Volume 234 — Federal Reporter

<p>1. Commerce <&wkey;27 — Interstate Commerce — Federal Employers’ Liability Act.</p> <p>A railroad lying wholly within a state, which formed a link between carriers whose lines extended without the state, and which indiscriminately transported interstate shipments and intrastate shipments, is an interstate carrier, within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, § 1, 85 Stat. 65 [Comp. St. 1918, § 8657]), declaring that every common carrier by railroad, while engaging in commerce between the several states, shall be liable in damages by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, roadbed, etc.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. § 25; Dec. Dig. <&wkey;27.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Commerce <&wkey;27 — Interstate Commerce — Instrumentalities Thereof.</p> <p>A railroad lying within a state, forming a link between interstate carriers, transported both interstate and intrastate shipments and passengers. The freight and passengers of both kinds were commingled, and the several engines of the road were indiscriminately used in hauling trains transporting both kinds of freight and in switching cars similarly loaded. Hold, that an engine devoted to such purposes was an instrumentality of interstate commerce, and therefore one injured in repairing such an engine may sue under the federal Employers’ Liability Act; the repairer’s services partaking of the nature of the instrumentality.</p> <p>LEd. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <&wkey;27.]</p> <p>3. Commerce <&wkey;27 — Interstate Commerce — Instrumentalities Thereof.</p> <p>Where an engine used in interstate commerce was withdrawn from service for repairs, and on being repaired was again used to transport interstate commerce, the engine, though the repairs extended over several months, was not withdrawn from interstate commerce, and a repairer injured might sue under the federal Employers’ Liability Act.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. &wkey;27.J</p>

<p>COMMERCE <&wkey;27 — EMPLOYERS’ LIABILITY — SERVANT EMPLOYED IN 1'NTSESTATE Commerce.</p> <p>A member of a train crew was not at the time of his injury employed in interstate commerce, as is necessary to make the employer carrier liable under federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8605]), his crew though subject to call for an interstate trip, to which, when given, they had to respond in an hour, not having been called for service, but being merely for their own convenience in their caboose, which was being moved by a transfer train between local stations.</p> <p>LEd. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. &wkey;27.]</p>

C. Van Fleet, Judge. Action by the Westinghouse Electric & Manufacturing Company against the Samson Iron Works. There was a judgment for defending and plaintiff brings error. The plaintiff in error and the defendant in error were respectively plaintiff and defendant in the court below, and they will be so designated here.

<p>1. Sales <@=>181(11) — Breach of Contract — Cancellation and Rescission.</p> <p>Evidence held sufficient to sustain a finding that buyer breached a contract for the sale and delivery of coal, by failing to order the amount of coal contracted for, and that seller was within its rights in canceling the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 486, 487, 490; Dec. Dig. <@=>181(11).]</p> <p>2. Sales <@=>152 — Contracts—Breach.</p> <p>Where buyer failed to order from defendant coal in quantities as contracted for, to be delivered monthly, and thereafter demanded monthly deliveries in excess of the contract requirements to make up the deficiency, and threatened suit for failure to deliver such deficiency, the seller was relieved from any obligation to make further deliveries as for want of proper order.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 357; Dec. Dig. <©=> 152.]</p> <p>3. New Trial <@=>165 — On Motion oe Both Parties — Vacation on Motion of One Party.</p> <p>Where the court granted a new trial on motion of both plaintiff and defendant, a vacation of the order thereafter on motion of plaintiff held proper, since the evidence was not in dispute, and there had already been three nisi prius hearings.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 334, 335; Dec. Dig. <@=>165.]</p> <p>4. Trial <@=>251(4) — Instructions—Conformity to Pleadings.</p> <p>In a suit upon contract, the court properly refused to submit the issue of an alleged agreement in modification or settlement of the original obligation ; such agreement not being within the issues pleaded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 591; Dec. Dig. <@=>251(4).]</p>

<p>1. Habeas Corpus <@==>30(1) — Writ—Scope.</p> <p>A Chinese person arrested under a warrant signed by the Assistant Secretary of Labor will not be discharged on habeas corpus because the warrant should have been signed by the Secretary of Labor as the object of the writ is merely to ascertain whether the petitioner can be lawfully detained.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. <@=>30(1).]</p> <p>2. Searches and Seizures <@=>7 — Unlawful Seizures — What Constitutes.</p> <p>Where government witnesses took a bunch of letters from a rack in a laundry where petitioner, a Chinese person, and others, were employed, and with the consent of the proprietor retained some of the letters, petitioner’s constitutional rights against an unlawful search and seizure of his papers were not violated, as he claimed the letters were not addressed to him.</p> <p>[Ed. Note. — For other cases, see Searches and Seizures, Cent. Dig. § 5; Dec. Dig.' <§=>7.]</p> <p>3. Aliens <@=32(S) — Chinese Persons — Evidence.</p> <p>Evidence that letters were written to petitioner, a Chinese person, by a woman in China who claimed him as her husband and referred to a recent parting, do not, there being no showing that petitioner answered the letters, establish that he was born in China and had entered the United States at a recent date.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. <@=>32 (8).]</p> <p>4. Aliens <@=>54 — Chinese Persons — Deportation.</p> <p>Where a Chinese laborer entered in violation of Immigration Act Feb. 20, 1907, c. 1134, § 36, 34 Stat. 908 (Comp. St. 1913, § 4285), and was unlawfully in the United States, because not in possession of a certificate of residence as required by Chinese Exclusion Act May 6, 1882, c. 126, § 6, 22 Stat. 60 (Comp. St. 1013, § 4298), he may within three years after his entry be summarily deported under Immigration Act, §§ 20, 21 (Comp. St. 1913, ,§§ 4269, 4270); but after the expiration of that time proceedings for his deportation must he brought under Chinese Exclusion Act Sept. 13, 1888, c. 1015, § 13, 25 Stat. 479 (Comp. St. 1913, § 4313) providing for a hearing before a United States commissioner with right of appeal to a judge of the District Court for the remedy provided in the Immigration Act only exists for a period of three years after entry.</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. <&=54.]</p>

Petition by Wong Yuen for a writ of habeas corpus against P. L. Prentis, Immigration Inspector. From an order dismissing the writ and remanding petitioner, he appeals.

<p>Shipping c§=»150 — Actions—Bill op Lading — Presumptions.</p> <p>Defendant entered into a contract with a shipping company to carry its coal for a whole season. Such company contracted with a second company to transport defendant’s coal, and the second company’s manager engaged one of libelant’s steamships for such purpose. The bill of lading issued by the master of libelant’s vessel referred to the contract for the freight rate. In case of previous shipments in libelant’s vessels, defendant paid tlie company with which it contracted, and such company paid the actual carriers. BeM that, while the law implies a promise to pay the freight, where there is a bill of lading, and acceptance by the consignee is proven and unexplained, yet, in view of the knowledge of libel-ant and the previous method of freight payments, such implied promise was rebutted, though defendant accepted the coal transported in libel-ant’s ship, and the bill of lading issued by the master provided for payment at the agreed freight rate.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 225, 226, 511; Dee. Dig. <@=>150.]</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E.'Tewis, Judge.</p> <p>Suit in equity by the United States against the Northern Colorado Coal Company and others. From the decree, both parties appeal.</p>

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by the United States against Charles B. Hill. Decree for complainant (217 Fed. 841), and defendant appeals.</p>

.In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Action at law by the Boatmen’s Bank against the Chicago Mill & Dumber Company. Judgment for plaintiff, and defendant brings error.

Action by the Hamilton Fish Corporation against-Alexander-Doyle. There was a judgment for plaintiff, and defendant, whose counterclaim was dismissed, brings error. The statement of the case and opinion of Learned Hand, District Judge, in the court below, is as follows: This is an action for rent upon the renewal of a lease of premises on East Twentieth street in the city of New York.

Action by Teresa M. Bump against the Compagnie Genérale Trans-atlantique. There was a judgment for plaintiff, and defendant brings error. The District Court entered a judgment upon the verdict of a jury for $15,056.33 in favor of the plaintiff for injuries received by her while a passenger upon the steamship Rochambeau, owned by the defendant. The parties will be alluded to hereafter as they appeared in the District Court — as plaintiff and defendant.

In the matter of the bankruptcy of the Aleo FilrrFCorporation. On motion by receivers for an order against the Aleo Film Service of Minnesota (the Sherman Feature Service) and against the Progressive Investment Company of Portland, Or. From orders in favor of the receiver, the Aleo Film Service of Minnesota (Sherman Feature Service), appeals.

In the matter of the bankruptcy of the Continental Engine Company. From an order overruling the referee’s disallowance of a claim filed against the bankrupt’s estate, the trustee appeals.

<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 Susquehanna Coal Company, owner of the steam tug Paoli and barge Devon, against the steam tug Edward G. Murray, the Edward G. Murray Lighterage & Transportation Company, claimant, and the New York Central Car Float No. 46, the New York Central & Hudson River Railroad Company, claimant. Decree for respondents, 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 by the Prest-O-Lite Company against Erank T. Eransioli and others. From an order granting a temporary injunction, defendants appeal.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York.</p> <p>In the matter of the bankruptcy of Joseph S. Lesser. On petition to revise an order of the District Court (232 Fed. 368) sustaining an exception to specifications of objections to discharge by the International Trust Company.</p> <p>“On petition by the International Trust Company, a creditor of the bankrupt, to revise an order of the District Court for the Southern District of New York which sustained an exception to the third specification of objection to granting a discharge. This specification alleged that the bankrupt had made false oaths in a proceeding in bankruptcy other than his own. The court held that the alleged false oath having been made in a different bankruptcy proceeding from the one at bar the objection was radically defective and no amendment could cure the defect. The exception was therefore sustained and leave to amend was refused.”</p>

In the matter of the bankruptcy of Soloway & Katz, Maurice Solo-way, and Samuel Katz. From an order confirming bankrupts’ offer of composition, the Bay State Milling Company appeals.

Bill by the Thermogene Company, Limited, against the Thermozine Company, Incorporated. From a decree (225 -Fed. 446) dismissing the bill, complainant appeals. On appeal by the complainant from a final decree dismissing the complaint which alleges infringement of the complainant’s trade-mark “Thermogene.” Judge Augustus N. Hand held that the word “ther-mogene” is not arbitrary or fanciful, but is a descriptive term and is, therefore, not the subject of a trade-mark.

Suit in equity by the Davoplane Bed Company.against Hyman Freedman and Nathan Freedman. Decree for complainant, and defendants appeal. Appellants prosecute this appeal from the decree of the District Court finding claims 2 and 4 of patent No. 848,305, granted to Holmes, Bostrom & Bo-strom on March 26, 1907, ,for sofa-bed, to be valid and infringed by the two forms of appellants' sofa-beds, shown as “Plaintiff’s Exhibits.

Suit in equity by the Bush & Lane Piano Company against Becker Bros., a corporation. From a decree awarding damages for infringement of a patent, both parties appeal. Cross-appeals from a decree awarding to plaintiff damages for infringement of its design patent, No. 37,501. The patent in suit covers a “design for a piano case.” Defendant made and sold 958 pianos for 8158,302.95.

Suit in equity by Joseph U. Herzog against Charles Keller & Company, Incorporated. Decree for defendant, and complainant appeals. The following is the opinion below of Learned Hand, District Judge: [1] I shall first consider the method patent, which I find not to have been infringed.

Suit in equity by the Iowa Washing Machine Company against Montgomery Ward &' Co., Incorporated. Decree for complainant, and defendant appeals. The decree of the District Court held valid reissued letters patent No. 12,733 granted to Stocking and Mendenhall, December, 1907, for a washing machine and that claims 3, 4, and 7 of said patent are infringed by the defendant’s machine, as exemplified by complainant’s Exhibit No. 7, sold by the defendant in the state of New York.

Suit in equity by the TEolian Company against John Wanamaker. Decree for defendant, and complainant appeals. The decree of the District Court dismissed the bill-.alleging the validity and infringement of letters patent No. 780,078, granted to Edwin S- Votey January 17, 1905, for improvements in pianos.

<p>Appeal from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit by William A. Murray against the C. I,. Greeno Company. From a decree for defendant, complainant appeals.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by William A. Keys against William K. Meyer, Robert D. Bacharach, and Arthur Friedheim, copartners as Meyer, Bacha-rach & Friedheim. Decree for defendants, and complainant appeals.</p>

<p>Action by the United States against the Snohomish River Boom Company and the Everett Improvement Company. On motion by defendants to dismiss.</p>

<p>At Eaw. Action by Pacific County and another against the Illinois Surety Company. On demurrer to complaint.</p>

<p>1. Bankruptcy i&wkey;59 — “Acts of Bankruptcy”- — Statute.</p> <p>Bankr. Act July 1, 1898, c. 511, § 3a (2), 30 Stat. 516 (Comp. St. 1913, § 9587), declares that acts of bankruptcy by a person shall consist of lila having transferred while insolvent any portion o¡f his property to one or more of his creditors with intent to prefer such creditors over others; while section 3a (3) declares that one who shall, while insolvent, permit any creditor to obtain a preference through legal proceedings, and not having, at least five days before a sale or final disposition of any property affected, vacated or discharged such preference, shall have committed an “act of bankruptcy.” Held that, where an insolvent confessed judgment with intent to prefer a creditor, the confession Of judgment was an act of bankruptcy falling within section 3a (2), while, if the preference was effected without any intent or purpose on the part of the insolvent, the act falls within section 3a (3).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec. Dig. <&wkey;>59.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p> <p>2. Bankruptcy <&wkey;81(4) — -Petition—-Sufficiency.</p> <p>A petition in bankruptcy, which merely alleged that defendant confessed judgment with intent to prefer, is sufficient to charge that the confession was intended to secure a preference, without any averment of facts, and so to bring the act within Bankr. Act, § 3a (2).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Gent. Dig. §§ 59, 118; Dee. Dig. &wkey;Sl(4).]</p>

<p>In Admiralty. Suit by John D. Miller against the steam tugs Senator Rice and Resolute. On exceptions to report of master.</p>

<p>In Equity. Bill by Phillip Hastings and others against Dr. E. Hoog and others. On motion to dismiss.</p>

In Equity. Suit by Harry Haas against Leo Feist, Incorporated, and another. Decree for an injunction and an accounting by defendants.

<p>1. Railroads <&wkey;328(l) — Crossing Accidents — Duty oe Cake.</p> <p>One about to drive from behind a railroad station onto the track, who could not see the tracks for any great distance, is bound to look and listen before venturing on the tracks and, if necessary, to stop.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§■ 1057, 1060, 1069; Dec. Dig. <&wkey;328(l).]</p> <p>2. Railroads <&wkey;347(2) — Crossing Accidents — Negligence.</p> <p>Where the tracks of two railroad companies ran parallel and only a short distance apart, so that travelers on the highway could not distinguish whether a train was on one track or another, evidence that it was customary to equip much traveled crossings with an automatic bell is admissible in an action for the killing, of a traveler at the crossing by a train, but the absence of a bell will not, as a matter of law, establish * the company’s negligence.</p> <p>[Ed. Note. — For other cases, see .Railroads, Cent. Dig. § 1125; Dec. Dig. &wkey;347(2).]</p> <p>3. Railroads <&wkey;350(l, 13) — Crossing Accidents.</p> <p>In an action for the death of one run down at a .railroad crossing, questions of the railroad company’s negligence and of deceased’s contrib- , utory negligence held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152, 1166; Dec. Dig. <&wkey;350(l, 13).]</p> <p>4. New Trial i&wkey;44(3) — Misconduct oe Jurors.</p> <p>Before' a map, showing the crossing a.t which deceased was run down' by defendant’s train, was put in evidence, it was hung up in plain sight of the jury, and some of the jurors, their attention having been directed to it, examined it before it was introduced in the evidence. The attention of the court being called, the jurors were told that it was improper for .them to examine or consider the map until it was placed in evidence, and they immediately desisted. Held, that as the ma.p was subsequently put in evidence, that the jurors had previously examined it, coupled with the fact that they were heard discussing the case without any showing of the nature of the discussion, does not warrant a new trial, the court directing them not to discuss the case before it was submitted to them, because it must be assumed that the jurors do their duty.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84; Dec. Dig. <&wkey;44(3).]</p>

<p>1. Bankruptcy <&wkey;140(l) — Return of Property — What Law Governs.</p> <p>In determining whether title to chattels passed to a bankrupt, or remained in the seller, the state law governs.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. @=140(1).] ■</p> <p>2. Bankruptcy <&wkey;140(l) — Return op Goods — Rights oe Seller.</p> <p>Where, under the state law, the seller’s reservation of title was good as against the bankrupt and his creditors, such reservation of title is good as against the trustee in bankruptcy, and the goods may be reclaimed by the seller.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. @=140(1).]</p> <p>3. Sales <&wkey;460 — Conditional Sales — Statutes.</p> <p>A conditional sale, in the absence of statute, may be verbal.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1348; Dee. Dig. @=>460.]</p> <p>4. Sales <&wkey;454 — Conditional Sales — Effect of.</p> <p>The assumption of a positive obligation by a buyer to pay the purchase price does not in itself serve to change a sale, which would otherwise be conditional, into an absolute one. '</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1324, 1325, 1333, 1334; Dec. Dig. <&wkey;454.]</p> <p>5. Sales @=454 — Conditional Sales — Note.</p> <p>Where a buyer gave a note for the purchase price, that fact does not change the - sale from a conditional into an absolute one, but the note must be taken as evidence of the debt owing rather than as a payment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1324, 1325, 1333,' 1334; Dec. Dig. @=454.]</p> <p>6. Bankruptcy @=303(1) — Claim Against Trustee — Burden of Proof.</p> <p>One claiming property which passed to the trustee in bankruptcy, on the ground that the sale to the bankrupt was conditional, has the burden of proof; there being a presumption that the sale was absolute.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 458, 459; Dec. Dig. @=303(1).]. '</p> <p>7. Corporations @=406(2) — President—Powers of.</p> <p>A verbal understanding with the president of a corporation that title-to horses should remain in the seller until payment is not binding on the corporation, and where there was no further contract with the corporation, although the horses were delivered, there was no meeting of the minds of the parties as to the contract.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1612; Dec. Dig. <&wkey;406(2).j</p> <p>8. Bankruptcy <&wkey;228 — Orders—Review—Referee.</p> <p>In reviewing an order of a referee in bankruptcy, all presumptions with respect to the want or sufficiency of evidence are in favor of the order.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. &wkey;228.]</p> <p>9. Bankruptcy &wkey;>140(l) — Right to Goods — Contracts.</p> <p>Whore there was no meeting of minds between a corporation and a seller of horses, there being no binding agreement as to whether title should pass, the seller may, upon surrender of notes given to evidence the purchase price and of all moneys paid, less the reasonable value of the use of the horses while in possession of the corporation, recover the animals from the trustee; the corporation having become a bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. &wkey;140(l)J</p>

<p>1. Public Lands &wkey;103(4) — Jurisdiction of Courts — Quieting Titus.</p> <p>The federal courts have no jurisdiction to quiet title and determine adverse claims to public land, title to which is in the United States, for the Land Department has exclusive jurisdiction over such matters.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. § 307; Dee. Dig. <&wkey;103(4).]</p> <p>2. Public Lands <&wkey;103(l) — Title to — Land Department.</p> <p>The Land Department of the United States is a special tribunal with judicial functions, and has exclusive jurisdiction over issues affecting title to public lands until patent is issued.</p> <p>[Ed. Note, — For other cases, see Public Lands, Cent. Dig. § 298; Dec. Dig. &wkey;103(l).]</p> <p>3. Adverse Possession &wkey;>7(2) — Title to — Perfection.</p> <p>Adverse possession for' 10 years under the limitation statutes of the state of Washington confers no right, where the legal title to the land is in the United States.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 40; Dec. Dig. <&wkey;7(2); Limitation of Actions, Cent. Dig. §§ 223, 224.]</p> <p>4. Husband and Wife <&wkey;252 — Community Property — Right of Wife.</p> <p>Rem. & Bal. Code Wash. §§ 5915-5918, relating to the property of the spouses, give the wife as a member of the community no interest which attaches to public land squatted upon by the husband and wife prior to homestead entry.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 895; Dec. Dig. &wkey;252J</p>

<p>At Law. Action by William E. Peck & Co., Incorporated, against John Z. Lowe, Jr., Collector. On motion by both parties for directed verdict.</p>

