Volume 236 — Federal Reporter

<p>1. Master and Servant @=5288(1) — Questions for Court — Weight of Evidence.</p> <p>The court cannot as a matter of law declare that a servant assumed a risk, where there is any substantial evidence that he did not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068, 1069, 1087, 1088; Dec. Dig. @=5288(1).]</p> <p>2. Master and Servant @=5217(1) — Injuries to Servant — Assumption of Risk.</p> <p>For a servant to assume the risk, it must appear that he had knowledge of the defective condition out of which the risk arose and appreciated the danger arising therefrom.</p> <p>[Ed. Note. — For other cases, see Master and. Servant, Cent. Dig. § 571; Dec. Dig. @=>217(1)J</p> <p>3. Master and Servant @=>217(4) — Injuries to Servant — Assumption of Risk.</p> <p>Where a brakeman alighting from a, moving train stepped on a large piece of slag, turned his foot, and fell under the train, he assumed the risk of injury, though he did not know of the presence of the particular piece of slag, if he knew that there were similar pieces of slag in the yards.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. § 577; Dec. Dig. @=>217(1).]</p> <p>4. Master and Servant @=>217(5)--Injuries to Servant — Assumption of Risk.</p> <p>An employé assumes risks attributable to his employer’s negligence, whore they are plainly observable though he did not know of them.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 578; Dec. Dig. @=>217(5).]</p> <p>5. Master and Servant @=5217(5)- -Injuries to Servant — Assumption of Risk.</p> <p>Though a brakeman, who was injured when he stepped on a large piece of slag in alighting from a moving train, did not know of the presence of pieces of slag of that size, he assumed the risk, where the presence of such slag was plainly observable, for in such case knowledge is imputed to Mm.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 578; Dec. Dig. @=>217(5).]</p> <p>6. Master and Servant <§=>217(5) — Injuries to Servant — Assumption op Bisk.</p> <p>A brakeman alighting from a moving train does not assume the risk of injury from the presence of pieces of slag on the roadbed because ordinarily prudent persons would have observed the presence of the slag before alighting.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 578; Dec. Dig. <§=>217(5).]</p> <p>7. Master and Servant <§=>217(1), 234(1) — Injuries to Servant — Contributory Negligence — Assumption op Bisk.</p> <p>The defenses of contributory negligence and of assumption of risk are entirely distinct, and one may exist without another; knowledge of the risk actual or imputed being essential to the existence of assumption of risk, while not to contributory negligence which merely deals with the negligence of the servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574, 706; Dec. Dig. <@=>217(1), 234(1).]</p> <p>8. Master and Servant <§=>217(4) — Injuries to Servant — Assumption of Bisk.</p> <p>That a brakeman, injured when he stepped on a large piece of slag in alighting from a moving train, knew that there were smaller pieces of slag on the roadbed, does not as a matter of law establish that he assumed the risk of injury from the presence of such larger pieces, for the danger from them must be deemed substantially greater than the danger from the smaller ones.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 577; Dec. Dig. <§=>217(4).]</p> <p>9. Master and Servant <§=>217(4) — Injuries to Servant — Assumption op Bisk.</p> <p>As the doctrine of assumption of risk necessitates a knowledge of the conditions of the risk which can be gained from pure observation, the brakeman cannot be held to have assumed the risk of injury from' the presence of large pieces of slag, on the theory that their presence might have been inferred from the presence of smaller ones, particularly where the railroad company had provided for the removal of large pieces of slag.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 577; Dec. Dig. <§=>217(4).] .</p> <p>10. Master and Servant <§=>288(8)1 — Injuries to Servant — Assumption op Bisk.</p> <p>Whether a brakeman, injured when he stepped on a large piece of slag in alighting from a moving train, assumed the risk of injury therefrom, held under the evidence for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1074; Dec. Dig. <§=>288(8).]</p> <p>11. Master and Servant <§=>217(5), 234(3) — Injuries to Servant — Assumption op Bisk.</p> <p>That a brakeman, injured in stepping on a piece of slag as he alighted from a moving train, might have seen the slag before he alighted, does not put in operation the doctrine of assumption of risk, but affects the issue of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 578, 709; Dec. Dig. <§=>217(5), 234(3).]</p>

Bourquin, Judge. Action by Herbert U. Ennis and another against the Great Northern Railway Company, a corporation. There was a judgment for plaintiffs, and defendant brings error.

<p>1. Banjíruptot &wkey;>455 — Proceedings—Appeals.</p> <p>A rubber company incorporated in New York, having its principal place of business in Rhode Island, maintained a plant in Ohio. At the suit of appellee, one of its employés, a receiver was appointed and ordered to take possession of the company’s assets in Ohio. Two days later proceedings in involuntary bankruptcy were commenced in the District Court for Rhode Island, and the company was adjudged a bankrupt. Appellant, who was appointed receiver, was by the District Court for Ohio appointed ancillary receiver of the bankiupt to collect assets located in that state and to carry into force and effect the orders of the original court of jurisdiction. Thereafter the receiver appointed in the Ohio state court filed a final report, showing a considerable balance in his hands, and on the same day the Ohio state court approved the report and entered an order, reciting that the federal District Court for Ohio had made an order for it and its receiver to pay over t.o appellant, the receiver, the balance in his hands. Thereupon appellees asserted liens against, and claims for priority in, the funds under Gen. Code Ohio, § 111-38, giving priority to laborers’ and operatives’ claims to the amount of §300. In no case was the fact of the rendition of services or their value in dispute. The claims of appellees to priorities were sustained. JlcM, that the proceeding plainly was not one to secure a judgment allowing a debt or claim, and therefore an appeal from an adverse decree was not governed by Bankruptcy Act July 1, 1898, c. 511, § 25a, cl. 3, 30 Stat. 553 (Comp. St. 1913, § 9609), allowing appeals in such cases where the amount involved is $500 or over.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 916; Dee. Dig.</p> <p>2. Bankruptcy <&wkey;440 — Proceedings—Appeals.</p> <p>The case, although informally presented in the court below, gave rise to a controversy in bankruptcy proceedings amounting to an intervention under Bankruptcy Act July 1, 1898, § 24a (Comp. St. 1913, § 9608); the proceeding was not open to revision here, under section 21b of the act, since the fund was recovered in the court below subject to liens alleged to exist against it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. &wkey;>44QJ</p> <p>3. BANKRUPTCY <&wkey;450i4, New, yol. 14 Key-No. Series — Proceedings—Appeals —Amount in Controversy.</p> <p>The right of appeal in bankruptcy proceedings given by Bankruptcy Act July 1, 1898, § 24a, is not affected by the amount in controversy.</p> <p>4. Bankruptcy <&wkey;llr — Proceedings—Ancillary Proceedings.</p> <p>In such case, though appellant receiver was appointed trustee before the state court entered the order directing payment of the fund, to him, and Bankruptcy Act July 1, 1898, § 70a (Comp. St. 1913, § 9654), declares that the trustee shall be vested by operation of law with the title of the bankrupt as of the date he was adjudicated a bankrupt, the District Court for Ohio did not, by reason of appellant’s appointment as trustee, lose the right to determine- in the ancillary proceedings claims of local creditors to liens and priorities, for the court had ancillary jurisdiction under section 2, cl. 20, as amended by Act June 25, 1910, c. 412, § 2, 36 Stat. 839 (Comp. St. 1913, § 9586), over persons or property* within its territorial limits in aid of the receiver or trustee appointed in bankruptcy proceedings pending in other courts, and appellant could not, having invoked such jurisdiction, at his option withdraw the fund from the custody of the court under authority of which he secured it.</p> <p>[Ed. Note. — For other cases, see. Bankruptcy, Cent. Dig. § 11; Dec. Dig. &wkey;>ll.]</p> <p>5. Bankruptcy <&wkey;lli — Proceedings—District Court — Ancillary Jurisdiction.</p> <p>As District Courts in bankruptcy possess ancillary jurisdiction to make orders and issue process in aid of proceedings pending in other districts, such ancillary jurisdiction carries with it power, for the ancillary tribunal to decide questions of liens and priorities to property over which it exercises jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 11; Dec. Dig. <&wkey;>ll.]</p> <p>6. Bankruptcy <&wkey;350 — Priorities—Laborers—Operators.</p> <p>Gen. Code Ohio, § 8339, provides that in all cases when property of an employer is placed in the hands of an assignee, receiver, or trustee, claims due for labor performed within the period of 3 months prior to the time such assignee, receiver, or trustee is appointed shall first be paid in preference to all other claims, except claims for taxes and costs of administration, while section 11138 declares that every person who has performed labor as an operative in the service of the assignor within 12 months preceding the assignment shall be entitled to receive out of the trust funds, before the paying of other creditors, the full amount of wages due for such labor not exceeding $300. The latter section appeared in the chapter regulating the administration and distribution of estates of insolvent debtors, while the former was part of the chapter providing for liens of laborers and employés of any person. Held, that as the two sections were distinct, providing different time limits, the one fixing an amount for which the claim might be asserted, and the latter fixing none, the latter section must be construed as not applying where a receiver or trustee is appointed, and hence laborers or operatives having claims against an insolvent employer are not, receivers having been appointed before bankruptcy and its assets subsequently taken over by the receiver and trustee in bankruptcy, entitled to assert claims under section 11138, but must assert them under section 8339.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. <&wkey;>350.]</p> <p>7. Bankruptcy <&wkey;350 — Priorities—Persons Entitled — Laborers.</p> <p>Within Gen. Code Ohio, § 8339, giving priority to claims due for labor performed, employés of a rubber company who, on its falling into difficulties, abandoned their work of superintendence and engineering and discharged manual labor in manufacturing rubber tires, are, despite their superior titles and higher rate of pay, entitled to priority as laborers.</p> <p>[Ed. Note.-- -For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. &wkey;350.]</p> <p>8. BANKRUPTCY <&wkey;350 — REVIEW-HARMLESS ERROR.</p> <p>A decree, awarding priority to laborers under state statute, is not open to objection on the ground that it failed distinctly to give effect to Bankruptcy Act July 1, 1898, § 64b, cl. 4 (Comp. St. 1913, § 9648), giving priority to claims of laborers for services rendered within three months of institution of proceeding, where under the circumstances the allowances must have been the same.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 537; Dec. Dig. &wkey;350.]</p>

Suit in equity by Byron F. Babbitt, trustee in bankruptcy of the Randolph-Macon Coal Company, against William A. Read, Seth Sprague Terry, and. John S. Melcher, executors of James T. Gardiner, deceased, William T. Van Brunt, and others. Decree for complainant for part of his claim, and both parties appeal.

<p>1. Commerce <©=>4 — Offenses—Statute.</p> <p>Act .Tan. 17, 1914, c. 9, §1 1, 38 Stat. 275, declares that after April 1, 1909, it shall be unlawful to import into the United States opium in any form, but that opium and derivatives thereof other than smoking opium may be imported for medicinal purposes. Section 2 provides that if any person shall fraudulently or knowingly import or bring into the United States any opium or derivative contrary to law, or shall receive, conceal, buy, or sell, or in any manner facilitate, the transportation, concealment, or sale thereof, knowing it to have been imported contrary to law, such opium shall bo destroyed and the offender punished, and that whenever a defendant is shown to have, or have had, possession of such opium, such possession shall be deemed sufficient evidence to authorize conviction, unless explained. Section 3 declares that on and after July 1, 1913, all smoking opium, or opium prepared for smoking, found shall be presumed to have been imported, after the 1st day of April, 1909, and the burden shall be on the accused to rebut such presumption. Held,, that the act is not unconstitutional in so far as it makes penal the keeping and transportation of opium within the limits of the states as being in conflict with the police powers of the states and not within the powers delegated to the United States.</p> <p>[Ed. Note. — Fort other cases, see Commerce, Cent. Dig. §§ 3, 5; Dec. Dig. <©=>!.]</p> <p>2. Criminal Law <©=>1156(2) — Motion for New Tktal — Discretion oe Court.</p> <p>The denial of a, motion for new trial is within! the discretion of the court, and where there is evidence to support the verdict, the denial of the motion is not reviewable on error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3068; Dec. Dig. <®=>1156(2).]</p> <p>3. Conspiracy <©=>43(6) — -Indictment—Sueetciency—Uncertainty.</p> <p>In a prosecution under Pen. Code (Act March 4, 1909, c. 321, 35 Stat. 1098) §. 37 (Comp. St. 1913, § 10201), for conspiring to violate Act Jan. 17, 1914, § 2, providing that if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any opium contrary to law, or shall receive, conceal, buy, sell, or facilitate the transportation, concealment, or sale of such opium after importation, knowing it to be imported contrary to law, shall be punished, the indictment charged that defendants conspired to commit against the United States the offense of fraudulently and knowingly importing and bringing into the United States from a foreign country, the Republic of Mexico, opium prepared for smoking and to receive, conceal, buy, sell, and facilitate transportation, concealment, and sale of such opium knowing it to be imported contrary to law, which offense is defined by Act Jan. 17, 1914. Held, that in view of the specific reference of tho indictment to the act, the fact that it omitted the words “after importation,” preceding the words “knowing the same to have been imported contrary to law,” did not render it uncertain on the theory that, defendants having admitted they were engaged in dealing in opium in Mexico, it did not appear whether the offense was committed in the United States or in Mexico.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 86, 91; Dec. Dig. <©=343(6).]</p> <p>4. Criminal Law <©=>823(15) — Trial—Instructions.</p> <p>Where the court charged that in criminal cases, guilt must be established beyond a reasonable doubt, and that before a conviction can be rendered each juror must be able to say, in answer to bis individual conscience, that he has in his mind arrived at a fixed opinion that the defendant is guilty, an instruction that juries are impaneled for the purpose of agreeing on a verdict if they can conscientiously do so, and that a juror should not hesitate to sacrifice his opinions when convinced they are erroneous, though in so doing he defers to the opinions of others, is not objectionable as failing to impress on the jury that each juror should be individually convinced beyond a reasonable doubt of accused’s guilt before convicting.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158; Dee. Dig. <©=5823(15).]</p> <p>5. Criminal Law <©=5823(12) — Trial—Instructions.</p> <p>A charge that the jury should exercise their power to judge the credibility of witnesses, not arbitrarily, but with legal discretion and in subordination to the rules of evidence, is not objectionable as failing to define legal discretion, where the court proeéeded to state the rules of law usually given to guide the jury in judging the credibility of witnesses.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158; Dec. Dig. <©=5823(12).]</p> <p>6. Criminal Law <©=5823(14) — Trial—Instructions.</p> <p>Where the court charged that' accused could not be convicted unless found guilty beyond a reasonable doubt from all the evidence, an instruction that, where the evidence is entirely circumstantial, yet is not only consistent with the guilt of accused, but inconsistent with any other rational conclusion, the jury should convict is not objectionable as failing to state that each essential- of the crime should be established.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158; Dec. Dig. <©=5823(14).]</p> <p>7. Criminal Law <©=5308 — Trial—Pbesumptton of Innocence.</p> <p>While accused at the beginning of the trial is presumed to be innocent, yet whenever the proof shows beyond a reasonable doubt his guilt, then the presumption of innocence- disappears from the case.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. <©=5308.] ' ¿</p> <p>■8. Criminal Law <©=5789(12) — Trial—Instructions—Reasonable Doubt.</p> <p>An instruction, defining a reasonable doubt as a doubt based on reason .and which is reasonable in view of all of the evidence, and directing jurors to acquit unless they should have an abiding conviction of accused’s guilt, such as a person would be willing to act upon in the more weighty and important matters relating to one’s own affairs, is correct, and not open to objection that it should have been charged that the abiding conviction which is necessary to justify a verdict of guilty should be such a conviction as one would be willing to act upon in the most important questions of life.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §| 1846-1849, 1917, 1960, 1967; Dec. Dig. <©=>789(12).]</p> <p>9. Conspiracy <@=548 — 'Trial—Instructions.</p> <p>Where the indictment clearly charged the overt acts as following the conspiracy and done to effect its object, an instruction that it is not necessary for the government to prove that all of the defendants committed overt acts, but if there was a conspiracy as charged and the defendants were parties and any one of the overt acts was committed, defendants should be convicted, is not objectionable as failing to state that the overt act charged must have followed the conspiracy in point of time.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 108-111; Dec. Dig. <@=>48.]</p> <p>10. Cbiminal Daw <§=>762(2) — Tbial—Instbuctions—Admissions.</p> <p>In a prosecution for conspiracy, where one of the defendants admitted the conspiracy and the commission of overt acts, plaintiff in error, another of the defendants, cannot complain of an instruction that, so far as such defendant was concerned, he had admitted there was a conspiracy as charged, and that he was a party to it.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1758; Dec. Dig. <§=>762(2).]</p> <p>11. Indictment and Infokmation <§=>168 — Conjunctive Allegations — Conviction.</p> <p>Where an indictment, charging conspiracy to violate Act Jan. 17, 1914, denouncing an offense with respect to the importation of opium, which may be committed in various manners, charged conjunctively the several acts specified by the statute, a conviction may he had upon proof of any one of such acts; for where a penal statute mentions several acts disjunc-tively and prescribes that each shall constitute the same offense and he subject to the same punishment, an indictment may bharge any or all of such acts conjunctively as constituting a single offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. | 534; Dec. Dig. <S=>168. ]</p> <p>12. Cbiminal Law <§=>829(1) — Tbial—Instbuctions—Refusal.</p> <p>The refusal of requested instructions covered by those given is not error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <§=>829(1).]</p>

Cush-man, Judge. Application by George Leib for a writ of habeas corpus against O. P. lialligan and another. From a judgment denying the writ, applicant appeals. • The appellant appeals from the order of the court below, denying him a writ of habeas corpus on his petition, whereby he sought his discharge from imprisonment on the ground that the indictment under which he was convicted stated no offense against the United States.

Action at law by Florence G. Finch against Jonathan R. Davis. Judgment for plaintiff, and defendant brings error. Appeal by defendant (below) from a judgment) entered upon verdict of a jury in favor of plaintiff (below) for the sum of $18,998.43 and costs. The plaintiff in her first cause of action charges conversion, on January 31, 1913, of 388% shares of stock of the Finch Manufacturing Company, a Pennsylvania corporation, which was alleged to be worth $123 a share.

Killits, Judge. John J. Shea and others were convicted for conspiracy to use the United States mails in pursuance of a scheme to defraud, and they bring error.

<p>1. Corporations <3»253 — Stockholders—Liability— Mercer.</p> <p>Under Const. Cal. art. 12, § 3, declaring that every shareholder of a corporation or a joint association shall be individually or personally liable for such proportion of all its debts and liabilities incurred during-the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, the liability of a stockholder is primary like that of a member of a partnership and not secondary; therefore a judgment against the corporation does not merge In it the right of action against the shareholders.</p> <p>LEd. Note.- — For other eases, see Corporations, Cent. Dig. §§ 1024-1030-; Dee. Dig. <£ss>253.]</p> <p>2. Admiralty <S=»20 — Jurisdiction on Federal Court — Maritime Tort.</p> <p>A seaman employed on a vessel of a California corporation was injured.. lie recovered judgment against the corporation which became; bankrupt, and thereupon he filed a libel against the shareholders of the corporation. Helé, that as their liability was primary under the California Constitution, and as the cause of action was a marítimo tort, the federal court having jurisdiction of admiralty cases had jurisdiction of the libel, the stockholders being responsible for the tort, not as sureties, but as principals.</p> <p>[Ed. Note.- -For other cases, see Admiralty, Cent. Dig. |§ 216, 225, 231; Dec. Dig. <§=>20.]</p> <p>Ross, Circuit Judge, dissenting.</p>

Pollock, Judge. Action by O. Z. Smith, as trustee in bankruptcy of the estate of the Cox-Blodgett Dry Goods Company, against Raymond Robins. There was a judgment for defendant, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by John U. Mather against Hattie N. Stokely. Decree for defendant, and complainant appeals.</p>

Action at law by Edward S. Titcomb, administrator of the estate of Charles F. Gray, deceased, against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings error.

<p>On petition for rehearing. Petition denied, and former opinion affirmed.</p>

C. Van Fleet, Judge. Suit by the Searchlight Horn Company, a corporation, against the Columbia Graphophone Company, a corporation. From an interlocutory decree for complainant, defendant appeals. The appellant appeals from an interlocutory decree in a suit upon letters patent, No. 771,441, issued October 4, 1904, to Peter Nielsen, for a phonograph horn.

