusively in the federal government.</p> <p>From the more recent enactments of Congress, relative to Indian allotments, it is apparent that a new policy looking towards the breaking up of the tribal relations, freeing them from the national guardianship, and charging them with the duties and obligations of citizens is being inaugurated. Congress has this power, and may abandon its guardianship- at any time. The states, however, have no power to disintegrate tribal relations by extending state laws over tribal Indians. As was said in the case of Matter of Heff, 197 TJ. S. 499, 25 Sup. Ct. 508, 49 L. Ed. 848: “It is for Congress to determine when and how the relationship of guardianship shall be abandoned. It is not within the power of the courts to overrule the judgment of Congress.”</p> <p>VII. Conservation laws do not extend over the Indians residing in tribal relations upon reservations within the borders of New York state.</p> <p>Accepting as' the law of the land the principles laid down by the courts of the United States as to the status of the tribal Indians within its borders, there seems to be no escape from the conclusion that the Conservation Law of the state of New York does not apply to tribal Indians residing on their reservations within the territorial limits of the state.</p>

In Bankruptcy. In the matter of the bankruptcy of the Federal Mail & Express Company. A motion is made for the appointment of a receiver. On June 18, 1916, a general assignment for the benefit of creditors was made to Louis ¡Stern, who was in the business of hay, feed, and grain, followed shortly by an involuntary petition in bankruptcy filed on the 15th day of June, 1916.

At Law. Action by J. B. Wilson, trustee of Tedder & Oliver, bankrupts, against the Citizens’ Trust Company. On motion to dismiss.

In Bankruptcy. In the matter of the bankruptcy of Louis Neuburger, Incorporated. Proceeding to review an order of the referee, directing the general assignee of the bankrupt to account to the District Court.

At Law. Action by the Forty Fort Coal Company against Frederick C. Kirkendall, as Collector of Internal Revenue. Sur rule to show cause why judgment for plaintiff should not be opened.

<p>1. Seamen @=>34 — Deserting Seamen — Statutes—Imprisonment.</p> <p>Rev. St. §§ 4598, 4599, providing for the apprehension of deserting seamen and their delivery to the master of the vessel from which they deserted, or their arrest, were repealed by Act Dec. 21, 1898, c. 28, § 25, 30 Stat. 764. Section 4612 (Comp. St. 1913; § 8392) indicated that those provisions were intended to apply only to seamen on vessels owned by citizens of the United States, and section 5280 (Comp. St. 1913, § 10129), providing for the arrest and imprisonment of seamen deserting from foreign vessels, was repealed by Seamen Act March 4, 1915, c. 153, § 17, 38 Stat. 1185, except where the subject was controlled by treaty or convention with foreign governments. Beld, that the repeal of such acts indicated an intention on the part of Congress that, in the absence of treaty or convention, seamen deserting from foreign vessels should not be arrested or imprisoned, and therefore seamen deserting from a foreign vessel cannot, under Code Va. 1904, §§ 2004, 2005, be arrested, imprisoned, and delivered to the master of the vessel.</p> <p>[Ed. Note. — Eor other cases, see Seamen, Cent. Dig. §§ 220-231; Dec. Dig. @=>34.]</p> <p>2. Habeas Corpus @=45(3) — Jurisdiction—Federal and State Courts.</p> <p>Federal courts have jurisdiction to issue a writ of habeas corpus to discharge from custody one held by state authority under criminal proceedings based on laws void for repugnance to the Constitution, laws, or treaties of the United States. .</p> <p>[Ed. Note. — For other cases, see Habeas Corpus. Cent. Dig. §§ 38-44; Dec. Dig. @=45(3).]</p> <p>3. Seamen @=34 — Statutes—Construction.</p> <p>Code Va. 1904, §§ 2004, 2005, providing for the arrest of deserting seamen, their imprisonment, and delivery to the master of the vessel, was not intended to apply to foreign vessels, but only to vessels owned by citizens of the United States, supplementing Rev. St. §§ 4598, 4599, providing for the arrest of such seamen on warrants issued by state magistrates, so as to confer authority upon such magistrates.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 220-231; Dec. Dig. @=34.]</p>

<p>At Law. Application by F. W. Tillinghast and others for writ of habeas corpus against J. J. Richards, United States Marshal, and others.</p>

<p>Criminal Law @=>242(1) — Removal from District of Residence — Warrant.</p> <p>Where defendants were indicted in the District Court for the Southern District of New York, a warrant for their removal will he granted by the District Court for Rhode Island, in which state defendants resided, notwithstanding the pendency of an indictment in that court against them for similar offenses; defendants making no claim for speedy trial in the District Court for Rhode Island, and there being no showing that the-granting of the warrant of removal would result in unreasonable delay.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 509, 510; Dec. Dig. <S=>242(1).]</p>

<p>In Equity. Bill by Ellsworth E. Cook against Jared Flagg. On motion by complainant to take deposition under the state practice.</p>

<p>1. Aliens @=>68 — Naturalization-.....Declaration of Intention — Amendment.</p> <p>Though the declaration of intention of one seeking naturalization is not filed with the clerk of the District Court as clerk, nevertheless the declaration, where it erroneously stated the applicant’s nationality, way be amended on application to the court.</p> <p>[Ed. Note. — Por other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. @=>68.]</p> <p>2. Courts @=590(1) — Decisions—-Precedents.</p> <p>In the absence of a ruling by an appellate court, a former ruling of a federal District Court will thereafter be followed by the courts of that district.</p> <p>[Ed. Note. — Pori other cases, see Courts, Cent. Dig. §§ 313-315; Dec. Dig. @=>90(1).]</p>

<p>Carriers <3=3196 — Carriage of Goods — Freight Charges — Defenses.</p> <p>In an action by an interstate carrier for freight charges, the shipper cannot set off a claim for injuries to the goods, for the freight can be paid only in cash, and such set-offs would open the door to fraud and discrimination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 879-887; Dec. Dig. <3=196.]</p>

<p>1. Conspiracy ©=43(5) — Indictment—Sufficiency—Overt Acts.</p> <p>An indictment charging a conspiracy to defraud the United States of taxes on artificially colored oleomargarine, which alleged that the conspiracy included as a part of it intended removal of the oleomargarine from the place of manufacture, and averred a removal, contains a sufficient averment of overt acts; it being unnecessary to allege that the conspiracy was actually completed, or the government defrauded.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. § 89; Dec. Dig. ©=43(5).]</p> <p>2. Conspiracy ©=27 — Offenses—Overt Acts.</p> <p>Only one overt act is essential to a conviction of a conspiracy to defraud the United States of taxes on artificially colored oleomargarine.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 38, 39; Dec. Dig. ©=27.]</p> <p>8. Conspiracy ©=43(5) — Indictment—Sufficiency—Surptaisage.</p> <p>As only one overt act is sufficient to support a conviction for conspiracy to defraud revenue laws with relation to sale of colored oleomargarine, an indictment alleging several overt acts is not demurrable, because open to the objection that some of the allegations were surplusage.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Gent. Dig. § 89; Dec. Dig. ©=43(5).]</p>

James S. Orr and Clarence H. Orr were indicted for violating the Oleomargarine Act, and for defrauding the United States of taxes on artificially colored oleomargarine. On demurrers to indictment.