<p>In Equity. Suit by the United States against the United Shoe Machinery Company and others. On motion to dismiss.</p> <p>This is an action to enjoin the defendants, the United Shoe Machinery Company, a corporation existing under the laws of the state of Maine, the United Shoe Machinery Company, a corporation existing under the laws of the state of New Jersey, the United Shoe 'Machinery Corporation, also existing under the laws of the state of New Jersey, and certain individuals, alleged to be the directors and officers of these corporations, from enforcing, or attempting to enforce, certain provisions of leases alleged to be prohibited by section 3 of the act of Congress approved October 15, 19.14, 38 Stat. 730, known as the “Clayton Act.” For convenience the defendant United Shoe Machinery Company of Maine will he referred to in this opinion as the “Maine Company,” the United Shoe Machinery Company of New Jersey as the “New Jersey Company,” and the United Shoo Machinery Corporation as the “corporation.” *</p> <p>The complaint is brief and concise, and will be practically set out in full. It charges: That the Maine Company is a corporation organized under the laws of the state él Maine, with an authorized capital stock of $3,000,000. Its original corporate name was “Goodyear Shoo Machinery Company.” All of its capital stock, assets, and business were acquired in Í889 by the United Shoe Machinery Company of New Jersey, which now owns the same. That in 1902 the name of the “Goodyear Shoe Machinery Company” was changed to “United Shoe Machinery Company,” and, while it continues its corporate existence, it is merely a selling and leasing department of the New Jersey Company. It is the only one of the defendants which does business in the Eastern district of Missouri. That the officers and directors of all three companies are in effect the same. That the New Jersey Company has a capital stock of $20,850,-519, ail of which is substantially owned by the defendant the United Shoe Machinery Corporation. That ever since its incorporation it has been engaged in manufacturing, selling, and leasing shoo machinery, and it is the operating company of the business followed by the defendants. Its chief manufacturing plant is at Beverly, Mass., and its officers and directors are, for the most part, the same as those of the other corporate defendants. That the corporation has an authorized capital stock of $50,000,000, and is empowered by its charter to engage in manufacturing, selling, and leasing shoo machinery, but its activities have been confined chiefly to those of a holding company. Shortly after its organization it acquired and now owns 98% per cent, of the outstanding capital stock of the New Jersey Company and through this company dominates the other corporate defendants. In addition it controls the stock of certain other affiliated corporations, engaged in business related to the shoe machinery interest. That the defendant Sidney M. Winslow is president, director, and managing officer of all these three corporations, and numerous other corporations owned and subsidiary' corporate defendants, and the other individual defendants are officers and directors, some of all three corporations, and others of two of the defendant corporations. That the defendants have leased, sold, and are leasing and selling their machinery, supplies, and repairs, and in certain instances have fixed and are fixing the prices thereof, and discounts and rebates from such prices, on condition, agreement, and understanding that the lessee or purchaser shall not use the machinery, supplies, or other commodities' of competitors of the lessors, which agreements tend to create a monopoly in that branch of interstate commerce which relates to the shoe machinery business.</p> <p>The bill then alleges: That nearly all shoés now made in the United States 'are manufactured by machinery. Over 1,500 manufacturers are engaged in cities and towns of nearly every state in the Union in the production, annually, of more than 300,000,000 pairs of machine-made shoes. With all but a very few of these manufacturers the defendants have business relations. That the defendants devote themselves particularly to the production of machinery used in preparing and'stitching soles to the uppers of shoes. They also manufacture machinery used in other shoe-making operations. That the defendants divide certain of their important machines into two classes, “principal” and “auxiliary.” In a general way machines which perform operations of major importance are spoken of as “principal” while machines which execute operations necessary to the work of “principal” machines are called “auxiliary.” The distinction, however, it is charged, is largely arbitrary, and results chiefly from the defendants’ system of leasing. Many of the more important machines are put out'by the defendants on leases. On some the lessees are required to pay royalties, and on others an annual rental. All machines on which royalties.are exacted are designated as “principal,” and all those on which an annual rental is paid “auxiliary.”</p> <p>The cutting of the soles, uppers, and lining, and the stitching of the uppers and lining, follow about the same course with respect to all kinds of shoes. It is when the sole comes to be attached to the upper of the shoe — “bottomed,” as it is called in the trade — that the fundamental difference in construction arises. Here two chief categories appear: In the one the soles are fastened by thread; the other, by wire, nails, or wooden pegs. The first category is subdivided into three classes: (A) McKay sewed; (B) turned; (C) welt shoe§. The second category is divided into two classes: (a) Metallic fastened; (b) pegged shoes. The McKay sewed shoe is so called because it is bottomed on a McKay sewing machine; the turned shoe takes its name from the fact that it is turned inside out during the process of attaching the sole, which is done on a welt and turn sewing machine; the welt shoe is so designated because a narrow strip of leather, called a welt, is sewed to the upper and insole, by a welt sewing machine, and the outsole is attached to the welt by an outsole stitching machine. Metallic fastened shoes have 'their soles.,attached to the insoles on a “loose nailer,” or by wire screws on a “standard screw” machine; pegged soles are bottomed on a “pegging” machine. In connection with the working of these machines are certain accessory operations which are executed for the most part by “auxiliary” machines. The bill then describes how this work is done. It is then charged that “principal” machines cannot be operated profitably without the use of some, if not all, of the “auxiliary” machines. The “auxiliary” machines are of substantially no value, except as they are used in connection with the “principal” machines.</p> <p>The illegal actions of which complaint is made are described as follows: The writings under which the defendants put out most of their machinery are variously designated “ordinary and temporary lease and agreement,” “lease and agreement,” “lease and license agreement,” or “agreement,” but are in the bill referred to as leases. Under these leases it is charged the defendants ship, and for many years have been shipping, in interstate and foreign commerce, the shoe machinery and supplies herein referred to, from Beverly, Mass., to points in other states and foreign countries. The leases generally run for a period of 17 years. Many of them were made before, and some since, the passage' of the Clayton Act, but all are now being enforced by the deXondants. The bill does not complain of the leases as a whole, hut only parts thereof, which are described in the bill as “tying clauses” and “discounts and rebates.” The bill charges that in each of-the leases there are certain provisions denominated the “tying clauses,” because they tie together the uses of several leased machines, and in effect, though not always in terms, prohibit the lessees from using machines of lessor’s competitors. For example, the 'fastening machines may not be used on any shoe not welted, stitched, slugged, heeled, or seat-nailed on machinery leased from the defendants. In other words, machines are “tied” in a similar manner. The tying clauses provide in substance that the lessee: (1) Shall not use machinery in the manufacture or preparation of footwear which has not had certain essential operations performed upon it by other machines leased from the lessor. (2) Shall use the leased machinery to its full capacity. (3) Shall use exclusively the leased machinery for the class of work for which it is designed. (4) Shall obtain from the lessor exclusively, at such prices as it may establish, all duplicate parts, mechanisms, or repairs needed in operating the leased machines, and all supplies needed in connection with them. (5) Shall use patented insoles made on defendants’ machinery only in connection with certain footwear manufactured by machinery leased from the lessor. (6) Shall lease from the lessor any additional machinery which he may need 'for work in the same department as that of the machine leased. (7) Shall permit the lessor to determine whether the lessee has in his factory more machinery adapted for doing the same work than he needs, and, if so, to remove such machines as, in the opinion of the lessor, are unnecessary. (8) Shall, at the election of the lessor, suffer a termination of all leases which he may have, and the removal of all machines leased by him from the defendants, in the event of any violation of any term of any one of the leases.</p> <p>Copies of the clauses above referred to are attached to the bill as Exhibits 1, 2, 3, 4, 5, 6, 7, and 8.</p> <p>Exhibit 1.</p> <p>The leased machinery shall he used for no other purpose than for lasting boots, shoes, or other footwear made by or for the lessee. The leased machinery shall not, nor shall any part thereof, be used In the manufacture or preparation of any welted boots, shoes, or other footwear, or portions thereof, which have been or shall he welted in whole or in part, or the soles in whole or in part stitched, by the aid of any welt.-sewing or solc-stitching machinery not held by the lessee under lease from, the lessor, or in the manufacture or preparation of any turned boots, shoes, or other footwear or portions thereof the soles of which have been or shall be in whole or in part attached to their uppors by the aid of any turn-sewing machinery not held by the lessee under lease from the lessor, or in the manufacture of any boots, shoes, or other footwear which have or shall be in whole or in part pulled-over, slugged, heel seat-nailed, or other-w-ise partly made by the aid of any pulling-over or “metallic” machinery not held by the lessee under lease from the lessor.</p> <p>Exhibit 2.</p> <p>Subject to the foregoing limitations, the lessee shall use the leased machinery to Its full capacity upon all hoots, shoes, or other footwear, or portions thereof, made by or for the lessee in the manufacture or preparation of which such machinery is capable of being used.</p> <p>Exhibit 3.</p> <p>If at any time the lessee shall fall or cease to use exclusively lasting machinery held by him under lease from the lessor for lasting boots, shoes, and other footwear made by him or for him, which are lasted by the aid of machinery, or shall fail or cease to use exclusively tacking mechanisms and appliances held by him under lease from the lessor for doing all work in the manufacture of all boots, shoes, and other footwear made by or for him which is dono by the aid of tacking mechanisms and appliances, the lessor, although it may have waived or ignored prior instances of such failure or cessation, may, at its option, terminate forthwith, by notice in writing, any or all leases or licenses of lasting machines, lasting machinery, lasting mechanisms, or lasting devices then existing between the lessor and the lessee, whether as the result of assignment to the lessor or otherwise; and the possession of and full right to and control of all lasting machines, lasting machinery, and lasting mechanisms shall thereupon revest in the lessor free from all claims and demands whatsoever.</p> <p>Exhibit 4.</p> <p>The lessee shall obtain from the lessor exclusively, and shall pay therefor at the regular prices from time to time established by the lessor, all the duplicate parts, extras, mechanisms, and devices of every kind needed or used in operating, repairing, or renewing the leased machinery, and the same shall form part of the leased machinery, and the lessee shall not otherwise make or allow to- be made any addition, subtraction, or alteration to, from, or in the leased machinery without the consent in writing of the lessor, nor interfere with the proper operation of the same. The lessee shall also purchase from the lessor exclusively, at the prices from time to time established by the lessor, all supplies, including string nail, tack strips, and other fastening materials used in connection with the lasting machinery.</p> <p>,7 Exhibit 5.</p> <p>The leased machinery shall be used only in the manufacture or preparation of reinforced insoles which embody the inventions patented in letters patent of the United States of America, No. 849,245, dated April 2, 1907, owned by the lessor, for use in welted boots, shoes, and other footwear known in the trade as “Goodyear welts,” which have been or are to be welted wholly by Goodyear welt and turn shoe machines or Goodyear inseam sewing machines held by the lessee under lease from the lessor, and the soles of which have been or are to be .attached to their welts wholly by Goodyear outsole rapid lockstitch machines held by the lessee under lease from the lessor, or for use as insoles or soles of turned boots, shoes, and other footwear known in the trade as “Goodyear turns,” the soles of which have been or are to be attached to their uppers by Goodyear welt and turn shoe machines or Goodyear Universal inseam sewing machines held by the lessee under lease from the lessor, and in the manufacture or preparation of such patented insoies (or soles) the lessee shall use the principal machinery hereby leased to its full capacity so far as the lessee uses reinforced insoles (or soles) in the manufacture of such footwear. The auxiliary machinery hereby leased shall be used only in the manufacture or preparation of said patented insoles (or soles) which have been or are to be reinforced wholly by an Economy insole reinforcing machine hereby leased or held by the lessee under other leases and license from the lessor.</p> <p>6. The lessee is hereby licensed under letters patent of the United States, No. 849,245, dated April 2, 1907, to manufacture by the use of the principal machinery hereby leased during the continuance in force of this lease and license the patented insoles covered by said letters patent and to use such patented insoles so made by the lessee in the manufacture of welted or turned boots, shoes, or other footwear which have been or are to be manufactured as provided in article 5 hereof.</p> <p>Exhibit 6.</p> <p>In case the lessee has more work of the kind which can be performed by any of the machines belonging to the metallic department of the lessor than the capacity of the metallic machinery which he has under lease from the lessor will permit, then the lessee shall either take from the lessor, under a like lease and agreement, sufficient and additional machinery to perform the work, or in case the lessee does not thus lease additional metallic machinery from the lessor, then the lessor may, if it so elects, cancel forthwith this lease and any other lease of metallic machinery then in force between the lessor and the lessee, whether as the result of assignment or otherwise.</p> <p>Exhibit 7.</p> <p>12. In case the lessee, at any time, shall have in his factory more machines adapted for doing the same work as any machine or machines hereby leased than in the opinion of the lessor are sufficient for performing the work which the lessee has in his factory, based upon the capacity of such machines and the number and kind of boots, shoes and other footwear made by the lessee for any period of twelve (12) consecutive months next preceding, the lessor may, at its option, upon thirty (30) days’ notice in writing to the lessee, terminate the lease and license herein contained and in respect to such of the said machines as in the opinion of the lessor are unnecessary.</p> <p>Exhibit 8.</p> <p>Tbis lease and license shall continue, unless sooner terminated by the lessor as herein provided for seventeen years from the date hereof. But if any breach or default shall be made in the observance of any one or more of the conditions contained herein or contained in any other lease or license agreement existing between the lessor and the lessee, whether as the result of assignment to the lessor or otherwise and expressed to be obligatory upon the lessee, the lessor shall have the right by notice in writing to the lessee to terminate forthwith any and all leases of or licenses to use machinery then in force between the lessor and the lessee, whether as the result of assignment to the lessor, or otherwise, and this notwithstanding that previous breaches or defaults may have been unnoticed, waived or condoned by or on behalf of the lessor.</p> <p>The bill then charges that competitors of defendants have produced, sold, and leased, and are now producing, selling, and leasing, in interstate commerce, machines similar in function to many important machines put out by the defendants and affected by the “tying clauses” herein described. Exhibit 13 to the complaint is a list showing the different machines used in the manufacture of shoes showing, in one column, how many of these different machines are put out to shoe manufacturers in the United States by the defendants, and in another column by all other shoe machinery manufacturers in the United States.</p> <p>Exhibit 13.</p> <p>Machines Pat Out to Shoe Manufacturers in tho United States.</p> <p> </p> <p>(1) No competition in the United States.</p> <p>In nearly all eases where shoe manufacturers have used or are using any machines procured from competitors of the defendants, the latter have threatened and do now threaten to remove from the factories of the said manufacturers, all machines leased from them. In some cases the defendants have removed the machines, and in other instances have imposed heavy penalties upon manufacturers because of the use of such machines, secured from defendants’ competitors in violation of said “tying clauses.” That some of these competitors of the defendants are prepared to supply certain machines of the kinds referred to, as well as other machines adapted to the making of shoes, at prices much less and on terms more favorable than those exacted by tho defendants for similar machines, and shoe manufacturers desire to procure them, hut are deterred from doing so by the “tying clauses,” and from fear of the severe financial consequences that would follow their violation. Besides, competitors of tho defendants, other than those now in existence, would arise, and other shoe-making machines would be manufactured and put out by them, if the field of competition was free from the restraining effect of said “tying clauses.”</p> <p>Some indispensable machines can be obtained only from the defendants, for example, tbe stitch indenter and burnisher. In the lease under which the defendants put out these machines, they tie their use to other machines which they manufacture, and thereby compel the lessees to procure all such othor machines from the defendants, the effect of which is practically to prohibit the shoe manufacturers from obtaining any such other machines from competitors of the defendants. That some leases put out by the defendants have clauses which provide for a discount or rebate on prices fixed for the use of tho machines rented — in certain contingencies eliminating tho price entirely — in consideration of the lessees using other machines of the defendants. Copies of t hese clauses are filed as Exhibits 9, 10, 11, and 12.</p> <p>Exhibit 9.</p> <p>6. The lessee shall pay to the lessor throughout the full term of this agreement the respective amounts set forth in the following schedule in respect to each pair of welted boots, shoes, or other footwear, or portions thereof, manufactured or prepared by or for the lessees, which shall have been welted in whole or in part or the soles of which shall have been in whole or in part attached to welts by the use of any welting or stitching or sewing machinery, and‘in respect to each pair of “turned** boots, shoes, or other footwear, or portions thereof, manufactured or prepared by or for the lessee, the soles of which shall have been sewed or attached to their uppers, in whole or in part by the use of any sewing or stitching machinery, viz.:</p> <p>Schedule of Payments per Pair.</p> <p>Sizes, Form Nos. Welts. Cents. Turns. Cents. Children’s Misses’ ... Women's Boys’ ..... Youths’ ... Men’s .... I to 10% inclusive. II to 2 inclusive..., 2% and over.. 9 to 13 inclusive.., 1 to 5 inclusive...., 5% and over. 1 1% 1% 1% 1% 1%</p> <p>All payments and the guaranty in this agreement provided for are independent of and in addition to all payments and guaranties provided for in any other leases or licenses or agreements between the lessor and the lessee: Provided, however, that (excepting in so far as is required by the guaranty herein contained or contained in other lease and license agreements between the lessor and the lessee), in case under any other “Goodyear department” lease and license agreement between the lessor and the lessee covering one or more Goodyear welt and turn shoe machines, Goodyear Universal inseam sewing machines, or Goodyear outsole rapid lock-stitch machines, the lessees shall have paid to the lessor the amount set forth in the schedule of payments in such lease and license agreement contained in respect to any pair of boots, shoes, or other footwear, then the lessee shall be relieved from said payment hereunder in respect to that pair of boots, shoes, or other footwear.</p> <p>Exhibit 10.</p> <p>Order and Temporary Loan Agreement, No. 236 "A.”</p> <p>8. The .* licensee, until such time as he shall have redelivered all of said machinery to the United Company, as hereinafter provided, shall pay to the United Company the sum of one-half of one cent (%0) in respect to each and every pair of boots, shoes or other footwear, or portions thereof, manufactured and prepared in said factory or in any factory to which any of the said machinery shall be removed which have been pulled over in any way, whether wholly or in t part, by the aid of machinery, whether or not of the United Company; and the licensee shall also pay to the United Company in respect to each pair of boots, shoes, or other footwear, or portions thereof, in the manufacture or preparation of which any machine hereby leased is used, the sum of one-quarter of one cent (%$) for each machine so used: Provided, however, that the total of the payments required to be made under this article hereof or under the corresponding article of any other pulling-over department lease or license agreement or agreements heretofore executed between the lessee and the United Company shall not exceed such amount as shall make the total of such payments for such factory and of the payments for such factory required to be made under the corresponding article of any lease or license agreement or agreements between the licensee and the United Company covering lasting machines equal to a payment in respect to the total number of pairs of footwear made in whole or in part in such factory at the following rates, viz.:</p> <p>In respect to all footwear lasted by machines held by the licensee under lease or license agreement from the United Company an amount for each pair three-fourths (%) of one cent in excess of the amount required to be paid under the terms of the lease or license agreements covering such lasting machines.</p> <p>In respect to all footwear not lasted by machines held by the licensee under lease or license agreement from the United Company one and three-fourths (1%) cents for each pair of children’s (si’zes 1 to 10% inclusive) or misses’ (sizes 11 to 2 inclusive) footwear and two (2) cents for each pair of all other kinds, excepting alone that turned footwear in the manufacture of which no lasting machine shall be used shall in such computation be included at the rate of three-fourths (%) of one cent per pair only.</p> <p>Exhibit 11.</p> <p>9. The licensee shall pay to the United Company, in accordance with the following “Schedule of Payments,” in respect to each pair of footwear made in said factory or in any factory to which any of the said machinery shall be removed, in the manu-facturo of which any on© or more of the operations which can be performed by the machines of the metallic department of the United Company or any of them is performed by machinery, whether performed by machinery of the United Company or by other machines, via.:</p> <p>Schedule of Payments.</p> <p> </p> <p>Por each pair of turned footwear in which no metallic fastening machine is used for attaching sole . For each pair of welted or slip soled or McKay sewed footwear in which no metallic fastening machine is used for attaching cither a welt, slip solo, or outsold ... For each pair of footwear the outsoles of which are attached by metallic fastenings ... 30 For each pair of footwear of all other kinds..... 20</p> <p>—excepting, however, that in the case of each pair of footwear in which all such metallic operations as are performed by machinery in the manufacture thereof are performed by metallic department machinery of the United Company, held by tho license© under lease or license agreement from the United Company, and in which all of the metallic materials inserted by such machinery are obtained from the United Company at the prices from time to timo established. hy the United Company (which prices include not only the price for the materials themselves but also an additional amount as royalty for the use of the machines by which the same are inserted), such payment in accordance with the foregoing “Schedule of Payments” shall not be required to be made.</p> <p>[The words “United Company” appearing in tho above exhibits refer to one of the corporate defendants.]</p> <p>Exhibit 12.</p> <p>Pour. The lessee, as rent and royalty for the leased machinery, shall purchase exclusively of the lessor all the fastening material used by him in connection with the leased machinery, and shall pay the lessor in cash on delivery the regular and uniform prices therefor as establis3ied from time to time by tho lessor, which shall not be more than ten (10) por cent, in excess of the prices to bo established from time to time by the lessor for like fastening material to be used in its metallic department machinery by lessees who shall agree not to use the metallic department machinery leased to them in the manufacture of boots and shoes which are lasted on machines other than tho so leased from the lessor, or of welted boots, or shoes which are not welted and stitched on welt sewing and solo stitching machines leased from the lessor, or turned shoes the soles of which are not attached by turn sewing machines leased from tho lessor.</p> <p>Some of the machines are leased by the defendants on what they call an “unrestricted” form of lease. Under that form the lessee In certain cases is permitted to use with the machine leased from the defendants machinery obtained from the competitors of the defendants. These “unrestricted” leases involve the payment of certain “initial premiums” which have remained the same for many years. These “initial premiums” are in addition to the royalties and other charges, which are the same as under the “restricted” form of lease. The amounts of these “Initial premiums” are so large as to practically prohibit the choice of the “unrestricted” form. It is charged that these premiums would amount to about $250,000 upon the machinery in a factory having an output of 25,000 to 30,000 pairs of shoes daily.</p> <p>The bill then sots out bow the defendants obtained control of the shoe machinery business, by charging that the New Jersey Company, soon after its organization, acquired and still owns the capital stock of the Goodyear Machinery Company, Goodyear Machinery Company of Canada, the International Goodyear Machinery Company, Consolidated & McKay Lasting Machine Company, McKay Shoe Machinery Company, and Eppler Welt Machine Company, all of which companies were, at the time they were so acquired, engaged in the business of manufacturing, selling, and leasing, and otherwise dealing in shoe machinery; that these companies conveyed to the New Jersey Company all of their business, including letters patent of the United States and all other countries. Afterwards from time to time this corporation secured and still maintains control of 5G other concerns engaged in the manufacture, sale, and leasing of some form of shoe machinery, or supplies, thereby controlling a complete line of “principal” and “auxiliary” machinery used in the bottoming of shoes. Before then no one company conld supply such a line, nor can any company do so now outside the defendants. By reason of this control tile defendants make the unlawful lease clauses set out in the complaint, whereby shoe manufacturers are prohibited from using in the bottoming of shoes machinery or supplies of defendants’ competitors, and to this cause is due the fact that the defendants control as they do 9814 per cent, of the shoe machinery business of the United States, as shown by Exhibit 13.</p> <p>The prayer of the bill is that the clauses of the leases hereinbefore referred to, and all clauses of like tenor and effect, and the conditions, agreements, and understandings upon which the leases were made, as aforementioned, be declared illegal and void under the said Clayton Act, and that the defendants be enjoined from enforcing or attempting to enforce the same, and from making any similar clauses or leases upon like conditions, agreements, or understandings in the future.</p> <p>The defendants have filed motions to dismiss the complaint, assigning 20 causes. As many of these are mere repetitions, and as the grounds relied on by the defendants will be referred to in the opinion, it is unnecessary to set them out in this statement of facts.</p>

<p>In Equity. Suit by John M. Eandon, as receiver of the Kansas Natural Gas Company, and others, against the Public Utilities Commission of the State of Kansas and others. On motion for interlocutory injunction.</p>