<p>In Equity. Bill by the Seneca Camera Manufacturing Company against the Gundlach-Manliattan Optical Company.</p>

<p>In Equity. Suit by the United States Drainage Company against Jesse P. Manahan.</p>

<p>1. Aliens <@=68 — Naturalization—Declaration of Intention — Amendment.</p> <p>Declarations of intention to become a citizen, being confided by act of Congress to tbe custody of the clerk of the District Court, are part of the records of the court and may, as other such récords, be amended.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. <&wkey;68.]</p> <p>2. Aliens <&wkey;68 — Naturalization—Declaration of Intention — Amendment —Evidence.</p> <p>As no record of the court should be changed unless the fact of error as it stands clearly appears, and the state of the record as it should be has been shown with like dearness, a declaration of an alien’s intention to become a, citizen cannot be amended as to the name, merely on the alien's testimony that owing to his lack of knowledge of English his name was not properly written and he did not discover the mistake.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. <&wkey;68J</p>

<p>Taxation <&wkey;98 — Properties—Situs.</p> <p>A Georgia corporation executed a lease of all its property, which, required the lessee, in order to guarantee performance, to deposit in such' place and manner as the president of the lessor corporation might designate $1,000,000 in bonds, the security, though substitution of securities' might be made, to be at all times kept on deposit. The lease was assigned to complainants, two railroad companies, and they operated the demised railroad property. The required bonds were deposited in New York. Held), in view of the purpose of the requirement, and despite the fact that complainant corporations operated the demised property under a name similar to that of the lessor, the bonds deposited in New York had no situs in the state of Georgia for taxation, on the theory that they constituted capital invested in the demised property.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 196-198, 200; Dec. Dig. <&wkey;88.]</p>

<p>In Equity. Bill'by Walter M. Steppacher & Bro., Incorporated, against I. Joseph Karr, trading as Karr Bros. .Decree for complainant granting part of the relief sought.</p>

<p>At Law. Action by the United States of America against the Atchi-son, Topeka & Santa Fé Railway Company. On motion for directed verdict.</p>

<p>At Law. Action by W. E. Hunt, as administrator of the estate of J. H. Hunt, deceased, against the Southern Railway Company.</p>

<p>Appeal from tbe District Court of the United States for the District of Massachusetts; Frederick Dodge, Judge.</p> <p>Petition by Alexander M. Emerson for writ of habeas corpus against Warren E. Sweetser. From an order discharging the petitioner, respondent appeals.</p>

Petition by Alfred P. Rowell for writ of habeas corpus against Warren E. Sweetser. From an order for the discharge of petitioner, respondent appeals.

Suit by William F. Smith and others against the Central Rife Securities Company and others. From the decree, defendants appeal. Appellees sought a money judgment against, and a receiver for, the Central Life Securities Company, a Maine corporation, and also sought to wind up its affairs. Application was first made to the Supreme Judicial Court of the state of Maine against the appellant Central Life Securities Company, where temporary receivers were appointed.

Lewis, Judge. Suit in equity by George W. Vallery, as receiver of the Colorado Midland Railway Company, against the Denver & Rio Grande Railroad Company and others. Decree for defendants, and complainant appeals.

In,Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge. Action at law by Charles Pfeffer against the County of Clearwater and others. From an order made in proceedings in aid of execution, defendants bring error.

<p>1. Brokers <&wkey;57(2) — Right to Commission — Sufficiency of Services.</p> <p>While the mere fact that a broker authorized to sell property introduces or otherwise brings together the owner and one who becomes the purchaser does not entitle him to compensation, it will do so if such bringing together is the procuring cause of the sale, although the owner takes the negotiations into his own hands and accepts, a lower price.</p> <p>[Ed. Note. — For other, cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. &wkey;57(2).]</p> <p>2. Brokers <&wkey;88(2, 3) — Actions for Compensation — Questions for Jury.</p> <p>In an action by a broker to recover a commission on the sale of the stock of a coal-mining company, evidence that defendant, who employed Mm, was substantially the owner of the stock, and that defendant personally made the sale to one who was an officer of a corporation with which' plaintiff had been negotiating, of which fact he had advised defendant, held sufficient to require the submission of the case to the jury,</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 128, 129; Dec. Dig. &wkey;88(2,3).]</p>

Bill by the United States against the Calcasieu Timber Company and others. From a decree dismissing the bill, the United States appeals. On August 20, 1907, a patent of the United States for a quarter section of land in Rapides parish, Louisiana, was issued to Martha E. Marler.

<p>1. Evidence <&wkey;554 — Hypothetical Question — Admissibility.</p> <p>In an action against a railroad company for the death of a passenger, which it was claimed resulted from the negligence of the company in unnecessarily exposing him, it appeared that the passenger, after rallying from an attach of congestion of the lungs, was sent to his home by train, and while being carried on a cot in the baggage car he was chilled when both doors of the car were open, though he was warmly dressed and covered with furs and blankets. A medical expert answered a long hypothetical question in favor of the plaintiff. On cross-examination, the expert testified that in answering the question he assumed that deceased was unprotected from the draft, but admitted that a person might be so protected from a draft as to suffer no injuries. Held that, as the statements of the medical expert with reference to protection in a draft were indefinite, the answer cannot be stricken on the theory that it was not based on the facts stated therein.</p> <p>[Ed. Note. — For other cases', see Evidence, Cent. Dig. § 2375; Dec. Dig. &wkey;554.]</p> <p>2. CARRIERS <&wkey;281-CARRIAGE OF PASSENGERS-CARE.</p> <p>Where the railroad company was advised of the condition of the passenger, it was bound to exercise care commensurate with his condition, and the worse he was the more care he was entitled to.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1093-1097, 1241; Dee. Dig. &wkey;>281.]</p> <p>3. Carriers <&wkey;32Ó(3) — Carriage of Passengers — Actions—Jury Question.</p> <p>Whether a railroad company negligently exposed a sick passenger, who was being carried on a cot in the.baggage car, so that his death resulted therefrom, held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1315; Dec. Dig. &wkey;320(3).]</p> <p>4. Carriers <&wkey;346(2) — Actions—Evidence.</p> <p>In an action against a railroad company for the death of a passenger, who was in a weakened condition when he started on a journey, evidence held insufficient to show that the passenger, who was exposed and chilled through the negligence of the company, was not in a condition to make the trip.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dea Dig. &wkey;346(2).]</p> <p>5. Carriers &wkey;>343 — Carriage of Passengers — Defenses—Pleading.</p> <p>In an,action for the death of a passenger, who was being carried on a cot in the baggage car of a train, which it was claimed resulted from the railroad company’s negligence in unnecessarily exposing him to the elements, so that he was chilled, the answer alleged that, if the passenger was in any way injured by reason of drafts playing upon him while on the train, such injury was in part caused by his negligence and those attending him. Held that, under such answer, the claim that deceased in making, and his medical adviser in advising, the trip, were guilty of negligence, cannot be urged.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1398; Dec. Dig. &wkey;343J</p>

App'eal from the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cush-man, Judge. Suit in equity by Anna E. McCormick against A, R. Titlow, as receiver of the United States National Bank of Centralia, and the United States National Bank of Centralia. Decree in part for complainant, and defendants appeal.

<p>In Error to the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>- Arthur Gillette was convicted of unlawfully, knowingly, and willfully inducing and enticing a girl to go from one state to another for the purpose of debauchery, and he brings error.</p>

<p>1. Criminal Law €=>878(2) — General Verdict on Two Counts — Evidence.</p> <p>Where there was evidence to support a conviction under one count of the indictment, and there was a single sentence upon the two counts, the conviction will not be reversed as without support in evidence, though one of the counts was not established.</p> <p>[Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. § 2099; Dec. Dig. €==>878(2).]</p> <p>2. Criminal Law €=>829(1) — Instructions—Refusal.</p> <p>The refusal of a requested charge covered by one given is no ground for complaint, the court not being bound to follow the language of the request.</p> <p>[Ed Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. €=>829(1).]</p>

Suit in equity by John D. Tompkins against the St. Regis Paper Company. Decree for defendant, and complainant appeals. The defendant is a corporation organized and existing under the laws of the state of New York, and it has its principal office and regular place of business at Watertown, in the county of Jefferson and state of tjew York. The complainant is a, citizen of the United States and a resident of'the state of New York.

<p>Patents <S=a328 — Infringement—Rivet Setting Machine.</p> <p>The Maenche patent, No. 753,281, for a rivet setting machine, construed with respect to the device for preventing the tipping of short and top-heavy rivets when they descend from the raceway, held not infringed by the device of the Coombs patent, No. 1,128,852, which accomplishes the same result, but by a different and not equivalent mechanism.</p>

<p>Patents <&wkey;328 — Validity and Infringement — Folding Machine.</p> <p>Tbe Drake and Folsom patent, No. 727,313, for a folding machine, used for folding shoe uppers, claim 4, relating especially to the feature that the mechanism for operating the trimming knife is “normally inoperative and adapted to be made operative by the operator,” as limited by the prior art, held not infringed.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p> <p>Suit by the Southern Plow Company against the Benton Manufacturing Company. From a judgment for defendant, complainant appeals.</p>

Suit by Bump’s Perfected Paper Fastener Company and others against Max Gessler, Incorporated. From a decree for dismissing the' bill, complainants appeal. Appellee is charged with infringement of letters patent to G. P. Bump, No. 1,009,644, November 21, 1911, and No. 1,065,903, June 24, 1913. The last is for a device for fastening together sheets such as paper.

<p>1. Patents <@=>170 — Novelty—Use of Prior Art.</p> <p>While novel combinations of known elements resulting In new functions are meritorious inventions, nevertheless the Bigelow patent, No. 875,314, for a machine for sewing the mouths of filled sacks, does not, in so far as-it adopted old methods known to the trade and forming no novel combination, though by reason of other additions it was a new and valuable addition to the art, deprive others of the right to use such knowledge; and so the Burghardt patent, No. 768,111, for a similar machine, is no infringement, though using such knowledge.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 245; Dec. Dig. <@=>170.]</p> <p>2. Patents <@=>170, 176 — Inventions Patentable — Novelty.</p> <p>One inventing a special kind of machine to accomplish a limited purpose is entitled to be protected in its exclusive use if the means employed be novel, but if the means be old is entitled only to be protected in the exclusive use of the combination of which he was the inventor.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 245, 250%-252; Dec. Dig. <@=>170, 176.]</p> <p>3. Patents <@=>62 — Priorities—Inference.</p> <p>Every inference of priority may be drawn against a patent, where the patentee fails to answer the charge of another, who showed that he had, before the issuance of tbe patent, made disclosures to the patentee which it was claimed were taken advantage of by him.</p> <p>[Kd. Note. — For other cases, see Patents, Cent. Dig. § 78; Dec. Dig. <g=>62.]</p> <p>4. Patents <©=3,828 — Infringement—Wit at Constitutes.</p> <p>The Foster patent, No. 875,339, relating to machines for sewing filled sacks, held limited by the prior art and proceedings in the Patent Office, and, as so limited, not to be infringed by the Burghardt machine.</p>

<p>In Equity. Suit by Claude A. P. Turner against the Rauter Piano Company and another.</p>

<p>1. Patents <&wkey;136 — Omissions—Mode of Rectification.</p> <p>Tie remedy for mistakes and omissions in description or claim of a patent is to surrender the original patent and apply for a reissue.</p> <p>[Ed. .Note. — For other cases, see Patents, Cent. Dig. § 198%; Dec. Dig. &wkey;136.]</p> <p>2. Patents &wkey;>141 — Reissue—Scope.</p> <p>Where the original patent i§ surrendered and a reissue sought, the patentee cannot enlarge the scope of his claim, so as to include other inventions and devices made since the grant and in public use.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 206-213; Dec. Dig. &wkey;>141.]</p> <p>3. Patents <&wkey;328 — Claims—Infringement.</p> <p>The Kempshall patent, No. 670,080, for a device for using the engine exhaust for heating motor carriages, particularly with reference to internal combustion engines, held limited, by the prior art, the wording of the claims, and the acquiescence of the patentee in the proceedings in the Patent Office to the exact combination shown, which consisted of two mufflers with an arrangement between the exhaust and the mufflers for, using either by shutting off the connection independently of the other, and, as ’so limited, not to be infringed.</p>

<p>Bankruptcy &wkey;>363 — Reclamation op Property — Election.</p> <p>One who has filed and proved a claim as a creditor for goods sold to the bankrupt cannot thereafter reclaim the goods without withdrawing his claim, and without proof that it was filed in ignorance of the essential facts. He is required to elect whether to affirm or disaffirm the sale, and the election, once made with knowledge of the facts, is conclusive.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 550-554; Dec. Dig. <&wkey;363.]</p>

In Bankruptcy. In the matter of bankruptcy of John W. Wix. On exception to the report of the special master, recommending that the bankrupt be denied discharge.

<p>1. Evidence &wkey;>343(3) — Certified Copies — Admissibility.</p> <p>Under Revisal N. C. 1905, § 988, declaring that a duly certified copy of any deed or writing required or allowed to be registered may be registered in any county, a certified copy of a deed over 100 years old, which showed that the original was a perfect deed of conveyance, is admissible to probate and registration, though by reason of the-mutilation of the records some lines of the conveyance showing the consideration therefor were lost; this being particularly true where an earlier certified copy of the same conveyance included the destroyed portions.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1317,1318; Dee. Dig. &wkey;343(3).]</p> <p>2. Evidence <&wkey;343(3) — Documentary Evidence — Ancient Instruments.</p> <p>In an action to recover land, plaintiff introduced a certified copy of a deed about 100 years old reciting that Elisha Hassell had sold and conveyed the property. In the attestation clause the name of the grantor was written Elijah, and the signature, which was by mark, was Elijah. On the certified copy was an indorsement that the grantor Elijah did therefor warrant and defend, etc., and this purported to be signed Elisha. The same witnesses attested both signatures and the deed was duly proven by one of the attesting witnesses shortly after execution. Held, that it was manifest that the name of the grantor was either incorrectly spelled by the conveyancer or incorrectly copied by the register in recording, and it was admissible in evidence to establish a conveyance by the said Elisha Hassell.</p> <p>[Ed. Note. — For other casos, see Evidence, Cent. Dig. §§ 1317, 1318; Dec. Dig. <&wkey;343(3).]</p> <p>3. Descent and Distribution <&wkey;>li) — Presumption—Intestacy.</p> <p>Where there is no evidence showing that a deceased grantor left a will, it will be presumed that he died intestate and that the property descended to his heirs who conveyed the land.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. §§ 11-13; Dec. Dig. &wkey;19J</p> <p>4. Names <s&wkey;18 — Presumptions—Identity op Grantor.</p> <p>In an action to recover land, plaintiff showed in his chain of title a conveyance to William C. duly recorded and a subsequent conveyance six years later by William II. O. There was no evidence that the grantee and grantor were the same person, but there was no showing of the death of the grantee, or that any other person named William O. ever owned the land. Held., that in view of the antiquity of the deed, which was over 00 years old, it will be presumed that William O. and William E. G. are the same.</p> <p>[Ed. Note. — For other cases, see Names, Cent. Dig. §§ 1, 4, 17; Dec. Dig. <&wkey;>18J</p> <p>5. Acknowledgment <&wkey;29 — Registration op Deeds — Certificate op Probate.</p> <p>Code N. O. 1883, § 1240, subd. 8, provides that, when the subscribing witness to a deed is a nonresident or dead and the maker shall also be a nonresident or dead, proof of the handwriting of the witness or the maker before the clerk of the superior court of the county where the deed is to be registered shall be sufficient evidence of execution to admit the deed to registration. A deed in which the spaces in the attestation clause left blank for the date were never filled in was admitted to probate and registration on affidavit that the affiant was familiar with the handwriting ol' the grantor and verily believed that the signature on the conveyance was that of the grantor. The certificate of probate did not certify that the grantor and subscribing witness were dead at the time of the probate, but the evidence clearly showed that fact, and that the deed was probably then over 35 years old. Heldl that failure of the certificate to recite that the maker and attesting witness were dead did not render the registration of the deed improper, for those jurisdictional facts will be presumed.</p> <p>niel. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 151-159; Dec. Dig. &wkey;29.]</p> <p>6. Infants <&wkey;112 — Judgment—Collateral Attack — Service op Process.</p> <p>At the time a judgment was rendered, which was before the adoption of the North Carolina Code of Civil Procedure, the courts had jurisdiction in actions against infants, without service of process on them, to appoint a guardian ad litem for them and proceed to judgment. The record of the suit which was one against infants recited that their general guardian accepted service. Held that, in view of the power of the court, the judgment could not be collaterally attacked many years later on the ground that the court was without jurisdiction because there was no valid service on the infants.</p> <p>[Ed. Note.--For other cases, see Infants, Cent. Dig. § 320; Dec. Dig. &wkey;>112; Judgment, Cent. Dig. §§ 911, 961, 962.]</p> <p>7. Evidence <&wkey;82 — Presumptions—Regularity.</p> <p>Where the records of a county were in such confusion that it was practically impossible to find many of them, the courts will of necessity for the protection of titles of purchases dependent on deeds made on judicial sale, indulge presumptions of regularity in procedure, where it appears that the court making the order of sale or rendering the judgment had jurisdiction of the person and subject-matter.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. <&wkey;>82.]</p> <p>8. Executors and Administrators <&wkey;349(2) — Sales to Pay Debts — Judgment — “Venditioni Exponas.”</p> <p>Act 1784 (Rev. St. N. O. c. 63, § 1) gave creditors of deceased debtors whose personalty had been exhausted the right to sue out scire facias summoning the heirs to show cause why execution should not issue against lands descending, while Act 1789 (Rev. St. c. 63, § 8) provides that, if the estate of a deceased person be indebted to the administrator and there shall not be personal assets sufficient to pay such debts, it shall be lawful for such administrator to file a petition against the heir at law setting forth the nature of the debt and praying that the heir be made defendant, on which petition execution may issue against the lands of a deceased debtor. Laws 1846-47, c. 1, repealed Rev. St., c. 63, allowing creditors of deceased persons to subject by scire facias, to payment of their debts lands descending. After this ¡act went into effect, the administrator of the estate of a deceased person filed a petition setting up that decedent was indebted to him, that the personalty was exhausted, and praying that the heirs be made parties and execution issue against lands descending to the heirs. The court, pursuant to the prayer, found the amount of the debt and directed that the same be paid from the lands descending to the heirs. The record recited,' “Issue venditioni exponas. Issd.,” and further showed an account of a sale by the administrator agreeably to the petition filed. Held, that the deed of the administrator is not subject to attack on the theory that the judgment did not authorize the sale, for the expression “venditioni exponas” may be translated, “Tou expose to sale,” and therefore, as the title of a purchaser, at judicial sale will be protected without regard to the regularity of the procedure where the court had jurisdiction, the use of the Latin phrase which was common in olden times will not defeat the deed.</p> <p>[Ed. Note. — For other cases, see Executors and. Administrators, Cent. Dig. §§ 1449-1455; Dec. Dig. &wkey;349(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Venditioni Exponas.]</p> <p>9. Ejectment <§k»86(3) — Right to Recover — Proof.</p> <p>Where plaintiff established a paper title under grant from the state showing himself to be seised of one-half of a parcel of lands, plaintiff cannot recover the whole without deraigning a superior title or showing an ouster followed by adverse possession ripening into title, while defendant to recover must deraign superior title or establish an adverse title.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. §§ 239, 244; Dec. Dig. &wkey;86(3).]</p> <p>10. Adverse Possession &wkey;>95 — Evidence—Weight.</p> <p>The listing of lands for taxation and payment of taxes, while a circumstance to be considered in determining ouster and adverse possession, is of little if any weight to establish ouster and adverse possession until there is a showing of actual ouster and possession.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 530-532; Dec. Dig. <&wkey;95.]</p> <p>'ll. Adverse Possession <&wkey;13 — Test.</p> <p>The test of adverse possession is the exposure of the occupant to an action of ejectment.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dee. Dig. <&wkey;13.]</p> <p>12. Advekse Possession <&wkey;>13 — Nature of Possession — Essentials.</p> <p>To establish adverse possession, there must be actual occupancy, clear, definite, positive, and exclusive, during the whole statutory period with an intent to claim title to the land occupied.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. &wkey;13.]</p> <p>13. Adverse Possession <&wkey;14 — Running of Statute — Ouster.</p> <p>Defendant claimed title to a portion of a timber swamp, but the boundaries given in his conveyance were so vague that the limits could hardly be ascertained. He listed the land for taxation and paid taxes thereon. Thereafter through his agent he placed notices on trees upon the land warning trespassers and asserting his ownership, and. similar notices were posted on the courthouse door and at the post office. Subsequently through an agent defendant took possession of the land. Held, in view of the nature of the land which was not susceptible of cultivation and of no use but for timber, defendant did not enter into adverse possession until he took actual possession through his agent.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 77-81; Dec. Dig. <&wkey;14.]</p> <p>14. Ejectment <&wkey;115 — Recovery of Undivided Interest.</p> <p>In ejectment for land, plaintiff is entitled to possession of the whole upon establishing title to an undivided one-half interest, where defendant is shown to have no title whatsoever; for one tenant in common may sue and recover the entire property against one claiming adversely to himself and his cotenant.</p> <p>[Ed. Note. — For other cases, see Ejectment, Cent. Dig. §§ 373-407; Dec. Dig. <&wkey;115.]</p>

In Admiralty. Libel by the Kittredge-Waters Supply Company against the steamer Louis Dolive, in which the Robert P. Hyams Coal Company, Limited, and others, intervened; the vessel being claimed by the St. Tammany Steamship Company as owner, which filed a petition against the charterer. Decrees sustaining the lien of libelant and the petition of the claimant owner.