<p>1. Partition ©=>109(1) — Parties—Sale—Title of Purchaser.</p> <p>Whore contingent remaindermen were not made parties to a partition suit, though the life tenants were, a sale of the land for partition disposes only of the life estates, and does not carry the fee.</p> <p>[Ed. Note. — For other eases, see Partition, Cent. Dig. §§ 375, 376, 387; Dec. Dig. ©=>109(1).]</p> <p>2. Remainders ©=>16 — Sale of Land Subject to Remaindermen — Authority of Court.</p> <p>A sale of land by order of court in a suit to which the remaindermen in being were parties is binding on all contingent remaindermen.</p> <p>[Ed. Note. — For otlfer cases, see Remainders, Cent. Dig. § 11; Dec. Dig. ©=>16.]</p> <p>3. Remainders ©=>16 — Sales—Unauthorized Sale — Ratification.</p> <p>A testator devised interests in lands to his children, devising a life estate to his daughters, with remainder to their issue, and remainders over in default of issue. In a suit to which the daughters were parties, though the remaindermen in being were not, the lands were ordered sold for partition. After the sale, the executor, who bought in the lands and resold them ata profit;, brought a suit against the children, life tenants and contingent remaindermen, setting forth tho existence of the fund, his desire to distribute It among the heirs, and praying a construction of the will. Held, that as the fund had taken the place of the land, and as tho remaindermen in being were made parties, and the court might bind contingent remaindermen by its decree, it could in such proceeding ratify the original sale and vest the title in fee in the executor, though his original purchase gave him only a life estate.</p> <p>[Ed. Note. — For other cases, see Remainders, Cent. Dig. § 11; Dec. Dig. ©=>16.]</p> <p>4. Evidence ©=>82 — -Presumptions—Judicial Proceedings.</p> <p>In such case, where the law required that the proceedings be heard in open court, it will be presumed, notwithstanding a consent that the decree should be made at chambers, that it was made in open court.</p> <p>[I5d. Note. — For other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. ©=>82.]</p> <p>5. Estoppel ©=>37 — After-Acquired Title.</p> <p>Though the purchaser from the executor was not made 'a party, the executor’s title, having been perfected, inured to the benefit of tho purchaser ; no relief against him being sought. ■</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 91-98; Dec. Dig. ©=>87.]</p> <p>6. Attorney and Client ©=>101(1) — Authority of Attorney — Consent Judgments.</p> <p>Consent of counsel to orders and judgments made in the progress of a cause and intended to promote tho interest of his client is binding on the client; a compromise settlement made in good faith by counsel, though the client is an infant, when sanctioned l>y the court and embodied in a decree, being binding.</p> <p>[Ed. Note.- — For other cases, see Attorney and Client, Cent. Dig. §§ 209-213, 216; Dec. Dig. ©=>101(1).]</p> <p>7. Attorney and Client <@=101 (1) — Authority op. Attorney — Release op Claim.</p> <p>An attorney cannot release Ms client’s claim, except upon full payment. ,</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 209-213, 216; Dec. Dig. <@=101 (1).]</p> <p>8. Attorney and Client <@=101(1) — Authority op Attorney — Disclaimer.</p> <p>An attorney ñas no general power to execute a retraxit or disclaimer, or otherwise bind bis client by the surrender of Ms rights.</p> <p>[Ed. Note. — For other eases, see Attorney and Client, Cent. Dig. §§ 209-213,216; Dec. Dig. <@=*101(1).]</p> <p>9. Attorney and Client <@=85 — Authority op Attorney — Infants.</p> <p>An attorney who is representing interests antagonistic to infant clients cannot give binding consent to a decree against the infants, and a decree based on such consent is invalid.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 137; Dec. Dig. <@=*85.]</p> <p>10. Infants <@=107 — Consent Decree — Validity.</p> <p>Where, in a proceeding to which infants were parties, the court, after reference to a master, rendered a decree, it will be upheld, and is binding on the infants, though there was a stipulation that such decree might be entered by consent at chambers, for the decree was based on the action of the court, and not the consent, which was not binding on the infants, being signed by their attorney, who was representing interests antagonistic to them.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 308; Dec. 'Dig. <@=107.]</p>

<p>1. Attorney and Client <§=>101(1) — Authority of Attorney — Disclaimer.</p> <p>Without special authority, an attorney cannot enter a disclaimer for his client.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 209-213, 216; Dee. Dig. <§=>101(1).]</p> <p>2. Judgment <§=>461(1) — Suits to Vacate — Burden of Proof.</p> <p>On a bill to vacate a judgment in ejectment, based on a disclaimer filed by an attorney purporting to act’for complainant, the defendant in ejectment, complainant has the burden of proof.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § S92; Dec. Dig. <§=461(1).]</p> <p>3. Judgment <§=.461(3) — Setting Aside — Authority of Client — Evidence—• Sufficiency.</p> <p>In a suit to set aside a judgment in ejectment, based on a disclaimer filed by an attorney purporting to represent complainant, the defendant in ejectment, evidence held insufficient to show that complainant au-thorized the attorney to file the disclaimer, or ratified the filing.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 895; Dec. Dig. <§=461(3).]</p> <p>4. Estoppel <§=68(2) — Authority of Attorney — Disclaimer.</p> <p>Where an instrument filed by an attorney purporting to represent complainant, .the defendant in ejectment, was in the ejectment action treated as a disclaimer, it will be so treated in a Suit to set aside the judgment in ejectment, and the attorney’s authority cannot be upheld on the ground that the instrument was a mere statement of facts.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 166, 169; Dec. Dig. <§=68(2).]</p> <p>5. Ejectment <§=25(2) — Judgment—Right To.</p> <p>A plaintiff in ejectment is not entitled to judgment in his favor because defendant’s title has been forfeited to the state.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. § 100; Dec. Dig. <§=25(2).]</p> <p>6. Courts <§=509 — Federal Court — Jurisdiction—Vacating State Court Judgment.</p> <p>Where, in ejectment against complainant, then defendant, who was not a citizen of the state in which the land was located and action was had, judgment was rendered against him on a disclaimer filed without authority, complainant may sue in the federal court to vacate the judgment in ejectment, without making any motion for that relief in the state court; a bill in equity being the. appropriate remedy to vacate a judgment for matters dehors the record, as the want of authority to‘file the disclaimer, and the state court never having had jurisdiction to enter the judgment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1364^-1371; Dec. Dig. <§=509.]</p>

Middleton Smith, Judge. Suit between Francis St. Clair Glover and others and Eunice Glover and others. From a decree for the latter, the former appeal.