<p>In Bankruptcy. In the matter of the Dozier Wholesale Grocery Company, bankrupt. On report of W. K. Campbell, referee and special master, on objections to confirmation of composition.</p> <p>The following is the report of W. K. Campbell, Special Master:</p> <p>The evidence offered by objecting creditors assumed a very wide range, and obviously much of it is immaterial to any of the issues tendered by the specifications. Counsel for objecting creditors filed a brief from which it appears that the propositions relied upon by them may bo briefly summarized as follows: (1) That the letter of Mr. E. Lamar and that of Mr. A. W. Stewart, the bankrupt’s attorney, “were calculated to mislead the creditors” as to the financial status of the bankrupt. (2) That the claim of O. II. Dozier, Sr., president of bankrupt, should not have been allowed. (3) That the true condition of bankrupt’s financial condition was concealed. (1) That the subscription of C. H. Dozier for $.12,000 of stock on or about January 14, 1914, has not been paid at all, or has not been fully paid. (5) That tho real value of the warehouse, belonging to bankrupt’s estate, was concealed from the creditors. (6) That large sums of money were paid out by bankrupt to some of its creditors for debts duo them within four months preceding bankruptcy, thereby constituting preferences which are recoverable by bankrupt estate. As these are the only propositions pointed out by objecting creditors in brief, upon which they rely to sustain their specifications of objection, the summary of the evidence will be limited to that having some probative relations to said propositions.</p> <p>The first and third propositions appear to be based on tho letters of Lamar and Stewart to the creditors. Both of these! appear to be printed in typewriter type, that of Mr. Lamar being dated January “41,” 1916 (evidently intended for 14). Briefly summarizing its contents, it is to thd following effect,: That some days ago the Selma creditors of bankrupt had a conference, and with such facts as were before them, It appeared that bankrupt’s president and its principal business factor had become incapacitated by disease from giving any attention to the business; that he had been in confinement in a hospital for three months; that the business was in the hands of his young son, of but little experience; that it was obvious that it was to the interest of all creditors to place the concern in bankruptcy; that Reese & Reeso, attorneys at Selma, Alabama, had been authorized and employed to file a petition in involuntary bankruptcy for the benefit of all the creditors; that an adjudication had been obtained; that Mr. Blalock of Selma had been appointed receiver, and was in charge of tho effects, having an inventory made; that according to the judgment of said (petitioning) creditors “it would seem that the best interests of the creditors would he best protected by being consolidated or centralized in the hands of one firm of attorneys, those already employed by said creditors” (the names of the petitioning creditors are here stated); that the writer is a member of the firm of L. & E. Lamar, who informs the creditors of the foregoing facts and invites their co-operation. Suggestion is made that, “if you desire to co-operate with us in handling this estate, * * * you can sign up and mail your claim to them (Reese & Reese) if you so determine it to be to your best interest to co-operate with us; otherwise, of course, you can handle your claim in any way you think, best. In either event, we will be glad to keep you informed as to progress.” The testimony shows that this letter was mailed to some of the creditors, but fails to show how many. The manuscript from which this letter was printed was delivered to printer by Mr. Reese.</p> <p>The letter of Mr. Stewart is dated January 27, 1916. The pertinent parts are: That the failure of bankrupt is largely due to ill health of O. H. Dozier fqr last two years, during which time he has mostly been confined in hospitals, including the State Insane Hospital; that “the assets of the company, as shown by the inventory of the receiver, are as follows: [Here follows the inventory value and the appraised value of the assets as shown by said receiver’s inventory, and the figures correspond in each particular with the respective figures in inventory filed in my office.]” It further states that the writer has arranged to provide money to make a 25 per cent, composition, and concludes as follows: “I have arranged to provide money to carry out this offer, which I think is to the interest of the creditors. Without in any way attempting to influence your action, I have for your convenience attached hereto a perforated slip, with the suggestion that, if you deem it to your interest, you sign and send to your attorney, or Hon. Wm. King Campbell, referee, Selma, Ala., prior to first meeting of creditors. If a sufficient number indicate acceptance the money will be immediately paid into court on the day of said meeting and promptly paid to the creditors, or you can mail to me direct your acceptance.”</p> <p>The evidence shows that Mr. Stewart sent or brought the original from which said letter was printed to Mr. Reese at Selma, and asked him as a “courtesy” to deliver it to the printer. After it was printed, Mr. Stewart mailed it out from Marion to the creditors, and mailed some of them to Reese & Reese, who represented a majority of the creditors who had filed their claims, who mailed' them to some of the creditors whom they represented, writing a letter therewith as follows: “We inclose herewith a circular letter from Mr. A. W. Stewart, of Marion, Ala., bankrupt’s attorney, which we have compared with the official inventory and schedules on file in the referee’s office, and find the figures taken therefrom correct. We hardly think at this season and under the prevailing depressed conditions that the assets will sell for more than $5,000. Book accounts remaining unpaid at this season in this section are generally of little value; when sold in block rarely bring more than 10 per cent. In order to pay the expense, fees, and costs of bankruptcy, and the claims entitled to payment in full, and leave sufficient amount for a dividend of 25 per cent., it would be necessary for the trustee to realize about $8,500 from the sale of the assets. ' This we think very improbable, if not impossible. Kindly instruct your wishes in the matter.” At the time of mailing the letters by Stewart, he had Mr. Reese to file one of the letters in my office.</p> <p>As it seems-a contention of objecting creditors that the warehouse is the basis of the alleged concealment of the value of the assets, a summary of the evidence relating thereto is substantially as follows:</p> <p>Said warehouse is a brick structure with a cement floor. It is located on the right of way or lands of the Southern Railway Company, under a license from said railway. The written contract evidencing said license is in evidence. In said contract the bankrupt is styled the “licensee.” It provides a payment of $57 per annum to the railway company, and contains among others, the following provisions:</p> <p>“(3) That this license is a personal privilege to the licensee hereunder, and is not transferable or assignable, and any attempt to transfer or assign same shall operate as a forfeiture of this license.</p> <p>“(4) That the licensee will post, and at all times thereafter and during the life of this agreement maintain, in a conspicuous place upon said warehouse, a notice reading as follows: Wo goods, wares, merchandise, or other prop-crty, except that of Dosier Wholesale Grocery Company, shall he stored or placeé in IMs warehouse, without the consent, in writing, of Southern Railway Company.’ ”</p> <p>“(6) That it [licensee] will indemnify and save harmless the railway. company against any and all loss of or damage to the property of the railway company, and against all claims, demands, suits, judgments, or sums of money accruing to licensee or to any other party, against the railway company, for loss or injury, caused by fire or otherwise, however resulting, either to person or estate, and arising by reason of or in connection with the occupation and use by licensee of said premises of the railway company, and the presence of the warehouse of the licensee thereupon.”</p> <p>“(8) That in the event that the licensee shall be in default for 30 days in the payment of any rental payment, payable to the railway company hereunder, then forthwith upon such default or violation, and at all events upon 80 days' notice in writing so to do, served upon it by the company, the licensee will remove said warehouse from the premises of the railway company, and vacate said premises, and restore the same to their condition existing prior to the occupation and use thereof by the licensee and the erection of said warehouse thereupon, or in default thereof the railway company may itself re-enter upon said premises, remove said warehouse, and restore the said condition of said premisos, hut at the expense of the licensee. And it is understood and agreed; that the right of the railway company to revoke this license and require the licensee to remove said warehouse and vacate said premises by notice, as aforesaid, shall always obtain, notwithstanding payment of rental in advance and full compliance by the licensee with all of its covenants in this agreement contained.”</p> <p>On the schedule as filed by bankrupt at the end of Schedule B, appears the following note: “Note. In addition to the above property, bankrupt erected a warehouse on the property of the Southern Railroad, and under his [its] contract, it has the right to remove the material therein. It is impossible to estimate its value.”</p> <p>It appears from the evidence that the cost of construction of this warehouse was $3,220, of which the labor constituted about $1,024; that the flooring is of concrete, and constitutes about one-third of the total cost of the building; that the walls are of brick, cemented with a mortar of cement, lime, and sand, which makes a harder substance than the brick. Stewart also testified (same page) that the wooden structure on the lot would not bo worth $50 if torn down and used. J. O. Foster, the attorney for objecting creditors, testified that the value of the brick warehouse in his opinion was $2,000; that of the wooden building being $500. This witness stated that he had only lived in Marion since the middle of last April; that he had never been in the real estate business, nor bought or sold real estate there. This witness also swore that the property referred to in the petition as being worth $3,000 was tills warehouse; witness being asked in reference to said warehouse the following question: “Q. You swear in here [in specification] that the warehouse is worth at least $3,000'? A. I swore that was my belief. Q. You don't know what it is worth? A. No, sir; I was swearing to what I believed it was worth.”</p> <p>Sir. T. T). Kemp, of Marion, testified that he was a civil engineer and architect; had had much experience in construction work of various kinds; that he was familiar with the plans and specifications of said warehouse; that the mortar therein, from its degree of hardness, contained a large percentage of cement; that in tearing down'a building containing such cement the salvage would be less than in case of ordinary mortar; that the flooring was of concrete, and constituted from one-fourth to one-third of entire cost of building; that in removing the building he would not consider it of any value; that “it would only be fit for rubbish, for filling holes”; that it would have no market value; that the wooden building was built of “merchantable rough stuff, what we call log run lumber”; that the material salved from taking down the buildings, under the terms of the contract, would hardly be sufficient to put the ground in its original condition.</p> <p>J. A. Wood, a witness for objectors, was asked: “Can you say that you know the market value of that property, the warehouse of the Dozier Wholesale Grocery Company?” to which he answered, “I couldn’t say that I do, but I could give an idea of what I think the value is.” Subsequently, in answer to question as to market value of said warehouse, he said: “I would say $2,000,” and as to the wooden structure said, “$500, I would say.” This witness was asked as to the value of the material in said building if torn down, but objection to said question was sustained on the ground that witness was not shown to know the market value thereof. His answer, however, was taken down — respectively, $400 for brick building and $100 for wood building. He further testified that he did not know what would be the cost of tearing down the brick building, and that he thought it would cost $25 to tear down the wood building; that with a higher per cent, of cement in mortar there is a greater loss in brick in tearing down; that he never examined the mortar in said building.</p> <p>F. Y. Woodfin, on behalf of objectors, testified that prior to the building of the brick warehouse he had a license from the railway company for the ground now occupied by said building— that is, the brick warehouse; that said wooden structure was then on said ground; that the railroad was willing for him to continue said occupation under said license; that the Dozier Wholesale Grocery Company wanted said place, and paid witness $900 for his privileges, including the buildings on said ground; that after said transaction said wooden building was moved off the space on which brick building stands.</p> <p>W. C. Dozier, for bankrupt, testified that the bankrupt had tried to sell the wooden building to Mr. Ed. Curb, and asked him to make a bid for it; that he offered nothing for it, but was willing to move it off for the salvage. Witness further testified that when the brick building was erected the contractor was required to tear down said wood building or move it, and he moved it, instead of tearing it down; that it was cheaper for said contractor to move said building than to tear it down; that at time of said transaction with Woodfin he had a line of business which bankrupt desired to handle, and it desired to get him out of business, said line being brick, lime, and cement.</p> <p>There is no evidence before me having any tendency to show any collusion or conspiracy between Lamar, Stewart, Reese & Reese, and 'the receiver, or between any of them, in connection with said letters.</p> <p>In relation to the claim of C. H. Dozier, filed and allowed in this case, a brief summary of the evidence is: Said claim is in due form required by law, and sworn to, and was allowed, as admitted in the specification of objection directed against it. Its- basis is five notes made by the bankrupt, two of which are payable to O. H. Dozier, respectively, for $2,000 and $3,030.66, due respectively one day after date and on demand; the dates of said notes being March 16, 1915, and May 1, 1915. The other three notes are payable to Marion Central Bank, dated March 15, 1915, April 1, 1915, and May 8, 1915, respectively, for $1,057.78, $1,057.78 and $1,052.44. Each of them are duly transferred and indorsed by the cashier of said bank to said C. H. Dozier; the date of said transfer being November 13, 1915. From the testimony of C. H. Dozier, testifying with the books before him, it appears from said books of account that the consideration of the $3,030.66 note was notes to the amount of $3,000 owing from the bankrupt to the People’s Bank and the $30.66 being the interest thereon. ■ This witness also proved the signature of the cashier to the transfers of the three notes from the Marion Central Bank.</p> <p>Counsel for objecting creditors assume in'their brief, on the sixth page thereof, that the witness Dozier testified that the amounts embraced in the three notes (transferred by Marion Central Bank to C. H. Dozier) is the same as the amount embraced in the note to C. H. Dozier for $3,030.66. I did not understand the witness to so testify, .and as a matter of fact he explained that he did not so mean to testify. The three notes referred to were payable to-Marion Central Bank, and according to the books, and testimony of said witness, C. H. Dozier, Jr., the consideration of the $3,030.60 was cash paid by C. II. Dozier to the People’s Bank to take up $3,000 worth of notes of bankrupt due said bank, and that the $30.66 was interest thereon. The aggregate amount of said three notes to Marion Central Bank is $3,168.10, while that of the note to Dozier is S3,030.66. This witness fully explains that he did not mean to so testify, furthermore, one of said three notes is subsequent in date to the $3,030.66 note. As to the question of whether said latter note is dated “March 1, 1915,” or “May 1, 1915,” 1 cannot conceive of any reason, beneficial to Dozier, for such alteration; and if any alteration has been made it seems to me that it could have easily been explained by said cashier and the books of the bank. Witness further testified from the books that none of the notes attached to said proof of claim appear.as credits on the personal account of O. II. Dozier with the bankrupt. There is no evidence before me tending to show any defense against said notes. A transcript of said C. H. Dozier account is attached to testimony of C. II. Dozier, Jr.</p> <p>As to the payment of the capital stock, the evidence shows from the books of account, as explained by said witness C. H. Dozier, Jr., that the first $18,000 -was paid on dates from December 24, 1912, to February 27, 1913, as follows: December 24, 1912. $1,500; January 1, 1913, $1,000; January 6, 1913, $6,000; December 27, 1912, $3,479; January 6, 1913, $120; January 28, 1913, $1,510; January 29, 1813, $1,500; February 24, 1913, $2,000; February 27, 1913, $861 — making $18,000 in all. The item of $1,540 was charged to the individual or personal account of O. H. Dozier. The last $1,500 was cash, and the other payments were by check, and the books, as well as the passbooks of the People’s Bank and the Marion Central Bank, show that said cash item and all of said checks were deposited in one or the other of said banks to the credit of the bankrupt firm; the items of deposit in said passbooks being identified in the stenographer’s minutes by a red cross mark. On the individual account of C. H. Dozier with the bankrupt he is, on January 14, 1914, charged with treasury stock $12,000. On the date said charge was made against said Dozier on his account, said account showed a credit balance in favor of him of $13,193.03. It also showed a credit balance in his favor at time of bankruptcy of S765.56, exclusive of any of the items embraced in the claims of said Dozier filed in this bankruptcy.</p> <p>No evidence was offered before me having any tendency to show nonpayment of any of the stock subscribed for, nor any showing that said Dozier owed the bankrupt anything, which was proper to set off against said claim of Dozier, or against the said payments on account of said stock.</p> <p>In this case objecting creditors, without objection, offered in evidence all the books of bankrupt, and all the proceedings in the creditors’ meeting; it being stated that I would consider same so far as I could remember samo. The books are exceedingly numerous and bulky, and no particular portions of thorn have been called to my attention, except as shown by the stenographic minutes. Collier on Bankruptcy, p. 33, declares this practice is loose and should not be followed; that thq better method, where a stipulation is possible, is to call out those portions that are pertinent and read them in. However, I am unable to say that the books show any such preferential payments as would be recoverable by the trustee; it not being even suggested by any evidence as to whom the payments were made, and there being no evidence before me, as to the knowledge or intent of such creditors, such as would make them recoverable, if any may have received such payments within said four months.</p> <p>The purpose of specifications of objection is to give the bankrupt notice of particular conduct of Ms which is challenged (Collier, 322; In re Hirsch [D. O.j 2 Am. Bankr. Itep. 715, 96 Fed. 468), and they should contain allega,-tions sufficient to show all essential facts existing bringing the opposition within the grounds specified by the statute (Collier, 324). They must be clear and unequivocal, and contain specific averments of facts. . They should be pleaded with greater particularity than complaints in civil actions. Collier, 324. Specifications and proof in support must be clear, positive, and direct. The opposing creditor must distinctly allege and prove one or more of the statutory grounds. In ro Griffin Bros. (D. C., Toulmin, Judge) 19 Am. Bankr. Itep. 78, 154 Fed. 537. See, also, In re McGurn (D. C.) 4 Am, Bankr. itep. 459, 102 Fed. 743; In re Thomas (D. C.) 1 Am. Bankr Rep. 515, 92 Fed. 912; In re Holman (D. C.) 1 Am. Bankr. Rep. 600, 92 Fed. 512; In re Hixon (D. C.) 1 Am. Bankr. Rep. 610, 93 Fed. 440; In re Kaiser (D. O.) 99 Fed. 689; In re Hirsch, supra; In re Peacock (D. O.) 4 Am. Bankr. Rep. 136, 101 Fed. 560; In re Quackenbush (D. C.) 4 Am. Bankr. Rep. 274, 102 Fed. 282; In re Gross, 5 Am. Bankr. Rep. 271; In re Wolfensohn, 5 Am. Bankr. Rep. 60; In re Wetmore (D. C.) 99 Fed. 703; In re Idzall (D. C.) 2 Am. Bankr. Rep. 741, 96 Fed. 314; In re Main (D. G.) 30 Am. Bankr. Rep. 547, 205 Fed. 421.</p> <p>The allegations must be specific and of such a character that their sufficiency may be met by demurrer, or by exceptions analogous to those allowed in equity. Mere general averments are not sufficient. If they fail to allege any fact which by construction would be deemed ground for denial, they may be disregarded, though not excepted to. Collier, pp. 325, 326; In re Troeder, 17 Am. Bankr. Rep. 723, 150 Fed. 710, 80 C. C. A. 376; In re Steed (D. C.) 6 Am. Bankr. Rep. 73, 107 Fed. 682; In re Peck (D. C.) 9 Am. Bankr. Rep. 747, 120 Fed. 972; In re Parish (D. C.) 10 Am. Bankr. Rep. 548, 122 Fed. 553; In re Chandler, 14 Am. Bankr. Rep. 512, 138 Fed. 637, 71 C. C. A. 87. It is held in Re Mintzer (D. C.) 197 Fed. 647, 28 Am. Bankr. Rep. 743, that specifications in general terms following the language of the statute are insufficient. The grounds specified must be one of those enumerated in the statutes. In re Griffin Bros., supra. This case, decided by the judge of this district, is one of the clearest and most lucid discussions of the necessary allegations and proof required in specifications.</p> <p>In my opinion, the first specification is insufficient. It does not allege any of the grounds enumerated in the statute, no evidence was offered in support of it, and, further, it is a fact that I mailed notice of the first meeting of creditors to all of the creditors scheduled, including the creditor mentioned in said specification. The envelope containing each of said notices had my official return address thereon, and has never been returned to me. I therefore find that said specification is not sustained by the evidence.</p> <p>The second specification, so far as its meaning can be gathered by reading it, and the evidence offered relating thereto, is predicated on the fact that certain property — the warehouse — is scheduled as valueless, which is worth at least $3,000, and that the offer of composition is less than would be realized on sale of the assets of the bankrupt. The ^allegation that it “is scheduled as valueless,” seemingly the conclusion of the pleader, is not borne out by the evidence, as the official schedule shows that this warehouse was listed with the explanatory note relating thereto, which note is set out heretofore in this report, and from which note it appears that the bankrupt was ‘unable to estimate its value as an asset; and from said note I am unable to derive any suggestion even intimating that same was valueless. The explanation is plainly that bankrupt is unable — did not know how — to fix or estimate its value as an asset; and for reasons! hereinafter set out I think such conclusion was fully justified.</p> <p>No evidence was offered in support of the allegation that more would be . realized to the creditors by a sale of the assets than is offered by the composition ; on the contrary, Mr. Monk, president of the Central Alabama Dry Goods Company, shown to have large experience in bankrupt sales, testified that in his opinion the assets would not likely sell for over $5,000, and that is the conclusion I reach, and I do not think that more could be realized to creditors by sale than is offered by the composition, and this would still be my conclusion, even though it were shown that several hundred dollars could be realized by sale of the warehouse.</p> <p>Section 70, subd. “a,” of the Bankrupt Act (Act July 1, 1898, c. 541,- 30 Sta,t. 565 [Comp. St. 1913, § 9654]), specifies and determines what property passes to the trustee and becomes assets in his hands. The only part of said subdivision “a” which could by a possibility relate to this warehouse is the following part of the clause numbered (5): “(5) Property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him. * * * ”</p> <p>Under the terms of the contract with the Southern Railway Company, referred to heretofore in this .report, it is my opinion as a matter of law, and I so hold, that, except as to the privilege of removing the material from the railroad, the bankrupt had no property rights arising out of said contract, which he could by any moans have transferred or which might have boon levied upon and sold under judicial process against him and I further hold that the only property right which could pass to the trustee as an asset was the right to remove and sell said material according to the terms of 1he contract. As to the value of such material one witness, Wood, testified that the material in tho brick warehouse he thought would be worth $400, and that in the wood building $100; that the cost of tearing down tho wood building would be about $25. He failed to testify as to wha.t would be the cost of tearing down the brick warehouse, or restoring the ground to the condition required by the contract. The questions which elicited these answers as to the value of said materials were objected to, and such objections were sustained, because said witness was not shown to know the values inquired about. The witness Kemp, a very intelligent man of many years’ experience in such matters, testified that the material salved from the taking down of the buildings would hardly be sufficient to pay expenses thereof and of putting the ground in its original condition according to the terms of said contract. There is therefore before me no evidence from which I can conclude, as a matter of fact, that this right to remove this material is of any value as an asset of the estate; but, if so, its value at least Is problematical and uncertain.</p> <p>The approval of a majority of the creditors is evidence, prima facie, that the composition is for tho best interests of the creditors, and the burden is on those who attack it to show the contrary. Collier, p. 297; In re Waynes-boro Co. (D. C.) 19 Am. Bankr. Hep. 487, 157 Fed. 101; In re Hoxie (D. C.) 25 Am. Bankr. Rep. 32, 180 Fed. 508; In re Barde & Levitt (D. C.) 31 Am. Bankr. Rep. 730, 207 Fed. 654; City Bank v. Doolittle, 5 Am. Bankr. Rep. 730, 107 Fed. 230, 46 C. C. A. 258. There must be a positive showing to rebut this presumption that the action of the majority is for the interest of all. Collier, p. 297; In re Weber Co., Fed. Gas. No. 17,330; Id., 17,331; In re Greenebaum, Fed. Cas. No. 5769.</p> <p>My report of this composition shows its acceptance by 42 creditors, whose claims aggregate $13,115.79. The objecting creditors are Yan Camp Products Company and Hancock Bros. & Co., whose claims amount, respectively, to $316.80 and $37.82. It is my conclusion, based on all the evidence, that the creditors would realize more under the composition than by a sale of the assets. Without passing on the pleadings, 1 find npon the evidence that the second specification is not sustained.</p> <p>In my opinion, the third specification does not allege any of the grounds enumerated by tho statutes; but I do not deem it necessary to pass on the exceptions to it. There is no evidence before me showing a concealment, nor an attempted concealment, nor any false statement sent out by tho bankrupt, or any of the other persons mentioned therein. This specification, which is very vague, according to the evidence is based on the fact that the warehouse was an asset of great value, and Mr. Stewart in his letter failed to mention it as an asset, and that Reese & Reese failed to call it to the attention of their clients that it was a valuable asset. As already stated, in my opinion it is an asset of but small and problematic value. I find that this third specification is not sustained by the evidence.</p> <p>The fourth is also based, so far as its meaning can be gathered, on the value of the warehouse, it avers it to be worth $5,000; that the bankrupt “colluded with the petitioning creditors, the attorneys representing a majority of the creditors and the receiver to “conceal and deceive creditors” as to the condition of bankrupt estate; that bankrupt sent out a statement to tbe creditors “in which it failed to list” the warehouse; and that attorneys representing a majority of the creditors wrote their clients that they had receiver's inventory, and that bankrupt’s statement as to what it showed was correct. Tho evidence is without dispute that bankrupt sent out no statement, and that allegation probably refers to the letter written by Mr. W. A. Sewart, its attorney. Tbe figures given in that letter, upon comparison, are identical with those shown by the said inventory filed in my office by said receiver. There is no evidence before me having any tendency to show any conspiracy 'to deceive any of the creditors. It is unnecessary for me to again state my conclusion as to the value of the warehouse as assets. I find that the fourth specification is not sustained by the evidence.</p> <p>No evidence was offered in support of the fifth specification, and I therefore find that it .is not sustained by the evidence.</p> <p>The sixth specification is to the effect that O. H. Dozier, who was president of the bankrupt, “did file a claim, with the referee, * * * which was allowed, and which is not a bona fide (?) claim or charge against the estate of said bankrupt.” Pretermitting any discussion as to the extent of the effect or limitation affected by the use of the words “bona fide,” and without passing on the sufficiency of said specification, it will be observed that said specification admits that said claim has been allowed. The bankrupt’s counsel strongly contended that the allowance of said claim was a .iudgment in favor of said O. H. Dozier; that it could not be attacked collaterally on this reference; that said judgment was in the nature of res adjudicata; that said claim could only be attacked on petition of the trustee to re-examine and disallow' or reduce said claim (a trustee has been duly appointed and qualified in this cause) — citing in support of said proposition the case of In re Lewen-sohn, 9 Am. Bankr. Rep. 368, 121 Fed. 538, 57 O. O. A. 600. In my view of the evidence relating to this claim, a decision of the above question of evidence is unnecessary. As already stated in this report, said claim is properly proven according to the statute and in the form provided therefor. No evidence in rebuttal thereof, or from which a contrary inference is raised, has been presented. I therefore find that the evidence does not sustain the sixth specification.</p> <p>, I am of the opinion that the composition should be confirmed, and I do therefore recommend that it be confirmed. Considefable costs and expenses have been incurred in the execution of this reference, an itemized statement of which is handed up with this report, and which should be taxed against the objecting creditors.</p>