<p>Proceedings by the United States against Joseph Max Griminger, to cancel a certificate of naturalization.</p>

<p>In Admiralty. Ribel by John C. Thom against the City of South Amboy, N. J. On final hearing. Decree for libelant.</p>

<p>1. Sales <§=>474(2) — Conditional Sales — Validity.</p> <p>Unrecorded contracts for conditional sale of goods and chattels where title is reserved in the seller are not void in New York as against creditors, Personal Property Law N. Y. (Consol. Laws, c. 41) § 62, making such contracts, unless filed as required, void only as against subsequent purchasers, pledgees, or mortgagees in good faith.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1397; Dec. Dig. <§=>474(2).]</p> <p>'2. Bankruptcy <§=>140(1) — Trustee—Bight of.</p> <p>A trustee in bankruptcy, though representing general creditors, occupies no different position with respect to a conditional sale than the bankrupt would have occupied had not bankruptcy intervened, and he cannot disturb the effect of a conditional sale to the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. <§=>140(1).]</p> <p>3. Bankruptcy <@=>140(1) — Conditional Sales — Validity.</p> <p>Claimant sold plows to the bankrupt under an agreement that they should be paid for by notes, but that title and ownership should remain in claimant until the whole purchase price was fully paid. The contract also provided that in case of death, failure, insolvency, loss by fire, or the bankrupt’s disposal of his business, all obligations arising under the contract should become due and payable at once. Held, that as the contract prevented resale of the plows by the bankrupt until payment, the reservation of title was not fraudulent, and on bankruptcy, the plows not having been paid for, claimant was entitled to them as against the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 198, 199; Dec. Dig. <§=>140(1).]</p>

<p>Petition of Sam Plastino for writ of habeas corpus.</p>

In Bankruptcy. In the matter of Stephen A. Cooper and others, bankrupts. On exceptions to special master’s report recommending that a qualified discharge be granted the bankrupts, excluding certain debts scheduled in prior bankruptcy proceedings in which bankrupts failed to procure a discharge.

<p>Habeas Corpus <&wkey;45(2) — Federal Prisoner — Surrender to State Authorities — Discharge bt Federal Court.</p> <p>Relator being in the custody of the federal, inspector of immigration awaiting deportation under the immigration law, and the state desiring to take proceedings to secure her appearance as a witness, the inspector, at direction of his superiors in the Department of Labor that he postpone her deportation pending such proceedings, and allow the state to take her out of his custody for that purpose, did so, and she was brought by officers of the state before a city court, and ordered to enter into recognizance for her appearance as such witness, and, failing to do so, was committed to jail. Beld, that her imprisonment is lawful, so far as the jurisdiction of the federal court is concerned, so that it will deny her petition for habeas corpus; the question of jurisdiction and custody of her being one of comity between the governments, and she not having a right to immediate deportation, notwithstanding the proceeding of the state.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. &wkey;45(2); Courts, Cent. Dig. §§ 804, 805,1376-1381.] .</p>

<p>In Admiralty. Suit for collision by the Klamath Steamship Company against the steamer Garden City; South Pacific Coast Railway Company, claimant. ,Qn taxation of costs.</p>

<p>Navigable | Watebs &wkey;>30 — Riparian Owners — Rights oe.</p> <p>A riparian owner, wbo lawfully dug a diteb in the bed of a river, is not liable for tbe death of one drowned therein, who came upon his land and went into the river to bathe, particularly where there were sheathings protruding from the water, which should have warned the bather of the ditch, and no public highway at that point led to the river, for no one has an absolute right to bathe or swim in a public stream, and the owner of the upland is under no duty of protecting persons coming uninvited on his land for the purpose of bathing.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Dee. Dig. <&wkey;30.]</p>

Rudkin, Judge. Thomas R. Sheridan was convicted of violating Rev. St. § 5209 (Comp. St. 1913, § 9772), by abstracting and converting to his own use money and funds of a national banking association, with intent to defraud, and he brings error.

<p>1. Bills and Notes <§=*262 — Accommodation Makeks — Rigiits op.</p> <p>One signing a note for the accommodation of another, if compelled to pay it, may ordinarily recover the amount paid from the one for whose accommodation the note was made.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 611; Dec. Dig. <&wkey;262.]</p> <p>2. Banks and Banking @=>109(1) — Acts op Oppicees — Liability on Note.</p> <p>Notes signed by the officers to obtain a loan for a bank constitute legal obligations of the bank, where the money was received by it, and all parties understood the nature of the transaction,</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 257, 258; Dec. Dig. @=>109(1).]</p> <p>3. Subrogation @=>7(7) — Principal and Surety — Rights op.</p> <p>Where officers of a bank executed notes for the accommodation of the bank a.nd were compelled to pay them, the officers, being only sureties and the bank the real party in interest, are subrogated to the rights of the holders.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 26, 77, 92; Dee. Dig. <&wkey;7(7).]</p> <p>4. Bills and Notes &wkey;>108 — Validity—Legality op Objection — Reliep op Parties.</p> <p>Officers of the defendant bank, to obtain a loan for it without impairing its credit, executed their own notes. On maturity the notes were paid by plaintiff, one of the officers. The parties to the transaction intended to conceal it from the state bank commissioner. Rev. Laws Okl. 1910, § 269, provides that every officer or agent of any bank doing business under the laws of the state, who shall unlawfully and knowingly subscribe to or make any false report or false entries in the books of the bank, or knowingly subscribe or exhibit any false writing or paper, with intent to deceive any person as to the bank’s condition, shall be deemed guilty of a felony and punished by a fine or imprisonment or both. Held that, as the act prescribes a specific penalty and does not declare void notes made with intent to deceive as to the condition of the bank, the notes executed by the officers were valid and enforceable against the bank in the hands of the holder, and having been paid by plaintiff, who was subrogated to the holder’s rights, he could enforce them against the bank.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 219, 225-232; Dec. Dig. <&wkey;106J</p> <p>5. Banks and Banking <&wkey;109(l) — Acts op Oppicees — Notes.</p> <p>In such case, before payment of the notes, the officers, who were the sole stockholders, transferred their stock, and the transferees in turn disposed of the stock. Held that, though the last prirchasers did not know of the nature of the transaction and the hank’s liability, the bank was liable for repayment of the loan, having received the full consideration and being considered a separate entity for such purposes; this being particularly true where the last purchasers had received a written guaranty protecting them against all loss and damage by reason of any transactions or acts of the bank or its officers prior to the date of purchase.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 257, 258; Dec. Dig. &wkey;109(l).]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit by the Easswell Rand & Dumber Company against Ree Wilson & Co., which filed a cross-bill. From a decree for defendant, complainant appeals.</p>

Rud-kin, Judge. Action at law by J. E. Alverson against the Oregon-Washington Railroad & Navigation Company and others. Judgment for defendant named, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans., Judge.</p> <p>Action by O. T. Eooper against Mike Cisco and others. There was a judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Error <@=>184 — Waiver of Errors — Objections.</p> <p>Where a case was tried, by the court as one in equity without objection, the point that the case was an action at law cannot be raised on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1150, 1179-1183; Dec. Dig. <@=>184.]</p> <p>2. United States <@=>67(2) — Contractors’ Bonds — Liability of Surety — ■ Construction of Liability.</p> <p>An agreement for the erection of a building for an Indian school pro-. vided that the contractor should comply with Act Feb. 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1913, § 6923), for the protection of persons furnishing materials and labor. The act referred to declares that any person entering into a formal contract with the United States for the construction of any public building shall execute the usual penal bond, with the obligation that such contractor shall promptly make payments to all persons supplying him with labor and materials, and that, if no suit be brought by the United States within six months from the completion of the contract then those supplying the contractor with labor and materials may sue. The bond furnished by the contractor was conditioned that he should keep, observe, and perform all covenants, conditions, and agreements mentioned in the articles of agreement for the erection of the building. Held, that, though the contract required the contractor to furnish labor and materials for the erection of the building and to give bond for the protection of laborers and materialmen, yet as payment of their claims was not made a condition of the bond, the liability of the surety cannot by construction be extended, so as to -include them, on the theory 'that the agreement to furnish the labor a,nd materials was equivalent to an agreement to pay therefor.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <@=»67(2).J</p>

H. Seward Thomson, Judge. In the matter of the bankruptcy of Abraham Hoffman. Benjamin Sheinberg and Jacob Wéisberg, trading as Sheinberg & Weisberg, creditors, objected to the bankrupt’s petition for a discharge, and from an order of discharge they appeal.

<p>Appeal and Ebbor <©=>744 — Perfection of Appeal-Filing Assignment of Error.</p> <p>Where an appeal was granted on August 17th, and the supersedeas bond approved and filed August 27th, but no assignment of error was filed until September 25th, the appeal will be dismissed for noncompliance ivith rulo 11 of the Circuit Court of Appeals, Eighth Circuit (91 Fed. vi, 32 C. O. A. lxxxviii), declaring that plaintiff in error or appellant shall file with the clerk of the court below, with his petition for a writ of error or appeal, an assignment of errors; the assignment of errors not being filed with or before the supersedeas bond, so as to come in time.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3043-3048; Dec. Dig. <©=>744.]</p>

Geiger, Judge. ■ Bill by the Watson Fireproof Window Company against the Biersach & Niedermeyer Company. Held: there are several considerations which are, I believe, controlling, in support of the conclusion that the invention, as claimed, is not a “fireproof window”: First, his statement.that his invention relates “to improvements in windows,” and “more particularly to fireproof windows of that class which have their frames made of sheet…

<p>1. Patents ©=>112(1) — Issuance—Presumption.</p> <p>TIlo issuance of a potent carries will! it a presumption of validity.</p> <p>[E(l. Koto. — For other cases, see Patents, Cent. Dig. § 162; Dec. Dig. ©=>112(1).]</p> <p>2. Patents ©=>69 — Anticipation—Pbiok Use and Publication.</p> <p>For prior publication to invalidate a patent, the invention described in the publication must be identical in all respects with that whose novelty it contradicts, and the same idea of means in the same stage of development as that which the patent has later embodied must be communicated to the public.</p> <p>¡Ed. Note. — For other cases, see Patents, Cent. Dig. § 84; Dec. Dig. ©=>09.]</p> <p>3. Patents ©=^81 — Validity.—Pbiok TJse.</p> <p>In determining whether a patent is void because of prior use for more than two years before application, where it is claimed that the use was not public, but was for the purpose of perfecting an incomplete invention by tests and experiments, ihe patentee’s proof of that fact, the period for the use having been established, should be clear and unequivocal.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. ©=>81.]</p> <p>4. Patents ©=>328 — -Validity—Pbiok Public Use and Publication.</p> <p>Tlie Ramsey patent, No. 575,733. for an electric signal system for electric railroads, which by means of lights indicated the presence of cars between the several blocks established, held, in view of the patentee’s long delay in asserting liis rights, invalid, because of publication two years before application, as well as public use for more than two years before application.</p>

<p>In Equity. Bill by Ree B. Skinner against J. P. Campbell. On final hearing.</p>

<p>1. Patents <@=>324 (1) — Infringement Suit — Notice.</p> <p>Where plaintiff, suing for infringement of his patent, did not on the hearing object to the testimony of witnesses as to the invalidity of the patent on the ground that he had not been given notice in accordance with Rev. St. § 4920 (Comp. St. 1913, § 9466), he must be held to have waived the notice provided for, which was intended to prevent surprise.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 600, 604, 605; Dec. Dig. <@<=324(1).]</p> <p>2. Estoppel <@=>65 — Grounds—Infringement—Estoppel op Patentee.</p> <p>There is no estoppel, preventing a patentee from testifying contrary to oath made by him when applying for the patent, in a suit between his assignee and a third party.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 155-158; Dec. Dig. <@=>65.]</p> <p>3. Patents <@=>328 — Invalidity—Anticipation.</p> <p>The Maull patent, No. 1,071,472, for a fruit sizing machine, claims, 2, 3, 4, 5, 7, 15, and 16, held invalid for anticipation where they were covered by prior patents, or machines covering tbs claims were made and sold more than two years prior to the making of the application, and so not infringed.</p>

In Admiralty. Libel by the Pacific Shipyard & Ways Company, a corporation, against the steamer Alliance, in which the charterer filed a cross-libel. On exceptions to, and motion to dismiss, the cross-libel.

<p>1. Corporation s <©=>47 — Effect op Change op Name.</p> <p>A change of name by a corporation in conformity with a state statute does not effect any change in the legal identity of the corporation.</p> <p>[Ed; Note. — For other cases, see Corporations, Cent. Dig. §§ 134, 135; Dec. Dig. <@=>47.]</p> <p>2. Acknowledgment <@=>38 — Corporations—Sufficiency op Certificate.</p> <p>Under the decisions of the Supreme Court of North Carolina, the probate of a deed of a corporation is sufficient if it substantially shows the facts required by the statute (Pell’s Revisal N„ C. 1908, § 1005) which expressly provides that the form prescribed “shall not exclude other forms of probate.”</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 217-220; Dec. Dig. @=38.]</p> <p>3. Mortgages <§=121 — Mortgage by Corporation — Effect op Subsequent Modification of Contract.</p> <p>The commissioners of a drainage district and a corporation owning a large tract of land in the district entered into a contract with a firm to construct a drainage system. By its terms the contractors were to be paid monthly as the work progressed a certain amount in cash and the remainder in notes of the corporation secured by a mortgage. The notes and mortgage were executed, and the notes as required by the contract were deposited with the commissioners to bo delivered to the contractors as .earned. All extra work was to bo paid for in cash. Held, that a subsequent parol agreement by the parties, made at the request of the contractors and subsequently formally ratified by the corporation by which the contractors were paid a further sum in cash before they were to receive the notes, and which necessitated the application of the notes on extra work, did not invalidate the mortgage or furnish any ground for the refusal of the contractors to proceed with the work.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 237-241; Dec. Dig. @=121.]</p> <p>4. Mortgages <§=>159 — Priorities Between Mortgages.</p> <p>Such mortgage is also valid and constitutes a prior lien as against a subsequent mortgage executed by the corporation on its lands which expressly recognized and excepted the prior mortgage, and this as to notes delivered by the commissioners to the contractors either before or after the execution of the second mortgage.</p> <p>[Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 312, 330; Dec. Dig. <§=159.]</p> <p>5. Contracts <§=>192 — Construction—“Sale.”</p> <p>Contemporaneously with the making of the drainage contract, the corporation executed a collateral contract by which it agreed that, in case of sale of any of its lands not included in the mortgage, it would deposit one-half the proceeds, whether in cash or notes, the cash to be applied in payment of the notes to the contractors as they matured and the purchase notes to be held for their further security until all were paid. The second mortgage executed by the corporation, which covered all of its lands only a part of which were covered by the drainage mortgage, secured an issue of bonds for a large amount. Held, that such mortgage constituted a “sale” within the meaning of the collateral contract, and that the corporation was required to deposit thereunder one-half of the proceeds of the bonds as sold until the drainage notes were paid.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 846-851; Dec. Dig. <§=>192.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Sale.]</p> <p>6. Specific Performance <§=>74 — Contracts Enforceable — Contract for Drainage Work.</p> <p>The commissioners of a drainage district, organized under the state law and representing 587 landowners, contracted with defendants to construct a drainage system in accordance with plans and specifications annexed for the drainage of a large lake near the coast and surrounding lands. Defendants were to ho paid $226,000 on monthly estimates, the first $359,000 in cash and the remainder in notes of a corporation which owned a large tract of land, secured by a mortgage. The notes and mortgage were executed and the notes placed in the hands of the commissioners for delivery to defendants as earned. After the greater part of the work had been done and paid for and defendants bad received all of the cash payments, they refused to proceed on the ground that the mortgage of the corporation, as to notes thereafter to be delivered, was invalid. The work was left in such condition that it was liable to be destroyed by the waters of the sea during high winds, and much of the land on which money had been expended damaged to an extent which could not be accurately computed. It was practically impossible to obtain a new contractor to finish the work which required special and expensive equipment and accept the notes in payment, and the commissioners were without sufficient money to pay for it. The remaining work was specifically shown by the specifications and could be completed within a year. Held) that, under the circumstances and upon a finding that the notes were amply secured, the court might properly decree a specific performance of the contract.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 209; Dee. Dig. <S=»74.]</p>

In Equity. Suit by the Ann Arbor Railroad Company against Cassius R. Glasgow, Grant Fellows, and others, to enjoin enforcement of the Michigan two-cent passenger fare law and orders of thb Michigan Railroad Commission fixing freight rates. On motion for temporary injunction and on final hearing.

In Bankruptcy. In the matter of the bankruptcy of H. P. Meikle-ham. On exceptions to the report of the master overruling objections to the bankrupt’s discharge.

<p>1. Bankruptcy <§=>288(1) — Jurisdiction of Cotjbt — Adverse Claims.</p> <p>After property of a bankrupt, which was in his possession at the time of his bankruptcy, has come within the jurisdiction and custody of the bankruptcy court by virtue of the filing of the petition and the subsequent adjudication, a creditor holding a, lien or security deed thereon cannot acquire title to or possession of the property, so as to become an adverse claimant and exclude the jurisdiction of the bankruptcy court to determine his rights by a summary proceeding.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 447; Dee. Dig. <§=>288(1).]</p> <p>2. Bankruptcy <§=>214 — Liens—Enforcement After Bankruptcy.</p> <p>A creditor, holding a security deed on real estate of a bankrupt, which under the law of Georgia leaves the debtor in possession, but gives the creditor the right to advertise and sell the property on default, cannot exercise such right after the property has passed into possession of the trustee, without the permission of the bankruptcy court, and such a sale while the property is in custodia legis is void, and does not divest the title of the trustee.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 320, 324— 327, 343, 344; Dec. Dig. <@=>214.]</p>

At Law. Petition by the United States of America against the Minneapolis & St. Louis Railroad Company, charging a violation of the Hours of Service Act. Judgment for plaintiff. The petition contains 19 counts, each count charging violation of the act of Congress “limiting the hours of service of employés” upon railroads, approved March 4, 1907.

<p>1. Courts <S=^2G9 — Jurisdiction—Local Actions.</p> <p>A bill by a New Jersey corporation to have judicially declared to be illegal and void stock issued to defendant and evidenced by certificates also prayed that defendant, a nonresident, be required to surrender and deliver the certificates. Meld,, that as prayers of the bill presented the main object of the suit, which was to procure an adjudication regarding the validity of defendant’s title to the stock, the location of the certificates themselves is not a decisive factor, the stock itself, because of the residence of the corporation, having a situs in New Jersey; hence the fact that the certificates were fraudulently brought into the state will not deprive the local courts of jurisdiction.</p> <p>LEd. Note. — For other cases, see Courts, Cent. Dig. § 809; Dec. Dig. <§=»269.]</p> <p>2. Courts <®=»19 — Jurisdiction on Property — Stock—Situs.</p> <p>Corporate stock has a situs in the state wherein the corporation is chartered and domiciled, regardless of the location of the certificates, which merely evidence the stock; hence a suit in the state of the corporation’s domicile, to declare invalid the stock issued, is not one in personam.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 47-52; Dec. Dig. <@=s>19.]</p> <p>3. Courts Li) — Jurisdiction op Property — Actions in Personam.</p> <p>Under 1 Comp. St. N. J. 1910, p. 414, §§ 12-18, relating to substituted service, a suit by a New Jersey corporation against a nonresident defendant to have declared invalid an issue of stock, hold by such defendant, is one quasi in rem, regardless of tlie location of the corporation’s property, the stock itself having a situs in the state, and hence a decree on such service is not open to objection that it is one in personam, based on mere substituted service.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 47-52; Dec. Dig. <@=>19.]</p> <p>4. Removal of Causes <@=>111 — Effect oe Removal — Inquiry by Federal Court into Jurisdiction.</p> <p>When a cause is removed from a state to a federal court, the latter tribunal will determine for itself whether jurisdiction has been validly acquired, in such respect not being bound by state statutes and decisions.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 237, 239; Dec. Dig. <@=>111.]</p> <p>5. Appearance <@=>9(6) — For Purpose of Removal — Effect.</p> <p>Appearance by defendant for the purpose of removing a cause to a federal court does not amount to a general appearance.</p> <p>[Ed. Note. — For other cases, see Appearance, Cent. Dig. § 50; Dec. Dig. <@=>9(6).]</p> <p>6. Removal of Causes <@=>114 — Effect—Jurisdiction of State Court.</p> <p>Where under 1 Comp. St. N. J. 1910, p. 414, §§ 12-18, a Court of Chancery by substituted service had acquired jurisdiction of suit by a corporation against a nonresident defendant to declare invalid stock held by him, the federal District Court, after removal, will not set aside the service because such- service was not authorized under Judicial Code, § 57 (Act March 3, 1911, c. 231, 36 Stat. 1102 [Comp. St. 1913, § 1039]), relating to substituted service in the federal courts; this being particularly true as that section is limited to actions', begun in federal courts.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 241-244; Dec. Dig. <@=>114.]</p> <p>7. Constitutional Daw <@=>309(2) — Due Process of Law — ^Vhat Constitutes.</p> <p>Where in a suit quasi in rem a state Court of Chancery under 1 Comp. St. N. J. 1910, p. 414, §§ 12-18, directed a nonresident defendant to appear, plead, answer, or demur to the bill within two months, and directed service upon him of notice of pendency of the suit, and the notice was duly served, defendant was not, by reason of the substituted service denied due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 929, 930; Dec. Dig. <@=>309(2).]</p> <p>8. Removal of Causes <@=>114 — Effect of Removal.</p> <p>Where after substituted service has been made, a cause is removed to the federal court, plaintiff need not obtain another order from the federal court for substituted service.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 241-244; Dec. Dig. <@=>114.]</p>

In Bankruptcy. In the matter of Schultz Dry Goods, Carpet & Ready-to-Wcar Company, bankrupt. On petition of Marshall Field & Co. and other creditors to review decision of referee allowing certain claims.