Petition to Revise in Matter of Raw the Proceedings of the District Court of the United States for Porto Rico; Hamilton, Judge. In the matter of the bankruptcy of Felipe Ramírez-Quiñones. Ermelindo Vidal, having been denied priority by the District Court of the United States for Porto Rico, petitions to revise the proceedings in matter of law.

' In the matter of the bankruptcy of Sola é Hijo, S. en C. From an order of the District Court, affirming an order of the referee denying the motion of Gandía & Stubbe, opposed by Segundo Cadierno, trustee, to obtain priority, petitioners appeal.

<p>1. Wills <@=>441, 457 — Construction—Intent or Testator.</p> <p>In construing a will, the court will not only consider the context, but may consider the' facts and circumstances existing at the time of the will, and, to give effect to the testator’s intent, adopt a nontechnical meaning of words used.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 95S, 975; Dec. Dig. <@=>441, 457.]</p> <p>2. Wills <@=>566 — Construction—Property Devised — “Money in Bank.”</p> <p>A testator devised real estate appraised at a specified value to a nephew, bequeathed to his wife all his shares of capital stock of a bank, amounting to 20 shares, made small cash bequests, gave to a brother the residue “of my money in bank” remaining after payment of debts, expenses of administration, and legacies, and gave his residuary estate to his wife. Testator was, at the time of the making of the will, past 60 years of age and childless, and had retired from business. Testator and his wife had talked over the matter of the disposition of his estate, and had agreed'thereon when he sent ijor a lawyer, who drew the will according to instructions. Held, that the term “money in bank,” in the will, in-eluded, not only a checking account, but also time and savings deposits of testator.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1238%, 1239; Dee. Dig. <gs^566.</p> <p>For other definitions, see Words and Phrases, Second Series, Money on Deposit in Bank.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty, for collision by the Moran Towing & Transportation Company, owner of the barge Moran No. 44, against the steam tug John J. Timmins; Edward M. Timmins, claimant. Decree for libelant, and claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suits in admiralty for collision by the North & East River Terminal Company, owner, and by William Gaffney, charterer, of the steam lighter Varina, against the steam tug Bridgeton; the Central Railroad Company of New Jersey, claimant. Decree for libelants, and claimant appeals.</p>

<p>Application of the John J. Gibson Company for a writ of mandamus to the Judge of the District Court of the United States for the Western District of New York.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Westinghouse Electric & Manufacturing Company against the Wagner Electric. Manufacturing Company. From a final decree, both parties appeal.</p>

In Equity. Bill by Roxa S. Johnson against William S. Johnson, in which J. T. Garner, as administrator with the will annexed of the estate of William S. Johnson, was substituted as defendant, the defendant dying pending trial, and in which the Tonopah Banking Corporation and another intervened.

<p>Railroads @^84 — Contracts—Deposit to Secure Performance — Forfeitures — Waiver.</p> <p>Tke city of New York held without right to insist on a forfeiture oi 330,000 worth of bonds deposited with the city comptroller by a traction company to secure performance of a contract by which it was to build a railroad in the borough of Queens within a specified time, because of non-action by officers of the city, by which the work was delayed, and also because of the execution of a substituted contract, after the time had expired, by which the original contract was annulled; and the receivers for the traction company held entitled to recover the interest accrued on the bonds.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 222; Dec. Dig. <©=»84.]</p>

In Equity. Suit by Henry M. Jackson against the Parkersburg & Ohio Valley Electric Railway Company. Upon motion by the Farmers’ & Producers’ Bank for an injunction against continuance of a suit by the Central District & Printing Telegraph Company in the state court.

<p>_ Franz Rintelen and others were indicted for a conspiracy in violation of the Sherman Act. On motion to quash by defendants Mon-nett and Taylor.</p>

<p>On hearing after reference for the hearing of further evidence.</p>

<p>1. Receivers @=>158 — Waiver of Objections — Power of Court to Determine Validity — Railroads.</p> <p>Although a railroad company, by failing to take the steps prescribed by statute, has lost the right to question the validity of tax levies against its property, where its affairs are being administered by a federal court of equity through a receiver, that court 'has power to determine the validity of the claim for taxes, and if it appears that they were so erroneous in the methods of assessment, imposition, or computation as to be fraudulent to direct that only the proper amount shall be paid from the estate.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 276, 277; Dec. Dig. @=>153.]</p> <p>2. Receivers @=153 — Railroads—Insolvency and Receivers.</p> <p>Taxes levied upon the property and franchise of a railroad company whose estate was being administered in equity held so excessive, as compared with those levied on similar property of other companies, that their allowance in full would operate as a fraud on other creditors, and to require the court to reduce the same to a just amount.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 276, 277; Dec. Dig. @=153.]</p>

<p>Public Bands ©=>106(3) — Suit to Enjoin Trespasses — Defenses.</p> <p>To a bill seeking to enjoin trespasses on lands in a national forest reserve, an answer setting up that, before the land was set aside as a forest reserve, defendant made an actual and bona fide homestead entry on the land, but that the General Land Office and the Secretary of the Interior arbitrarily and illegally and upon false testimony rejected the application, on the ground that the land had been set aside as a forest reserve, is no defense, for the officers of the land department discharge quasi -judicial functions, whose holdings on questions of fact with relation to the public land cannot be reviewed by the courts, though their determinations as to questions of law may be, and this being particularly true where the defendant, who asserted his homestead entry, made no application for any rehearing in the land department.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 104, 301; Dec. Dig. ©=>106(3).]</p>

<p>In Bankruptcy. In the matter of the. bankruptcy of John C. Brincat. On application for discharge.</p>

In Bankruptcy. In the matter of the bankruptcy of Henry E. Skaats. On application for discharge.