<p>Carriers <§A>38 — Carriage of Goods — Debating—Indictment—Sufficiency.</p> <p>An indictment, charging three carriers with rebating, averred that two of them were engaged in carrying coal over their respective routes; that a third corporation, which was the owner of the majority of the stock of the other two and controlled and managed their affairs, did unlawfully and knowingly give to a shipper of coal a sum of money as a rebate of the freight rates and charges collected, which were the regular fixed rates. Interstate Commerce Act Peb. 4, 1887, c. 104, § 6, 24 Stat. 380, as amended by Act June 29, 1906, c. 3591, § 2, 34 Stat. 587 (Comp. St. 1913, § 85,69), declares that no carrier shall refund or remit, in any manner or by any device, any portion of rates, fares, or charges, except such as are specified in the tariffs, while section 10 (section 8574) provides that if the carrier be a corporation, penalties for violation may be visited upon any director, or officer thereof, or any receiver, trustee, licensee, agent, or person employed by such corporation. The Elkins Law (Act Eeb. 19, 1903, c. 708, § 1, 32 Stat. 847 [Comp. St. 1913, § 8597]) provides that anything done or omitted to be done by a corporate common carrier subject to the act to regulate commerce, which, if done or omitted to be done by any director or officer, agent, or employe, would constitute a misdemeanor, shall be held a misdemeanor committed by the corporation, that it shall be unlawful for any person or corporation to offer, grant, accept, or receive any rebate, and that in construing the provisions of the section, the act, omission, or failure of any officer or other person acting for or employed by any common carrier or shipper acting within the scope of his employment shall be deemed the act of the common carrier. Held, that while the mere fact that the third corporation owned the majority of the stock of the other two carriers did not constitute it their agent or give it the management of their affairs, yet the indictment was sufficient to charge an offense, averring that the rebate was made by such third corporation as their agent, and clearly indicating that such procedure was a device to a,void the penalties of the acts, therefore the averments of ownership of stock cannot be taken as controlling the allegations of agency.</p> <p>[Ed. Note.- — Por other cases, see Carriers, Cent. Dig. §§ 96, 97; Dec. Dig. ¡©=>38.]</p>

<p>1. Shipping @=49(3) — Cuartees—Interruption of Service — Liability of Owner.</p> <p>The master of a steamship under charter held not chargeable with negligence because of a fire which started in an extra coal bunker, on evidence showing that the coal was stored and cared for in the usual and customary manner, and the owner held not liable for the resulting damage to the charterer under an exception of fire in the charter party.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 194r-106; Dee. Dig. @=49(3).]</p> <p>2. Shipping @=40 — Charter—Termination by Fire — Right of Charterer to Payment for Coal.</p> <p>By a time charter of a steamship the charterers were to leave 500 tons of coal in the bunkers on redelivery, for which they were to be paid a stipulated price. The vessel was damaged and rendered inefficient by fire, and withdrawn from the charter by the owner, having then in her bunkers coal in excess of 500 tons. Held,, that the charterers were entitled to pay for 500 tons at the charter price, and for the remainder at the market price at the place where the charter was terminated.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. @=40.]</p> <p>3. Shipping <&=49(3) — Time Charter — Hire—Disability of Vessel.</p> <p>Where a fire disabled a steamship from further performing a time charter, and under its provisions terminated the contract, the owner is not entitled to recover hire after such time.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 194-196; Dec. Dig. @=49(3).]</p>

<p>Equity <&wkey;371 — I’eaoticio—Separate Hearing — Right to.</p> <p>' Complainant’s bill charged that defendant and a second corporation controlled by defendant, which was named a defendant, but not served, conspired together to infringe complainant’s patent. The bill of particulars specified infringements as the result of a conspiracy, and declared that complainant did not waive the right to rely on infringements by the corporations or either of thorn. Equity rule 29 (.198 Fed. xxvi, 115 C. C. A. xxvi) declares demurrers to pleas are abolished, but every defense heretofore presentable by plea in bar or abatement shall be made in the answer, and in the discretion of the court disposed of before trial of the principal case. Held, that as, in a suit to enjoin infringement of letters patent and recover profits and damages, the interlocutory decree enjoining infringement marks the divisional line between the introduction of evidence of infringement for the purpose of obtaining such decree and of evidence showing profits, no separate trial on the defense that the defendant served did not conspire with the second corporation to infringe the patent and did not control it can be had, for that would be calculated to result in confusion.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 782; Dec. Dig. <&wkey; 371.1</p>

<p>1. Courts <&wkey;351 — Interrogatories—Discretion oe Court.</p> <p>Equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv), authorizing' the parties to. file interrogatories for discovery from the opposite party of facts and documents material to the support or defense of the action, and declaring that, if either party be a public or private corporation, the opposite party may apply to the court for an order allowing him to file interrogatories to be answered by any officer of the corporation, and •that an order may be made for examination of such officer as may appear to be proper and upon such interrogatories as the court shall think fit, is not intended to deprive the parties, or either of them, of the right to introduce at the trial evidence of facts and documents material to the support or defense of the cause, but to enable the parties to obtain evidence prior to trial, and therefore, in allowing the propounding of interrogatories to corporate officers, the court should exorcise its discretion, so as to avoid necessarily vexatious results.</p> <p>1 Md. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. &wkey;351.1</p> <p>2. Courts <&wkey;351 — Interrogatories—Right to Propound.</p> <p>In an action against two corporations for conspiring to infringe and infringing letters patent, the president of the corporation, which was served, in answer to interrogatories concerning the infringement, stated that his company was only a holding company, that he was the financial and executive officer, and lacked the knowledge to state what infringements, if any, had been had, and that no other officer of such corporation was conversant with the infringement. Complainant sought to compel further answers, demanding that the president of such corporation ascertain from the agents of the second company the nature of the infringements. It appeared that the officers of the two corporations were practically identical. Held that, under equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv), authorizing the propounding of interrogatories to corporate officers in the discretion of the court, such additional interrogatories should not be allowed, for it would either result in binding the corporation by hearsay statements of its inferior agents, or the answers, if not treated as admissions, would be unavailing, being mere hearsay.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. &wkey;351.]</p>

In Admiralty. Petition of the Tonawanda Iron & Steel Company, as owner of the steamer Oceánica, for limitation of liability. On claim of John Moran for injury as seaman.

<p>1. Statutes <&wkey;225% — Construction—Adoption.</p> <p>The Legislature, in adopting a statute, is presumed to have acted with knowledge of previous'construction of similar statutes, and to have intended such construction, unless it otherwise indicated.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 306; Dee. Dig. &wkey;225%.]</p> <p>2. Limitation op Actions <&wkey;100(3) — Running op Statute — Fraud.</p> <p>The six-year limitation prescribed by Act March 3, 1891, c. 561, § 8, 26 Stat. 1099, in which suit to cancel patents must be commenced, does not, as to a patent secured through fraud, in that the patentee was acting for speculative purposes and under an agreement to convey when he should receive his patent, begin to run until those facts are discovered, for a limitation statute, in so far as it applies to actions based on fraud, does not, where the fraud is concealed, begin to run until discovery.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 482, 483; Dec. Dig. &wkey;>100(3).]</p> <p>3. Public Lands <&wkey;131 — Patents—Issuance.</p> <p>Under Rev. St. §§ 2290, 2291 (Comp. St. 1913, §§ 4531, 4532), requiring an applicant for a patent to public lands to make oath his purpose is not speculation, but to secure a home, and that he has not made and will not make any agreement by which the! title shall inure to any other’s benefit, and on final proof to make oath that he has not alienated the land, the fact that an entryman who filed for speculative purposes recognized the possibility of a future alienation, and that he asked one who purchased a considerable time after the issuance of a patent if he would buy the land when the patent was secured, does not show that the purchaser knew the entry was speculative, or deprive the purchaser, who was bona fide, of the benefit of his good faith.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 347; Dec. Dig. &wkey;>131.]</p> <p>4. Public Lands <&wkey;135(2) — Patents—Speculative Purposes.</p> <p>Where an entryman on public lands, who secured a patent, was not actuated by speculative purpose at the time of his entry,'he may, despite Rev. St. §§ 2290, 2291 (Comp. St. 1913, §§ 4531, 4532), declaring that a patent shall not bo issued to one entering for speculative purpose, dispose of the land after acquiring his patent.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 353, 354; Dec. Dig. &wkey;135(2).]</p> <p>5. Public Lands &wkey;>120 — Patent.</p> <p>Unless proof that a patent to public land was secured through fraud is clear and convincing, the patent should not be overthrown.</p> <p>LEd. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. &wkey;120.]</p> <p>6. Public Lands <&wkey;120 — Evidence—Sotficibncy.</p> <p>In a suit to cancel a, patent to public lands, evidence held, insufficient to show that defendant, to whom it was subsequently conveyed, had a contract for the purchase of the land when it was patented.</p> <p>I Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; .Dec, Dig. <J&wkey;120.’|</p> <p>7. Public Lands <&wkey;120 — Evidence—Sumticiency.</p> <p>In a suit to cancel a patent to public lands, on the ground that the patentee was acting under a contract to subsequently convey to defendant, evidence held insufficient to establish any such agreement, or that the patentee’s entry was not in good faith.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dee. Dig. <S=»I20.]</p>

<p>1. Public Lands <&wkey;120 — Patents—Stjits to Set Aside — JuRiSDitfrioN or Court.</p> <p>A patent to public lands will not be set aside by a court of equity, unless it appears that through error in the construction of the law the patent was issued to the wrong party, or that through fraud or gross mistake patent was issued to the wrong party. Therefore a bill to set aside a patent to public lands, which contained no averments of fraud, mistake, or erroneous construction of law, is demurrable.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p> <p>2. Public Lands &wkey;>120 — Patents—Bill to Set Aside.</p> <p>A bill to set aside a patent to public lands, which averred settlement upon, improvement, and failure to post notices of claim, and also averred plaintiff’s adverse possession for 10 years, and the subsequent issuance of a patent to defendant, is insufficient to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p> <p>3. Public Lands <&wkey;120 — Patents—Bill to Set Aside.</p> <p>A bill to set aside a patent to public lands, averring that defendants claim some title, estate, and interest in the land by reason of a patent, is insufficient to give jurisdiction to a, court of equity.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <&wkey;120.]</p>

<p>1. Courts <&wkey;372(7) — Precedence—Federal Courts.</p> <p>Where the validity of municipal bonds depended upon the construction to be given Acts Tenn. 1897, c. 13, and Acts Tenn. 1901, c. 450, incorporating the municipality, and the contract had been entered into before an interpretation of the statutes by the Tennessee court, the federal courts are not bound by a decision of the Tennessee court holding the bond issue invalid, and, having obtained jurisdiction of a suit involving the validity of some of the bonds, they may exercise an independent judgment.</p> <p>(Ed. Note. — For other eases, see Courts, Cent. Dig. § 979; Dee. Dig. &wkey;372(7).]</p> <p>2. Courts <&wkey;372(7) — Precedence—Federal Courts.</p> <p>Upon questions of general law decisions of the state courts are not binding on the federal courts sitting within their borders; therefore a decision of the state court that a municipality was not estopped from denying the validity of its bonds, which had passed into the hands of a bona fide purchaser for value without notice, is not binding on the federal courts.</p> <p>(Ed. Note. — For other cases, see Courts, Cent. Dig. § 979; Dec. Dig. &wkey;372(7).]</p> <p>3. Municipal Corporations 4&wkey;927 — Bonds—Validity.</p> <p>Where municipal bonds bore admittedly official signatures of municipal officers and the city seal, such signatures and seal prima facie established the validity of the bonds.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1940; Dec. Dig. &wkey;927.]</p> <p>4. Municipal Corporations <&wkey;948(4) — Bonds—Bona Finn Purchaser — • Estoppel.</p> <p>Acts Tenn. 1897, e. 13, declares that, to secure pure elections, boards ot commissioners shall be appointed in the several counties. Acts Tenn. 1901, c. 450, incorporating the town of Newbern, provides in section 6 for the holding of an election by the sheriff for the selection of mayor, aldermen, recorder, and marshal. By Act of March 13, 1907 (Acts 1907, c. 117), the mayor and aldermen of the town of Newbern were authorized to issue bonds to erect school buildings, to improve and extend the water and light system, and to improve streets. The bonds contained a recital that at an election duly and legally held by order of the mayor and aldermen of the town, in accordance with an ordinance duly passed, the issuance of the bonds was ratified by a majority of the voters. The bonds were signed by the mayor and countersigned by the clerk of the board of aldermen, instead of being signed both by the mayor and aldermen. The ordinance referred to .in Ihe bond recited that an election, ordered by the mayor and aldermen to ascertain the will of the qualified voters as to whether the mayor and aldermen should issue the bonds, as provided for, was held, and resulted in showing that a majority favored the issuance of the bonds; the result of the election having been duly and regularly certified by the sheriff under whose supervision the election was held. Held that, as against a bona fide purchaser of the bonds for value and without notice, the city was estopped to deny the validity of the bonds on the ground that the election, having been hold by the sheriff, instead of commissioners, was invalid, for a purchaser could not be charged with notice of the fact that the election was held by the sheriff, on the ground that the bonds were signed by the mayor and clerk, instead of the mayor and aldermen; these signatures being accompanied by a corporate seal importing authority.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1985; Dec. Dig. <&wkey;948(4).]</p> <p>5. Municipal Corporations <&wkey;931 — Bonds—Validity—Alterations.</p> <p>Municipal bonds are not invalid, on the ground that they did not follow the form prescribed hy the ordinance, because of the insertion of provision for payment in a particular bank in the city, where payment was provided for, or by declarations that the total debt of the town, including the bonds, did not exceed any limit of indebtedness prescribed by the laws of the state, and that provision for the levy of an annual tax sufficient to pay the principal and interest of the bonds had been made and would be duly levied upon all taxable property, for the first provision operated to the convenience of the municipality, and the latter did not change the obligation of the municipality, which pledged its full faith, credit, and revenues.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations,. Cent. Dig. §§ 1944-1947; Dec. Dig. &wkey;931.]</p> <p>6. Municipal Corporations <&wkey;948(5) — Bonds—Validity—Defenses.</p> <p>Where coupon bonds issued by a municipality to erect a school building were sold, and the purchaser disposed of them to bona fide- purchasers,. but never paid the purchase price to the municipality, the bonds are, in the hands of bona fide purchasers, valid, being negotiable instruments.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1986, 1987; Dec. Dig. &wkey;948(5).]</p> <p>7. Municipal Corporations <&wkey;948(l) — Bonds—Delivery—Presumptions.</p> <p>Under Negotiable Instruments Act (Acts Tenn. 1899, c. 94) § 16, providing that, where a negotiable instrument is in the hands of a holder in due course, a valid delivery by all parties prior to him, so as to make them liable to him, is conclusively presumed, the validity of municipal school bonds in the hands of a bona fide purchaser cannot be questioned by a municipality on the ground that there was no valid delivery to the one through whom the purchaser traced his title.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 19S2, 1990; Dec. Dig. &wkey;948(l).J</p> <p>8. Appeal and Error <&wkey;1078(l) — Review—Waiver op Errors.</p> <p>Failure to argue assignments of error operates as a waiver.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4256; Dec. Dig. &wkey;1078(l).]</p>

Emil Erber was convicted under Criminal Code (Act March 4, 1909, c. 321) §§ 37, 215, 35 Stat. 1096, 1130 (Comp. St. 1913, §§ 10201, 10385), of conspiracy, and of using the mails in connection with a scheme to defraud, and he brings error.

Bill by the Western Extracting Company against Julius E. Smie-tanka, Collector of Internal Revenue at Chicago, Ill., and others. From a decree dismissing the bill on motion of the named defendant, complainant appeals. Appellant brought a suit in equity against the Secretary of the Treasury, the Commissioner of Internal Revenue, and the Collector of Internal Revenue at Chicago to enjoin the enforcement of certain orders of the Bureau of Internal Revenue of May 18, 1910.

Pollock, Judge. Bill by the United States & Mexican Trust Company and others against the Kansas City, Mexico & Orient Railroad Company and others to foreclose a mortgage, in which the United States Fidelity & Guaranty Company intervenes. From a decree of foreclosure, allowing the claim of the intervener as a general demand, but denying it as an equitable preference over the holders of bonds secured by the mortgage, the intervener appeals.