<p>Insurance <S=>595 — Marine Insurance — Action on Policy — Defenses.</p> <p>Libelants’ tug was insured by respondent, the policy providing that there should be no abandonment as for a constructive total loss unless the cost of repairs would equal 75 per cent, of her agreed value. It also-provided that in ease of partial loss two years after her original survey libelants should pay one-third the cost of repairs. After such time the-tug was injured by striking a sunken rock, run to shore, and sunk in shallow water. Libelants abandoned her and so notified respondent, which had her raised and repaired at a cost of less than one-third of her agreed value. It then tendered her to libelants subject to payment of one-third of the cost of repairs, but the tender was refused, and she was. afterward-wrecked in a storm where she was laid up. Held, that respondent had fully discharged its obligation under the policy, and that at the time of the-wreek the vessel was at libelants’ risk.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent Dig. §§ 1486-1491; Dec. Dig. @=?595.]</p>

<p>Sydney Bozeman was charged with violating the White Slave Act, and he moves to strike testimony.</p>

<p>1. Post Office i&wkey;21(l) — Contracts foe Carrying Mails — Mode of Entering INTO CONTRACTS.</p> <p>Where a railroad company, which had been carrying the mails, accepted a distance circular relating to the carrying of mails, providing that it should carry the mails subject to the acts of Congress and regulations of the Post Oííice Department, a contractual relation was established, and the rights of the parties are to be measured by the distance circular.</p> <p>[Ed. Note. — Por other cases, see Post Office, Cent. Dig. §§ 27-29; Dec. Dig. &wkey;21(l).]</p> <p>2. Post Office &wkey;21(l) — Contracts fob Carrying Mails — Modification.</p> <p>Whore a contract for the carrying of the mails was embodied in a distance circular furnished by the Post Office Department, the contract as made was binding on the United States, and a modification by it was unauthorized.</p> <p>[Ed. Note. — Por other cases, see I*ost Office, Cent. Dig. §§ 27-29; Dec. Dig. &wkey;21(l)J</p> <p>3. Post Office <&wkey;21(4) — Carrying of Mails — Poweb of Postmaster General.</p> <p>The power of the Postmaster General to impose fines upon carriers of the mails for delinquencies, conferred by Rev. St. § 8962 (Comp. St. 1913, § 7450), not being known to the common law, cannot bo enlarged by inference oi* intendment.</p> <p>['Ed. Noto. — Por other cases, see Post Office, Cent. Dig. §§ 32-89; Dec. Dig. &wkey;2i(4).]</p> <p>4. Post Office &wkey;21(l) — Contracts—Construction.</p> <p>Where for a long time a railroad company acquiesced in postal regulations applicable to contracts and statutes relating to the carrying of the mails, such acquiescence will not bo disregarded without the most persuasive reasons.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. |§ 27-29; Dec. Dig. &wkey;>21( 1).]</p> <p>5. Contracts <&wkey;147(l) — Construction—Duty of Court.</p> <p>The prima facie duty of a court in construing a contract is to ascertain and effectuate the intention of the parties, as shown by the language of tbe instrument, their relation to each other, and the subject-matter of the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 730; Dee. Dig. &wkey;147(l)J</p> <p>6. Post Office <&wkey;21(4) — Contracts for Carrying of tiito Mails — Authority of Postmaster General to Impose Pines.</p> <p>A contract for the carrying of the mails was entered into by a railroad company’s acceptance of a distance circular furnished by the Postmaster General, which declared that the company should perform mail service upon the conditions prescribed and the regulations of the department applicable to railway mail service. Rev. St. § 3962, declares that the Postmaster General may make deductions from the pay of contractors fox-failure to perform services according to contract, and impose fines upon them for other delinquencies, and may deduct the price of the trip in all cases where the trip is not i>erformed, and not exceeding three times the price if the failure be occasioned by the fault of the carrier. It had been the custom of the parties in relation to such contracts to allow the Post Office Department to make payments of sums due as they accrued, and to deduct from earnings under subsequent contracts the amount of fines imposed for delinquencies. After the contract was entered into the Post Office Department deducted from earnings under such contract the amount of a fine for a delinquency occurring under an earlier contract. Held, in view of the long acquiescence of the railroad company and the obvious intention of the parties that they should be governed by the rules and regulations of the Post Office Department, such deduction was justified.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 32-39; Dec. Dig. &wkey;21(4).]</p> <p>7. Post Office <&wkey;21(4) — Carriage of Mails — Fines fob Delinquency. •</p> <p>Under such statute, the Postmaster General is not, where the delinquency resulted in the destruction of mails, restricted to a fine in three times the amount earned by the railway company on the trip on which the delinquency occurred, but may make deduction commensurate with the loss sustained; public policy requiring that the mails shall be carried subject to postal regulations, and the statute authorizing the imposition of fines for delinquencies other than the failure to perform services according to the contract.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 32-39; Dec. Dig. &wkey;21(4).]</p> <p>■8. Post Office <&wkey;>21(4) — Carriage of Mails — Authority of Postmaster General.</p> <p>Under Rev. St. § 3962, the Postmaster General may impose on mail carriers fines for delinquencies without limitation, and his determination is not subject to review, unless he manifestly abuses or exceeds the power conferred.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 32-39; Dec. Dig. &wkey;21(4).]</p>

Thomas, Judge. Action at law by Dietrich E. Eoewe, as surviving partner of the firm of D. E. Eoewe & Co., against the Savings Bank of Danbury. From the judgment (226 Fed. 294), plaintiff brings error.

Action at law by Richard H. Staats against the Biograph Company. Judgment for defendant, and plaintiff brings error. The defendant is a corporation organized in 1895 pursuant to the laws of the state of New Jersey. It has an authorized capital of $2,000,000, and of this amount $1,999,000 is outstanding, and is engaged in the moving picture business.

Suit in rem by the Alaska Pacific Fisheries against the steamship Jeanie, the Alaska Coast Company, claimant, to recover for damage to a shipment of canned salmon. Decree for libelant, and claimant appeals. The Jeanie was a wooden, steam vessel of about 1,000 tons burden and about 22 years old. On the voyage in question the vessel was under charter to W. F. Swan and W. C. Dawson, for trade between Seattle and Alaska points.

<p>1. Indians ®=s13 — Indian Lands — Allotment—Cancellation.</p> <p>Where an allotment of land was duly made to a freedman, a member of the Cherokee Nation, neither the Secretary of the Interior nor any subordinate officer of that department may cancel it.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dee. Dig. <®=»13.]</p> <p>2. Indians @=s>13 — Indian Lands — Allotment—Right to.</p> <p>A freedman, a member of the Cherokee Nation, secured an allotment of tribal lands on false testimony that he was the owner of the improvements thereon. The owner of the improvements, a white woman who had intermarried with a member of the Nation, filed a contest within nine months, but, it being determined in another case that she was not a member of the Nation, transferred the improvements to her granddaughter. The transfer was made several years after the allotment. Act July 1, 1902, c. 1375, 32 Stat. 716, relating to the allotment of Indian lands, gives the owner of improvements the prior right, as against other members of the tribe, to select the land on which the improvements are located, and provides for contests; hut section 69 limits the time for filing a contest to nine months afteir the allotment. The freedman, on the day of receiving the allotment, transferred. the land to another. Held, that, though Act March 2, 1907, c. 2521, 34 Stat. 1220, subsequently enacted, authorizes a white person, who had intermarried with a Cherokee citizen and had made permanent improvements on tribal lands, to sell such improvements, the granddaughter of the owner of the improvements could not contest, not having instituted her contest in time, and the freedman being entitled to select the land, save as against the owner of the improvements, and therefore, though the freedman obtained his allotment on false testimony, the allotment and his conveyance cannot be set aside by the officials of the Department of the Interior, as constituting a Cloud on the title of the Nation.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. @=»13.]</p> <p>3. Indians '@=>22 — Indian Lands — Improvements—Right to Compensation.</p> <p>Where a white person, who has intermarried with a member of the Cherokee Nation and improved tribal property, transferred the improvements before the enactment of Act March 2, 1907, such person lost the right to have the improvemedts appraised in accordance with the act.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 47; Dee. Dig. @=>22.]</p> <p>4. Indians @=>15(1) — Indian Lands — Allotment—Relinquishment.</p> <p>Though the allottee of lands belonging to the Cherokee Nation, who had conveyed them, relinquished his allotment in a contest, a proceeding to which his grantee was not a party, the rights of the grantee were unaffected.</p> <p>[Ed. Note. — For other cases, see Indians, Cent Dig. §§ 37, 40; Dec. Dig. ©=>15(1).]</p> <p>5. Indians ©=>15(1) — Indian Lands — Allotment—Rights or Gbantee.</p> <p>Where an allotment received by a freedman of the Cherokee Nation was not subject to attack, though obtained on false testimony, the title of the freedman’s grantee could not be attacked, though he knew the allotment was obtained by such testimony.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 34, 37, 40; Dec. Dig. ©=>15(1).]</p> <p>6. Indians ©=>13 — Indian Lands — Allotment—Fbeedman’s Certificate-Conveyance.</p> <p>As Act July 1, 1902, § 21, makes the allotment certificate issued by the Dawes Commission conclusive evidence of the right of the allottee to the land of the Cherokee Nation described, a conveyance of the allottee before the issuance of the patent carries title.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. ©=>13.]</p>

Riner, Judge. Suit by the United States against the Grass Creek Oil & Gas Company and another. From, a decree for defendants, the United States appeals. This is an appeal from a decree in favor of the appellees, who were defendants in the court below. The complaint made a number of others than the appellees parties defendant, but the appellees were the only defendants who contested the action.

<p>1. Indians <@=>15(1) — Lands—Conveyance by Heirs of Deceased Allottee.</p> <p>Under Act May 27, 1908, c. 199, § 9, 35 Stat. 315, which provides that “the death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allottee’s land, provided that no conveyance of any interest of any Cull-blood Indian heir in such land shall he valid unless approved by the court having jurisdiction of the settlement of the estate of the deceased allottee,” and the Probate Code of Oklahoma, providing that “wills must be proven and letters testamentary or of administration granted (1) in the county of which the decedent was a resident at the time of his death, in whatever place he may have died,” the county court of such county is the only one having authority to approve such a deed by a full-blood heir, and its approval by the county court of another county, in which no judicial proceeding for the settlement of the estate has been instituted, is a nullity, and the deed is void and subject to collateral attack.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 39; Dec. Dig. «==>15(1).]</p> <p>2.. Indians <@=j15(1) — Lands—Conveyance by Heirs of Deceased Allottee.</p> <p>The doctrine of estoppel cannot be invoked against the Indian grantor in such a deed, to validate the same, since both he and the property are under the control of the government, which has by the statute prescribed the only method by which a valid conveyance may be made.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 37; Dec. Dig. <@==>15(1).]</p>

Pollock, Judge. Joseph May and another were convicted of violating Act of Congress August 2, 1886, c. 840, 24 Stat. 209, relating to sale and manufacture of oleomargarine, and Joseph May, the named defendant, brings error.

Petition to Review and Revise an Order of the District Court of the United States for the District of New Jersey, in Bankruptcy; Thos. G. Haight, Judge. . In the matter of the Novelty Web Company, bankrupt.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action at law by the Hamburg-American Dine against the Atlantic Transport Company. Judgment of compulsory nonsuit, and plaintiff brings error.</p>

Marshall, Judge. Action by the Riverside Dairy & Stock Farm, a corporation, against the American Smelting & Refining Company, a corporation. There was judgment for plaintiff, and defendant brings error.

Riner, Judge. Action by William J. Broatch and others against Asmus Boysen and another. From the accounting and'final decree, complainants appeal.

<p>Petition to Revise Order, Appeal from, and in Error to the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge. ' v</p> <p>Petition by William H. Leary, trustee in bankruptcy, of the Wright-Osborn Company, a corporation, bankrupt, against, the Board of Education of Sale Lake City, Utah, and another. A summary order of the referee was confirmed by the District Court on petition for review, and defendants petition to revise, appeal, and bring error.</p>

Pollock, Judge. Action by A. T. Hannett, administrator of the estate of Nick Eivaich, against the Victor-American Fuel Company. There was a judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the.Eastern District of Wisconsin.</p> <p>Action by Joseph A. Kief against the Chicago, Milwaukee & St. Paul Railway Company. There was a judgment for defendant, and plaintiff brings error.</p> <p>At defendant in error company’s locomotive machine shop at Milwaukee plaintiff in error Kief, an experienced machinist, was engaged, with a helper, making repairs on one of the company’s locomotives employed in interstate commerce. The shop was equipped with traveling cranes for handling heavy weights. They moved on metal tracks about 18 feet above the floor level of the shop, extending- the length of the shop (about 700 feet) along each side, about 40 feet apart, riveted or bolted to the superstructure of the building, supported on uprights or posts set at intervals of about 30 feet. There were no braces between the tracks, the space between being free to permit handling engines at any point. The traveling crane consisted of a heavy I-beam supported at either end on wheels resting on each track. Hanging below the I-beam, and supported by a series of wheels engaging it, was a block and tackle for lifting the desired object. By means of these wheels, the block and tackle could be moved to any point along the I-beam, and a cog mechanism at one end of the I-beam controlled the movement of the crane.</p> <p>. To steady the crane, there was an arm or trailer of angle iron connected with one end of the I-beam, extending diagonally to the opposite track, where its end rested on another such wheel on the track. This formed a V-shaped contrivance, resting on the three wheels upon the tracks — one wheel on one track, and two on the opposite track. The crane, was moved to any desired place by means of chains from the cog mechanism, which hung down for manipulation by a man below. The wheels on the track were kept in place by means of a groove or channel in the face of each wheel fitting over the top of the rail.</p> <p>Work had been done on one side of the engine, and the crane was to be moved for working on the other side. Kief who was on the cab, had thrown the chain over to the other side, and was on his hands and knees getting off the cab, and the helper was manipulating the chain, moving the crane to the position desired, when suddenly the grooved wheel of the trailer left the track, and the trailer, dropping down from its place struck and injured Kief. It is claimed the company was negligent in defectively and insufficiently constructing the crane and tracks, and failing to provide proper safeguards and safety devices, and in failing to do those things reasonably necessary to protect the plaintiff, including proper examination and inspection of the appliance.</p> <p>At the close of the evidence the District Court directed a verdict for defendant in error. The opinion will state further facts.</p>

Dickinson, Judge. Suit by John F. Codman, George A. Sagendorph, and another, executors of the estate of E. Lewis Sagendorph, deceased, against William S. Lloyd and another, receivers of the American Metal Stamping Company. From a decree dismissing exceptions to, and confirming, the master’s report, denying the claim of the first-named complainant (227 Fed. 942), he appeals.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by the New York & Philadelphia Coal & Coke Company against the Meyersdale Cole Company. There was judgment for part of the relief claimed, and plaintiff brings error.</p>

G. Haight, Judge. In the matter of Ambrose Matthews & Co., an alleged bankrupt. From a decree dismissing their petition in bankruptcy (229 Fed. 309), the petitioning creditors appeal.

<p>In Error to the District Court of the United States for the District of New Mexico.</p> <p>Juan J. Salazar was convicted of selling intoxicating liquor to an Indian who was a ward of the United States, in violation of Act July 23, 1892, as amended by Act Jan. 30, 1897, and he brings error.</p>

Campbell, Judge. Bert Tucker and Bob Terrell were convicted of violating Act March 1, 1895, § 8, denouncing the offense of introducing intoxicating liquor within limits of what was the Indian Territory before the admission of Oklahoma to statehood, and they bring error.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by William H. Taggart against M. D. K. Bremner and others. From an order dismissing the bill, except as to one defendant, complainant appeals.</p> <p>The bill in this ease sets up the ownership of complainant, as patentee, of four patents, viz., patent No. 865,823, granted September 10, 1907, for apparatus for making molds for the casting of dental fillings and the like; patent No. 872,978, granted December 3, 1907, for method for making molds for dental inlays and the like; patent No. 983,579, granted February 7, 1911, for making dental inlay fillings and the like; and patent No. 983,580, granted February 7, 1911, for apparatus for making castings. It charges certain individuals by name, and several hundred others, members of a dentists’ mutual protective alliance, an organization of dentists and others formed to protect each other against complainant — some residents and others nonresidents of the Northern district of Illinois, whose names are in said proceedings after-wards set out — with infringement of some one or more claims of one or more of said patents, in the following language:</p> <p>“Your orator further shows that each of the contributors to said fund is an infringer of your orator’s patents, this charge being based, first, upon the fact that from widespread investigation your orator is convinced that all dentists not licensed under said patents are infringing them, and, second, upon the fact that contributions to such fund are wholly useless and of no personal benefit to the contributor, unless he is infringing. Your orator further shows that the infringement of all dentists is of the following character, to wit:</p> <p>“All dentists make the pattern for casting the inlay as set forth in patent No. 872,978, in identically the same way. They all make the molds in the same way, excepting that in many cases the investment is not placed about the pattern in two layers. Therefore your orator says that all unlicensed dentists infringe claims 1, 2, 3, 4, 8, 9, 10, 11, and 12 of said patent No. 872,978, while a considerable percentage infringe the remaining claims thereof. In making the mold all dentists employ a flask cover and sprue-former generally like those of patent 865,823. In some cases the sprue-former is not removable from the cover, but in nearly all cases it is. All dentists, therefore, infringe claims 1, 3, and 7 of patent No. 865,823, and nearly all dentists infringe claims 1, 2, 3, 4, 7, and 9 of said patent, while a relatively small number infringe the remaining claims thereof. The mold when complete is identical with that shown and claimed in patent 983,580 in all cases, and all dentists, therefore, infringe claims 13 to 17, inclusive, of said patent. All dentists employ the mold when made for casting dental inlay fillings which are cast entire from molten metal, and when complete are throughout of the same composition, and all dentists infringe claims 4 to 13, inclusive, of patent 983,579, covering broadly the method of making fillings, which consists in casting them entire from molten metal and the complete inlay filling, and also claims 17 and 18 of patent 983,580, covering broadly the apparatus used.</p> <p>“The principal difference between tho infringing acts of the various dentists lies in variations of procedure for forcing the molten metal into the mold when complete. The several methods commonly employed for this purpose divide the dentists into a relatively small number of classes, some of whom infringe more extensively than others. There is a relatively small proportion of dentists who employ centrifugal force for causing tho metal to enter the mold cavity. It is not charged that these dentists infringe other claims than those hereinbefore specified. It is, however, far more common to employ some form of gaseous pressure for forcing the molten metal into the mold cavity, and all the dentists who use such pressure infringe, in addition to the claims hereinbefore specified, claims 1 and 2 of patent 983.579.</p> <p>“A considerable percentage of those who use gaseous pressure uso what are known as ‘suction’ machines, the gaseous pressure used being that of the atmosphere, which is brought into operation by exhausting the air from the interior of the mold by suction applied from below. The use of such machines is not charged to infringe any further claims than those hereinabove enumerated. The majority of dentists, however, employ one of several forms of pressure devices in which gas-pressure above that of tho atmosphere is applied to the top of the mold. This gas pressure is secured in some cases by substantially the means shown in your orator’s machine patent No. 983,580, and, in others, by applying to tho top of the mold a pad of wet asbestos, wet clay, or clay moistened with glycerine, the heat of the molten metal generating vapor which produces the desired pressure. All of these pressure machines or devices when used, in addition to the claims herein-above enumerated, infringe claim 3 of patent 983,579, and claims 19 and 20 of potent 983,580. A relatively small number of dentists infringe one or another of 1he remaining claims of your orator’s machine patent 983,580.”</p> <p>Tho hill alleges, further, that all four of said patents were sustained by the trial court in the Northern district of Illinois, in Taggart v. Moll, case No. 30,850 (no opinion filed). It further alleges that by reason of the great number of infringements it would be physically impossible to bring and try infringement suits against each infringer separately before the patents would expire; that the cost of individual suits would be practically prohibitive; that complainant’s prima facie case was presented in the Moll Case within 15 minutes’ time; that the infringers can be readily divided into a small number of groups, which can bo considered together much more easily than if the suits were tried separately, and that, unless the suits can be consolidated, complainant cannot obtain justice; that defendants, by forming said alliance, interfere with the making of settlements, because the several defendants were thereby led to believe that the claims could be defeated or the infringement negatived. The bill therefore asks to he allowed to combine defendants in one suit.</p> <p>Tiie answers deny validity and infringement, charge that (he Moll suit was not well conducted, set out that patent No. 872,078, for the process of making patterns and molds, etc., was held invalid by the Court of Appeals for the District of Columbia, February 25, 19.1.2, in the case of Boynton v. Taggart, 40 App. D. C. 82, deny that any of the persons constituting the Dental Mutual Protective Alliance is an infringer, and deny that all dentists are infringers of any of the claims of patents Nos. 872,978, 865,823, 983,580, or 983,579. The answers also deny all knowledge of the method of forcing the metal into the mold cavity, and aver that the bill is multifarious, since the bill sets up no joint use of the patents in suit, nor conceit of action between tho several defendants with regard to the patents, and no conspiracy between them. The answers further set up the pendency of eight suits upon said patents in said District Court, and claim that said patents are null and void because of reasons there stated, including public use, abandonment, licenses, etc., etc.</p> <p>The District Court issued a preliminary injunction, subject to certain exceptions. Thereafter, the cause coming on to be heard before another judge upon the objection pleaded in the answer, viz., that there was a misjoinder or parties defendant and of separáte and independent causes of action, the court ordered tile bill to be dismissed as being multifarious for tbe reasons stated, at complainant’s cost as to all parties save one. The decree further finds that the “plaintiff and, the court consenting, the following named defendants, to wit, M. D. K. Bremner, T. B. S. Wallace, J. C. Mackinson, J. J. Bing, M. A. Oasill, W. E. Stone, D. G. Marks, D. S. Johnson, Henry Baum-garth, E. W. Applegate, Geo. 0. Brady, E. L. Heyne, and O. L. Bind, elect to waive their privilege to be dismissed from this suit under the order of the court herein, consenting that the several separate causes of action against them stated and set forth in the bill of complaint herein may be consolidated and tried in the above-entitled suit upon the answers and other proceedings and pleadings heretofore filed and had in said suit.” Exceptions were duly taken, and this appeal perfected. 1</p> <p>The errors assigned are that the court erred (1) in dismissing the bill of complaint as to the defendants designated in said order; (2) in dissolving and discontinuing, as to certain defendants, the injunction which had theretofore been granted against those defendants; and (3) in denying the perpetual injunction as prayed in the bill.</p>