<p>1. Pleading ©=350(3) — Motions—Affidavit of Defense — Exceptions to— Rule fob Judgment,</p> <p>On exceptions to affidavits of defense and rule for judgment, the court is confined to the pleadings, consisting of the statement of claim and the affidavits of defense filed.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1075, 1077; Dec. Dig. ©=350(3).]</p> <p>2. Judgment ©=822(1) — Full Faith and Cbedit Clause — Effect of.</p> <p>Const. U. S. art. 4, § 1, declares that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, while Act May 26, 1790, e. 11, 1 Stat. 122 (Comp. St. 1913, § 1519), declares that the records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given them in every court within the United States as they have by law or usages in the courts of tho state from whence the records are taken. Held that, save for the question of jurisdiction, which may be raised, a judgment of a foreign court is as conclusive in the court of another state as though it were a domestic judgment, and no question regarding the conduct of the trial can be raised.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1454, 1488, 1489, 1496, 1497; Dec. Dig. ©=822(1).]</p> <p>3. Judgment ©=929 — -Final Judgment — What Constitutes.</p> <p>Where the exemplification of the record showed that in an Arkansas action defendants’ attorneys, who had filed an appearance, failed to appear for trial, and plaintiff waived a jury trial, in accordance with Kirby's Dig. Ark. § 6212, findings and conclusions by the court, ordering that plaintiff should recover a fixed sum of money from defendants, constitute a final judgment, authorizing action thereon in another state.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1758; Dec. Dig. ©=929.]</p> <p>4. Attachment <3=276 — Dissolution—Effect. ,</p> <p>Where an action against nonresidents was begun by attachment, and their counsel filed an appearance, so that judgment in personam might be rendered, the nature of the case was changed from one in rem to one in personam, and dismissal of the attachment did not operate as a discontinuance.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 973-978; Dec. Dig. <@=276.]</p> <p>5. Appearance <3=15 — Authority of Counsel — Effect.</p> <p>Where counsel without authority entered appearance for nonresident defendants, the defendants are not in court, and the court is without jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 68, 69; Dec. Dig. <3=15.]</p> <p>6. Judgment <3=939 — Actions on — Affidavit of Defense.</p> <p>In an action on a foreign judgment against nonresidents, based on defendants’ appearance by .counsel, 'the attachment having been dismissed, ■ an affidavit of defense that counsel appearing of record as attorneys for defendants were not authorized to appear generally, but only specially in • the attachment proceeding, is sufficient to raise the defense that, the judgment was bad for want of jurisdiction over defendants.</p> <p>[Ed. Note. — For other 'cases, see Judgment, Cent. Dig. §§ 1775-1778; Dec. Dig. <3=939.]</p>

In Equity. Suit by Joseph Skaggs and others against the Kansas City Terminal Railway Company, the Shaw Transfer Company, and others. On defendants’ motion to dissolve injunction, and for temporary injunction on cross-bill.

<p>1. Libel and Slander <S=>7(2)- — Libelous Charges — Offenses.</p> <p>Laws Wash. 1911, c. 117, § 21, prohibits discrimination by common carriers, either in favor of persons or localities, while section 94 makes a violation of the act an offense. Defendant published in a newspaper a statement that he believed the county to be fully 10 years behind what it should be because of unjust discrimination in the freight and passenger rates charged by the plaintiff navigation company. Held), that the statement was not libelous, as charging the navigation company with an offense under the laws, but should be treated merely as a severe criticism of the company’s methods.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 18, 35; Dec. Dig. <&=>7(2)J</p> <p>2. Libel and Slander <@=>9(1) — “Libel”—What Constitutes.</p> <p>Rem. & Bal. Code Wash. § 2424, declares that published words are actionable if they directly tend to prejudice or injure a person or corpora-lion in Ms or its business. Defendant published, concerning plaintiff navigation company, that it had driven competitors from the field, had robbed the people of the locality for years, but now protested when they sought to dictate rates. Reid that, as words not actionable may become so if they contain a covert and hidden meaning, such publication was libelous as tending to injure the navigation company in its business; the innuendo showing the charge of robbery meant, not a technical robbery, • but the imposition of rates which wore so exorbitant that they deprived, patrons of the navigation company of their money without just return.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Oent. Dig. §§ 80, 00; Dec. Dig. «=>9(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Libel.]</p> <p>8. Libel and Slander «=89(1) — Actions—Libel of Corporation.</p> <p>A corporation may sue for libel, reflecting on the management of its trade or business, without alleging- or proving special damages; but, if the publication is not one tending to injure its business, special damages should be alleged and proved.</p> <p>[Ed. Noto. — For other cases, see Libel and Slander, Oent. Dig. § 213; Dee. Dig. «=>89(1).]</p> <p>4. Libel and Slander «=9(1) — Competition—Statements.</p> <p>While competition is right and proper, yet, in the exercise of the right of competition, libels must not be published.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 80, 90; Dee. Dig. «=>9(1).]</p>

<p>1. Bankruptcy <§=>350 — Lien—Landlord’s Lien.</p> <p>Under Landlord and Tenant Act N. J. (3 Comp. St. 1910, p. 3066) § 4, declaring that no chattels lying upon the leased premises shall be liable to be taken by any process unless before removal the accrued rent shall be paid, and giving the landlord the right to distrain the goods oí the tenant on the demised premises for rent, and Bankr. Act July 1, 1898, c, 541, § 64b, subd. 5, 30 Stat. 563 (Comp. St. 1913, § 9648), allowing priority to debts due and pwing to any person who by the laws of the states ór the United States is, entitled po priority, a New Jersey landlord, though he had not perfected his lien by distraint of the goods on the demised premises, retains a priority after bankruptcy which can be asserted subject to the payment of the costs of the proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. <§=>350.]</p> <p>2. Bankruptcy <@=>350 — Proceedings—Ancillary Proceedings — Costs.</p> <p>In bankruptcy instituted in New York, which was the domicile of the bankrupt, ancillary proceedings were had in New Jersey, where goods of the bankrupt were located on demised premises. These, not having been distrained by the New Jersey landlord, were sold; but, after payment of the costs of the ancillary proceedings, the amount remaining was insufficient to satisfy the claim of the New Jersey landlord, who had priority. Held that, as there was only one bankruptcy proceeding, the general assets were liable for all the costs of the principal and ancillary proceedings, the New Jersey assets being subject only to the payment of cost in an amount proportional to the value which those assets might bear to the general assets; hence, though for convenience the whole cost of the New Jersey administration was deducted from the assets taken from the demised premises, the landlord, who had not perfected a lien on the goods on the demised premises, may, where a greater percentage of the costs was satisfied out of the New Jersey assets than they were liable for, assert his priority against the general assets.</p> <p>[Ed. Note. — For1 other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. <@=>350.]</p>

<p>In Equity. Suit by the National City Bank of Seattle against A. R. Titlow, receiver of the United States National Bank of Centraba.</p>

In Bankruptcy. In the matter of the bankruptcy of Earley Johnson. Erom an order of the referee, authorizing a creditor to proceed with his action in the state court, the bankrupt appeals.