<p>1. Carriers <3=306(2) — Relation or “Passenger” — Operating over Another’s Road.</p> <p>One who is a passenger of a street railroad company operating its through cars over the traeks of another such company with its consent, as evidenced by its acceptance of an ordinance, is in law also a “passenger” of the other company, and entitled to the exercise by each of the same degree of care.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1249; Dec. Dig. <3=306(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Passenger.]</p> <p>2. Carriers <§=>316(4)- — Injury to Passenger — Res Ipsa Loquitur.</p> <p>Regarding negligence of defendant, owner of a street railroad, which ran its car into the car of another street railroad company standing on defendant's track, over which it was being operated with defendant’s consent, injuring a passenger on tlie standing car, the principle of res ipsa loquitur is applicable to a count charging general negligence.</p> <p>[Ed. Note. — Eor other eases, see Carriers, Cent. Dig. § 1287; Dec. Dig. <§=>316(4).]</p> <p>3. Negligence <§=>136(6) — Directing Verdict — Res Ipsa Loquitur.</p> <p>Where the principle of res ipsa loquitur is applicable, on a count charging general negligence, an instruction to find for plaintiff would be proper, in the absence of testimony tending to explain the occurrence on any theory other than that of defendant’s negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 286; Dec. Dig. <§=>136(6).]</p> <p>4. Appeal and Error <S=>1062(1) — Harmless Error — Taking Count erom Jury.</p> <p>The measure of damages on all the counts in a personal injury action being the same, any error in overruling motion to take one of them from the jury was harmless, where the jury might properly have been instructed to find for plaintiff on one of the others.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <§=>1062(1).]</p> <p>5. Evidence <§=>477(4) — Appearance oe Person.</p> <p>Evidence that a few minutes after' plaintiff’s injury, while her foot was being bathed, she was screaming, is admissible. •</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §' 2240; Dee. Dig. <§=>477(4).]</p> <p>6. Witnesses <§=>248(2) — Responsiveness oe Answer.</p> <p>The answer, “She was screaming with pain in her side,” in the absence of specific objection that it was not responsive to the question as to how she appeared, will be deemed to mean, not that her screams were in fact due to pain in the side, but that they appeared to witness to be caused thereby.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 862; Dec. Dig. @=>248(2).]</p> <p>7. Evidence <§=>268 — Statement to Physician.</p> <p>Unless it clearly appears that plaintiff’s description to a physician to whom she had gone of her subjective symptoms was made solely to aid an expert to give evidence on the trial in an action for her injury, and not in good faith to assist him in diagnosing her case for purpose of treatment, it is admissible, though the weight’to be given it by the jury may be slight.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1061, 1062; Dee. Dig. <§=>268.]</p> <p>8. Evidence <§=>554 — Expert Testimony — Cause and Effect.</p> <p>There being no conflict as to the manner of an injury, a physician may testify that the accident did cause, and not merely that it might have caused, the injuries.</p> <p>■ [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2375; Dec. Dig. <§=>554.]</p> <p>9. Evidence <§=>547 — Experts—Speculative Testimony.</p> <p>Testimony of a physician, after he had described the conditions found during a period of treatment of plaintiff, a profuse discoloration of the abdominal region) jaundice, blocking of the bowels, retention of the water, high pulse, etc., and had stated that he gave her treatment of the stomach, bowels, and liver, that it was his opinion that there had been an injury to the stomach and liver, was not speculative.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2364; Dec. Dig. <§=>547.]</p> <p>10. Appeal and Error <§==>1047(3) — Harmless Error — Rulings on Evidencio.</p> <p>There being uncontradicted testimony as to the injuries received by plaintiff, their permanent character, and the sufferings endured by her, any error in refusing to strike out as speculative the answer of a physician, asked if he formed an opinion as to the trouble with her abdomen and hip, that his diagnosis and conclusions were that there were possible adhesions there, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4149; Dec. Dig. <§=>1047(3).]</p>

<p>1. Trusts <@=72 — Resulting Trusts — Creation.</p> <p>When one person pays for land and has title made to another, a trust results in favor of the purchaser.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 102, 108; Dec. Dig. <@=72.]</p> <p>2. Trusts <@=43(1), 88 — Resulting Trusts — Establishment.</p> <p>'Where land is paid for by one, though title is taken in the name of another, either the payment, raising a resulting trust, or an express agreement by the holder of the title to hold in trust for tha real purchaser, may be established by parol.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62, 130-133; Dec. Dig. <@=43(1), 88.]</p> <p>3. Trusts <@=8f — Resulting Trusts — Presumptions.</p> <p>Where a husband or father, on purchasing land, takes title in the name of his wife or his child, no presumption of resulting trust arises, as in case of strangers or relatives under no obligation to support.</p> <p>TEd. Note. — For other cases, see Trusts, Cent. Dig. § 128; Dec. Dig. <@=86.]</p> <p>4. Trusts <@=86 — Resulting Trusts — Presumption.</p> <p>The presumption of a resulting trust may be rebutted by evidence of the circumstances or declarations by the real purchaser, who took title in the name of another, that a gift was intended to the grantee.</p> <p>[Ed. Note. — For other eases, see Trusts, Cent. Dig. § 128; Dec. Dig. <@=86.]</p> <p>5. Trusts <@=81(1) — Resulting Trusts — Evidence.</p> <p>In determining whether a resulting trust arises, where one purchasing land has title taken in the name of another, the close relationship of the grantee to the purchaser and the purchaser’s moral obligation to support may be considered.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 115; Dec. Dig. <S=81(1).]</p> <p>6. Trusts <@=362 — Resulting Trusts — Declaration.</p> <p>A resulting trust will not be declared in favor of a purchaser, who had the legal title made to another for the purpose of defrauding his creditors,</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 560-562; Dec. Dig. <@=362.]</p> <p>7. Trusts @=>72 — Resulting Trusts — Creation.</p> <p>A resulting trust, if it arises at all, must arise'at the time the legal title is taken in the name of one who does not pay a consideration for the conveyance.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 102, 103; Dec. Dig. @=>72.]</p> <p>8. Trusts @=>89(5) — Resulting Trusts — Establishment.</p> <p>Parol evidence, to establish a resulting trust, must be clear, unquestionable, and certain.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 137; Dec. Dig. @=>89(5).]</p> <p>9. Trusts @=>372(3) — Resulting Trusts — Evidence—Establishment.</p> <p>In a suit to establish a resulting trust in land, evidence held to show that the purchaser, who paid the consideration, had title taken in the name of an ostensible grantee for the purpose of defeating a judgment creditor, and so no resulting trust arose.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 602, 603; Dec. Dig. @=>372(3).]</p> <p>10. Trusts @=>362 — Resulting Trusts — Creation.</p> <p>Where purchaser of land took title in the name of another for the purpose of defeating the collection of a judgment against him held by the state, a subsequent release of the judgment will not give rise to resulting trust, as such trust, if it arises, must do so when title vests.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 560-562; Dec. Dig. @=>362.]</p> <p>11. Trusts @=>89(1) — Resulting Trusts — Evidence.</p> <p>In suit to establish a resulting trust in land, title to which was transferred from the original grantee to the purchaser’s sister, evidence held to establish that, though the purchaser was the .equitable owner, he intended his sister to take the fee of the land.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 134; Dec. Dig. @=>89(1).]</p> <p>12. Trusts @=>365(4) — Resulting Trusts — Right to Assert — Laches.</p> <p>Where for over 22 years a purchaser of land acquiesced in the title remaining in his sister, to whom; it was transferred from the original grantee, and his will affirmed such title, the heirs of the purchaser cannot thereafter assert a resulting trust in the land; it being barred by laches.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 572; Dec. Dig. @=>365(4).]</p>

Paréis, owner of tire steam tug Eva May, against the steam tug Mercer; the Pennsylvania Railroad Company, claimant. D'ecree for libelant, and respondent appeals.

<p>Collision <®=>71(2) — Tow and Stationary Dredge — Fault oe Towing Tug.</p> <p>A collision in Kill von Kull at night between a canal boat, forming part of a tow of 15 boats in tiers of 3, and a scow alongside a dredge engaged in deepening the channel, held due to the fault of one of the towing tugs in directing the casting oft of the lines between the rear starboard boat, which was to be taken out of the tow, and the boat ahead of them continuing to push at the stern of the tow, which forced the latter boat out of the course of the tow and .into collision with the scow. The dredge held not in fault as obstructing the channel; it appearing that there was a clear channel of over 400 feet on the side of the tow.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 101; Dee. Dig. @==>71(2).]</p>

Appeal- from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Action by the United States against the Chicago & Northwestern Railway Company to recover a penalty for violation of the Twenty-Eight Hour Law. There was a judgment for the United States, and defendant brings error.

Actions by the United States of America against the Chicago & Northwestern Railway Company. There were judgments for the United States, and defendant brings error. These two cases- were argued together, and will be so considered and disposed of.

Suit in personam in admiralty by the Fireman’s Fund Insurance Company against the Globe Navigation Company and S. P. Weston, it's trustee in bankruptcy, on an instrument in writing executed by A. W. Swenson, master of the American schooner Wm. Nottingham, as agent for said Navigation Company. Decree for respondents, and libelant appeals.

Petition for Revision of Proceedings of the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the matter of the bankruptcy of Kuhn Bros. Petition and objections by Fred J. Zuttermeister to the report of the Chicago Title & Trust Company, trustee. 'The petition and objections were overruled, and the report confirmed, and the petitioner petitions to review and revise the order.

In the matter of the Wisconsin Engine Company, bankrupt. From a judgment of the District Court, reversing the order of the Wisconsin Trust Company, trustee in bankruptcy, allowing the claim of the Gas Power Machinery Company, the latter appeals.

Appeal. from the District Court of the United States for the Eastern Division of the Northern District of Illinois. In the matter of the bankruptcy of Robb R. Ricketts, doing business as Moulton & Ricketts. Claim by Mary U. Pinckard, opposed by Frank M. McKey, trustee in bankruptcy of the estate'of the bankrupt. From a decree for claimant, the trustee appeals.

• Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit by Edgar W. Ross, as guardian of Mary M. Gray, a feeble-minded person, against Charles W. Parker and another. From a decree for complainant, defendants appeal.

<p>Appeal from the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Suit in equity by the Niles Band Company against the Chemung Iron Company and the Oliver Iron Mining Company. Decree for defendants, and complainant appeals.</p>

FI. Sawtelle, Judge. Paul Oesting, alias Paul Allen, was convicted under Criminal Code, § 215, of using the mails in connection with a scheme to defraud, and he brings error.

C. Van Fleet, Judge. Suit by Henry J. Woodward and others against Henry, C. Cutting, from an interlocutory decree, defendant appeals.

Suit in admiralty by the Brooklyn Eastern District Terminal against the Lehigh Valley Railroad Company. Decree for libelant, and respondent appeals. The following is the opinion below of Learned Hand, District Judge; I think the float was seaworthy. She was still a young boat, made with extra strength, and she had been thoroughly overhauled within three months.

<p>Shipping <§==>168 — Offenses Against Navigation Daws — Carrying Excess of Passengers.</p> <p>Evidence held insufficient to sustain a libel by the United States against a steamer, under Rev. St. § 4499 (Comp. St. 1913, § 827S), to recover the penalty for carrying more passengers than allowed by the vessel’s inspection certificate.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 556-562; Dec. Dig. <§=>168.]</p>

> Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by the Autopiano Company against the Claviola Company, the Superior Pneumatic Action Company, and Kindler & Collins. Decree in part for complainant, add both parties appeal. This is a suit for infringement of reissued letters patent No. 13,398, granted April 2, 1912, to James O’Connor for a perforated note sheet guide.

<p>Patents <§=>202(1) — Assionmicnt—Construction of Reservation.</p> <p>A patentee made a full assignment of his patent for the remainder of the term, but subject to a reservation “to inyself the unrestricted personal right and license” to operate under the patent “which right and license I may exercise and make use of in person or through and by my duly authorized agent; * * * it being understood and agreed that this license is not assignable.” Eetd, that he could not, under the guise of appointing an agent, authorize another to conduct a business under the patent in competition with his assignee, and in which he himself had no interest, except to the extent of a royalty paid him.</p> <p>[Ed. Noto. — Eor other cases, see Patents, Cent. Dig. §§ 281-288; Dee. Dig. ®=>202(1)J</p>

<p>Cross-Appeals from the District Court of the United States for the Western District of Pennsylvania.</p> <p>Suit in equity by the Morgan Construction Company and Alexander Laughlin against the Forter-Miller Engineering Company and Dil-worth, Porter & Co., Limited. From the final decree, both parties appeal.</p>

<p>1. Patents <&wkey;240i — Infringements—Improvements.</p> <p>The manufacture of a patented article under an Improvement patent constitutes an infringement.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 379; Dec. Dig. i<&wkey;>240.]</p> <p>2. Patents <&wkey;328 — Validity—Infringement—Anticipation.</p> <p>Patent No. 532,554, for a candy cutting machine, held valid showing an invention which was not anticipated and to be infringed, by defendant’s machine for cutting candies.</p> <p>On Petition for Modification of Decree.</p> <p>3. Patents <&wkey;222 — Infringement—Damages.</p> <p>When a patentee has failed to properly mark the goods which he has offered for sale so as to show the patent, no damages for infringement can be recovered without proof that defendant was notified of the infringement and continued thereafter to make, use, or vend the patented articles.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 352; Dec. Dig. &wkey;222.]</p> <p>4. Patents <&wkey;312(l) — Infringement Suits — Burden of Proof.</p> <p>Where defendant denied the averments of the bill that he was notified of the existence of complainant’s patent, complainant has the burden of proving such notification.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 544, 545; Dec. Dig. &wkey;312(l).l</p> <p>5. Patents <&wkey;314 — Infringement Suits — Stipulations.</p> <p>A bill for infringement averred that complainant’s machines were duly marked patented, that complainant had caused notice to be given to defendant of his infringement, and requested defendant to desist, and that defendant had disregarded such notice, well knowing the rights of complainant were being infringed. The answer specifically denied the markings and disregarding of the notice, and generally denied the aver-ments of the bill. The parties stipulated that subsequent to the grant of letters patent, and prior to the institution of suit, complainant gave defendant notice of infringement, and requested defendant to cease. The only proof of an infringing sale was a stipulation that witnesses would testify that prior to the filing of the bill they had purchased from defendant machines like those illustrated in drawings, which machines it was adjudged infringed. Held, that, as plaintiff might have relied on the stipulations as establishing defendant’s infringement after notice of the patent, complainant was entitled, notwithstanding the absence of proof, either that complainant’s machines were marked patented, or that defendant infringed after notice of complainant’s patent to an opportunity to supply such proof which is essential to recovery of damages.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 550-553; Dec. Dig. &wkey;?314.]</p> <p>6. Patents <&wkey;325 — Infringement Suits — Right to Costs.</p> <p>In a suit for infringement of a patent, where complainant was entitled to an injunction at the time of the filing of the bill, and such relief was denied only because of the expiration of the patent pendente lite, complainant is entitled to costs regardless of its right to recover damages for the infringement.</p> <p>I Ed. Note. — For other cases, see Patents, Gent. Dig. §§ 607-612; Dec. Dig. &wkey;325.]</p>

Suit by the Buffalo Specialty Company against the Indiana Rubber & Insulated Wire Company. From a decree for defendant, complainant appeals. Appellant brought this suit against the appellee to restrain infringement of all the claims of patent No. 578,551, granted to C. E. Duryea March 9, 1897, for improvements in vehicle tires.

Suit by William P. Hammond, Patrick J. Fitzgerald, and Morris F. Fitzgerald, copartners, doing business as the Fitzgerald Manufacturing Company, against the Manhattan Electrical Supply Company. From a decree finding that defendant’s device did not infringe complainants’ patent, they appeal. The District Court, has held valid patent No. 1,086,820, granted to-the plaintiff Hammond on February 10, 1914.

<p>Patents <&wkey;259 — Infringement—What Constitutes.</p> <p>The claim of complainant’s patent No. 901,462 reads as follows: “In a time register, the combination of an engaging member having angular peripheral projections, adapted to be rotated by a clock-driven arbor, a record dial having a central aperture provided with angular indentations corresponding in size * * * to the angular projections on the engaging member, and means for securing the said dial in position on the engaging member.” Under such patents, watchman’s registering clocks were manufactured, and a watchman by inserting stationary keys in various parts of the building could record on the dial the exact minute at which he reached such station. After being once used, the paper dials would, of course, no longer record the watchman’s progress. Held, that such dials, as they were to be consumed by use, were not part of the patented invention, and defendant by manufacturing such dials for use in clocks manufactured under complainant’s patent did not infringe; the dials alone not being patented.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 400-402; Dec. Dig. &wkey;259.]</p>

Suit in equity by Ernest Rubes against the E. J. Willis Company. Decree for defendant, dismissing bill on three claims of patent No. 874,792, to Chalas and others, and complainant appeals.

In Equity. Suit by the National Malleable Castings Company and others against the T. H. Symington Company. Decree for defendant, and complainants appealed. Reversed, 230 Fed. 821,-C. C. A.-. On petition for rehearing.

<p>1. Patents &wkey;>328 — Invention—Double Use.</p> <p>' Tile PMllips patent, No. 623,925, for a music-cabinet, has, as an indispensable element of each of the claims, a “series of pockets or receptacles adapted to receive the music-disks when not in use,” which pockets were old and perform no different function in combination of the patent than in the old devices from which they were taken, and showing only the required and self-suggested changes necessary to adapt them to the new and analogous use, and the patent is void for lack of invention.</p> <p>2. Patents <&wkey;328 — Validity and Infringement — Phonograph.</p> <p>The Hawthorne patent, No. 671,625, claim 5, for a phonograph or grapho-phone with the recording, reproducing, or shaving device so adjusted as to adapt them to use with sound record cylinders of different diameters as limited by the prior art, held not infringed.</p> <p>3. Patents &wkey;>27(l) — Invention—Double Use.</p> <p>The mere fact that a double use of an existing device produces cheap-' ness or a better result, or has a wider range of use than before known, does not, of itself, bring the new use within the domain of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. § 31: Dec. Dig. <&wkey; 27(1).]</p> <p>4. Patents <&wkey;328 — Invention—Gramophone Needle Box.</p> <p>The Sheble patent, No. 730,169, for a gramophone needle box, in view of the prior art, is void for lack of patentable invention, and also for lack of co-operative relation between the harts of the combination.</p> <p>5. Patents &wkey;>328 — Validity and Infringement — Talking-Machine.</p> <p>The Emerson patent, No. 777,615, for a disk talking-machine, adapted for reproducing from records of both the zigzag and up and down types, as limited by the prior art, held not infringed.</p> <p>6. Patents <&wkey;328 — Validity and Infringf.ment — Graphophone Reproducer.</p> <p>The Macdonald patent, No. 830,446, for a graphophone reproducer, as limited by the prior art and the proceedings in the Patent Office, held not infringed.</p> <p>7. Patents <§^>168(2)- — Construction—Rejection of Claims.</p> <p>Where claims are rejected by the Patent Office on reference to prior devices and others substituted by the applicant, the claims as allowed, must be interpreted with reference to the rejected claims, and cannot be eon-strued to cover either what was rejected or was disclosed by the references.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 214; Dec. Dig. &wkey;168(2).]</p> <p>8. Patents <&wkey;328 — Infringement—Talking-Machine.</p> <p>The Kraemer patent, No. 899,874, for a talking-machine, relating particularly to the manner in which the sound boxes are connected to the sound conveying and amplifying devices, limited as it must be to avoid anticipation by the prior art, hold not infringed.</p> <p>9. Patents <&wkey;58 — Anticipation—Foreign Patent.</p> <p>While a United gtates patent may not be invalidated for anticipation by a foreign patent of prior date if the invention is shown to have been made by the American patentee before such date, the burden rests upon the patentee to establish such priority beyond a reasonable doubt.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 75; Dec. Dig. <&wkey; 58.]</p> <p>10. Patents <&wkey;328 — Infringement—Talking-Machine.</p> <p>The Macdonald patent, No. 957,694, for a talking-machine of the disk type, in which the reproducer is carried at the end of a swinging arm capable of moving transversely across the face of the record during the act of reproduction, limited as it must be to avoid anticipation by the letter patents, Nos. 750,977 and 776,183, held not infringed.</p> <p>11. Patents <&wkey;112(4) — Priority of Invention — Presumption from Decision of Patent Office.</p> <p>A decision of the Patent Office, determining priority in interference proceedings, is not binding upon the courts, and not even of weight as raising a presumption, where it was entered by consent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 165; Dec. Dig. &wkey;112(4).]</p>

<p>1. Patents &wkey;>328 — Validity and Infringement — Sound-Record.</p> <p>The Macdonald patent, No. 714,651, for a sound-record and method of • forming the same, is limited by the proceedings in the Patent Office to a record in forming which the tablet on which it is cut is revolved at a surface speed of approximately 44 meters per minute; also hold not infringed.</p> <p>2. Patents &wkey;>168(2) — Cokstbuction.</p> <p>Courts should not, by constinetion, enlarge a claim of a patent which the Patent Office had admitted after imposing limitations which the pat-entee acquiesced in, beyond the fair interpretation of its terms.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 244; Dee. Dig. &wkey;168(2).l</p> <p>3. Patents <&wkey;232 — Infringement—Process Patent.</p> <p>A purchaser in the open market of a product which has been made in infringement of a patented process cannot be held Rabie as an infringer.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 365; Dec. Dig. • &wkey;>232.]</p> <p>4. Patents <&wkey;>234 — Infringement—-Patent for Prooess and Product.</p> <p>Whore a patent includes claims for a process and also for the product of such process, the latter are to he construed in connection with, and are limited in scope by, the former, and are not infringed unless the process claims are also infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 370, 381; Doc. Dig. &wkey;234.]</p>

<p>1. Patents &wkey;>328 — Validity and Infringement.</p> <p>The Seiberling and Stevens patent, No. 762,561, for machine for making outer casings for double tube tires, .was not anticipated, and discloses invention of nearly a pioneer character, which entitles its claims to a liberal construction. Claims 1, 2, and 14 also held, infringed.</p> <p>2. Patents <&wkey;328 — Validity and Infringement.</p> <p>The State patent, No. 941,902, for Pneumatic tire shoe manufacturing machine was not anticipated, and discloses patentable invention, although for improvements and not of broad scope; also held infringed.</p>

In Equity. Suit by Edward A. Swift against the Inland Navigation Company, a corporation, and the Colman Dock Company, a corporation. On motion to dismiss as to Colman Dock Company, motion denied with leave to amend bill.

<p>Patents <&wkey;230 — Inebjngement--Wuat Constitutes.</p> <p>Complainant’s patent for rubber heel attachment for boot and shoo heels, consisting of a heel section or body molded to a concavo-convex form, and provided with a raised marginal portion and openings therethrough, held not infringed by rubber heels manufactured by defendant which did not resemble in form those described in the patent.</p> <p>LEd. Note. — For other eases, see Patents, Cent. Dig. §§ 372, 373; Dec. Dig. &wkey;236.]</p>

In Bankruptcy. In the matter of the bankruptcy of Nathan Komar. Petition by Nathan Komar for writ of habeas corpus. On a writ of habeas corpus sworn out by Nathan Komar he asks his discharge from arrest on civil process issued out of the Supreme Court of the state of New York, Onondaga County, N. Y., on a judgment in favor of one Libbie Kodish, who objects to such discharge or release.

<p>In Equity. Suit by the Universal Savings Corporation against the Morris Plan Company of New York and others. Decree for defendants.</p>

<p>1. Carriers &wkey;>37 — Carriage of Dive Stock — Twenty-Eight Hour Daw-Violation.</p> <p>Where, after cattle had been kept confined by the initial carrier for more than 28 hours, they were delivered to defendant, who kept the animals confined for less than 28 hours before it delivered them to a third carrier, which unloaded them for food, water, and rest, defendant cannot bo held liable for violation of the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 rComp. St. 1913, §§ 8651-8654]), for its acceptance of the animals from the original carrier did not carry with it a liability for the penalty, the offense of the original carrier having been already completed, as the owner had not consented to the confinement of the stock for more than 28 hours.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. €=>37.]</p> <p>2. Pleading <S=8(1) — Petition—Sufficiency.</p> <p>Conclusions of law in the petition at variance with the averments of fact cannot he relied on to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12, 25, 28; Dec. Dig. €==>8(1).]</p>

In Admiralty. Suits by British and African Steam Navigation Company, Limited, against the steamship Appam, and by Henry G. Harrison, master, against the cargo of the steamship Appam to recover possession of vessel and cargo. Decree for libelants. These are suits in admiralty, brought respectively by the owner and master, to recover possession of the British steamship Appam, now lying at Newport News, Va., and her cargo.