Suit in equity by Carroll Eugene Cook against the Standard Optical Company. Decree for complainant, and defendant appeals. On January 18, 1910, appellee was granted a patent, No. 946,596, for an improvement in shooting glasses. The specification makes references to two former patents issued to him for shooting glasses, dated March 23, 1909, and October 12, 1909, respectively, and severally numbered 916,109 and 936,987.

<p>1. Army and Navy <&wkey;19 — Enlistment—Effect of.</p> <p>Rev. St. § 1117,1 declares tliat no person under the age of 21 years shall he enlisted or mustered into the .military service of the United States without the written consent of his parents or' guardians, provided that such minor has parents or guardians entitled to his custody and control. Held, that a minor who enlists, misrepresenting his age, is legally amenable to military jurisdiction, and bound to remain in the service unless his parents or guardians obtain his release; the statute being for the interest of parents and guardians only.</p> <p>TEd. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 45-50; Dec. Dig. <@=»19.]</p> <p>2. Abmy and Navy <&wkey;19 — National Guard — Enlistment Therein — Applicability of Federal Statute.</p> <p>A boy under 18 years of age, by misrepresenting his age, enlisted in the National Guard for the District of Columbia, without the consent of his mother, who was his only surviving parent and guardian. Very shortly after his enlistment the boy was mustered into the service of the United States. Rev. St. § 1117, declares that no person under the age of 21 years shall be enlisted or mustered into the military service of the United States without the consent of his parents or guardians, while Act June 3, 1916, c. 134, § 27, 39 Stat. 185,, reduced the age limit to 18 years. Held, that these statutes apply only to the national military forces regularly maintained under the authority of Congress, and there being no statutory authority enabling a parent to annul an enlistment in the National Guard of the District of Columbia because of the child’s misrepresentations of his age, the mother could not secure the release of her son, though by reason of his enlistment in the National Guard he was temporarily mustered into the service of the United States, for at common law an enlistment by a minor under misrepresentations as to his age is not voidable by the minor or his parents.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 45-59; Dec. Dig. <&wkey;19.]</p>

<p>1. Seamen &wkey;16 — Shipping Articles — Construction.</p> <p>Shipping articles for a voyage from tile port of New York to a port in Chile and such other ports and places in any other part of the world as the master might direct, and back to New York, the final port of discharge in the United States, for a term not exceeding 12 months, do not bind seamen to take as many voyages from the United States as the master of the ship may wish to make to any place or places in the world, provided he return to New York, the final port of discharge, within 12 months, but merely bind the seamen to make one voyage to Chile and to such other ports as the master on that voyage may direct, and where the master construed the articles as allowing him, on returning to the United States, to select as a port of discharge some port other than New York, it being understood that the term “port of discharge” covered a wide radius, the seamen are, on return to a port of discharge in the United States, entitled to their wages.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 56-65; Dec. Dig. <&wkey;16.]</p> <p>2. Seamen <&wkey;7 — -Shipping Abtioles — Construction.</p> <p>Shipping articles, being prepared by a master, should be construed liberally in favor of seamen.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 19-24; Dec. Dig. <&wkey;7.]</p>

In Equity. Suit by W. E. McCurry, as trustee in bankruptcy of the estate of E. B. Benson and P. E. Benson, bankrupts, doing business as E. B:. Benson & Son, against the Hartwell Bank. Decree for defendant.

In Equity. Suit by the New York Central & Hudson River Railroad Company against the Bank of Holly Springs, in which defendant filed a cross-bill. On complainant’s appeal, the decree was modified and affirmed.

In Equity. Suit by the M. C. Kiser Company and others against the Central of Georgia Railway Company and another. On motion for interlocutory injunction.

<p>1. Aliens <§==>25 — Chinese Persons — Right to Entrance.</p> <p>Tlie wife of a Chinese merchant, domiciled in the United States, is on proof of that fact entitled to enter herself.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 79-82; Dec. Dig. <S=>25.]</p> <p>2. Habeas Corpus <©==>120 — Deportation op Aliens — Proceedings.</p> <p>Petitioner, a native of China, who sought admission as the wife of a Chinese merchant, was denied admission by the Immigration Burean on the ground that the marriage was not satisfactorily established. Demurrer to her petition for habeas corpus being sustained, she appealed, and was admitted to bail pending appeal. While liberated, petitioner was again married to the Chinese merchant, her alleged husband, according to the laws of one of the United States. Thereupon a newly engaged attorney applied for a reopening of the case, that new proof of the marriage might be introduced. The bureau advised the local commissioner of immigration that it would not consent to reopening the case for additional evidence so long as the appeal was pending, but that petitioner might dismiss the appeal and take her chance on being able to show that a reconsideration of the case should be had. Subsequently the bureau notified the commissioner that it would consider the second solemnization of the marriage as warranting an inference that petitioner and the merchant were not husband and wife at the time of her arrival, that it would prefer that she should prosecute her appeal, and that a reopening of the case would not be granted. Held that, where the determination of the bureau not to reopen the case was not communicated to petitioner and she dismissed her appeal, the appeal being a valuable right, and petitioner being entitled to enter if she was the lawful wife of the Chinese merchant, her petition for a second writ of habeas corpus is not subject to demurrer, particularly as petitioner, if deported, might re-enter the United States.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 121; Doc. Dig. <3=x>120J</p>

<p>At Law. Action by Harvey Jones against the Southern Railway Company.</p>

<p>In Admiralty. Suit by the Alex Dussel Iron Works and others against the steamer Natchez. On exceptions to report of commissioner.</p>

<p>1. Courts @=>366(25) — United States Court — State Decisions — Bonds—Liability.</p> <p>Tbe decisions of tbe state court establish tbe liability of sureties on a constable’s bond executed under a local statute; such decisions being binding on tbe federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 957; Dee. Dig. @=> 366(25).]</p> <p>2. Sheriffs and Constables @=>170 — Bonds—Surf,ties—Liability of.</p> <p>Tbe surety on tbe official bond of a Kentucky sheriff or constable is liable only for compensatory, and not punitive, damages for tbe officer’s breach of duty.</p> <p>[Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 409-413; Dec. Dig. @=>170.]</p> <p>3. Courts @=>280 — Jurisdiction—Ri out to Raise Question.</p> <p>Under Judicial Code (Act March 3, 1911, c. 231) § 37, 36 Stat. 1098 (Comp. St. 1913, § 1019), providing that, if any suit commenced in a District Court or removed thereto, shall appear to the satisfaction of the court, at any time after suit has been brought, not to substantially involve a dispute or controversy properly within the jurisdiction of the District Court, or the parties have been improperly or collusively made or joined for the purpose of creating a case cognizable or removable, the District Court shall dismiss the suit or remand it to the court fromi which it was removed, as justice may require, the federal District Court may, when led to believe or suspect lhat it has not jurisdiction of the action, itself raise the question of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. @=>280.]</p> <p>4. Courts @==>280 — Jurisdiction—Determination.</p> <p>Under such act the court, after hearing testimony on the question, may itself find the specific facts relating thereto, or may in its discretion submit the testimony to the decision of the jury.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. @=>280.]</p> <p>5. Courts @=>328(2) — Federal Courts — Jurisdiction.</p> <p>. A constable wrongfully levied execution on a stock of groceries owned by plaintiff, retaining possession for about 40 hours. The stock was of the value of $600, and the demand for which execution was levied was less than $30. Plaintiff sued on the constable’s bond in the federal District Court, claiming $4,000 damages. Held that, as only compensatory damages are allowed in suits on constables’ bonds, the action should, under Judicial Code, § 37, be dismissed, for plaintiff could have had no reasonable expectation that she had the right to recover, or could recover any* amount within the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 890; Dec. Dig. @=>328(2).]</p>

<p>At Law! Action by the United States Smelting Company against the American Galvanizing Company.</p>

<p>On motion for reargument.</p>

<p>At Law. Assumpsit by David Wallerstein, trustee, against Honora Gallagher. There was verdict for defendant. Sur rule for new trial.</p>

At Raw. Action by Duncan I. Roberts, individually and as a member and as president of the United States Express Company, an unincorporated joint-stock association, against John Z. Rowe, Jr., Collector of Internal Revenue of the United States of America for the Second District of the State of New York. On demurrer to the complaint.

<p>Bankbuptct <@=>400(1) — Exemptions—Claim op Exemptions — Restkaining Execution.</p> <p>• After levy of execution upon Ms household goods, the bankrupt filed a voluntary petition in bankruptcy, and upon adjudication claimed the goods as exempt under the state laws. Upon petition of the bankrupt, the sheriff was restrained from proceeding' with the execution, and the property was set off to him as exempt. Bankruptcy Act July 1, 1898, c. 541, § 47, 30 Stat. 557 (Comp. St. 1913, § 9631), makes it the duty of the trustees under the direction of the court, to set aside the bankrupt’s exemptions. Held that, as the bankrupt had prayed for the property to be set aside to him as exempt, he could not complain of the vacation of the restraining order, for, the property having been set aside, the bankruptcy court had no further concern therewith.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 671, 673; Dec. Dig. <@==>400(1).]</p>

<p>Mabitime I/ikks >S=64 — Suit to Exfoboe — Sufficiency of Libel.</p> <p>Allegations in a libel that the owner of a dredge hired another dredge and a barge from libelant to assist such dredge In its work and failed to pay the hire, and that through the negligence of such charterer the barge was sunk, do not establish a maritime lien which will support a suit in rem against the dredge.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 102; Dec. Dig. ©=s>64.]</p>

Tuttle, Judge. In the matter of the bankruptcy of the Tilden Saw & Manufacturing Company. The claim of Cullen Brown was contested by Harvey S. Durand, as trustee in bankruptcy. Erom a judgment of the District Court, reversing the order of the referee, and awarding a fund to claimant, the trustee appeals.

libel in personam by the Globe Navigation Company, appellee herein, and S. P. Weston, its trustee in bankruptcy, against the Fireman’s Fund Insurance Company, appellant, to recover the amounts of two policies of marine insurance issued by the latter on April 17, 1911, for $6,000 and $24,000, respectively, upon the schooner Wm. Nottingham, owned by appellee, and which it is alleged was totally lost by perils of the sea and perils insured against in said policies.

Bill by Alfred D. Cressler against Maurice T. Moloney. From a decree for complainant, defendant appeals.

Pétition to Revise Order of the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. In the matter of the bankruptcy of David H. Sage. On petition of Johnson B. Angle, as trustee in bankruptcy, McDermott Turner, receiver, appointed by the state of Missouri, was directed to deliver property of the bankrupt in his possession (224 Eed. 525), and he appeals and petitions to revise.

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Action by Henry Turrish against E. J. Eynch,- Collector of Internal Revenue for the District of Minnesota. Judgment for plaintiff, and defendant brings error.</p> <p>This writ of error was sued out to reverse a judgment which the plaintiff below, Turrish, recovered against Lynch, the collector, for the return to him of $127.12, which the collector had assessed against him as an additional income tax under the Tariff Act of October 3, 1913, c. 16, § II, A, 38 Stat. 166, 3 U. S. Comp. Stat. 1913, §§ 6319, 6329, 6321, and which he had paid under protest. The facts were alleged in the plaintiff’s complaint and admitted by demurrer. The Payette Lumber & Manufacturing Company was a corporation organized -in 1903, with a capital stock of $1,500,000, divided into 15,000 shares, of the par value of $100 each, of which Turrish owned, in 1913 and 1914, 799% shares, of the par value of $79,975. The Fayette Company began, immediately after its organization in 1903, to invest its capital in timber lands in the state of Idaho, and, prior to March 1, 1913, it had invested $1,375,QOO thereof therein, and the remainder thereof in other assets, the ownership of which was incidental to the owning, holding, and preservation of the timber lands. During this time it did no business, except such as was incidental to the ownership and care of these lands, and it made no dividends or payments of any kind to its stockholders. On March 1, 1913, the Payette Company still owned all the property and assets it had invested its capital in, and the value of these assets was not less than $3,000,000. The increase In the value of its property was due entirely to the gradual increase in the value of its timber lands between 1903' and March 1, 1913, and the value of the stock of Mr. Turrish was then twice its par value, or $159,950. In March, 1913, Mr. Turrish and all the other stockholders of the Payette Company gave an option in writing to purchase their stock for twice its par value. The holders of this option formed another corporation, to which they transferred their option, and that company preferred to purchase the property of the Payette Company to purchasing its capital stock. Thereupon, in December, 1913, that company offered to sell all its property to the Boise-Payette Company, the new corporation which held the option to purchase its stock, for $3,000,000 in cash, on condition that the new company would assume its debts and liabilities. The offer was accepted, and in March, 1914, the transaction was consummated. Ttie Payette Company then had no assets but the $3,000,000 in cash and no liabilities not assumed by the Boise-Payette Company. It then distributed the $3,000,000 among its stockholders, who surrendered their stock, and. the corporation has since been dormant. In the distribution of the proceeds of the property of the company Mr. Turrish received $159,950, which was twice the par value of his stock. The Commissioner of Internal Bevenue deemed one-half of this sum, or the par value, and the actual value in 1903, of the stock of Turrish, capital returned to him, and the other half, or the increase of the actual value of his stock between 1903 and March 1, 1913, by reason of the gradual advance during that time in the value of the timber lands of the Payette Company, income derived by him in 1914 from a dividehd received from a domestic corporation subject to the income tax law. On this ground he assessed against Turrish an additional income tax of $127.12 on account of the second half of the $159,950. Turrish paid this tax under protest and brought this action for the return of the amount he paid. The' court below was of the opinion that no part of this $159,950 was income taxable under the act of October 3, 1913, and it accordingly overruled the demurrer and rendered judgment for the plaintiff.</p>

<p>INTERNAL REVENUE <&wkey;7-INCOME TAX — DIVIDENDS OE STOCKHOLDER-“INCOME.”</p> <p>Dividends received by a stockholder from the conversion into money and distribution in a subsequent year of property owned by the corporation on March 1, 1918, which was the effective date of Income Tax Daw Oct. 3, 1913, c. 16, § II, A, et seq., 38 Stat. 166 (Comp. St. 1913, § 6319 et seq.), and which was on that date worth the amount subsequently realized therefor, is not “income” accruing during the year of the distribution, and is not taxable under the act. In such case the original cost of the property to the corporation is immaterial.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 8-10; Dec. Dig. &wkey;>7.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Income.]</p>

<p>Appeal from the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit by the United States against Elias Marsters and E. F. Lakin. Decree for the United States, and defendants appeal.</p>

Bill by Edwin H. Abbot, Jr., against the City of. Milwaukee and others. From a decree dismissing the bill, complainant appeals. This is an appeal from a decree dismissing, for want of equity, a bill to set aside a special assessment levied against plaintiff’s property.

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by Eugene T. Richards against the H. K. Mulford Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Trial #53178 — Directed Verdict — Motion.</p> <p>On motion for directed verdict, the court must take the view of the evidence most favorable to the adverse party.</p> <p>[Ed. Note.- — Bor other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. @3»178.1</p> <p>2. Trial @x»142 — Directed Verdict — Motion tor.</p> <p>Only when reasonable men could not differ as to the conclusion to be drawn from the evidence is the court warranted in directing a verdict.</p> <p>[lid. Note. — Dor other eases, see Trial, Cent. Dig. § 337; Dec. Dig. @-3.142.]</p> <p>3. Physicians and Surgeons @=318(9) — Actions—Evidence—Sufficiency.</p> <p>In an action for damages for performing an abortion on plaintiff without her knowledge and consent, evidence held sufficient to go to the jury.</p> <p>[Ed. Noto. — For other eases, see Physicians and Surgeons, Cent. Dig. § 44; Dec. Dig. @=ol8(9).J</p> <p>4.’ Courts @s>356 — Federal Courts — Beview—Findings.</p> <p>Ihider Rev. St. § 1011 (Comp. St. 1913, § 1672), providing that there shall be no reversal for any error in fact, the jury’s finding of facts on coniiicting evidence is conclusivo on the Circuit Court of Appeals.</p> <p>[lid. Note, — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. @=3356.]</p>

<p>Commerce ¡@=>28 — Hours or Service Act — Tepeoraph Operator — “Interstate Commerce.”</p> <p>On a part of its line the defendant railroad company was engaged in the carriage of interstate passengers, and other of its trains ran over the tracks of a, second railroad company engaged in interstate commerce. Defendant's telegraph operator, at a point where no interstate trains of defendant passed, occasionally took messages for the passing of its trains with the interstate trains of the second company, whose tracks defendant used. Such operator received Ms orders from the chief train dispatcher of the second company, which was largely engaged in interstate commerce, llehl that, though such operator was not regularly engaged in receiving messages relating to interstate trains and traffic, he was engaged in interstate commerce within Hours of Service Act March 4, 1907, c. 2999, 34 Stat. 1415 (Comp. St. 1913, §§ 8677-8680), and defendant, by requiring or permitting him to continue at labor for longer than authorized, is liable, for a railroad engaged in interstate commerce cannot evade the act by having its employes work excessive hours with respect to its intrastate traffic.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 22; Dec. Dig. @=»28.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>In Error to the District Court of the United States for the Southern District of Alabama; Henry D. Clayton, Judge.</p> <p>Action by George Duboise against the E. I. Dupont De Nemours Powder Company. There was a judgment for plaintiff, and defendant brings error.</p>

Apjieal from the District Court of the United States for the District of Kansas; .John C. Pollock, Judge. Suit in equity by the Garden City Telephone, Light & Manufacturing Company against the City of Garden City. Decree for complainant, and defendant appeals.