<p>1. Bankruptcy <3^>345 — Liens—Distraint by Landlord eob Rent — -Lien Obtained.</p> <p>Whore, a tier levy on the bankrupt’s goods, which were in rented premises, and before the filing of the petition in bankruptcy, the landlord distrained the same goods for rent, the landlord, while he did not acquire a lien, was, under Act Pa. June 16, 1836 (P. L. 777) § 83, entitled to priority as to his claim for rent, over the general creditors, and such priority prevails in the subsequent bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 531, 532, 534, 539, 510; Dec. Dig-. ¡3^345.]</p> <p>2. Bankruptcy <3=^353 — Marshaling Assets and Securities — Funds—-Distribution.</p> <p>Where, on bankruptcy, wage-earners had priority as to all assets realized, while the landlord had priority only as to the proceeds from sale of goods on the demised premises, and the two claims exceeded the whole of the assets, claims of the wage-earners should first be satisfied out of those assets as to which the landlord had no lien, and should not in the first instance be prorated between the several funds, so that, after satisfaction of their claims, a surplus with respect to book accounts would be left subject to the claims of general creditors, while the landlord’s priority would he largely defeated.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 541-544; Dec. Dig. <3=»353.]</p>

<p>At Law. In the matter of the petition of Thomas L. Thurston for writ of habeas corpus.</p>

<p>1. Master and Servant @=118(1) — Injuries to Servant — Safe Place of Work.</p> <p>Where miners were required to use ladders going through tunnels to the levels on which they worked, it is the duty of the mine operator to use reasonable care in furnishing and keeping the ladders in a safe condition, so that the miners might reach their place of work.</p> <p>[Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. § 209; Dec. Dig. @=118(1).]</p> <p>2. Master and Servant @=127 — Injuries to Servant — Duties op Servant.</p> <p>A miner, whose duties consisted of drilling, is not required to repair ladders necessary to enable him to reach the level on which he worked.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 252; Dec. Dig. @=127.]</p> <p>3. Master and Servant @=289(16) — Injuries to Servant — Jury Question.</p> <p>'Whether a miner, injured while walking on the lagging in a manway leading from one level to the olher, was guilty of choosing the most dangerous way merely for bis own convenience, instead of using other ways, held under the evidence for the jury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1107; Dec. Dig. @=289(16).]</p> <p>4. Trial @=139(1), 140(1) — Province op Court and Jury — Credibility op Witnesses.</p> <p>The credibility of witnesses and the weight of their testimony is for the jury. ■</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 332, 333, 334, 338-341; Dee. Dig. @=139(1), 140(1).]</p> <p>5. Master and Servant @=221(4) — Injuries to Servant — Assumption op Risk.</p> <p>Ladders in a marnvay in a mine leading from one level to another were broken, and plain! iff, a miner, was injured while making his way from one level to another by walking on lagging or planks in the manway. Ho had pointed out the defect to his boss, and had been assured it would be remedied, and was told in the meantime to use such planks. Held that, as it was the only practical way furnished, he did not, during the interim, assume the risk of injury from the use of such way.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 642; Dec. Dig. @=221(4).]</p> <p>6. Master and Servant @=289(34) — Injuries to Servant — Jury Question.</p> <p>Whether a miner was negligent in carrying his drill with him as he made his way by planks from one level of the mine to the other held under the evidence for the jury.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1126; Dec. Dig. @=289(34).]</p> <p>7. Master and Servant @=288(15) — Injuries to Servant — Jury Question.</p> <p>What is a reasonable time for a master to make needed repairs to a ladder used in a mine held under the evidence for the jury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1085; Dec. Dig. @=288(15).]</p> <p>8. Master and Servant <@=>289(15) — Injuries to Servant — Jury Question.</p> <p>Whether the danger of using planks in a manway in a mine in place of the ladder, which had been broken, was so obvious that the miner was guilty of contributory negligence, though repairs had been promised, held for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Oent. Dig. § 1106; Dec. Dig. <@=>289(15).]</p> <p>9. Trial <@=>260(8) — Instructions—Refusal.</p> <p>Where, in a servant’s action, the jury were charged that he assumed the risk of injury from dangerous conditions in his place of work, unless he continued work in reliance on a promise of repairs, the refusal of an additional instruction that the servant assumed such risks was not error; it beihg covered by the one given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. <@=>260(8).]</p> <p>10. Trial <@=>252(1) — Instructions—Errors.</p> <p>In a servant’s action, where assumption of risk was relied on it is not improper for the court, in explaining the matter to the jury, to illustrate the doctrine by references to more simple employments and the most simple appliances.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596, 612; Dec. Dig. <@=>252(1).]</p>

Petition to Revise Order of the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. In the matter of Joseph Pollack, bankrupt. Petition by the bankrupt to revise an order made on petition of the Meyer Bros. Drug Company and other creditors, reopening the estate.

<p>In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Sam Kasle was convicted of unlawfully having in his possession goods and chattels, knowing them to have been stolen from a railroad freight station while in the course of shipment in interstate commerce, and he brings error.</p>

Suit in equity by Alfred W. Church against Horace M. Swetland and Chester Griswold, individually, and Horace M. Swetland, Robert R. Moore, Chester Griswold, Uouis B. Rolston, Adelbert Hauschild, and Ernest E. Bruckman, as members of a committee of preferred stockholders and creditors of Wyckoff, Church & Partridge, Incorporated, under their agreement of April 15, 1912, George A. Ellis, Howard C. Dickinson, the Commercial Trust Company of New York City, John S. Sheppard, Jr.,…

McCall, Judge. Action- by John Clark against the Southern Railway Company. There was a judgment for plaintiff, and defendant brings error. Clark was a passenger on one of defendant’s roads in Tennessee, and suffered injuries through derailment of the train on October 20, 1913. He recovered a verdict of §1,000, and defendant prosecutes error.

In the matter of the bankruptcy of the New York Commercial Company. The claim of Brown Bros. & Co. was allowed by the District Court, and John Z. Lowe, Jr., and others, trustees, appeal.