At Law. Action by Martha Dernberger, administratrix, against the Baltimore & Ohio Railroad Company. A verdict was directed for defendant, and plaintiff moves for new trial.

<p>In Equity. Bill by the Wichita Water Company against the City of Wichita. Decree for complainant, granting interlocutory injunction.</p>

<p>1. Logs and Logging <©=>3 (14) — Sales and Conveyances — Deed oe Timber.</p> <p>In North Carolina a deed conveying timber trees, containing a fixed period within which the grantee shall cut and remove timber, operates as a conveyance of the timber, or an estate in the timber, upon condition that, if it be not cut and removed within the given time, the interest or estate so conveyed shall revest or revert to the grantor.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. § 11; Deo. Dig. @=3(14).]</p> <p>2. Vendor and Purchaser ©=3239(5) — Parol Reservation of Timber — Bona Fide Purchasers.</p> <p>A parol reservation of timber, made by grantors of timber lands when they conveyed, is invalid as against the purchaser for value and without notice from their grantee.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 590; Dec. Dig. ©=>239(5).]</p> <p>3. Vendor and Purchaser ©=>228(1) —Reservation—Notice.</p> <p>No notice, other than the reservation of timber in the duly registered deed to timber lands, could affect a remote grantee’s right to the timber, which was not cut and removed within the time fixed by the owner’s former deed of the timber.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495, 49G; Dec. Dig. ©=>228(1).]</p> <p>4. Dogs and Dogging ©=>3(14) — Sales and Conveyances — Construction or Deed.</p> <p>Where the owners of timber lands conveyed the timber to a lumber company, to be cut and removed from the land at any time within 12 years, the deed providing for an extension of time for 5 years upon payment of §20 each year, the legal effect of the deed was to vest in the lumber company title to the timber to be cut within 12 years, title to so much as remained on the land at the expiratjon of that time reverting to or revest-ing in the grantors or their assigns, with the right in the lumber eompanjr to have an extension on the terms of the deed.</p> <p>I Ed. Note. — For other cases, see Dogs and Dogging, Cent. Dig. § 11; Dec. Dig. ©=>3(14).]</p> <p>5. Dogs and Dogging ©=>2 — Sales and Conveyances — Succession in Rights.</p> <p>Deed to timber lands from parties who had previously granted the timber vested in the grantees of the lands the right and title in respect to the timber which the grantors had relative to a reversion upon failure to remove the timber within 12 years.</p> <p>[Ed. Note. — For other eases, see Dogs and Dogging, Cent. Dig. §§ 1-5; Dec. Dig. ©=>2.]</p> <p>6. Dogs and Dogging ©=>3(11) — Sales and Conveyances — Exercise of Option fob Extension — Time.</p> <p>Where timber was conveyed, to be removed within 12 years, the grantees by the deed receiving a right to extend the time for 5 years by the payment of §20 yearly, the right to demand an extension, or to extend the title, with the privilege of cutting and removing, after the expiration of 12 years, was dependent on the tender by the grantee’s successor in title to the grantors or their successors of the amount stipulated to be paid on or before the last day of the period.</p> <p>[Ed. Note. — For other eases, see Dogs and Dogging, Cent. Dig. § 9; Dec. Dig. ©=>3(11).]</p> <p>7. Dogs and Dogging ©=>8(11) — Sat.es and Conveyances — Equity.</p> <p>When the terms of a contract for the sale of standing timber with time limit for cutting and removing are plain, a court of equity should not interfere with the contractual rights and obligations assumed by the parties.</p> <p>[E<1. Note. — For other cases, see Dogs and Dogging, Cent. Dig. § 9; Dec. Dig. ©=>3(11).]</p>

<p>At Law. Action by the United States against the Illinois Central Railroad Company to recover penalties for violations of the Hours of Service Act.</p>

<p>1. Eminent Domain <&wkey;181 — Proceedings—Process—Validity.</p> <p>In condemning land under Weeks Law March 1, 1911, the United States proceeded under Act Aug. 1, 1888, c. 728, 25 Stat. 357, providing that condemnation under judicial process may be had in the District Courts of the district wherein such real estate is located, and in section 2 that the practice, pleadings, forms, and modes of proceedings shall conform, as near as may be, to the practice, pleadings, forms, and proceedings in the state courts. The Tennessee statutes, in which state the land was located, provide for the commencement of condemnation proceedings by mere service of notice and publication as to nonresidents. Rev. St. U. S. § 911 (Comp. St. 1913, § 1531), provides that all writs and process issued from the courts of the United States shall be under the seal of the court from which they issue and shall be signed by the clerk thereof. Held, that section 911 applies only to writs and process issuing from the courts themselves, and not to notices given by the parties, which are not process of the courts; hence, as condemnation proceedings may be instituted upon mere notice, such proceedings are valid, though the notices are not under seal of the court and signed by the clerk.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-492; Dec. Dig. &wkey;>181.]</p> <p>2. Eminent Domain <&wkey;160 — Condemnation—Natube of Proceedings.</p> <p>Condemnation proceedings are essentially proceedings, in rem.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 418™ 450, 45(5; Dec. Dig. &wkey;166.j</p> <p>3. Eminent Domain <S&wkey;181 — Proceedings—Process.</p> <p>In condemnation proceedings, it is only essential that the owner of the land have notice of the proceedings and an opportunity to appear and protect his rights.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-492; Dec. Dig. &wkey;181.J</p> <p>4. Eminent Domain <&wkey;>181- -Proceedings — Process.</p> <p>Where notice of condemnation has been given, the owners are hound to take cognizance of all subsequent steps without notice.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490 — 492; Dec. Dig. &wkey;181.]</p> <p>5. Eminent Domain &wkey;> 181- -Proceedings — Process.</p> <p>Notice of condemnation proceedings is sufficient, in the absence of statutory requirements, where it contains the material facts of which the landowner is entitled to notice and is in substantial conformity with the petition.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-192; Dec. Dig. @=>181.]</p> <p>6. Eminent Domain <&wkey;>181 — Proceedings—Process'.</p> <p>Where the statute is silent as to who shall give notice of condemnation, it may be given by the party instituting the proceedings.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 488, 490-492; Dec. Dig. &wkey;181.J</p> <p>7. Eminent Domain <&wkey;>182 — Proceedings-—Process.</p> <p>Personal notice of condemnation proceedings is not a constitutional prerequisite to its validity, but the Legislature can provide for constructive notice by publication.</p> <p>TEd. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 403™ 49G ; Dec. Dig. &wkey;182.J</p>

<p>Criminal prosecution by the United States against Matthew T. Grad-well and others.</p>

In Bankruptcy. In the matter of the bankruptcy of G. Franklin Stringer, individually and as the sole surviving partner of Stringer & Co. Proceeding to review the allowance by the referee of the claims of Mrs. Mary E. Lewis and others. Upheld as to some of the claims, reversed as to others.

<p>Equity <&wkey;340 — Bill—Interrogatories.</p> <p>In a stockholder’s suit against officers and directors of the corporation, • alleging a conspiracy, in violation oí their trust, to purchase certain outstanding stock for their own benefit and profit, instead of for the corporation which had the power under its charter and the available means to purchase the same, interrogatories propounded to defendant officers, calling for details of a multitude of business transactions involving also other concerns having no relation to the suit, held improper, where the ultimate material facts could be ascertained from the books.</p> <p>[Ed. Note. — Dor other cases, see Equity, Cent. Dig. ■ §§ 317, 318; Dec. Dig. <&wkey;>140.]</p>

Iii Equity. Bill by the Old Lexington Club Distillery Company against the Kentucky Distilleries & Warehouse Company to secure an adjudication that plaintiff is entitled to register the words “Old Lexington Club” as a trade-mark for whisky. On final hearing.

In the matter of John A. Kruse, bankrupt. From an order of the referee, allowing the claim of Western Rock Island Plow Company to certain property in the possession of the trustee, the trustee appeals; and from orders of the referee, denying the respective claims of International Harvester Company and Acme Harvesting Machine Company to certain property in the possession of the trustee, these claimants, respectively, appeal.

<p>1. Internal Revenue <&wkey;38 — Income Taxes — Allowance for Depreciation —Burden of Proof.</p> <p>To recover income taxes paid under protest, on the ground that an insufficient amount was allowed for depreciation of the income-producing property, plaintiff has the burden of showing that the amount allowed was too small.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <&wkey;38.]</p> <p>2. Internal Revenue <&wkey;7 — Income Taxes — Depreciation.</p> <p>In computing, for assessment of income taxes, the amount of depreciation of property held for rental purposes, the depreciation to be allowed is for the wear and tear suffered by the building during the tax year, assuming that it is kept in good repair, and no allowance can be made for change in neighborhood or diminished rental value because of the erection of more modem buildings.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 8-10; Dec. Dig. <&wkey;7.j</p> <p>8. Internal Revenue <&wkey;7 — Income Taxes — Assessment.</p> <p>The fiscal year for a firm of which plaintiff was a member began before the Income Tax Daw went into' effect. There was no showing that during that part of the year before the law went into effect any profits were earned. Held that, without such showing, plaintiff could not object that income taxes were assessed on the entire profits earned, on the ground that part of the taxes were based on income earned before the law went into effect.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 8-10; Dec. Dig. <&wkey;7.]</p> <p>4. Internal Revenue <&wkey;7 — Income Taxes — Exemptions.</p> <p>The Income Tax Daw allows exemption of $8,000 or $4,000, depending on whether the one taxed is single or married, and provides for a tax of 1 per cent, on all 'other income. Other provisions impose a tax of an additional 1 per cent, upon the amount by which the total net income exceeds $20,000 and does not exceed $50,000. Held that, in assessing the additional tax on the excess of the net income over $20,000, the exemption of $3,000 or $4,000, which is to be deducted in assessing the normal income tax cannot be made.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 8-10; Doc. Dig. &wkey;>7J</p>

<p>1. Towage <&wkey;ll(l) — Tug under Charter — Responsibility for Acts of Master and Crew.</p> <p>Tlie owner of a tug wlio charters its use for towing furnishing the master and crew is responsible for their acts within the scope of their employment.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. §§ 11, 14, 16, 21; Dec. Dig. <&wkey;ll(l).] •</p> <p>2. Towage &wkey;>ll(l) — Tug under Charter — Injury to Tow.</p> <p>Libelant chartered the services of his tug to tow respondent’s lighters. The master was in charge of its management, and was given directions by respondent only as to the destination of the lighters and general orders to take them in tow only when he thought it safe. Having been directed to tow a lighter to a certain place, he started in the morning when there was thin ice on the river, but instead of following the usual custom! in such cases and towing the lighter astern to avoid danger from the ice, he towed it alongside. The seams were cut by the ice, and he ran it ashore, where it rested on the bottom. Respondent was obliged to remove the cargo, raise the lighter, and have it docked and repaired. Held, that all such expense resulted proximately from the master’s negligence, and that" libelant was liable therefor.</p> <p>LEd. Note. — For other cases, see Towage, Cent. Dig. §§ 11, 14, 16, 21; Dec. Dig. <@=wll(l).]</p> <p>3. Towage <&wkey;4 — Injury to Tow — Care Required of Tug.</p> <p>That the lighter was old and not sheathed did not relieve the master from responsibility, but rather required him to exercise the greater care.</p> <p>[Ed. Note. — For other cases, see .Towage, Cent. Dig. § 4; Dec. Dig. <&wkey;4.]</p>

Hollister, Judge. Action by the Third National Bank of St. Louis against Samuel J. Murray and others. There was a judgment for plaintiff, and defendants bring error.

C. Hunger, Judge. Suit by the Northwestern Térra Cotta Company against George W. Caldwell and others. To review a judgment for defendants, plaintiff brings error.

<p>1. CORPORATIONS i&wkey;456-CONTRACT FOR ATTORNEY'S SERVICES-RIGHT TO TERMINATE.</p> <p>A contract by a corporation for the services of an attorney for a fixed term, but providing that it might be terminated by the corporation at any time if the services were “not satisfactory to the board of directors” by a vote of the board, which vote, however, should not be taken until the employe has an opportunity to be heard at a meeting “upon the cause or reason of such termination,” required some substantial cause as a ground for its termination, and the fact that the directors voted to terminate it was not conclusive of their right, and did not foreclose inquiry as to whether their action was taken in good faith because of dissatisfaction with the services, or for other reasons.</p> <p>[ Kd. Note. — For other cases, see Corporations, Cent. Dig. § 1803; Dec. Dig. <&wkey;450.]</p> <p>2. Trial <&wkey;>251(4) — Instructions—Action for Breach of Contract.</p> <p>In an action by the attorney for damages for wrongful termination of such contract, it was not error to refuse to instruct that if a majority of the directors acted in good faith it was sufficient to validate their action, where it was a question in issue whether certain of the directors did not act without personal knowledge or belief as to the matters involved and vote as they did, not because of any dissatisfaction on their part, but because of misrepresentations made by others.</p> <p>[15 d. Note. — For other cases, see Trial, Cent. Dig. § 591; Dec. Dig. &wkey;> 251(4).']</p> <p>3. Corporations <&wkey;52X — Actions for Services — Instructions—Burden of Proof.</p> <p>In such action the defense was the termination of the contract by a vote of the directors, but on the trial the case turned upon the subordinate question whether the directors so voted in good faith because they were honestly dissatisfied with the services or for other reasons, and that was the only issue submitted to the jury. Held, that the court properly In-, siructod that the burden of proving that the contract was terminated in accordance with its terms rested on defendant, but that, having so instructed, it was error to refuse to clearly instruct that the burden upon the issue of good faith was on plaintiff.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2094-2098; Doc. Dig. <&wkey;521.J</p> <p>4. Corporations <&wkey;519(2) — Action for Services — Evidence—Performance by Plaintiff.</p> <p>The contract in suit being a renewal of a prior five-year contract, it was competent for plaintiff to introduce evidence, as bearing on the issue of good faith in terminating the contract, to show that the standard of performance of services was the same under the now as under the old contract.</p> <p>ri5d. Note. — For other cases, see Corporations, Cent. Dig. §§ 2085, 2088; Dee. Dig. &wkey;519(2)J</p> <p>5. Courts &wkey;>“52 — Objection to Evidence — Statement of Grounds.</p> <p>In the federal courts it is not sufficient to state that objection is made to the admission of evidence without at the same time, stating specifically the ground of the objection.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 926-932; Dec, Dig. <&wkey;352.j</p> <p>6. Ooubts <&wkey;367 — Federal Courts — Authority oe State Decisions.</p> <p>Where, at the time of the making of a contract, to be performed in the-state where made, there is d. settled rule of decision in that state as to the damages recoverable for its breach, such rule governs in an action for its breach in a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959; Dec. Dig. &wkey;367.]</p> <p>7. Damages <&wkey;124(l) — Breach oe Contract.</p> <p>. On recovery against a corporation for the wrongful termination of a contract by which plaintiff agreed to act as counsel for defendant for a term of five years for an annual fee, which contract had been partly per.formed, plaintiff was entitled to recover the present value of what would have become due under the contract if it had been fully performed.</p> <p>[Ed. Note. — For other cases, see Damages, Cent Dig. §§ 326-329; Dec. Dig. &wkey;124(l).]</p> <p>8. Corporations ,<&wkey;521* — Termination of Contract.</p> <p>It was error for the judge to refuse to instruct a jury that the burden is on the -plaintiff: to prove that the termination was invalid by reason of bad faith on the part of the directors in voting to terminate it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 209-4-2098; Dec. Dig. &wkey;>521.]</p>

-trict of Oregon; Charles E. Wolverton, Judge. Suit by the Pacific Dive Stock Company against William Hanley and others. From a decree adjudging plaintiff guilty of contempt in violating a prior decree of the court, defendant Hanley appeals.

Sessions, Judge. Action by Merlin E. Guile against Dudley E. Waters and others, receivers of the Pere Marquette Railroad Company. There was a judgment for plaintiff, and defendants bring error.

Robert Linn was convicted of violating Criminal Code, § 215, by using the mails in connection with a scheme to defraud, and he brings error. The indictment under which plaintiff in error was convicted has three counts.

<p>1. Master and Servant @=>234(3) — Contributory Negligence — High-Tension Wires — Presumption op Knowledge op Danger.</p> <p>The-law imputes no such knowledge of electricity to an electrician’s helper that lie is barred by contributory negligence from recovering for injury from high-tension electricity jumping to him from its conductor which he had nearly approached but had not touched.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § too ; Dec. Dig. @=234(3).]</p> <p>2. Master and Servant @=119 — Machinery and Place to Work — Eléctri-ca l Apparatus.</p> <p>Because of the tremendous potency and danger of electricity, an employer Is held to extraordinary precaution for the safety of employes in the construction of machinery and appliances for its transmission.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 210; Dec. Dig. @=3119.]</p> <p>3. Master and Servant @=3280, 281(5) — Action by Servant Injured by Electricity — Evidence.</p> <p>In action by employe for injuries from electric shock from defectively constructed lightning arrester near which he was put to work without warning, evidence that he had some electrical experience, but that, although he knew of danger of direct contact with a live wire, he did not know of danger that high-tension current would jump to a person approaching near it, that the lightning arrester was charged with a high current of electricity and its arms extended to within about 5 feet 9 inches of 1he ground, and that this height was improper and unsafe construction, supported verdict for plaintiff, as against claim of his assumption of risk and contributory negligence; a live wire not disclosing, by its appearance, its dangerous nature.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. «§ 981-986, 989; Dec. Dig. @=>280, 281(5).]</p>

<p>1. Carriers @=5316(5) — Injuries to Passengers — Actions—Proof—Res Ipsa Loquitur.</p> <p>Where a passenger on a regular passenger train shows that the train was derailed, causing injuries to her, she has, without further proof, offered sufficient .evidence of the carrier’s duty and of its neglect, a prima facie case being made, under the maxim “res ipsa loquitur,” so as to throw on the carrier the burden of proving absence of negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1288; Dec. Dig. @=316(5).]</p> <p>2. Carriers @=316(5) — Injuries to Passengers — Actions—Proof—Res Ipsa Loquitur — Questions for Jury.</p> <p>Where a passenger makes a prima fade case by showing that there was a derailment which caused her injuries, and the carrier produces circumstantial evidence tending to show that the derailment was not due to its negligence in track inspection but to vandalism, the question of negligence is wholly for the jury, and is properly submitted by an instruction, requiring plaintiff to show negligence by a preponderance of the evidence.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1288; Dec. Dig. @=316(5).]</p> <p>3. Carriers @=320(12) — Injuries to Passengers — Negligence—Evidence— Sufficiency.</p> <p>The jury need not accept as a fact that inspection of four tracks nearly two miles long in a period of two hours by one workman, and inspection by roadmaster from rear of fast-moving train, is sufficient to have discovered a defect such as caused the accident in which plaintiff passenger was injured.</p> <p>[Éd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1179, 1190; Dec. Dig. @=320(12).]</p>

Action by John B. Gleason against Mary C. Thaw. There was a judgment dismissing the complaint, upon order granting a motion to that effect at the close of plaintiff’s case, and plaintiff brings error.

In the matter of the bankruptcy of the Clark Realty Company. Petitions by Juliet Gilbert and others against Julius J. Goetz, trustee, and others, by the Citizens’ Savings & Trust Company and A. E. Kuolt, as Commissioner of Banking of the State of Wisconsin, against said trustee and others, and by August Richter, Jr., against said trustee. From orders of the District Court, affirming orders of the referee, petitioners appeal.

Dietrich, Judge. Action by the United States against the Oregon Short Dine Railroad Company to recover penalties for violation of the Hours of Service Act. There was a judgment for plaintiff (228 Fed. 561), and defendant brings error.

<p>1. Corporations <@=>459 — Powers—Lease oe Property.</p> <p>A corporation, unless prohibited by explicit terms in its grant of power, may let its property for a limited term of years.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1811, 1812; Dec. Dig. <@=>459.]</p> <p>2. Corporations <@=>459 — Internal Revenue <@=>9 — Excise Tax on Corporations — Lease oe Property — Validity.</p> <p>Two corporations, chartered by special acts of the New York Legislature to construct and operate pneumatic tubes between places in the state for the conveyance of mails, newspapers, and parcels, each owned and operated tubes connecting the general post office in Manhattan with branch offices and different places, and used exclusively for transportation of mails. By the action of the Post Office Department bids were invited for carrying of mails by pneumatic tubes, but subject to the requirement that but one bid should be made for the service of the tubes owned by such two corporations, whereupon one company leased all of its property for a term of years to the other, which secured the contract and performed the required service. Held, that such lease was not ultra vires on the part of the lessor, but was valid, and that on its execution the lessor ceased doing business, within the meaning of Corporation Tax Law Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (Comp. St. 1913, § 6300), and was not subject to the excise tax thereby imposed.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1811, 1812; Dec. Dig. <@=>459; Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <@=>9.]</p> <p>3. Internal Revenue <@=>38 — Suit to Recover Tax — Limitation.</p> <p>Under .Rev. St. §§ 3226-3228 (Comp. St. 1913, §§ 5949-5951), a suit for recovery of an internal revenue tax alleged to have been erroneously or illegally assessed or collected cannot be maintained, unless a claim for refunding of the tax is presented to the Commissioner of Internal Revenue within two years after its payment.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <@=>38.]</p> <p>4. Internal Revenue <@=>38 — Recovery oe Tax Paid — Judgment—Interest.</p> <p>On recovery of a judgment against a collector of internal revenue for the amount of an internal revenue tax illegally collected, the plaintiff is entitled to have the judgment state that it is with interest.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <@=>38.]</p>

Rose, Judge. On demurrer of James Clark, as trustee in bankruptcy of Thomas Baker, to the plea of J. Hamilton Grimes to the trustee’s petition to recover the amount of a preference. Judgment sustaining demurrer (232 Fed. 190), and J. Hamilton Grimes- brings error.

C. Van Fleet, Judge. Action at law by J. Homer Eritch, Incorporated, E. T. Kruse, Mary Bell Parker Burns, Cecelia Sudden, James Hogg, James P. Taylor, and Kate E. Spiers, against the United States. Judgment for defendant, and plaintiffs bring error. The plaintiffs in error were the owners of the steamer Homer.