<p>Railroads <@=>110 — Control and Regulation — Validity of Contract — Construction of Order of State Commission.</p> <p>Public Utilities Act Cal. Dec. 23, 1911 (St. 1911 [Ex. Sess.] p. 18), creates a railroad commission which is given the power to regulate and control public utilities, including the issue of stocks, etc., and the use of the proceeds thereof which in each case must be authorized by an order of the commission. Defendant, an electric railroad company, was authorized by an order of the commission to issue and sell preferred and common stock, the order providing that there should be $750,000 paid in. for stock “before any construction work begins or any expense other than that incident to the sale of stock is incurred.” Held, that a contract by defendant with a civil engineer to gather data and make a report showing the-estimated cost of construction of the road, traffic conditions, etc., to be used in promoting the sale of stock and enlisting capital for the enterprise, was not prohibited by such order, but was valid, especially in view of the construction placed on the order by the commission itself by approving similar expenditures made for preliminary work, including the acquisition of right of way.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 339-341; Dec. Dig. <@=>110.]</p>

<p>1. Negligence @=>65 — “Contributory Negligence” — Nature oe Deeense.</p> <p>“Contributory negligence” is a want of ordinary care upon the part of a person injured by the actionable negligence of another combining and concurring with that negligence to produce the injury, and therefore the defense of contributory negligence concedes that there was actionable negligence on the part of defendant.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. <S=65. ■</p> <p>For other definitions, see Words and Phrases, First and Second Series, Contributory Negligence.]</p> <p>2. Carriers <@=>333(5) — Carriage of Passengers — Negligence of Passengers —Contributory Negligence.</p> <p>Deceased, a passenger on a train, was notified by the brakeman who had promised to let him off on the side of the train opposite from the station that his stop had been reached. The brakeman opened the door and trap, the train being a vestibuled one, and, without waiting for a stop, deceased prepared to alight, starting down the steps holding to the rail on the opposite side from the direction in which the train was going, and carrying his grip in his other hand. He either stepped off or was, in trying to recover himself at the last moment, thrown from the train, his hold on the rail turning him with his back towards the engine, so that his body swung outward and his grasp on the rail was broken. Held, that-deceased was guilty of contributory negligence as a matter of law in attempting to alight while the train was in motion; for an adult passenger, who knowingly and unnecessarily attempts to alight from a train while it is in motion, ordinarily is chargeable with contributory negligence as a matter of law, and deceased’s manner in going on the steps was negligent.</p> <p>[Ed. Note. — For other cases, see' Carriers, Cent. Dig. § 1391; Dec. Dig. <$=333 (5).]</p>

<p>Watebs and Water Courses <®=o118 — Embankments—Surface Waters.</p> <p>Defendant’s predecessor constructed a solid embankment over marshy ground, which embankment was maintained for over eight years before defendant purchased the right of way at foreclosure sale. The embankment sometimes in cases of high water impounded water on adjoining land, though there were no well-defined water courses. Thereafter plaintiff purchased adjoining land, and neither plaintiff nor his lessee requested defendant to remove the embankment or provide outlets. Held, that defendant was not liable for injuries to the crops of plaintiff and his lessee by reason of the Impounding of waters.</p> <p>[Ed. Note. — Dor other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. <^»11S.]</p>

<p>Trusts <S=»72 — Resulting Trust — Establishment—Statute of Frauds.</p> <p>Though an oral agreement to procure a mining lease for a term of 10 years and to convey it to another was unenforceable under the statute of frauds (Rev. Laws Okl. 1910, §§ 941 arid 1143, respectively), declaring that an agreement for leasing for a longer period than one year is invalid unless there be some written memorandum subscribed by the party to be charged or his agent, and that no conveyance other than a lease for a period not exceeding one year shall be valid unless reduced to writing and subscribed by the party to be charged, a resulting trust arose under St. 1890, § 4187, now Rev. Laws 1910, § 6660, declaring that, when a transfer of real property is made to one person and the consideration therefor paid by another, a trust is presumed to result where defendant, under an oral agreement to obtain a mining lease for 10 years and to assign it to plaintiff, obtained the lease for which plaintiff paid the consideration as well as a small sum for defendant’s services.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 102, 103; Dec. Dig. <@=>72.]</p>

<p>1. Seamen <3=^12, 13 — Discharge—'Wrongful Discharge.</p> <p>A seaman employed as a watchman on a vessel had been employed on a previous voyage, when his hours were from 6 p. m. to 6 a. m. The shipping articles did not specify the hours, nor did the rules of the sailors’ union of which he was a member. The mate of the vessel demanded that the seaman begin his watch at 5 p. in., and the seaman refused unless given overtime, but proceeded to enter upon the discharge of his duties. He was discharged when the vessel reached a port of call, being paid the amount of wages earned up to that time. Bold, that the discharge was improper under the circumstances, and the seaman was entitled to recover the cost of his j>assage to the home port, and of maintenance awaiting passage.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 45-51, 30; Dec. Dig. <S^J2, 13.]</p> <p>2. Admiralty <3=s124 — Proceedings—Costs.</p> <p>While Rev. St. § 824 (Comp. St. 1913, § 1378), allowing proctor’s fees for deposit ions taken, limits the fee to cases where the deposition is admitted in evidence, costs for transcribing depositions of witnesses, one of whom was the libelant, taken in good faith, but which were not used, because of the personal presence of witnesses, may be allowed.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 836-857; Dec. Dig. <&=>124.]</p>

Action by Andres B. Crosas Graham and others against Andres Crosas O’Ferral and others. From a judgment for defendants, plaintiffs appeal. On motion to dismiss.

<p>Deeds <&wkey;211(l, 3) — Fraud—Fop.gert—Evidence.</p> <p>In a suit to set aside a deed on the ground that it was a forgery, or was obtained through gross fraud, the grantor being illiterate, evidence held to warrant a decree for the grantor.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-640, 642, 644, 645, 647; Dec. Dig..&wkey;211(l, 3).]</p>

<p>Masteb and Servant &wkey;>234(4) — Injuries to Servant — Contributory Neg- • lisence of Servant.</p> <p>Plaintiff, a machinist of long experience, was directed to make a die and punching apparatus for insertion in a machine operated by compressed air. When the machine was in operation it was suspended from a crane, but when the repairs were directed to be made it had been lowered to the floor and rested on blocks against a pillar. Though not directed, plaintiff, after inserting the die and punching apparatus, turned on the air to see whether the machine was in proper working order. The movement of the machine caused it to fall and injure plaintiff. Held that, in view of plaintiff’s knowledge, he was guilty of contributory negligence, and could not recover; the master not having directed him to operate the machine and not being liable, either under the common law or the Wis-consta safe place statute (St. Wis. 1915, § 2394 — 48), the machine being safe as it stood on the blocks, if not attempted to be operated.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 708; Dec. Dig. <&wkey;234(4).]</p>

Petition for Superintendence and Revision of Proceedings of the District Court of the United States for the' Southern District of Georgia in Bankruptcy; Emory Speer, Judge. In the'matter of the bankruptcy of M. W. Barrett. E. M. Anderson’s landlord’s lien was granted priority over the mortgages of W. S. Preetorius and E. K. De Eoach, and they petition to superintend and revise the order.

<p>Appeal from the District Court of the United States for the Northern District of Alabama; Wm. I. Grubb, Judge.</p> <p>Bill by Mps. Ada M. Eustis against George Eustis and another. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Bill by Albert T. Ferrell against Frank J. Prame and others. From a decree dismissing the bill, complainant appeals.</p>

<p>MASTER AND SERVANT &wkey;>129(7)-INJURIES TO SERVANT — NEGU&ENCE OE MASTER.</p> <p>A railroad company is not liable for injuries received by an employe, who was struck by the top of a switch stand, where the physical facts showed that he must have been in an unusual position, and the switch was of the usual approved pattern, not unsuited to the particular locality, being placed in accordance with the general standard.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 263; Dee. Dig. &wkey;129(7).]</p>

<p>Counties <&wkey;113(l) — Claims Against Counties — Abbitkation—Authority op Commissioners.</p> <p>As Code Ala. 1907, § 958, limits the authority of county commissioners to the allowance or rejection of claims, the commissioners have no authority to bind the county to a submission of a claim to arbitration.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 176; Dec. Dig. &wkey;113(l)J</p>

<p>Bankruptcy <&wkey;458 — Review—Exceptions Below — Sufficiency.</p> <p>Where an amendment to a bankruptcy petition recited it was made with leave of court, and exceptions to the master’s report did not call the court’s attention to the alleged absence of an order allowing the amendment, the absence of the order cannot be complained of on appeal.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 918; Dec. Dig. <&wkey;458.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Texas; Gordon Russell, Judge.</p> <p>On rehearing.</p>

Geiger, Judge. Suit in equity by the Farmers’ Handy Wagon Company against the Beaver Silo & Box Manufacturing Company. Decree for defendant,, and complainant appeals. Appellant filed its bill to restrain infringement of the three claims of patent No. 814,067, granted to C. W. McClure on March 6, 1906, for a silo, and also certain acts charged to constitute unfair competition and for an accounting.

<p>1. Patents <&wkey;328 — Validity and Infringement — Rod Packing Ring.</p> <p>The King patent, No. 914,426, for a metallic rod packing ring, divided into two segments interlocking with each other and the rod, was not anticipated and is valid; also held infringed by the ring of the Munich patent, No. 1,095,163.</p> <p>2. Patents t&wkey;l6 — Invention.</p> <p>Invention involves conception of at least some function, as well as the selection of the means whereby that function can be operatively secured.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 14, 15; Dec. Dig. <S=>16.]</p> <p>3. Patents &wkey;>72, 236 — Anticipation—Change on Form or Number oe</p> <p>Parts.</p> <p>While the number of parts .into which an object is divided, or the exact form it assumes, may be of no importance in determining anticipation or infringement, it may become absolutely determinative, if a, given number of pieces or a certain shape is essential to the realization of one or the other conception.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 86-91, 372, 373; Dec. Dig. &wkey;72, 236.]</p> <p>4. Patents <&wkey;72- — Anticipation—Drawings of Prior Patent.</p> <p>A patent for a mechanical combination is not anticipated by a drawing in a prior patent wbicb incidentally shows a, similar arrangement of parts, when such arrangement is not essential to the first invention, and -was not designed, adapted, or used to perform the function which it performs in the second invention, and where the first patent contains no suggestion of the way in which the result sought is accomplished by the second invention.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 86-91; Dec. Dig. <&wkey;72.]</p>

<p>Patents &wkey;>319(4) — Inekingement—Interest—Judgment—Allowance.</p> <p>In a suit for infringement, the sum allowed plaintiffs as interest to the date of the decree on annual profits earned by reason of the infringement was disallowed, and the sum accorded to defendant against profits as interest on its invested capital was reduced. Held that, as the modification did not affect the ascertainment of profits, though there were changes in the amounts decreed due to plaintiffs, plaintiffs are entitled to interest on profits from the date of the original decree, at which time damages were liquidated.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 585; Dec. Dig. &wkey;319(4).]</p>

<p>Appeal from the. District Court of the United States for the District of Rhode Island; Arthur D. Brown, Judge.</p> <p>Bill by the National Metal Molding Company against the Tubular Woven Fabric Company. A temporary injunction was granted, .and defendant moved to enjoin plaintiff from issuing a circular referring to the decision. From an order enjoining the issuance of the circular, plaintiff appeals.</p>

<p>In Equity. Suit by the United Electric Company against the Creamery Package Manufacturing Company and others. On final hearing.</p> <p>Complainant, owner of Dillon reissue patent 13,352, dated January 9, 1912, for improvement in vacuum cleaners, charges defendant with infringement.</p> <p>The invention, as disclosed in the specification and claims, is as follows:</p> <p>Specification.</p> <p>“The invention relates to vacuum cleaners including an electric motor, a suction fan, and a separating-ehamber communicating with a plurality of inlet-openings adapted to communicate with the tubular shanks of suction-nozzles. Such machines are designed and sold for the use of one or two or some other particular number of suction-nozzles at the same time, and it is desirable for practical reasons to construct the fan with a greater capacity than necessary to create the proper suction in the shanks of the particular number of nozzles which may be used; and it is also desirable for economy to make the motor with only a little greater capacity than necessary to create such suction. In the operation of these machines difficulty has been experienced when more than the particular number of inlet-openings have been purposely or accidentally used or opened at the same time, growing out of the fact that the work of the fan and the load on the motor will be so increased as to burn out the motor. This difficulty is overcome by providing a partition between the fan chamber and the inlet-openings with an orifice therein of substantially the same cross-area as the combined cross-areas of the openings in the particular number of suction-nozzles which may be used, thus limiting the amount of. air which can be drawn into the fan to the amount of air which may properly be drawn through the shanks of such particular nozzles.</p> <p>“The invention thus described as embodied in a stationary vacuum cleaner is illustrated in the accompanying drawings, forming part thereof.</p> <p>[[Image here]]</p> <p>“Figure 1 is a side elevation of the vacuum cleaning machine, with some parts broken away to show interior details; and figure 2 an elevation section of the electric motor, the fan blower, and the upper part of the separating-ehamber.</p> <p>“Similar numerals refer to similar parts throughout the drawings.</p> <p>“The machine includes the separating-ehamber 1 within the cylindric case 2, the fan chambers 3 within the blower case and the fan 5 located in the fan chamber and secured on the lower end of the spindle 6 of the electric motor 7 which is secured on the blower case.</p> <p>“The inlet-opening 8 of the collecting-chamber is provided in the cylindric case 2, and communicates with the main conduit .9, which is preferably extended inward or adjacent to the wall of a building (not shown), and is provided with a plurality of inlet-openings 10 normally closed by the valves 11, for use in cleaning the various apartments of the building. One or more suction-nozzles, as 1%, are provided, and the tubular shanks 13 thereof are preferably extended as by the tubular handle H and the flexible</p> <p>[[Image here]]</p> <p>tube 15, and the free ends of the flexible tubular extensions are adapted to be entered into or otherwise connected with one of the inlet-openings 10 when the valve thereof is open or removed, whereby the nozzle communicates with the collecting-chamber through said conduit.</p> <p>“The cross-areas as at at — x of the opening in the shank of each nozzle is suitably proportioned to the area of the opening of the inlet slot l&a of the nozzle to properly perform the work thereof, and substantially the same size of opening prevails throughout the nozzle-shank, the tubular extensions thereof, and the communicating inlet-opening. The cross-area as at y — y of the main conduit is preferably made much larger than the combined cross-areas of the openings in t]he particular number of nozzle-shanks designed to be operated at one time, which enlargement is made for the purpose of decreasing the resistance and friction caused by the flow of air through the main conduit, the same being generally extended a considerable distance from the machine to the various inlet-openings. For the purpose of reducing frictional resistance in the fan 5 at the speed adopted for operating the machine, the same is likewise made considerably larger in capacity, that is, the peripheral outlet slot 16 is widened to make a considerably larger outlet area than the combined areas of the openings in the shanks of the particular number of nozzles to be used at the same time; and this slot is so widened for the further purpose of freely passing articles of refuse which may be drawn through the fan, and which would otherwise lodge in and clog the slot. And the motor 7 is designed and adapted to normally rotate the fan at the adopted rate of speed, and as such speed of rotation to properly perform the work necessary to create the proper vacuum or suction in the tubular shanks of the particular number of nozzles which may be properly used.</p> <p>“The orifice 17 which constitutes the inlet to the fan chamber is provided in the partition separating this chamber from the collecting-chamber, and, for the purpose of this invention, the cross-area, as at e — 0 of this orifice, is made substantially equal to the combined cross-areas of the openings of the particular number of nozzles designed to be used at one time, so that the fan can only take in the amount of air which properly passes through the ■shanks of such particular number of nozzles, and therefore the capacity of the motor cannot be overloaded to injure ,or to burn it out.”</p> <p>Claims.</p> <p>“1. A vacuum cleaner including a separating-chamber having a plurality of valved inlet-openings communicating therewith, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a suction fan having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the separating-chamber and tlie fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“2. A vacuum cleaner including a separating-chamber having a plurality of valvod inlet-openings communicating therewith, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a suction fan having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the inlet-openings and the fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“3. A vacuum cleaner including a separating-chamber with a communicating conduit having a plurality of valved inlet-openings therein, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a suction fan having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the separating-chamber and the fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“4. A vacuum cleaner including a separating-chamber with a communicating conduit having a plurality of valved inlet-openings therein, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a suction fan having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the inlet-openings and the fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“5. A vacuum cleaner including- a separating-chamber with a communicating conduit having a plurality of valved inlet-openings therein, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a’suction Can having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the separating-chamber and the fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks, the cross-area of the conduit being greater than the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“6. A vacuum cleaner including a separating-chamber with a communicating conduit having a plurality of valved inlet-openings therein, suction-nozzles having tubular shanks adapted to be connected with the inlet-openings, a suction fail having a capacity greater than that required for the combined cross-areas of a particular number of nozzle-shanks, a motor connected with the fan having a capacity substantially equal to the requirements of said particular number of nozzle-shanks, and a partition between the inlet-openings and the fan having an orifice therein with a cross-area substantially equal to the combined cross-areas of said particular number of nozzle-shanks, the cross-area of the conduit being greater than the combined cross-areas of said particular number of nozzle-shanks.</p> <p>“7. A vacuum cleaner including a separating-chamber having a nozzle conduit communicating therewith, a suction fan adjacent to the chamber with an intervening partition having a communicating orifice therein, and a motor in operative connection with the fan; the conduit and the fan being of greater capacity than the motor, and the size of the orifice being proportioned to the capacity of the motor.</p> <p>“8. A vacuum cleaner including a nozzle conduit, a suction fan having a case with an inlet orifice in communication with the conduit, and a motor in operative connection with the fan; the conduit and the fan being of greater capacity than tlie motor, and the size of the orifice being proportioned to the capacity of the motor.</p> <p>“9. A vacuum cleaner including a separating-chamber, a suction fan and a motor in operative connection, there being a partition having a communicating orifice between the chamber and the fan; the fan being of greater capacity than the motor, and the size of the orifice being proportioned to the capacity of the motor.</p> <p>“10. A vacuum cleaner including a suction fan having a case with an inlet orifice therein, and'a motor in operative connection with the fan; the fan being of greater capacity than the motor, and the orifice being proportioned to the capacity of the motor.”</p>

<p>In Equity. Suit by the Pittsburgh Iron & Steel Foundries Company against the Seaman-Sleeth Company. On final hearing.</p>

<p>1. Patents <S=>328 — Validity and Infringement — Design fob Dantebn.</p> <p>The McArthur design patent, No. 42,488, for a design for a tubular lantern, is limited to the shape or configuration of the chimney, and does not include the lantern as a whole, and, as so limited, is void for lack of invention; also held not infringed.</p> <p>2. Patents <@=^>28 — Invention-Designs.</p> <p>In design patents, as in mechanical patents, the test of invention is whether the new combination is within the province of the ordinary workman.</p> <p>[Ed. Note. — Dor other cases, see Patents, Cent. Dig. § 33; Dec. Dig. 28.]</p> <p>3. Patents c@e»328 — Validity an» Infringement — Titbulab Dantebn.</p> <p>The Krb patent, No. 962,135, and the Bergener patent, No. 962,114, each for a tubular lantern, both held to disclose invention, and both held infringed.</p> <p>4. Patents >S=>328 — Validity anb Infringement- -Tubular Lantern.</p> <p>The Bergener patent, No. 1,072,688, for a tubular lantern having a new and novel device for raising and lowering the globe, while limited to the specific device described, was not anticipated, and discloses invention; also held infringed.</p>

<p>1. Patents <§==>297(2) — Infringement—Decision as to Validity.</p> <p>Rights granted by letters patent, whose validity has been adjudged by the courts, should thereafter be recognized and enforced, in so far as the legality of the patent is established, under the general doctrine of stare decisis, which is peculiarly applicable to patent cases; and the question of the legality of the patent should not be brought in issue in a subsequent proceeding, so as to in that manner obtain a review of an earlier decision.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 482; Dec. Dig. <§=>297(2).]</p> <p>2. Patents <§=>289 — Infringement—Recovery—Laches.</p> <p>Though defendant’s counsel advised him that complainant patentee had no rights, and defendant began to infringe on a large scale, defendant cannot defeat an injunction of the infringement on the ground of the pat-entee’s laches, where the patentee did no act to entice defendant into the position of a trespasser.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 467-469; Dec. Dig. <§=>289.]</p> <p>3. Patents <§=>166 — Disclaimer—Necessity.</p> <p>Under Rev. St. § 4917 (Comp. St. 1913, § 9462), relating to disclaimers, a patentee cannot assert any rights under a patent until a disclaimer for an invalid claim is filed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 228; Dee. Dig. <§=>156.]</p> <p>4. Patents <§=>156 — Proceedings—Validity—Infringement.</p> <p>In a previous suit involving the validity of a patent, it was not necessary to pass on a particular claim.' The bill as to such claim was dismissed. Helé that, in a subsequent infringement suit, where such claim was not involved, relief will not be denied until a disclaimer under such claim is filed, for a patentee is not required to file a disclaimer until there is a final ruling as to the invalidity of the particular claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 228; Dec. Dig. <§=>156.]</p> <p>5. Patents <§=>312(1) — Infringement—Burden of Proof.</p> <p>Because a patent had before been infringed raises no inferenqe that defendant was guilty of infringement, and the patentee has'the burden oí establishing the infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 544, 545; Dec. Dig. <§=>312(1).]</p> <p>6. Pleading <§=>93(1) — Defenses—Inconsistent Defense.</p> <p>A pleader is bound at his peril to put in issue all of his defenses, and it is not essential that each defense be consistent with the other.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 189; Dec. Dig. <§=>93 (1).]</p> <p>7. Patents <§=>304 — Infringement—Injunction.</p> <p>Where a patent, the validity of which has been established, is shown to be infringed, the infringement will be temporarily enjoined, with leave to defendant to obtain a stay upon filing a bond for appeal.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. <§=>304.]</p>

At Raw. Action by the .United States, for the use of the Jackson Ornamental Iron & Bronze Works, and by the United States, for the use of the Conkling Armstrong Terra Cotta Company, against W. J. Brent and others. On exceptions to master’s report.