<p>1. Appevt. and Error <§=>544(1) — Assignments oj? Error — Bill or Exceptions.</p> <p>J ii detinue, assignments of error relating to rulings as to ownership cannot bo reviewed, where not based upon a bill of exceptions, as required by the court rules.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2412; Dec. Dig. <@=>544(1).]</p> <p>2. Appeal and Error <§=>194(6) — Assignments or Error — Necessity:.</p> <p>Though defendant pleaded over after the overruling of its demurrer to tlie declaration, went to trial, and failed to renew the demurrer, and ask for verdict under all the evidence at Hie close of the case, the suilicioney of the declaration to state a cause of action may be reviewed as an unassigned error appearing on the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1245; Dec. Dig. <@=>194(6); Pleading, Cent. Dig. §§ 1875-1394, 1397-1407.]</p> <p>8. Detinue <@=>17 — Actions—Declaration.</p> <p>Declaration in detinue, averring that a purchaser of machinery, having paid to plaintiff the cash payment provided in the agreement of sale, anil not having made any further payment, and having no right to possession, with intent to defraud plaintiff, delivered possession to defendant, which, participating in the fraudulent purpose, refused to surrender the machín- . cry on plaintiff’s request, and that defendant did wrongfully and unjustly detain it from plaintiff, to its damage, sufficiently charges an unlawful detainer and plaintiff’s right to possession.</p> <p>[Ed. Note. — For other cases, see Detinue, Cent. Dig. §§ 26-33; Dec. Dig. <@=>17.]</p> <p>4. Detinue <@=>17 — Declaration—Sumtousnoy.</p> <p>In such case the declaration is sufficient to negative any right of defendant to possession of the machinery between the time of delivery to tlie purchaser and the time demand was made upon it for surrender.</p> <p>[Ed. Note. — For other cases, see Detinue, Gent. Dig. §§ 20-33; Dec. Dig. @=>17.]</p> <p>5. Appeal and Error <@=>248, 544(1) — Review—Exceptions.</p> <p>An exception, and a bill of exceptions based thereon, containing evidence in narrative form, duly submitted to the trial court before expiration of the term, are necessary to secure review of rulings of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1482, 1468, 2412; Dec. Dig. @=>248, 544(1).]</p> <p>6. Appeal and Eebob <@=657(1) — Bill of Exceptions — Necessity.</p> <p>A bill of exceptions is unavailing, unless based on an exception to tbe record; and where there was none a writ of error will not be remanded, to compel the trial court to settle and include therein a condensed statement in narrative form of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2830, 2831; Dec. Dig. <@=>657(1).]</p>

<p>Appeal from the District Court of the United States for tire Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in admiralty by John S. Latta, trading as John S. Datta & Co., Charles H. Whitney and S. Wheaton Smith, copartners as Charles H. Whitney & Co., the Benjamin F. Shaw Company, the Glen Brook Coal Company, and Paul J. Devitt against the dredge Yankee, the Rivers & Harbors Improvement Company, claimant. Decree for claimant, and libellants appeal.</p>

<p>1. Sales @=197 — Option Contracts — Passage oe Title.</p> <p>Where the owner of valuable paintings gave a dealer an option to purchase and allowed the dealer to take possession, it appearing that he sold such paintings, no title passed to the dealer, his possession being merely that of one with an option to purchase.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 512, 513; Dec. Dig. @=197.]</p> <p>2. Principal and Agent @=129 — Agents’ Contracts — Sales—Title Acquired.</p> <p>Where the holder of an option to purchase paintings agreed with defendant to purchase them for defendant’s benefit, defendant furnishing the purchase price, the holder of the option is bound, on completing the purchase, to transfer the paintings to defendant.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 451 — 157; Dec. Dig. @=129.]</p> <p>3. Bankruptcy @=140(3) — Agency—Revocation.</p> <p>Where defendant commissioned a dealer in paintings to purchase them for him and to resell them on commission, at the dealer’s bankruptcy, possession of the paintings being delivered to the dealer, revoked the agency.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. @=140(3).]</p> <p>4. Bankruptcy @=140(3) — Construction—Passage oe Title.</p> <p>A dealer having an option to purchase paintings, agreed to purchase the paintings for defendant, who furnished the purchase price, and then to act as defendant’s agent to resell the paintings on commission. To enable the dealer to negotiate for a reduced price, defendant’s connection with the transaction was concealed, but after the owner transferred the paintings to the dealer, the dealer executed a hill of sale to defendant, whose agent, after receiving possession, redelivered the pictures to the dealer for sale. Thereafter the dealer became bankrupt, and his trustee asserted title to the paintings. Held, that the dealer was a mere conduit of title, and no title vested in it which could he asserted by the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. @=140(3).]</p>

<p>1. Brokers <§=>8(3) — Authority—Evidence.</p> <p>Evidence held) to show that a customer of brokers, retaining title himself, authorized them to hypothecate for the requirements of their own business securities deposited with them, and also delivered securities to hypothecate to raise funds to carry them over a period of temporary financial distress.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 9; Dec. Dig. <§=>8(3).]</p> <p>2. Bankruptcy <§=>165(2) — -“Preference”—What Constitutes.</p> <p>Where a customer of brokers, who authorized them to generally hypothecate securities deposited with them, and delivered to them securities to carry them over a period of financial distress, retained his title to the securities so hypothecated, and the brokers, though insolvent, satisfied the loans for which the securities were pledged and redelivered them, such transaction did not constitute a “preference,'” voidable by the 'trustee in bankruptcy of the brokers subsequently appointed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 266; Dec. Dig. <§=>165(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Preference.]</p> <p>3. Bankruptcy <§=>165(1) — Claims—Conversion.</p> <p>In such case the fact that the brokers did not on demand return the securities did not, where time was extended, amount to a conversion leaving the customer only a right of action which could be proved as a claim in bankruptcy, and therefore the return did not amount to a preference.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 259, 2CG; Dec. Dig. <§=>165(1).]</p> <p>4. Bankruptcy <§=>140(3) — Proceedings—Proof of Claim.</p> <p>That one who loaned securities to brokers proved his claim for the value of such securities does not prevent him from reclaiming the actual securities themselves, provided he reserved the right to do so.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. <§=>140(3).]</p> <p>On Petition for Rehearing.</p> <p>5. Peirctmx ard Stiekitt <3=315 — Sureties—Who Are.</p> <p>Where securities belonging to a customer of certain brokers were pledged by them to secure their own debt, the customer, though the pledge was authorized, was not a surety for the brokers’ debts, for, in case the security was insufficient to discharge them, no personal liability attached.</p> <p>[Ed. Koto. — Por other cases, see Principal and Surety, Cent. Dig. § 34; Dec. Dig. <S=3l5j</p>

S. Bean, Judge. ■ Action ai law by the United States against the Inman-Poulsen Lumber Company. Judgment for defendant (211 Fed. 679), and the United States brings error. The United States brings its writ of error to review the judgment of the court below in sustaining a demurrer and dismissing the complaint in an action brought to recover the value of timber cut- upon land of the United States.