<p>Baitrs akd Ua.vki.vg <&wkey;>153 — Disposers foe Special Purpose--“Loan.”</p> <p>Where plaintiff, in behalf of the mortgagor, deposited money in the bank for the purpose of discharging a mortgage indebtedness to another, and the bank made, but retained, a certificate of deposit in favor of the mortgagee and notified her thereof, the transaction was not a loan, but the bank hold the money in trust for the mortgagee, and, on its failure before execution thereof, ihe plaintiff could recover the sum deposited, as against general creditors of the bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §S 356, 483-501; Dee. Dig. &wkey;158.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Doan.]</p>

Application by Chin Hing for a writ of habeas corpus against Henry M. White, Commissioner of Immigration at the Port of Seattle, Washington, for his discharge from the custody of the Department of Immigration. From an order discharging the writ (224 Fed. 261), he appeals.

<p>1. Conspiracy <&wkey;43(6) — Criminal Conspiracy — Indictment—Requisites.</p> <p>An indictment charging conspiracy to violate Chinese Exclusion Act May 6, 1882, e. 126, § 11, 22 Stat. 61, as amended by Act July 5, 1884, c. 220, 23 Stat. 117 (Comp. St. 1913, § 4298), in that it was the purpose of the conspirators to bring and cause to be brought into the country certain Chinese alien persons not lawfully entitled to enter, and to aid and abet the bringing in of said Chinese aliens, notwithstanding the use of the word “certain,” charges a general conspiracy to bring in such alien Chinese as were not entitled to enter, so that the names of the Chinese to be brought in need not be given or alleged to be unknown.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 86, 91; Dee. Dig. <&wkey;43(6).]</p> <p>2. Conspiracy &wkey;43(12) — Criminal Conspiracy — Evidence.</p> <p>On a prosecution for a general conspiracy to bring into the country Chinese not entitled to enter, evidence that the defendant, pursuant to understanding with another defendant to smuggle in Chinese, brought in four Chinese not entitled to enter is admissible, though it may show another crime.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 90; Dec. Dig. &wkey;43(12).]</p>

M. Bourquin, Judge. Suit in equity by Charles D. McLure against Rod D. Leggat. Decree for complainant, and defendant appeals. The appellee brought suit against the appellant to compel a conveyance of certain mining properties, alleged to be worth more than ¡¡>100,0.00 which had been levied upon on execution and offered for sale at Butte, Mont., on June 6, IMS, upon a judgment against the appellee.

Pollock, Judge. Suit in equity by the Dewey Portland Cement Company against the Texas Building Company and other's. From a decree dismissing the suit as to certain of the parties, complainant appeals.

Suit in equity by the Eibel Process Company against the Remington-Martin Company and others. Decree for defendants, and complainant appeals. The decree of the District Court dismissed a bill for infringement of patent to William Eibel, No. 845,224, dated February 26, 1907, covering an improvement in Fourdrinier machines for making paper. Claims 1, 2, 3, 7, 8, and 12 are in controversy.

Suit by Robert R. Gibson and another against the American Grapho-phone Company and others. From a decree refusing an accounting, complainants appeal. On appeal from a decree entered by Judge Mayer refusing an accounting in an action based upon letters patent No. 628,813, granted to Henry Jones, July 11, 1899, for improvements in -gramapliones, and .other sound producing and sound recording machines of a similar nature.

<p>Patents <®=j>328 — Anticipation-—Radiatoe.</p> <p>The Fowler & Wolfe patent, No. 609,800, for a radiator, held void for anticipation. ¿</p>

Suit by Jacob Gottfried Braun against John Griffiths & Son Company. From a decree for defendant, complainant appeals. This action was brought by appellant charging infringement of patent No. 1,015.98!) to Buchholz, for improvement in door frames, title to the patent having by mesne assignment passed to appellant. The District Court dismissed appellant’s bill for want of equity.

<p>1. Patents <@=>324(5) — Suits foe Infringement — Review—Questions Presented. -- .</p> <p>Where .defendant did not appeal from that portion of a decree adjudg- ■ ing a patent valid, the matter will not be reviewed on complainant’s appeal from a finding that there was no' infringement, except as may be necessary in interpreting the claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 606; Dec. Dig. <@=>324(5).]</p> <p>2. Patents <@=>157(2) — Construction—Claims.</p> <p>If possible, the claims of a patent should be construed so as to uphold and not to, destroy it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 231; Dec. Dig. <@=>157(2).]</p> <p>3. Patents -<@=>168(2) — Proceedings in Patent Office — Conclusiveness.</p> <p>Where the patent office disallowed a patentee’s broadest claims and to obtain the patent he limited his claims, he cannot thereafter assert that his invention included such broad claims.</p> <p>[Ed. Noté. — For other cases, see Patents, Cent. Dig. § 244; Dec. Dig. <@=>168(2).]</p> <p>4. Patents <@=>328 — Construction—Improvement in Concrete Arches.</p> <p>The Thacher patent, No. 617,615, for an improvement in concrete arches, consisting of a combination with abutments and a concrete arch spanning the intervening space, of a series of metal bars, in. pairs, each bar. of a pair being independent of the other, is valid, but is limited to a structure in which the bars are not members of a truss or built-up metallic girder, and, as so construed, held not infringed.</p>

Suit in equity by William M. Decker, doing business as the Hygeia Nursing Bottle Company, against De Wane B. Smith, doing business as the Yankee Company. Decree for complainant, and defendant appeals. Defendant appeals from an interlocutory decree holding valid and infringed patent for nursing bottle, dated June 19, 1894, and patent for nursing nipple, dated August 10, 1897, each issued to plaintiff.

<p>1. Patents <S^74 — Previous Aet.</p> <p>A patentee is chargeable with knowledge of all pre-existing devices which go to the establishment of the prior art that may pertain in any degree to his device.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 65; Dec. Dig. ©=>74.]</p> <p>2. Patents ©=>328 — Validity—Anticipation.</p> <p>Patent No. 668,971, for a portable elevator, comprising a frame having an adjustable top portion adapted to be raised and lowered to permit the elevator to pass obstructions, which was equipped with vertical side pieces longitudinally slotted for the reception of bolts for securing the top section at the desired adjustment, held, in view of the prior art, not to show invention; the only addition to the art being the raising of the frame by the use of bolts, which is not a patentable invention.</p> <p>3. Patents ©=>112(3) — Issuance—Presumptions. '</p> <p>A patent regularly and duly issued is evidence of invention and patent-ability.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 164; Dec. Dig. ©=>112(3).]</p>

In Equity. Suit by the Individual Drinking Cup Company against the Public Service Cup Company. On motion by complainant to extend the injunction already granted to another device manufactured by defendant.

• In Equity. Suit by the Warren Bros. Company against W. C. Evans. • Sur final hearing on filing hearing on bill, answer, and proofs. Decree for complainant.

<p>In Equity. Bill by John Mills Day against the Chas. H. Lilly Company, a corporation. Decree for complainant.</p>

<p>At Law. Action by the United States of America against the Sioux City Terminal Railway Company, to recover a penalty for violation of the Twenty-Eight Hour Law.</p>

<p>Ban kbuftcy <s^84 — Petition—Vebification.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 18c, 30 Stat. 551 (Comp. St. 1913, § 9602), declaring that all pleadings setting up matters of fact shall be verified under oath, an involuntary petition in bankruptcy cannot be amended, where the petitioning creditors knew nothing of the alleged acts of bankruptcy, and the petition was not sworn to before a notary, although it bore a notary’s certificate, for, as there was no verification of the petition, but only a falsification, there was nothing to amend.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 126-129; Dec. Dig, C=>84.]</p>

<p>In Admiralty. Suit by James L. Iiansen against the steamer Del Norte. Decree for respondent.</p>

<p>In Equity. Petition by the St. Rouis Southwestern Railway Company (“Cotton Belt”), the St. Eouis, Iron Mountain & Southern Railway Company (“Iron Mountain”), the Chicago, Rock Island & Pacific Railway Company (“Rock Island”), and the Louisiana & Arkansas Railway Company, intervening petitioner, against the United States of America, respondent, and the Interstate Commerce Commission, intervening respondent, for an injunction and on motions by respondent and intervener to dismiss.</p>

<p>In Equity. Suit by the Lehigh Valley Railroad Company against the United States, and the Interstate Commerce Commission intervened. Decree dismissing bill.</p>

In Equity. Petition by the Nashville Grain Exchange and others against the United States and others.

In Equity. Suits by the United States against George W. McCutchen and others, against David Kinsey, the Midway Field Oil Company, and others, and against the Midland Oilfields Company, Eimited, and others. On motions by complainant for injunctions to restrain waste and for appointment of receivers.

<p>1. Salvase <§=536 — Contract foe Salvage Service — Validity.</p> <p>A contract between the master and part owner of a schooner, which had been rescued from a stranding and brought into port in a leaking condition, and the salvor, for the services of a tug at $10 per hour to stand by and pump until the schooner was unloaded, which service continued for 6Y2 days, where the contract was not made under duress, but in a port where the master could have obtained other assistance, held not so unreasonable as to justify its being held invalid; the value of the tug being $30,000, and the cost of its operation during the pumping $100 or more per day. Such contract, however, held not binding on the cargo owner, who was accessible, but was not consulted.</p> <p>[Ed. Note. — Eor other cases, see Salvage, Cent. Dig. §§ 85-91; Dec. Dig. <§=>36.]'</p> <p>2. Salvage <@=>30 — Amount op Compensation — Rescue op Stranded Vessel.</p> <p>The services rendered by the salvor prior to the making of the pumping contract consisted in pulling the schooner from a quicksand reef near the mouth of Savannah river, on which she was stranded and in serious danger, and bringing her into port. In this service two tugs, worth $60,000, were employed for 4 hours, during which it was also necessary to keep her pumped to prevent sinking. Both vessel and cargo were saved without loss; but the service was not dangerous. Held, that the salvor was entitled, ,in addition to the contract price for pumping, to an award of 10 per cent, of the net price realized from the sale of vessel and cargo.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 72-74; Dec. Dig. <@=>30.]</p> <p>3. Shipping <@=>133 — Injury to Cargo — Lien. 1</p> <p>The owner of a cargo has a maritime lien on the ship for any damages sustained by the cargo, after it is delivered on board, through the fault of the vessel or master.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 488; Dec. Dig. <&=133.]</p> <p>4. Shipping <@=>137 — Liability por Injury to Cargo — Harter Act.</p> <p>Under, Harter Act Feb. 13, 1893, c. 105, § 3, 27 Stat 445 (Comp. St. 1913, § 8031), which provides that, if the owner has exercised due diligence to make a vessel seaworthy, and properly manned, equipped, and supplied, neither the vessel nor-owner shall be liable for damage to the cargo resulting from faults or errors in navigation or in the management of the vessel, where a vessel was stranded through an error in navigation, evidence that the master had been in charge of vessels making the same port for 10 years, and was familiar with the waters, and could go in or out over the bar in daytime, is sufficient to show his competency prima facie, and to exempt the general owners and vessel, where she was otherwise seaworthy and properly manned, equipped, and supplied, from liability for damage to the cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 402; Dec. Dig. <@=>137.]</p> <p>5. Shipping &wkey;>136 — Liability poe Injury to Cargo — Haktee Act.</p> <p>Where, in such case, however, the master, through whose negligence or error the stranding occurred, was a part owner of the vessel, the Ilarter Act does not exempt his interest from liability.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 492; Dee. Dig. <&wkey;130.1</p>

At Law. Action by Robert H. Madden against the Delaware, Lacka-wanna & Western Railroad Company. Verdict for plaintiff. Motion by defendant Delaware, Lackawanna & Western Railroad Company for an order setting aside the verdict of the jury in favor of the plaintiff for $15,064, and granting a new trial or absolutely dismissing the complaint.

In Admiralty. Suits by Actieselskabet Neptun against the New York & Bermudez Company and Hamburg Amerikanische-Packet-fahrt-Actien-Gesellschaft and the Orvig Dampskibselskab Actieselska-bet against the same. Decrees for respondents.

<p>In Equity. Bill by Robert T. Hawkins, trustee of the Warlick Bros. Company, bankrupt, against the Dannenberg Company and others. On motion to dismiss.</p> <p>Complainant, Robert T. Hawkins, as trustee of the Warlick Bros. Company, bankrupt, brought a bill in equity in the United States District Court against the Dannenberg Company and C. W. Duller, sheriff, in which he alleged that the said Warlick Bros. Company was adjudicated bankrupt on August 1, 1914; that said company had been engaged in the general merchandise business in Amerieus, Ga.s and in January, 1914, executed to the Dannenberg Company a mortgage upon all Its stock of goods in order to secure an indebtedness then existing, as well as for future purchases of goods; that the Dannenberg Company fraudulently withheld said mortgage from record by agreement, until July IS, 1914, upon which date it made a demand upon the Warlick Bros. Company for immediate payment of the mortgage, and upon its failure to pay same the mortgage was recorded on said date, and on the same day was foreclosed in the city court of Amerieus, and the stock o£ goods was levied upon by the sheriff of that court. Complainant alleged that the mortgage was fraudulent and void, that the effect of same was to give a preference to the Dannenberg Company over other creditors, and that the failure of the mortgagee to record same, as provided by the Georgia statute, was fraudulent; that many persons had, subsequently to the execution of the mortgage and before its record, sold goods to the bankrupt under the assumption that it had an unincumbered title to its stock of merchandise, and that the failure to record the mortgage gave to the bankrupt a false and fictitious credit, to the injury of such subsequent creditors. The trustee, therefore, prayed for the cancellation of, the mortgage as being fraudulent, and also as being preferential, and for an injunction against the sheriff selling said property under the foreclosure proceedings instituted in the city court of Amerieus. Subsequently, by agreement of counsel, the sheriff was allowed to sell the stock of goods under said foreclosure proceedings and to hold the funds in lieu of the property, and by a consent order the trustee was allowed to intervene in the city court of Amerieus for the purpose of assorting his rights to the fund derived from the proceeds of the sale of tho stock of goods in question. The trustee thereupon filed his intervention in the city court of Amerieus attacking the mortgage upon the same grounds taken in his hill in the United States District Court. Thereafter he amended his bill in this court, and alleged that the city court of Amerieus was under the laws of the state of Georgia a court of limited jurisdiction and had no equity jurisdiction, and therefore that he could not fully assert all his rights in that court, but that it was necessary for the District Court of the United States to proceed with his bill, so as to enforce his rights as trustee against the fund in question, and against the Dannenberg Company and the sheriff of the city court of Americus, who had such funds in his possession. The Dannenberg Company thereupon filed its motion to dismiss the bill in equity on the ground that complainant had elected to intervene in the state court and that this election was final, and on the further ground that the District Court of the United States should not take jurisdiction of the matter, as complainant could enforce all his rights, legal and equitable, in the intervention which he had filed in the state court, which had first taken jurisdiction of the mortgaged property.</p>

<p>In Equity. Suit by W. A. Carlisle against C. Elmer Smith and others. On report of master. Decree in part for complainant.</p>

<p>1. Navigable Waters <&wkey;20(8) — Towage <&wkey;ll(7) — Bbidges—Injury to Tow from Operation op Draw — Negligence op Tender.</p> <p>A tug with a mast and derrick lighter in tow close astern, passing up the Passaic river at night, signaled for the opening of the draw of a temporary bridge, and when closer stopped and again signaled. It was not customary to give any, response signal from the bridge other than the raising of the draw which was indicated by the lights. The tug, seeing the lights rise, proceeded, but the top of the lighter’s mast struck the draw, which had been stopped before reaching its full height, the mast was broken, and the vessel otherwise injured. Held, that the tug was not in fault, but that the collision was due solely to the negligence of those in charge of the draw in failing to raise it to full height.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 96; Dec. Dig. <&wkey;20(8); Towage, Cent. Dig. § 19; Dec. Dig. <&wkey;ll(7).'J</p> <p>2. Towage <&wkey;ll(7) — Drawbridges—Duty op Tug.</p> <p>It is not the duty of the master of a tug with a tow, in passing up a river across which there are a number of bridges, to examine every draw to see that it has been fully and sufficiently operated, but, having given the usual customary signal, he has the right to assume, unless otherwise warned by signal, that the draw will be seasonably opened by those whose duty it is to operate it.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 19; Dec. Dig. &wkey;ll(7).]</p> <p>3. Master and Servant <&wkey;301(4) — Liability por Negligence op Servant — ■ Servant Hired to Another.</p> <p>A contractor for replacing a public drawbridge across a navigable river, owned jointly by the counties lying on either side, was required by its contract to maintain and operate a temporary bridge while the new bridge was being built and to assume all responsibility for the safety of the public and for accidents of any kind in its operation. During the operation of such temporary bridge a vessel was injured in passing through the draw through the negligence of those charged with its operation. These were employés of the two counties who had previously operated the draw of the old bridge, and who were retained and paid by the counties, but with funds supplied by the contractor. Held, that, in the absence of proof of any agreement by the counties to assume charge of the operation of the temporary bridge, contrary to the terms of the contract, such employés were, while so working, servants of the contractor for whose negligence it was responsible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1213, 1214; Dec. Dig. &wkey;301(4).]</p> <p>4. Admiralty <@=79 — -Dismissal—Insuppiciency op Evidence.</p> <p>Mere insufficiency of the evidence, taken in support of a libel in admiralty, is not ground for dismissal of the suit if the evidence in support of the answer supplies the deficiency.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 692-594; Dec. Dig. <&wkey;79.]</p> <p>6. Navigable Waters &wkey;>20(4) — Bridges—Temporary Structure by Building Contractor — Liability por Negligent Operation.</p> <p>A private corporation, contracting with public authorities for the building of a bridge across a navigable stream, may erect and maintain a temporary bridge, provided due care is taken not to impede navigation, and it cannot shift the responsibility for a violation of such duty upon the public authorities on the ground that their duty to keep the waterway clear for navigation cannot be delegated.</p> <p>[Ed. Note.- — For other cases, see Navigable Waters, Cent. Dig. §§ 86-89; Dec. Dig. &wkey;20(4).]</p>

In Admiralty. Suit by the Wright & Cobb Lighterage Company, owner of the steam lighter Pioneer,' against the Snare & Triest Company, the Board of Chosen Freeholders of the County of Hudson, and the Board of Chosen Freeholders of the County of Essex. Decree for libelant against the Snare & Triest Company.

In Bankruptcy. In the matter of the, bankruptcy of W. B. Mc-Cracken. Petition by one Albrecht for a review of the order and judgment of the referee. Order and judgment set aside, with directions.

<p>At Law. Action by the Pennsylvania Railroad Company against Charles H. Peddrick, Jr., and others. Verdict for plaintiff, and defendants apply for an order setting it aside.</p>

<p>1. Courts &wkey;>280 — Jurisdiction—Objections—Necessity of Raising.</p> <p>Where a suit in a federal court for mandatory injunction involved public questions, the court may on its own motion, though not urged by defendant, raise the questions whether the amount in controversy was within its jurisdictional limit and whether complainant had an adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. <&wkey;280.]</p> <p>2. INJUNCTION <5=35 — Issuance-—Mandatory Injunction.</p> <p>A mandatory injunction will not ordinarily be issued to require defendant to perform some act which exposes it to prosecution for violation of criminal laws; such injunctions usually being issued only to compel defendant to do some act which will restore the status quo.</p> <p>[Kd. Note. — For other cases, see Injunction, Cent. Dig. § 4; Dec. Dig. <&wkey;5.]</p> <p>3. Constitutional Law <&wkey;70(3) — Wisdom of Law — Judicial Review.</p> <p>The wisdom of a sumptuary statute regulating the acquisition of intoxicating liquors is not a question for the court.</p> <p>|Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 131; Dec. Dig. <&wkey;70(3).]</p> <p>4. Injunction <&wkey;o — Mandatory Injunction — Validity of Statute.</p> <p>Act S. C. Feb. 20, 1915 (29 St. at Large, p. 1401), regulating shipments of intoxicating liquors into the state, forbids the delivery to any person by any carrier into the state of more than one gallon of intoxicating liquors during any calendar month. Webb-Kenyon Act March 1, 1913, e. 90, 37 Stat. 099 (Comp. St. 1913, § 8739), prohibits the shipment or transportation of intoxicating liquors from one state into another where such liquors are intended to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state wherein they are shipped. Complainant, ordered from a point without the state a considerable quantity of intoxicating liquor, and on the carrier refusing to make delivery prayed a mandatory injunction requiring it. Held that, as complainant was not entitled to delivery of the liquor unless the South Carolina act be unconstitutional, as infringing some essential right which under the federal Constitution may not be infringed either by state Constitution or - statute as it is not invalid as an interference with interstate commerce, an injunction will not by a court of the first instance be granted on the theory that such statute was invalid; that question being at least doubtful.</p> <p>[Md. Noto. — For other eases, see Injunction, Cent. Dig. § 4; Dec. Dig. <&wkey;>5.]</p>

In Bankruptcy. In the matter of the bankruptcy of the Astoroga Paper Company. Proceeding by Prank H. Shall, as trustee under a trust mortgage, against Samuel PI. Newberry, as trustee in bankruptcy, to review order of referee disallowing the claim of petitioner.

<p>In Bankruptcy. In the matter of the Huffman-Salvar Roofing Paint Company, bankrupt. On petition of trustee to enforce stockholders’ liability.</p>

<p>In Equity. Bill by the Aunt Jemima Mills Company against Rigney & Co.</p>

In Equity. Suit by the Union Trust Company of New York and Benjamin F. Edwards, as trustees, against the St. Louis, Iron Mountain & Southern Railway Company. On ancillary bill by defendant railway company and B. E. Bush, its receiver, against the Metropolitan Trust Company of the City of New York and Walker Hill, trustees. Decree for complainants. This suit comes on for hearing on bill and answer.

At Law. Action by Katherin Kever, widow of George Kever, deceased, against the Philadelphia & Reading Coal & Iron Company. On the trial the jury disagreed, and the case was set down for new trial. Upon the evidence at the trial the defendant now moves to withdraw its answer and interpose a plea.

Pollock, Judge. Action by J. C. Berg against John Erickson. Judgment for defendant, and plaintiff brings error. Suit in equity by John Erickson against J. C. Berg. From a decree for complainant, respondent appeals.

<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 Georgia Chemical Works against W. E. Cummings, the Carolina Land & Lumber Company, and Julia E. Brunson. Complaint dismissed as to respondent Carolina Land & Lumber Company. From a decree for complainant, respondent Julia E. Brunson appeals.</p>

G. Haight, Judge. Suit in equity by Charles R. Wood and others against-the Elorence Iron Works. From an order allowing claims of Walter Wood and the estate of Stuart Wood, Leonard Peckett, Edward L. Herndon, and W. Howard Ramsay, as a creditors’ committee, appeal.