<p>In Admiralty. Suit by the Southern Transportation Company against P. W. Unkel. Decree for libelant.</p>

<p>In Equity. Suit by the United States against John Leles to cancel and set aside a certificate of naturalization. Decree for the United States.</p>

<p>Waters and Water Courses <®=»131 — Diversion by Ditch Companies — Property Rights in Water.</p> <p>Under Const. Colo. art. 16, § 8, and Rev. St. Colo. 1908, §§ 3263-3268, relating to water rights, as construed by the Supreme Court oí the state, no property right can be acquired in the use of water until it is applied to a beneficial use. The owner of á carrying ditch, in making the diversion from a natural stream, acts solely as the agent or trustee for him who applies the water to a beneficial use, and gets no title in or right to the use of the water, and has no property in it subject to disposal, but such property and right of disposal is in him who applies the water to a beneficial use.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. <3=^131.]</p>

<p>1. Aliens <S=»32(8) — Deportation op Chinese — Testimony—Right to Reject.</p> <p>Where a Chinese person, whose deportation was being sought, made contradictory statements at the time he was being smuggled into the United States, his subsequent testimony in conflict with such statements may be disregarded.</p> <p>[Ed. Note. — For other easqs, see Aliens, Cent. Dig. § 84; Dec. Dig. <®=>32(8).]</p> <p>2. Aliens <g=>32(5) — Deportation—Chinese Person — Burden oe Proof.</p> <p>A Chinese person, who attempted to surreptitiously enter the United States, and whose right to remain therein was raised on deportation proceedings, has the burden of satisfactorily establishing his claim of right to remain in the United States.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. ®=»32(5)J</p> <p>3. Aliens @=>32(8) — Deportation—Chinese Persons.</p> <p>In proceedings for deportation of a Chinese person, apprehended when surreptitiously entering the United States, evidence held insufficient to establish his claim of birth in the United States and right to remain therein, and' so deportation was warranted.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. § 84; Dee. Dig. @=¿32(8).]</p>

<p>Proceeding by the United States of America against Melvin B. Miller and others. On objection to competency of witnesses.</p>

In Bankruptcy. In the matter of the bankruptcy of David Blank and Edward Blank, individually, and trading as Blank Bros. Upon exceptions to report of special referee upon specifications of objection to bankrupts’ discharge.

In Bankruptcy. In the matter of the bankruptcy of the Old Oregon Manufacturing Company, a corppration. Proceeding to review an order of the referee allowing compensation to the trustee.

<p>In Equity. Suit by the Everett Railway, Eight & Power Company against the United States. On motion to dismiss.</p>

<p>In Admiralty. Libel by John Suarez and others, .against the British steamship Moana, etc.</p>

<p>Suit by Edwin C. Ewing, as trustee in bankruptcy of Joseph Paul and Samuel Paul, bankrupts, against S. E. Leszynsky & Co., a corporation, begun in the state court and removed to the federal court. On motion to remand.</p>

<p>In Bankruptcy. In the matter of the Rosenberg-Oldstein Company and others, bankrupts. On review of decision of referee.</p>

<p>Inters vi, Revenue <&wkey;9 — Corporation Tax — Business Conducted by Receivers — “Net Earnings.”</p> <p>Where receivers through whom the court took possession of the property of an insolvent railroad company operated the railroad, funds in tho hands of the receivers, represented by the net proceeds in conducting the operations of the road over and above the expense and authorized expenditures paid out by them, are not subject to the tax under federal Income Tax Act. as “net earnings,” and no return could be made thereon</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dec. Dig. <&wkey;9.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Net Earnings.]</p> <p>In Equity. Suit by the Equitable Trust Company of New York, a corporation, against the Western Pacific Railway Company, a corporation, and others. On application by receivers for instructions whether to make a return under the federal Income Tax Act.</p>

Suit by the Equitable Trust Company of New York, a corporation, against the Western Pacific Railway Company and others. Upon settlement of the account of the receivers, Pillsbury, Madison & Sutro applied for an allowance of fees for services rendered in the litigation, to be chargeable upon the corpus of the fund in the hands of the master.

<p>Corspieact &wkey;>43(ll) — Offenses—Indictment.</p> <p>An indictment charging that defendants, expecting an involuntary petition in bankruptcy to be filed against one of them, and an adjudication and the appointment of a receiver to follow, conspired to conceal from the trustee property belonging to the expected bankrupt, and setting forth overt acts done pursuant to the conspiracy, is sufficient, though not alleging that the owner was a bankrupt at the time of the conspiracy.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 86, 98; Dec. Dig. <&wkey;43(ll).]</p>

<p>In Error to the District Court of the United States for the Middle District of Tennessee; Edward T. Sanford, Judge.</p> <p>Action by Arthur C. Reichardt against H. G. TIill and tbe H. G. Hill Grocery & Baking Company. There was a judgment for defendants and plaintiff brings error.</p>

<p>1. Conspiracy <&wkey;45 — Evidence—Admissibility.</p> <p>The indictment charged that defendants conspired together to use the mails in connection with their disposal of corporate stock by misrepresentations, that defendants intended to induce investors and the public to purchase the stock by means of false and fraudulent representations sent through the mails, representing that the corporation whose stock was being offered was the owner of patents to certain devices, that on account of the ownership of the patent shares were of great commercial value, and that dividends would be shortly paid, when in fact the corporation was not the owner of the paténts enumerated and was not then manufacturing. The corporation did own a patent for one device, but one of the defendants, learning that there was a prior patent for a similar device, which, possibly rendered the patent of the corporation of little value, notified the other defendants of that fact, and they began to sell stock owned by them individually, instead of treasury stock. Held that, though there was no substantial issue involving the validity of the patent owned by the corporation, nevertheless in such case the existence of the prior patent and defendants’ knowledge thereof was admissible on the question of their good faith in representing that the corporation was the owner of the patents as asserted.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 100-104; Dec. Dig. <&wkey;45.]</p> <p>2. Conspiracy <§=»45 — Evidence—Admissibility.</p> <p>In such case, the evidence is admissible, though there was no allegation in the indictment that the stock was worthless, or was not worth what it was represented to be, on account of the limitations of the patent which the corporation owned, by reason of prior claims of other inventors.</p> <p>[Ed. Note. — For other eases, see Conspiracy, Cent. Dig. §§ 100-104; Dec. Dig. <&wkey;45.]</p> <p>3. Criminad Law <&wkey;1169(5) — Appkad—Harmless Eehoe.</p> <p>In such case, where the court charged that if a conspiracy existed, and defendants represented that the corporation owned patents to machines which they proposed to manufacture, and such representations were false, and known by defendants to be false, the conspiracy would constitute a scheme to defraud, but if, at the time the representations were made, the corporation did in fact have patents issued for machines as represented, the representations would not be false, and bad faith cannot he imputed to defendants because the claims of such patents infringed prior patents, for there is a presumption that a patent, having been issued, does not infringe any known patent, and the patentee is not guilty of bad faith in accepting it, the admission of expert evidence concerning the patents held by the corporation, together with testimony as to their scope and validity, was harmless, though erroneous; the consideration of the jury being restricted only to those explanations which bore upon the mechanical features and the state of art before and at the time defendants made their representations.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;1169(5).]</p> <p>i. Criminal Law <&wkey;470 — Evidence—Opinion Evidence.</p> <p>In such case, expert testimony as to the validity of the patent held by the corporation was not admissible.</p> <p>[Ed. Note.--For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. <&wkey;470.]</p> <p>5. Cbxminai, Law <&wkey;763, 764(10) — Tb/al—Instructions—-Province of Jury.</p> <p>In a. prosecution for conspiring to use the mails to defraud, by sending through the mails false and fraudulent representations as to corporate stock for salo, the court charged that one of the cardinal points in the case was the intent of the defendants, that questions whether it was their intent that they could make the business of the corporation successful must necessarily be answered “No”; that if they agreed to make false and fraudulent representations for the purpose of deceiving investors and the public, tbeir ultimate belief that they could make the business a success would not excuse the false and fraudulent representations; that, In considering the question of intent to defraud, the jury should consider the intent as presented by the particular transaction attacked, and that it mattered not how confident defendants were that they could make the business succeed, or that they could return the money without loss or with profit. Other portions of the charge stated that the question for determination was not whether the business which defendants were engaged in was a legitimate or practical one, but was whether defendants were guilty of disposing of corporate stock with a criminal or wrongful intent Held that, in view of the charge as a whole, the first portion of the charge was not objectionable, on the theory that it directed the jury that the defendants did not have an intention of making a success of the business, and that they did not believe it could be made successful, but the whole question of defendants’ wrongful intent was left to the jury.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738; Dec. Dig. &wkey;763, 764(10).]</p> <p>6. Criminal Law <&wkey;763, 764(6) — Trial—Instructions—Province of Jury.</p> <p>In such case, in view of the fact that the court charged that the jury should not accept its views concerning any disputed question of fact, unless they conformed to their own understanding, that portion of the charge that, if defendants agreed to make false and fraudulent pretenses or representations and assurances for the purpose of deceiving investors and the public, then the intent to make the business a success, or the belief that they could make the business a success, would furnish no excuse, was not objectionable on the ground that the charge did not limit the matter to representations and pretenses, but included promises and assurances that dividends would be paid and that the corporation would be a success.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 173H733; Dec. Dig. &wkey;763, 764(6).]</p>

Youmans, Judge. Proceedings for contempt by the United States against P. R. Stewart, against Pink Dunn, against George Burnett, and against Frank Gripando. Judgments of conviction, and defendants separately bring error.

<p>1. Names <&wkey;>16(2) — Admissibility op Evidence- under Pleadings — Idem SONANS.</p> <p>The complaint, in an action for wrongful death, averred that plaintiff was the administrator of the estate of Pietro Spina, sometimes known as Peter Spino, deceased. Probate proceedings offered in evidence were objected to on the ground that they were in the name of Peter Spino, deceased. It was stated in those proceedings that deceased was sometimes known as Pietro Spina. Held, that as the name “Peter” is the English equivalent for the Italian “Pietro,” and as the substitution of an “o” for an “a” in spelling the name did not substantially change the sound, the probate proceedings were admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Names, Cent. Dig. § 13; Dec. Dig. <&wkey; 16(2).]</p> <p>2. Appeal and Error &wkey;>209(2) — Time to Allege Ekrob.</p> <p>In an action for wrongful death, it cannot be urged on appeal for the first time that there was no proof of heirship of those parties for whose benefit the action was brought.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1291, 1293, 1296; Dee. Dig. &wkey;209(2).]</p> <p>3. Appeal and Error <&wkey;209(2) — Action por Wrongful Death — Proof op Heirship.</p> <p>In an action for wrongful death, brought for the benefit of the widow and minor child of, deceased, where the widow testified to her relationship and the existence of the child and probate proceedings on the estate of the deceased, establishing the heirship of the widow and child, were also introduced, there was sufficient proof of heirship; there being no objection below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1291, 1293, 1296; Dec. Dig. &wkey;209(2).]</p> <p>L m»™ and Servant &wkey;279(5) — Injuries to Servant — Actions—Evidence.</p> <p>In an action for the death of the driver of a grain harvester, who was thrown from his seat and killed when his mules were frightened upon the running away of a horse driven by another employs, evidence held, to warrant a finding that such other employé, who was representing the master, was negligent.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978; Dec. Dig. &wkey;»279(5).]</p> <p>5. Master and Servant <&wkey; 185(26) — Injuries to Servant — Liability oe Master.</p> <p>Where a master directed his servant to take a horse and drive to a grain harvester to ascertain how much sacked grain was on hand, the master is liable for the negligence of that servant, as he represents the master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 417; Dec. Dig. &wkey;>185(26).]</p> <p>6. Master and Servant <&wkey;>272 — Actions--Evidence—Admissibility.</p> <p>In such case, evidence that the driver of the horse had been previously warned of the danger of scaring the mules drawing the harvester, but that he disregarded such warning, is admissible, for the master is liable for his negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 933-935; Dec. Dig. <&wkey;272.]</p> <p>7. Appeal and Error &wkey;>272(2) — Exceptions—Time por Taking.</p> <p>To he considered, exceptions to instructions must be taken prior to the retirement of the jury for the consideration of the case and the return of the verdict.</p> <p>[Ed. Note. — -Eor other cases, see Appeal and Error, Cent. Dig. § 1611; Dec. Dig. <&wkey;272(2); Trial, Cent. Dig. § 080.)</p>

T. Dooling, Judge Suit in equity by August Ferdinand Krueger (otherwise Kruger) administrator of the estate of Anna Maria Krueger, deceased, against Frederick Eggers, as Sheriff of the City and County of San Francisco, and others. From an order granting a preliminary injunction, defendants appeal.

H. Seward Thomson, Judge. In the matter of the Grand Jury Investigation of the Brewers’ Association. Motion to quash presentment against Hugh F. Fox for declining to answer questions, was denied, and he appeals. In the matter of applications of Hugh F. Fox for writs of habeas corpus. The writs were denied, and applicant brings error.

<p>In Error to the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>Action by Thomas C. Thacher against the Philadelphia Casualty Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Bankruptcy i®=^328 — Proof of Claim — Tuna for Provino Clatm.</p> <p>Under Bankr. Act, July 1, 1898, c. 541, § 57n, 30 Stat. 560 (Comp. St. 1913, § 9641), requiring claims to be proved within one year after adjudication, creditors who did not prove their claims because no assets were scheduled as available cannot, years subsequent, proceedings having been reopened on the ground of concealment of assets, prove their claims.</p> <p>. [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 518; Dec. Dig. tg=5328.J</p> <p>2. Trusts —Declaration of Trusts — Written Instruments.</p> <p>Under Rev. St. Mo. 1909, § 2868, providing that all declarations of trust shall be proven by some writing, signed by the party, declaring such trust, or they shall bo void, a devise of land absolute in form, confirmed and made final by the probate of the testator’s will, without any contest within the statutory period therefor, cannot be defeated by the assertion of an oral promise by the devisee to hold the land in trust for another.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 93; Dec. Dig. <©=> 63%.]</p> <p>3. Trusts <§^63% — Resulting Trust — Creation.</p> <p>Under Rev. St. Mo. 1909, § 2869, relating to trusts resulting where the consideration for a conveyance is paid by one and title is taken in the name of another, no trust results in favor of a son, where his father, upon the son’s bankruptcy, devised property to the son’s wife, which he had intended to leave to the son, for the son had no right to the property and paid no consideration therefor.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 91, 92, 98, 99, 100; Dec. Dig. <3=>63%.]</p> <p>4. Trusts <S=»375(1) — Resulting Trust — Recognition—Judgment.</p> <p>Upon his son’s bankruptcy, a father devised to the son’s wife land which he had intended to leave to the son. Some time after the conclusion of the bankruptcy proceedings and the settlement of the estate, the wife conveyed the land to her husband. Thereafter she sued to set aside the conveyance on the ground of fraud and undue influence, and the husband set up a secret trust in his favor. A consent decree, whereby the wife received the rents from the portion of the property was entered. Seld that, as the decree was conditional upon the wife’s withdrawing her suit and was by way of compromise, there was no judicial recognition of a resulting trust, which would entitle creditors of the husband, who asserted that in bankruptcy proceeding assets had been concealed, to reach the interest received by the wife under the decree.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 613, 615; Dee. Dig. <§=»375(l).j</p>

<p>Appeal from the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rud-kin, Judge.</p> <p>Bill by the Davenport Independent Telephone Company, a corporation, against the Pacific Telephone & Telegraph Company, a corporation. From a decree for complainant, defendant appeals. Reversed, with directions to dismiss the bill.</p> <p>June 20, 1914, the appellee (complainant in the court below) was in possession of and operating a telephone system in Lincoln county, state of Washington, consisting of approximately 300 miles of telephone wires, strung on poles and reaching and serving the towns of Davenport, Beardan, and Peach, in that county, and also a local exchange in Davenport, consisting of wires and poles connecting with the suburban lines mentioned, and was in possession' of a large number of telephone poles, cross-arms, insulators, storage batteries, converters, and other property incidental to its telephone business, and was also in possession of a telephone line extending from Davenport to the city of Spokane, which was used as a toll line for connection with that city and with towns in Eastern Washington and Northern Idaho by patrons of the telephone exchanges at Davenport and Reardan.</p> <p>On the said 20th day of June the appellant (defendant in the court below), through its president, wrote to the president of the appellee the following:</p> <p>“The Pacific Telephone and Telegraph Company.</p> <p>“Office of the Division Commercial Superintendent.</p> <p>“G. E. Hickman. Spokane, June 20,-1914.</p> <p>“Mr. A. T. West, Spokane, Washington — Dear Sir: Confirming .our conversation of to-day:</p> <p>“1. In the event of the consolidation of the two exchanges now in Spokane, the Pacific Telephone & Telegraph Company agrees to make a contract with the Davenport' Independent Telephone Company, giving the Davenport Company a connection with the consolidated exchange, and through that exchange with the system of the Interstate Company, under the same terms and conditions as that connection is now given to the Davenport Company by the Home Telephone Company of Spokane.</p> <p>“2. In the event that the Davenport Company desires to sell its property to the Pacific Company, and so notifies the Pacific Company in writing within 60 days from this date, an appraisement shall be made of the reproduction value, new, of the property of the Davenport Company by you, representing the Davenport Company, and by one of our engineers, representing this company, and, in the event of your failure to agree with our representative, the value is to be fixed by a third person selected by you and our engineer, and the Pacific Company will thereupon pay the amount so fixed, and the Davenport Company will thereupon convey to the Pacific Company that portion of its property which the Pacific Company may lawfully acquire, the title to such property to be acceptable to the attorneys for this company.</p> <p>“Our Mr. Hickman is authorized to take up with you any matters in this connection.</p> <p>“Yours very truly, G. E. McFarland, President.'</p> <p>In answer to the foregoing communication the president of the appellee wrote as follows:</p> <p>“Spokane, Wash., Aug. 10, 1914.</p> <p>“The Pacific Telephone & Telegraph Co., Mr. G. E. Hickman, I)iv. Gom’l Sup’t, Spokane, Wash. — Gentlemen: Please be advised that we desire to sell our property to you in accordance with conditions outlined in President McFarland’s letter of June 20th last, addressed to the writer.</p> <p>“Tours very truly, Davenport Independent Telephone Co.,</p> <p>“By A. T. West, President.’'</p> <p>Thereafter the appellant appointed as its engineer H. J. Tinkham to act with Mr. West in making an appraisement of the reproduction value of the property of complainant, for the purpose of fixing the price to be paid by the defendant to the suit therefor, which appraisers examined the property, and on the 5th day of October, 1914, fixed the said, reproduction value at $34,623.00, by a writing in words and figures as follows:</p> <p>“Price agreed upon as reproduction cost of Davenport Ind. Tel. Co. property, $34,623.00. H. J. Tinkham.</p> <p>“Spokane, Wash., Oct. 5th. A. T. West.”</p> <p>The suit being brought to enforce the specific performance of the contract, the defendant thereto set up, among other things, that the writings between the parties did not constitute a valid contract; that the attorneys for the defendant to the suit examined the title to the properties referred to, and that such title was not acceptable to them, and that they so advised their client; that the complainant has not, as a matter of fact, a merchantable title to the said properties; that the complainant had not even a franchise or permit to operate an exchange in the city of Davenport; that on June 20, 1914, and for many years theretofore, and ever since, the defendant has been engaged in interstate commerce in telephonic communication between the states of Idaho and Washington, and has controlled and operated telephone lines between nearly all of the cities and towns in the state of Idaho in the northern part thereof, and nearly all of the cities and towns in the state of Washington, whereby the people residing or being in one state may have and do communicate telephonically through1 the lines operated by the defendant with the people residing or being in the other state; that on said June 20th, and before and since, the toll lines which the complainant claims to own, extending from Davenport and Beardan and other communities to Spokane, were connected telephonically with the lines of a system which was being operated in competition with the defendant’s linos between Eastern Washington and Northern Idaho, which system belonged to the Interstate Telephone Company and the Home Company of Spokane, and that there was a contract between the complainant and the other companies providing for such connection, and by virtue thereof the complainant was engaged in interstate commerce, transmitting telephone messages between various points in the state of Washington and various points in the state of Idaho, whereby those resident or being in one state could and did talk over the said lines with those resident or being in the other state; that in July, 1913, the United States government brought an action in the United States District Court for the state of Oregon against the defendant to this suit and other companies for the purpose, among other things, of preventing this defendant from acquiring the properties of" the Interstate Company and the Home Company referred to, upon the ground that such acquisition would violate the terms of the Sherman Anti-Trust Act, and in said action, prior to June 20,1914, a decree was entered perpetually enjoining the defendant to the present suit from acquiring said properties, with the qualification that, if the local authorities of the city of Spokane should decide in favor of a consolidation of the two exchanges in that city, namely, the Home exchange and this defendant’s exchange, then said decree might be modified to permit such consolidation, but with the proviso that the Interstate Company should be connected with and have the benefit of such consolidated exchanges, and said competition in interstate telephonic communication should be continued, all of which was well known to the complainant on June 20, 1914; that the defendant to this suit at that time desired to have said two exchanges thus consolidated, and expected to obtain municipal consent thereto; chat in order to protect the complainant in its connection in Spokane, and thereby with the system of the Interstate Company, and to protect its interstate business, the defendant to this suit agreed with Mr. West as set forth in paragraph 1 of the said letter of June 20, 1914; that the sale of the property in question would he in violation of the Sherman Anti-Trust Act, in that the same would be in restraint of commerce in telephonic communication between the two states mentioned, and would tend to monopolize such commerce; that said sale would also be in violation of the said decree in the suit brought by the United States government, which decree was known to the complainant on June 20, 1914; that the complainant has a full, complete, and adequate remedy at law; and that the court is without jurisdiction in equity.</p> <p>The issue made between the parties in respect to the alleged part performance of the contract sued on having been determined in favor of the defendant to the suit by the court below, no further reference to it need be here made. The trial court held that the contract sued on violated neither of the provisions of the Sherman Anti-Trust Act nor the decree of the United States court for the District of Oregon, and, further holding that the title to the property covered by the contract sued on, tendered by the complainant, was a marketable title, and that, notwithstanding the objections made to it by the attorneys of the defendant to the suit, the latter was bound to accept the title and pay the purcháse price in accordance with its promise, decreed a specific performance as prayed for, from which decree the present appeal comes.</p>