<p>1. Bankruptcy @=>84 — Proceedings—Invoiuntary Petition. .</p> <p>Where an involuntary petition was filed within four months after the act of ¡bankruptcy was committed, the petition, which alleged a preferential transfer in the language of the statute, omitting only the information necessary to enable the bankrupt to meet the charge, may, notwithstanding a subsequent adjudication in bankruptcy on a voluntary petition and the passage -of more than four months since the transfer, be amended with the consent of the bankrupt so as to properly charge a pref-. erential transfer.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dee. Dig. @=84j</p> <p>2. Bankruptcy @=>84 — Petition—Amendment.</p> <p>That an application to amend an involuntary petition1 in bankruptcy was not in writing does not deprive the court of jurisdiction, where notice was waived by the express written consent of the bankrupt to the amendment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §1 126-129; Dec. Dig. @=>84.]</p> <p>3. Bankruptcy @=84 — Petition—Amendment—Verification.</p> <p>Though an amendment to an involuntary petition in bankruptcy was not verified as required by General Order in Bankruptcy No>. 11 (18 Sup. Ct. v), yet where the order allowing the amendment stated that it was made accordingly on the face of the petition, it is within the power of. the court to allow subsequent verification, and the order cannot be attacked on that ground.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig.. §§ 126-129; Dec. Dig. @=84.]</p> <p>4. Bankruptcy @=41 — Proceedings—Involuntary Petition.</p> <p>The mere pendency of an involuntary petition in bankruptcy does not deprive the court of jurisdiction to entertain a voluntary petition and adjudicate thereunder.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig § 40; Dec. Dig. @=41.]</p> <p>5. Bankruptcy ©=>84 — Petition—Amendment—Allowance.</p> <p>Alter creditors bad filed an involuntary petition averring a preferential transfer by tbe bankrupt, tbe bankrupt, more than four months after the date of the transfer, filed an involuntary petition and was adjudicated a bankrupt thereunder. A refusal to allow the petitioning creditors to amend would defeat their rights to set aside the transfer, it having occurred more than four months before the filing of the voluntary petition. Held that, where the transfer was alleged in the words of the statute, and the petition was defective only in that it failed to contain information necessary to enable the bankrupt to meet the charge, an amendment to the involuntary petition, which will preserve the rights of the creditors, should, upon the case presented', have been allowed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig. ©=>84.]</p> <p>6. Bankruptcy ©=>51 — Adjudication—Effect of.</p> <p>In such case, the adjudication under the involuntary petition need not be set aside; but the order of adjudication should be amended, so as to preserve the rights of creditors as against the alleged preferential transfer, and- the proceedings may be consolidated.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 49; Dec. Dig. ©=>51.]</p> <p>7. Bankruptcy ©=>363 — Creditors—Rights of.</p> <p>In such case, the fact that the petitioning creditors upon the adjudication on the voluntary petition filed their claims with the referee and a trustee was elected does not estop them from asserting their rights to attack the transfer.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 550-554; Dec. Dig. ©=>363.]</p>

<p>1. Commerce <@=27 — “Interstate Commerce” — What Constitutes.</p> <p>A carpenter, riding on a train which carried the equipment for repair of a bridge used by railroad company in interstate commerce, is, where the repairs were to be made by him, engaged in “interstate commerce.”</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dee. Dig. <@=27.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Master and Servant <@=346 — Injuries to Servant — Federal Employers’ Liability Act.</p> <p>Recovery by an injured servant under the Michigan Workmen’s Compensation Act (Pub. Acts Ex. Sess. 1912, No. 10) does not depend on the master’s negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <©=346.]</p> <p>3. Commerce <@=8 — Exclusive Power — Injuries to Servant — Workmen’s Compensation Act — Federal Employers’ Liability Act.</p> <p>Plaintiff, a bridge carpenter, who was a member of a crew of a work train, was injured while on the way to repair a railroad bridge used both in intra and inter state commerce. The federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8057-8665]) governs actions by- employes of railroad companies injured through the negligence of the master while -engaged in interstate commerce. The Michigan Workmen’s Compensation Act, providing for compensation to employes injured regardless of the employer’s negligence, conclusively imputes knowledge of the employer’s election to come under the act to the employé, and part 6, § 4, declares that the provisions of the act shall apply to employers and workmen engaged in intrastate commerce, also to those engaged in interstate or foreign commerce for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States only to'the extent that their mutual connection with intrastate work may be and shall be clearly separable and disinguishable from interstate or foreign commerce, but that any such employer and any of his workmen working only in the state may, subject to the approval of the Industrial Accident Board, accept and become bound by the provisions of the act with the same force and effect as provided for other employers and workmen. The railroad company, which was engaged in both intra and inter state commerce, filed an election to come within the act, but plaintiff did not accept the act. Held, that as the injuries received by plaintiff resulted from the railroad company’s negligence, and as the federal Employers’ Liability Act is exclusive in so far as it applies, Congress having jurisdiction over interstate commerce, recovery by plaintiff must be based on the federal act, and not on the Michigan Workmen’s Compensation Act, for as to such injuries the latter act was inapplicable.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <@=8.]</p> <p>4. Master and Servant <@=358 — Injuries to Servant — Workmen’s Compensation — Acceptance op Act.</p> <p>In such case, the fact that the defendant railroad company paid defendant’s hospital and doctor’s bills during the first three weeks after the injury, as required by the Michigan Workmen’s Compensation Act, does not, there having been no assent on the part of plaintiff that such payment was in compliance with the act, establish plaintiff’s acceptance of the act, excluding action under the federal Employers’ Liability Act.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. ©=358.]</p> <p>5. Appeal and Error ©=932(1) — Presumptions—Recovery—Diminution.</p> <p>Where the master, who paid some of the hospital and medical expenses of an injured servant, made no request that the award of damages be diminished on that ground, the award will not he disturbed on appeal, for it will be presumed that it was so diminished.</p> <p>[Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. § 3782; Dee. Dig. ©=932(1).]</p>

IT. Sawtelle, Judge. Action by Frank R. Stewart against the Southern Pacific Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

Cushman, Judge. Suit in equity by the Mississippi Valley Trust Company and the Union Trust Company against the Washington Northern Railroad Company, the Oregon-Washington Timber Company, the Blazier Timber Company, and William W. Crawford, trustee. Erom the decree, Crawford, trustee, appeals. On June 4, 1910, the Oregon-Washington Timber Company, hereinafter called the Timber.