S. Farrington, Judge. Action by Rose Bright and others against the Virginia & Gold Hill Water Company, a corporation. Judgment for defendant, on plaintiff’s refusal to amend further after demurrer to the third amended complaint was sustained, and plaintiffs bring error.

Jacob L. Salas was convicted of conspiracy to defraud the United States, demurrer to the indictment having been overruled (United States v. Burke, 221 Fed. 1014), and brings error.

<p>1. Bbokees @=49(3) — Commissions—Right to.</p> <p>Plaintiff was authorized to negotiate with American firms for a general agency to represent in the United States and Canada a German company manufacturing dental supplies. The draft agreement sent by the German firm to plaintiff provided for a five-year agency and fixed the minimum quantity of artificial enamel which should be purchased during those years. Defendant agreed to pay plaintiff the sum of $20,009, should he secure for them an exclusive agency for North America, and, if possible, the West Indies, Central America, and South America. The agreement between plaintiff and defendant provided that plaintiff should not compete In the sale of dental supplies for a period of 10 years, and left the amounts of the purchase to be agreed upon. Held, that defendant could not escape payment of the commission, where it appeared that plaintiff would have been able to secure the contract, had defendant not secured it through another agent, on the ground of slight and minute differences between the proposed agreement and the draft agreement, particularly as defendant made no objection to the contract actually procured, which practically followed the terms of the draft agreement. A</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 72; Dec. Dig. @=> 49(3).] -</p> <p>2. Brokers @=>7 — Commissions—Right to.</p> <p>Where defendant agreed to compensate plaintiff upon his securing a satisfactory contract giving defendant the exclusive agency for dental supplies manufactured by a German firm, recovery will not be denied on the ground that the contract between plaintiff and defendant was indefinite, where plaintiff could have secured a satisfactory contract.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 5-8; Dec. Dig. @^7.]</p> <p>3. Brokers @=388(4) — Compensation—Actions—Jury Question.</p> <p>In an action to recover under an agreement whereby defendant was to compensate plaintiff if he should procure for it a satisfactory agency contract to represent a German firm, held, that the question whether plaintiff could have secured a satisfactory contract was for the jury.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 128, 129; Dea Dig. @=»88(4).]</p> <p>4. Damages @=>59 — Measure—Breach of Contract.</p> <p>Possibility of plaintiff’s future breach of covenants which were conditions subsequent cannot be measured in damages, so as to reduce plaintiff’s recovery in an action for breach of contract.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 108-112, 114, 117, 118; Dec. Dig. @=>59.]</p> <p>5. Brokers @=>87 — Compensation—Commissions.</p> <p>Where defendant agreed to pay plaintiff a fixed sum if he should procure for it the agency to represent a German firm manufacturing dental supplies, and the agreement provided that if the agency was procured the expense of plaintiff’s trip to Europe, advanced by defendant, should be deducted from the compensation, plaintiff, defendant having breached its contract, is not entitled to recover the’full amount but the expenses should be deducted.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 131; Dec. Dig. @=> 87.]</p> <p>6. Appeal anb Error @=>274(5) — Presentation of Grounds of Review in</p> <p>Court Below — Sufficiency.</p> <p>In such case an exception to the charge that plaintiff was entitled to the full amount, coupled with a request to charge that there was no evidence under which any verdict could be returned for plaintiff, did not present the question whether the expense of such trip should be deducted from plaintiff’s recovery, and hence a judgment for the full amount cannot be attacked on error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1631; Dec. Dig. @=>274(5)-; Trial, Cent. Dig. § 691.]</p>

<p>1. Insane Persons <&wkey;26 — Adjudication—Collateral Attack.</p> <p>Code Civ. Proc. N. Y. § 2329, declares that each commissioner appointed in a proceeding to adjudge one an incompetent shall take a prescribed oath, and, if he becomes incompetent, or neglects or refuses to serve, or removes from the state, the court may remove him, and shall from time to time fill any vacancy. Section 2331 declares that all the commissioners must attend and preside at the hearing, and a majority of them shall have all the power and authority of a judge of the court holding a Trial Term. Of the three commissioners appointed in a proceeding to secure a committee lor an alleged incompetent, one resigned, and the two remaining, without the vacancy having been filled, proceeded to act, making a finding of incompetency and appointing a, committee. Held that, as the functions of the commissioners are judicial, and a part do not constitute the commission, the judgment of incompetency was void, and may bo collaterally attacked.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. <!&wkey;26.]</p> <p>2. Evidence <&wkey;63 — Presumptions—Competency.</p> <p>There is a presumption that one suing in his own right is competent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 83; Dec. Dig. <&wkey;>63.]</p> <p>3. Courts <&wkey;322(2) — Federal Courts — Jurisdiction.</p> <p>Where complainant, who resided in California, averred that he was a citizen of that state, a federal court sitting in that district of New York in which defendant resided, had jurisdiction of the suit on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 878, 879; Dec. Dig. &wkey;322(2)J</p> <p>4. Couiíts <&wkey;325 — Jurisdiction—Federal Courts — Waiver.</p> <p>Where a suit was brought in the federal court on the ground of diversity of citizenship, defendant, who appeared generally, pleaded to the bill, and offered some proof, waived any objection on the ground that she was not a citizen of the district alleged.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 884; Dec. Dig. <§=>325.]</p> <p>5. Judgment &wkey;>570(l) — Bar—Discontinuance—Judgment on the Merits.</p> <p>Where a suit is discontinued, the order is not and cannot be a judgment on the merits, barring a subsequent suit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1028, 1036, 1165; Dee. Dig. &wkey;570(l)J</p>

Proceeding by the United States for the forfeiture of one case of laces, etc., consigned to Cobden & Co. Forfeiture was denied, and the United States bring error.

Suit in admiralty by the C. F. Harms Company, owner of the scow Castor, against the Upper Hudson Stone Company, Paladino & Bros., Plenry Crew, Alfred Grant, and David E. Dove, as owners of the tug H. B. Moore, Jr., and John J. Guinan, impleaded. Decree for libelant against Guinan, who appeals.

<p>1. Colusión &wkey;>90 — Navigation Rules — Special Circumstances.</p> <p>The steering- and sailing rules apply to vessels navigating on steady courses, and where one of them is maneuvering merely, as, for instance, to get into or out of a dock, or turning around in harbor waters to get on her course, the situation is one of special circumstances, under article 27 of the Inland Rules (Act June 7, 1897, c. 4, § 1, art. 27, 30 Stat. 102 [Comp. St. 1913, § 7901]).</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 181-186, 196; Dec. Dig. <&wkey;90.]</p> <p>2. Collision &wkey;>102 — Tugs witii Tows — Mutual Faults.</p> <p>A collision in the Arthur Kill between a tug, with a tow, and a lighter in tow of another tug, being the second of two boats tandem, which were leaving a dock and being maneuvered to regain their course, held due to faults on the part of both tugs; the departing tug being in fault for not waiting for the other to pass with her tow, and the latter for not keeping an efficient lookout, which would have enabled her to avoid the collision.</p> <p>LEd. Note. — For other eases, see Collision, Dec. Dig. <&wkey;102.]</p>

<p>Bankruptcy <&wkey;140(2) — Misrepresentations—Reclamation oe Funds.</p> <p>The bankrupt agreed to furnish the charterer of a steamship a full cargo for a lump freight; the charter party providing that payment of charter money should be “direct to the owners of the ship upon issuance of bills of lading, or to the authorized agent of the ship upon signed bills of lading signed by the captain, which would constitute a lien.” Claimant engaged room from the bankrupt for steel for transportation on the ship, delivered it, and was notified by the bankrupt to pa.y the freight against the bill of lading; the bankrupt delivering a bill of lading signed by it. Held that, as the bankrupt was unable to pay the lump freight, and could not obtain a bill of lading signed by the master, and as its execution of the bill of lading was an assertion that it was an agent of the steamship, claimant might, the assertion being false, rescind and reclaim the sum it paid as freight from the bankrupt’s receiver.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 219; Dec. Dig. &wkey;140(2).]</p>

Suit in admiralty for collision by the West Shore Railroad Company, owner of the ferryboat Syracuse, against the steam tug Fleming-tou; the Central Railroad of New Jersey, claimant. Decree for libel-ant, and claimant appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.'</p> <p>In the matter of the bankruptcy of Benjamin Kaplan, Charles Kap-lan, and Samuel Kaplan, doing business as the Kaplan Savings Bank, bankrupt. From an order adjudging Samuel Kaplan and others bankrupts as partners, on the petition of Meyer Dreveno and others, Samuel Kaplan appeals.</p>

<p>1. Criminal Daw <&wkey;1054(l) — Appeal—Assignments or Error.</p> <p>Rulings on the admission of evidence, as to which no exceptions were taken, cannot be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2662; Dec. Dig. <&wkey;>1054(l).]</p> <p>2. Bankruptcy <&wkey;495 — Offenses—False Oaths — Evidence.</p> <p>In a prosecution for making false oaths in a proceeding in bankruptcy, the judgment roll in a previous action, to which defendant was a party, is properly admitted in evidence as bearing on defendant’s motive and the reason for his testimony in the bankruptcy proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. &wkey;>495.]</p>

Appeals from the District Court of the United States for the Western District of Wisconsin. Suit in equity by the United States Expansion Bolt Company against the H. G. Kroncke Hardware Company, the Diamond Expansion Bolt Company, and Henry B. Newhall. Decree for defendants, and complainant appeals.

• Appeal from the District Court of tire United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge. Suit in equity by the Confectioners’ Machinery & Manufacturing Company against the Racine Engine & Machinery Company. From final decree, defendant appeals.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock,- Judge.</p> <p>Suit in equity by Daniel B. Buten against Walter Sharp and Harry I. Jones. Decree for defendants, and complainant- appeals.</p>

<p>1. Patents <&wkey;328 — Validity and Infringement — Garment.</p> <p>The Johnson patent, No. 973,200, for a union suit garment, claim 1, with proof that an article offered in evidence, but excluded, was in the prior art, held void for lack of invention. Claims 2 and 3 held not infringed.</p> <p>2. Patents <&wkey;311 — Suit for Infringement — Evidence.</p> <p>Where the answer in an infringement suit alleges generally want of invention and novelty in view of the prior art, in the absence of a motion for bill of particulars, an article shown to have been manufactured and on sale prior to the patent may properly be admitted in evidence, although not specifically pleaded.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 541, 542; Dec. Dig. <&wkey;311J</p> <p>3. Patents &wkey;>36 — Suit for Infringement — Evidence of Invention — Commercial Success.</p> <p>The effect of commercial success as evidence of invention is lessened, when the commercial article departed from the patent and was in the hands of a concern with a large trade in other articles, which advertised extensively, and the article belonged to a class for which there was an increasing demand.</p> <p>[Ed. Note. — For other cases, see Patents, 'Cent. Dig. § 40; Dec. Dig. <©=336.]</p>

Dayton, Judge. Bill in equity by the U. E. Waterman Company against Edwin E. Kline, individually and as trustee in bankruptcy of Deo B. Kletzly. Decree for defendants, and complainant appeals.

Suit by the Oriental Tissue Company against Louis De Jonge & Co. From a decree dismissing the bill, but holding complainant’s patent valid, both parties appeal.

In Equity. Suit by the Riter-Conley Manufacturing Company against the Atlanta Gaslight Company and Richard C. Congdon. On final hearing. Decree for defendants.

<p>In Equity. Suit by the Meccano, Eimited, against Francis A. Wagner, trading as the American Mechanical Toy Company, and the Strobel & Wilken Company, who counterclaimed. Decree for complainant.</p>

In Equity. Suits by the Otis Elevator Company and by the Sprague Electric Company and the Otis Elevator Company against the Kaest-ner & Hecht Company. Decree for defendant in one suit, and for complainants in the other two.

In Equity. Suit by the Vacuum Cleaner Company against the Innovation Electric Company, Incorporated, to restrain infringement of claim 4 of letters patent No. 847,947, for a vacuum cleaner, granted to David T. Kenney March 19, 1907. Decree for complainant.

<p>1. Courts <@=352 — Accounting before Master — Procedure.</p> <p>Equity rule 63 (198 Fed. xxxvii, 115 O. C. A. xxxvii), dealing with accounting before a master, which requires the party accounting to bring in an account in the form of debtor and creditor, but gives the other party, if dissatisfied, the right to examine the accounting party, deals with results and not with evidence. It gives no sanction for a demand upon the accounting party to set forth in his account evidence or the sources of possible evidence from which a different account might be stated, although the adverse party may go Into such inquiry if he chooses, in which case the inquiry is governed by the ordinary rules of evidence.</p> <p>[Ed. Note. — For other cases, see Courts, Gent. Dig. §§ 926-932; Dec. Dig. <§=>352.]</p> <p>2. Trade-Marks and Trade-Names <§=91 — Suit for Infringement — Accounting.</p> <p>On an accounting by a defendant before a master for infringement of trade-mark or unfair competition, complainant has not the right to inspect the books of defendant, not in evidence, for the purpose of learning therefrom the names and addresses of defendant’s customers to whom sales of infringing articles were made.</p> <p>[33d. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 107; Dec. Dig. <§=»94.]</p>

<p>Equity <@=>416 — Opening Consent Decree.</p> <p>A decree entered by stipulation of parties should not be disturbed except on a clear showing of a meritorious defense the denial of which would work plain injustice.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig, § 945; Dec. Dig. <@=>416.]</p>

<p>At Raw. Action by the Southern Photo Material Company against the Eastman Kodak Company of New York. On plea to jurisdiction and traverse of service.</p>

<p>At Raw. Action by Charles C. Pilgrim, receiver of the Russel-Robinson Company, against the ¿Etna Rife Insurance Company. On motion to remand.</p>

<p>In Admiralty. Suit by Avgot Sjorberg against the American schooner Blakeley and J. W. Manka. On exceptions to libel.</p>

<p>Deposits in Oottbt <&wkey;4 — -Act op Clerk — Stipulation op Parties.</p> <p>Cr. Code, § 99 (Act March 4, 1909, e. 321, 35 Stat. 1106 LComp. St. 1913, § 10267]), declares that whoever, being a clerk, shall fail to forthwith deposit any money belonging in the registry of the court or hereafter paid into court or received by the officers thereof with the treasurer or assistant treasurer, or designated depositary of the United States, in the name of and to the"credit of the court, shall be guilty of an offense. Rev. St. § 996 (Comp. St. 1913, § 1645), declares that no money deposited in court shall be withdrawn save by order of the judge or judges, and it shall be the duty of the judge or judges to direct deposit in. a designated depositary, while section 5153 (section 9691) declares that banking associations designated by the Secretary of the Treasury shall be depositaries of the public money. In a condemnation suit, where there were conflicting claims to an award, the claimants stipulated that the award might be withdrawn from the registry of the clerk and deposited in certain other national banks, in order that interest should accrue while the fund was held in abeyance. Held, that for the clerk to make such deposits according to stipulation and orders thereon in national banks which were not those usually designated as depositaries was no. violation of the Criminal Code.</p> <p>[Ed. Note. — For other cases, see Deposits in Court, Cent. Dig. §§ 5, 6; Dec. Dig. <&wkey;4.] ,</p>

<p>COPYMGHTS &wkey;3Í> — PHOTOGRAPH-ORIGINALITY.</p> <p>A photograph of a scene, including a public building, is copyrightable; originality in determining just when to take the photograph, so as to bring out the proper setting, l'or both animate and inanimate objects, with the adjunctive features of light, shade, position, etc., being involved.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 7; Dec. Dig. &wkey;9J</p>

<p>In Equity. Suit by the United States against the Corn Products Refining Company, the National Starch Company, the St. Roms Syrup & Preserving Company, the Novelty Candy Company, Penick & Ford, Rimited, Edward T. Bedford, William J. Matheson, Frederick T. Bedford, Frederick T. Fisher, C. H. Kelsey, A. B. Boardman, George S. Mahana, George M. Moffett, William H. Nichols, Jr., A. A. Smith, James Speyer, E. Beverly Walden, C. M. Warner, Thomas P. Kingsford, R. S. Burns, E. A. Eohmeyer, Benjamin Schneewind, C. W. Eohmeyer, Edward T. Bedford, 2d, A. N. Watkins, C. H. Eorenz, Eouis Suss, William S. Penick, Jr., and James P. Ford. On final hearing. Decree for complainant.</p> <p>This is a petition under the Sherman Act by the United States for an injunction and a dissolution of the defendant Corn Products Refining Company, because of a monopolization and a- restraint of interstate and foreign commerce, and because of a conspiracy to monopolize and restrain such commerce, in the manufacture and sale of starch, glucose, grape sugar, and in the mixing of glucose with the refiners’ syrup, molasses, or other syrups. The individual defendants are the officers and directors .of the defendant Com Products Refining Company and of the corporate defendants, National Starch Company, St. Louis Syrup & Preserving Company, and Novelty Candy Company. There are also joined in the petition the president and directors of a Louisiana corporation, Penick & Ford, Limited, and the corporation itself. The petition sets forth that the principal products derived from corn are: (1) Starch for-food and laundry purposes; (2) glucose or corn syrup; (3) grape sugar or com sugar. It then sets forth the history of the defendant corporations from the year 1897, alleging the combinations from which by a series of reorganizations the defendant Com Products Refining Company arose in 1906 and the National Starch Company in 1900, and the subsequent acquisition by the Com Products Refining Company of the stock in the St. Louis Syrup & Preserving Company and Penick & Ford, Limited. It then asserts that the Com Products Refining Company and the National Starch Company grind 66 per cent, of the entire production of starch and glucose in the United States, and by means of the control so created, monopolize, and attempt to monopolize, interstate and foreign commerce in starch, glucose, and other com products; that they control likewise 80 per cent, of such commerce in mixed syrups, as so defined. It then alleges ten sorts of unfair trade practices by the defendants, as follows:</p> <p>(a) By means of the combinations before set forth.</p> <p>(b) By means of the dismantling and sale of certain of its plants which had been acquired-in excess of their real value.</p> <p>(c) By means of contracts secured from officers of the corporations consolidated agreeing not to enter into manufacture within 1,500 miles of Chicago for stated periods of time.</p> <p>(d) By means of profit-sharing agreements until the year 1910.</p> <p>(e) By means of a guaranty in all sales of its goods against the decline in price.</p> <p>(f) By means of an agreement with the American Maize Products Company by which certain of its glucose purchased by Com Products Refining Company should be sold at low prices under the guise of sales by independent manufacturers.</p> <p>(g) By means of threats against the National Candy Company that it would enter into the candy business if the said National Candy Company should enter the glucose business and by the organization of the Novelty Candy Company for that purpose.</p> <p>(h) By means of fixed prices for the sale of corn products at unreasonably low figures for the purpose of harassing independent manufacturers and by the low price of its own brand of mixed syrup, “Karo,” and by driving out the private brands of other individuals.</p> <p>(i) By means of fixing retail prices.</p> <p>(j) By means of freight rebates obtained under the cover of allowances for switching service.</p> <p>The petition prays that, the defendants (1) be declared to be combinations in restraint of trade and attempt to monopolize such trade; (2) that the defendants be decreed to have entered into contracts in restraint of interstate and foreign trade and to be engaged in the effort to restrain and destroy trade; (3) that the court adjudge Com Products Refining Company a combination in' restraint of trade and a monopolization thereof; (4) for such other relief as may be necessary.</p> <p>The answer admits the first three articles of the petition and certain, facts in the other articles. It will not be necessary for the decision of the case to particularize these admissions of the answer, as the substance of the proof is considered in the later discussion. The eighth article of the answer on behalf of the individual defendants James Speyer, A. B. Boardman, Clarence H. Kelsey, and W. H. Nichols, Jr., denies any connection with the Com Products Refining Company except after certain dates therein mentioned.</p> <p>The petition was filed in March, 1913, the answer on April 9, 1913. The government commenced taking testimony on June 10, 1914. Testimony was taken thereafter out of court until about the end of 1915, after which the caso came on for a hearing on January 10, 1916, before Hon. Learned Hand, District Judge, and testimony on both sides was completed. It was thereafter argued in March, 1916. Meanwhile, and on May 14, 1915, an interlocutory decree had been taken by consent effecting a dissolution of the combination, so far as it had gone, of Corn Products Refining Company with Penick & Ford, Limited, by the sale of all securities already purchased, and forbidding the defendant from acquiring any other securities in that corporation, or in any other fashion acquiring any interest or control in it.</p> <p>The following statement of facts is made for the most part in chronological order, stating separately the conditions of the starch and glucose industries until 1902, at which time they were first combined in the formation of the Corn Products Company. The starch industry before 1902 is taken np in three periods: (1) That prior to 1890, the date of the formation of the National Starch Manufacturing Company; (2) that from 1890 to 1900, the date of the formation of the National Starch Company; (3) the period from 1900 to 1902. The history of the glucose industry is considered in two periods: (1) That prior to 1897, the date of the formation of the Glucose Sugar Refining Company; (2) that from 1897 to 1902. The conditions of the joint industry a.re then considered in two periods, (1) that from 1902 to 1906, until the formation of Corn Products Refining Company; (2) that from 1906 until the close of the testimony. In the consideration of the period from 1906 to the present time the various practices adopted by the Com Products Refining Company are themselves considered in chronological order along with the development of the industry itself. At the conclusion of this statement of facts the various allegations of the petition are taken up in the order stated in the petition, and formal findings of fact arc made upon all of them:. Finally, appears a discussion of the law deemed applicable and of the conclusions oí law made by the court, together with such remedies as the facts and the law require.</p>

<p>In Equity. Suit by the United States against the American Can Company and others. Decree considered.</p>

<p>Appeal from the District Court of the United States for the Northern District of the Eastern Division of Illinois. Suit by E. Petronio & Co. against the Central Trust Company of Illinois, trustee in bankruptcy of Eliza Petronio Zarosi and Luigi Zarosi, as individuals and as copartners under the firm name of E. Petronio & Co. From a decree for defendant, complainant appeals.</p>

Petition to Revise an Order of the District Court of the United States for the Eastern District of Michigan, in Bankruptcy; Arthur J. Tuttle, Judge. Proceedings in the matter of the bankruptcy of Richards Bros. On petition to revise an order of the District Court (200 Fed. 932) allowing trade exemptions to the bankrupts.