<p>Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.</p> <p>Suit by J. S. Maloney, as trustee in bankruptcy of the T. H. Bunch Commission Company, bankrupt, against Mrs. Laura L. Bunch. From a decree for complainant (225 Fed. 243), defendant appeals.</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by the Berthold & Jennings Dumber Company against the American Dumber & Manufacturing Company. Judgment for plaintiff, and1 defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Actions at law by the Continental Passenger Railway Company of Philadelphia, by the Union Passenger Railway Company, by the Philadelphia Traction Company, by the West Philadelphia Passenger Railway Company and by the Thirteenth and Fifteenth Streets Passenger Railway Company against William McC’oach, Collector of Internal Revenue. Judgments for plaintiffs, and defendant brings error.</p>

<p>1. Courts @=>366(13) — Federal Courts — State Decisions — Precedents.</p> <p>A decision by the Supreme Court of Oklahoma construing Comp. Laws Okl. 1909, § 5553, declaring that if, when a cause of action accrues against a person, he be out of the state or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until be comes into the state, or while he is so absconded and concealed, and it' after the cause of action accrues he shall depart from the state, or abscond or conceal himself, such time shall not be computed as any part of the period within which the action must bo brought, to the effect that neither a natural person nor corporation that absents himself or itself from the state, though he or it maintains during bis absence a residence in the state and persons therein on whom service of process which will sustain a personal judgment may be made, can take advantage of the statute of limitations, is binding on the federal courts, and limitations do not run in favor of a foreign corporation not a resident of the state, though it maintained a process agent therein.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Rig. § 983; Dec. Dig. <8=»366(13).]</p> <p>2. Removal of Causes <@=>3 — Right of Removal — State Laws.</p> <p>A state Constitution and laws, denying a foreign corporation doing business in the state the right to remove causes against it to the federal court under penalty of being denied the benefit of limitation statutes, are invalid.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. @^3J</p> <p>8. Courts <®=?366(18) — Federal Courts — State Decisions — Precedents.</p> <p>Where a decision of the state court denying a foreign corporation the benefit of limitation acts was valid, as it applied the same principles to residents and individuals, it must be followed by the federal courts, though the decision was also based on the proposition that a foreign corporation could not have the benefit of limitation acts unless it became a resident of the statu and renounced its right of removal of causes, and such construction would invalidate the acts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 983; Dec. Dig. <S=j>366(13)J</p>

T. Dooling, Judge. J. E. Wetzel was convicted of violating the postal laws, and he brings error. The plaintiff in error was indicted under three counts for violation of section 211, United States Criminal Code.

Suit in admiralty by Ferdinand Gildersleeve and Olive Gildersleeve & Sons, Incorporated, owners of the barge Lillian, against the steam lug Eli B. Conine; the Cornell Steamboat Company, claimant. Decree for libelants, and claimant appeals.

<p>On petition for further order.</p>

<p>Aliens <@=>31 — Chinese Persons — Deportation.</p> <p>The United States is not estopped from deporting a Chinese person, not entitled to remain in the country, by reason of the acts of a special immigration agent.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec.'Dig. <@=>31.]</p>

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

• Appeal from the District Court of the United States for the Western District of New York. Suit in equity by the National Binding Machine Company against the Larkin Company. Decree for defendant, and complainant appeals. The plaintiff is a corporation existing under the laws of the' state of Maine and has its principal place of business in New York City.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Frederick C. Palmer, the Clements Company, and the Star Expansion Bolt Company against Carl Joseph. Decree for defendant, and complainants appeal.</p>

Suit in equity by the 'Robins Conveying Belt Company and Thomas Robins, Jr., against the Link Belt Company. From the decree, complainants appeal. Plaintiffs’ bill charged infringement of claims 5 and 6 of Robins patent, No. 571,604 (which patent expired shortly after the filing of the bill), and also of claims 1, 2, 3, 4, and 5 of Robins patent, No. 919,638.

<p>In Equity. Suit by the Safety Car Heating & Lighting Company against the United States Light & Heat Corporation. On motion for preliminary injunction.</p>

<p>In Equity. Bill by David Dowenthal against the Georgia Coast & Piedmont Railroad Company. On motion to dismiss bill.</p>

<p>1. Railroads <®=^205 — Receivers—Appointment—Right to Appointment.</p> <p>A railroad company which issued bonds for construction purposes defaulted in the payment of interest and its line was in such a precarious condition that it endangered the lives of passengers and trainmen. Taxes to a large sum were unpaid and there were claims for labor and materials. Thereupon a considerable number of the bondholders deposited their bonds with the trustee, giving control to a so-called committed which was authorized to issue obligations which should be prior liens, to dispose of the property and to buy it in, either for themselves or others. The committee, in fact, was given all the powers of a court of chancery, and no steps were taken for the protection of bondholders who would not join. Held, that, in such case where the tax liens paid were preserved by the committee paying them, and the property was in a precarious condition, a receiver might be appointed at the suit of a minority bondholder who desired to foreclose the mortgage securing the bonds; the trustee refusing to act.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 673-675; Dec. Dig. ©=3205.]</p> <p>2. Railroads <@=oIS6 — Foreclosure of Mortgages — Indispensable Parties.</p> <p>In such case, where the committee and its depositary were citizens of other districts, and an attempt to join them would imperil the foreclosure suit and proceedings for a receiver, they were not parties indispensable to the appointment of a receiver.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 615, 616; Dec. i Dig. <®=^186.] i</p>

<p>1. Bankruptcy <@=>399(3) — Exemptions—Concealed Goods.</p> <p>A referee may charge a bankrupt’s exemptions with the amount Of the valueof goods in the possession of the bankrupt on the eve of bankruptcy, which he failed to surrender to? his trustee; there being no reasonable explanation of the failure.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. Dig. <@=>399(3).]</p> <p>2. Bankruptcy <@=>228 — Appeal—Referee’s Findings.</p> <p>A finding of the referee on conflicting evidence will be given weight, as he has seen and heard the witnesses.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. <@=>228.]</p> <p>3. Bankruptcy <@=>399(3) — Exemptions—Right to.</p> <p>In determining whether a bankrupt’s claimed exemptions shall be charged with goods concealed from the trustee, the measure of proof applicable is that obtaining in civil cases, and not that necessary in cases of contempt for disobedience of an order to surrender.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 657, 669; Dec. DigA <@=>399(3).]</p>