Petitions to Superintend and Revise from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge. In the matter of the bankruptcy of A. S. Cohn. Petition by R. A. Malone, as trustee in bankruptcy, to superintend and revise a decree' denying the right of the trustee to policies of insurance on the life of the bankrupt.

Action by Harry J. Farnham and Edward M. Willoughby, copart-ners, doing business as Farnham, Willoughby & Co., against Frank R. Chambers, Edward Trowbridge Hall, Patrick F. Griffin, and Frank S. Turnbull, surviving partners, doing business as Rogers, Peet & Co. There was a judgment for plaintiffs, and defendants bring error. Action for real estate broker’s commission. Verdict and judgment for plaintiffs.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by George D. Prentice against the West Penn Chemical & Manufacturing Company. There was a judgment for plaintiff, and defendant brings .error.</p>

<p>In Error to the District Court of tlie United States for the District of Massachusetts; Clarence Hale, Judge.</p> <p>Action by Mabel M. Baker, administratrix, against the Boston & Maine Railroad. There was a judgment for plaintiff, and defendant brings error.</p>

Petition to Superintend and Revise from tbe District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge. In the matter of the bankruptcy of M. B. Campbell. Petition by F. J. Crampton for vacation of sale of property of the. bankrupt, or, in the alternative, for payment to him of the proceeds of the sale, opposed by Bessie K. Massie, guardian of the estate of Joel White Massie, and George Stuart, as trustee..

Riner, Judge. Etta Eeeiey was convicted of violating Rev. St. § 2139, as amended by Act Jan. 30, 1897, by selling intoxicating liquor to an Indian ward of the government under charge of an Indian agent, and she brings error.

<p>Master and Servant <&wkey;13 — Regulations—Hours of Service Act.</p> <p>Under Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (Comp. St. 1913, § 8678), limiting the hours of service of telegraph operators to only nine hours per day when the office is operated continuously night and day, two telegraph offices, a short distance apart, one of which was used for the day and the other for the night business, must be deemed a single office within the act, the work being transferred from one to the other regularly, and a continuous operation being necessary to the movement of trains, for the act evidently classified offices operated continuously night and day differently from day stations only, because in the former the volume of business would be greater, requiring more concentration, and thus necessitating shorter hours.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14; Dec. Dig. <&wkey;13.]</p>

<p>Courts &wkey;>405(17)- — Federal Courts — Assignment of Errors — -Necessity.</p> <p>Rule 11 requires that the plaintiff in error shall file with his petition for writ of error or appeal an assignment of errors, and- declares that no writ of,error or appeal shall be allowed until such assignment of errors shall be filed; while rule 21 provides that, when there is no assignment of errors, counsel will not be heard, except at the request of the court, and errors not specified according to tlie rule may be disregarded, though the court at its option may notice a plain error not assigned or specified. Hold, that rule 11 is one oí practice and not .'jurisdiction, and, while the court may notice a plain error not assigned to prevent a miscarriage of justice, the court will; not sift the record, and a writ of error will be dismissed, where no assignment of errors was filed in time, and no plain or obvious error appeared on the face of the record; the errors complained of relating to rulings on evidence and instructions,</p> <p>flirt. Nolo. — For other cases, see Courts, Dec. Dig. &wkey;>405(17).]</p>

Newman, Judge. Suit by the Proctor Coal Company against the United States Fidelity & Guaranty Company. There was a judgment for defendant, and plaintiff brings error, while defendant assigned errors in the alternative on a cross-writ.

Youmans, Judge. Louis Blackwell was convicted of introducing from outside intoxicating liquor, in violation of Act March 1, 1895, into that part of the state-of Oklahoma which was formerly the Indian Territory, and he brings error.

Hamilton, Judge. Ribel by Eduardo Rutz and another against the schooner D. J. Sawyer, which was claimed by Ofelia Martinez and others. From a decree for libelants, claimants appeal.

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit in equity by Herbert H. Frey and the Mayo Manufacturing Company against the Marvel Auto Supply Company. Decree for defendant, and complainants appeal.</p>

<p>1. Patents <&wkey;78 — Persons Entitled to Patents — Prior Use.</p> <p>Where an applicant for a patent fails to pay the final fee within six months after its allowance, a renewal application made within two years, as permitted by Rev. St. § 4897 (Comp. St. 1913, § 9443), is to- be deemed merely a continuance of the first, which under the statute has been held in abeyance, and the two years’ prior public use which will defeat the right to the patent is to. be reckoned from the date of the original application.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 99, 100; Dec. Dig. <&wkey;78.]</p> <p>2. Patents <{&wkey;328 — Validity and Infringement — Concrete Dock.</p> <p>The Ferguson patent, No. 1,089,405, for a reinforced concrete dock, was the invention of the patentee, and discloses patentable invention; also held infringed.</p> <p>3. Patents &wkey;>226 — Suit for Infringement — Delayed Issue of Patents.</p> <p>Rev. St. § 4897 (Comp. St. 1913, § 9443), provides that an applicant who has failed to pay the final fee after allowance of his patent may file a new application therefor within two years, “but no person shall be held responsible in damages for the manufacture or use of any article or thing for which a patent was ordered to issue under such renewed application prior to the issue of the patent.” Reid, the latter provision only prevents recovery of damages accruing previous to the issue of patent, and not a remedy by injunction and damages if the use is continued subsequent to issue.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 357; Dec. Dig. <&wkey;226.]</p>

Dyer, Judge. Suit in equity by the Dalton Adding Machine Company and another against the Moon-Hopkins Billing Machine Company and others. Decree for complainants, and defendants appeal.

<p>In Equity. Suit by the Outlook Envelope Company and others against the Whiting-Patterson Company and others. On motion for preliminary injunction.</p>

In Equity. Suit by the Marconi Wireless Telegraph Company of America against the De Forest Radio Telephone & Telegraph Company and Lee De Forest. On final hearing. Decree for complainant against corporation defendant.

<p>In Equity. Suit by the Safety Gas Lighter Company against Fischer Bros. & Corwin. On final hearing. Decree for defendant.</p>

<p>1. Conspiracy <@=>1 — What Constitutes.</p> <p>A conspiracy is a combination of two or more persons by concerted action to do an unlawful thing, or to do a lawful thing in an unlawful manner.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 1-5; Dec. Dig. <@=>1.</p> <p>Eor other definitions, see Words and Phrases, Hirst and Second Series, Conspiracy.]</p> <p>2. Conspiracy <@=>2 — Nature op Conspiracy — Defenses.</p> <p>No formal agreement is necessary to a conspiracy, a tacit understanding being sufficient; and it is not essential that each conspirator have knowledge of the details, the means to be used, or that the agreement be enforceable.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 2; Dec. Dig. <@=>2.]</p> <p>3. Conspiracy <@=>13 — Acts of Agents — Liability of Principals.</p> <p>The acts of agents and employés in furtherance of a conspiracy are the acts of the principal.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. § 14; Dec. Dig. <@=>13J</p> <p>4. Torts <@=>10 — Strikes—Pickets.</p> <p>Where a picket around an employer’s place of business is established by union strikers, the picket is the agent of the union, and efforts to dissuade others from accepting employment offered by the former employer should go no further than peaceable persuasions and inducements.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. <@=» 10.]</p> <p>5. Torts <@=>10 — Strikes—Organization—Rights of Trade Unions.</p> <p>Laborers may combine, forming unions to protect their rights, and they have the right to persuade others, when they have gone on strike, not to work for the employer; such rights being given under the freedom of action guaranteed by the federal Constitution.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. <@=>10.J</p> <p>6. .Torts <@=>10 — Employers—Rights of.</p> <p>While laborers, members of a union, may strike, and may picket their employer’s business, the employer is entitled to free access to his place of business for himself and other employés, and such rights cannot be interfered with.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. <@=>10.1</p> <p>7. Injunction <@=^101(3) — Strikes—Interference by Force.</p> <p>Act Oct. 15, 1914, c. 323, § 20, 38 Stat. 730, declares that no restraining order or injunction shall be granted in any case between an employer and employés, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning the terms or conditions of employment, unless necessary to prevent irreparable injury to property or property rights, and that no such restraining order shall prohibit any person or persons, whether singly or in concert, from terminating any employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceable means to do so. Em-ployf-a of complainant, a ship company, engaged as a common carrier, which also carried the mails, struck, and defendants, composing the union of which they were members, picketed the wharves of complainant and intimidated other laborers from accepting complainant’s offers of employment. Defendants threw rocks on the wharves, and in other ways interfered by violence with complainant’s business and access, to its ships. Interstate Commerce Act Deb. 4, 1887, c. 104, § 3, 24 Stat. 380 (Comp. St 1913, | 8805), and section 10, as amended by Act March 2, 1889, c. 382, § 2, 25 fcStat. 857 (Comp. St 1913, § 8574), respectively declare that every common carrier subject to the provisions of the act shall afford reasonable facilities for the exchange of traffic between their respective Hues, ami for the receiving, forwarding, and delivering of passengers and property to and from their several lines, and that any common carrier which shall willfully omit to do any act or thing required to be done shall be guilty of a misdemeanor. Held that, though defendants were authorized under the statute to persuade third persons to decline complainant’s offers of employment, and to refuse to deliver goods to complainant, or to patronize it, their interference with complainant’s transportation business by violence was unlawful and will be enjoined, as it would not only expose complainant to loss, but to prosecution for violations of law.</p> <p>LJScL Note. — For other eases, see Injunction, Cent. Dig. §§ 174, 175; Dec. Dig. <cNri0l(3).]</p> <p>8. Touts <ftn»10 — Stbikks—Liability ros Acts or Uniox.</p> <p>A trade union, conducting a strike, is liable for the unlawful acts of members and others associating themselves with the strikers, unless such acts be disavowed, and, in the case of members, the offenders be disciplined or expelled.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 10; Dee. Dig. <g=»iO.)</p>

In Equity. Suits by the United States against the Devil’s Den Consolidated Oil Company, and against the Rost Hills Mining Company. On motions for preliminary injunctions and receivers.

In Equity. Suit by the Goldfield Consolidated Water Company against the Public Service Commission of Nevada, J. F. Shaughnessy, H. F. Bartine, and W. H. Simmons, as members of and constituting the Public Service Commission of Nevada. On motion for preliminary injunction.

<p>1. ALIENS &wkey;68 — NATURALIZATION—DECLARATION' PETITION TIME— STATUTES — Proviso.</p> <p>Under Act June 29, 1906, c. 3592, § 4, 34 Stat. 596 (Comp. St. 1913, § 4352), providing that an alien may be admitted to citizenship only in the following manner: Hirst, he shall make a declaration of intention in a prescribed manner, provided, that no one who in conformity to the law in force at the date of his declaration has declared his intention shall be required to renew his declaration; and, second, not less than two years nor more than seven years after he has made such declaration he shall file a petition in a prescribed form — though a declaration filed before has the same force and effect as one filed after passage of and in conformity with the act, a petition must be filed not more than seven years after the act takes effect; the proviso relating only to the sufficiency of the declaration.</p> <p>[Ed. Note. —For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. ®^68.]</p> <p>2. Aliens <g;=>68 — Naturalization—Statutes—Iíetroactive Effect.</p> <p>Act June 29, 1906, c. 3592, § 4, in providing that petition shall be filed not more than seven years after the making of declaration of intention to become a, citizen, is not retroactive in any proper sense, as to one who filed his declaration before passage of the act, as it will be construed to give Mm seven years after the act took effect.</p> <p>[Ed. Note.' — IPor other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. &wkey;»68j</p>

<p>1. Consptbacy <&wkey;28 — Right to Vote-Federal Laws — Protection.</p> <p>Tlio right of an elector haying the requisite qualifications to vote for a member of the House of Representatives, or for United States senator, being derived from the Constitution and laws of the United States, is protected by Criminal Code (Act March 4, 1909, c. 321) § 19, 35 Stat. 1092 (Comp. St. 1918, § 10183), declaring that, if two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, they shall be fined, etc.</p> <p>(Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. <&wkey;28j</p> <p>2. Elections <&wkey;120(l) — Nominations-—Federal Rights.</p> <p>While Congress may provide rules regulating the primaries for United States senators and members of the House of Representatives, yet unless it has provided such rules directly or by necessary implication, a candidate can have no federal right in the indorsement which any political party may undertake to give under the state laws.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. <&wkey;I2G(l).]</p> <p>3. Elections <&wkey;120 — Primaries—Federal Laws.</p> <p>That Congress has provided for expenses to be incurred in primary elections by candidates for the House of Representatives and the Senate, is no adoption as federal legislation of state laws on the subject.</p> <p>[Ed. Note. — For other cases, see Elections, Dec. Dig. &wkey;>120.]</p> <p>4. Statutes <&wkey;l — Adoption—Effect.</p> <p>Congress may adopt state legislation and thus give it the sanction of federal legislation.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §, 1; Dec. Dig. &wkey;>l.]</p> <p>5. Conspiracy <&wkey;28 — Primary Elections — Offices—Rights Protected— “Elections.”</p> <p>Act June 4, 1914, c. 103, 38 Stat. 384, providing a temporary method for conducting the nomination and election of United States senators, declares that at the next regular election in any state next preceding the expiration of the term for which any senator was elected, at which election a representative to Congress is regularly by law to be chosen, a senator shall be elected by the people, and that in any state wherein a senator is to be elected, the nomination of candidates for such an office shall be made and the election held as near as may be in accordance with the laws of such state regulating the nomination of candidates for representatives at large, but, if no such provision be made, the procedure shall follow the laws respecting the election of ordinary executive officers and that candidate receiving the highest number of votes shall he deemed elected. The act provided that it should expire three years from its approval. At the time of its adoption the state of West Virginia had no act upon the subject. Defendants were charged with conspiracy in procuring unqualified persons to vote in an election for the nomination of a senator from West Virginia and of casting illegal votes, the indictments being under Criminal Code (Act March 4, 1909, c. 321) §§ 19, 37, 35 Stat. 1092, 1096 (Comp. St. 1913, §§ 10183, 10201), respectively, declaring that where persons conspire to injure any citizen in the free exercise of any right secured by the federal Constitution or laws, such persons shall be punished, and that if persons conspire to commit any offense against the United States or to defraud the United States they shall bo punished. Held that, as there was no act regulating the nomination of senators, and as the word “election,” as used in the act, must be deemed to mean a general, instead of a primary, election, the federal laws did not protect the rights of candidates for senators at primary elections, and hence the conspiracy did not fall within either section.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. <&wkey;28.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Election.]</p>

<p>In Admiralty. Label by Lewis, Anderson, Foard & Co. against the steamship Corwin, which was claimed by the Kotzebue Trading & Transportation Company, and in which Jafet Lindeberg was summoned as garnishee. Decree for libelant, and for claimant over against garnishee.</p>

<p>At Law. Action by the United States against the Louisville & Jef-fersonville Bridge Company. Judgment for the United States for the full amount claimed.</p>

<p>1. Mechanics’ Liens @=>5 — Lien Law — Construction.</p> <p>Mechanics’ lien laws are to be liberally construed, for the purpose of protecting contractors, workmen, and materialmen.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 3, 6; Dec. Dig. @=>5.]</p> <p>2. United States -@=567(2) — Contracts—Bonds—Construction—-“Material.”</p> <p>The bond of a contractor, constructing a levee under contract with the United States, given under Act Cong. Aug. 13, 1894, a 280, 28 Stat. 278, as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1913, § 6923), provided that the contractor should be responsible for paying all liabilities incurred for labor or material in the prosecution of the work. Plaintiff furnished a subcontractor feed for mules used in building the levee. Held that, while the act should be liberally construed as a mechanic’s lien law, for the bonds required were to take the place of mechanics’ liens, feed furnished for the mules did not fall within the purview of the bond, not being “material” used in the prosecution of the work, as the animals would have had to have been fed, though not used in constructing the levee.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 50; Dec. Dig. <S=*67(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Materials.]</p>

<p>At Law. Action by Frank B. Charroin against the Romort Manufacturing Company, a corporation, and others. Removed from the state court to the federal District Court.</p>

<p>Bankbtotcy @=>211 — Proceedings—Right of Trustee.</p> <p>An assignment for the benefit of creditors was valid, and not subject to attack on account of the assignor’s bankruptcy; the petition not having been filed within four months thereafter. The state court entered an order declaring that the assignee was the owner of a stock of merchandise assigned, subject to a chattel mortgage, that the bankrupt had no interest therein, and that the assignee should dispose of the same subject to the approval and confirmation of the court. The order further recited that it was without prejudice to assertion by any creditor of any right he might have as against the assignee. The trustee' in bankruptcy of the assignor claimed the proceeds of the stock on the ground that the order gave a preference to creditors in violation of the Bankruptcy Act. Held, that the judgment was not a preference, but merely confirmed the title of the as-signee, and the trustee must, if entitled to relief, seek it in the state court.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 321, 323; Dee. Dig. @=211.]</p>

In Bankruptcy. In the matter of the Gilsonite Mines Company. Application by the trustee in bankruptcy for an order on the executors of F. G. Yorks, deceased, and another, requiring them to deliver to the trustee a certificate for shares of the capital stock of another corporation. On motion for judgment on petition and answer.

<p>In the matter of the application of Chin Doe Tung for a writ of ha-beas corpus.</p>

<p>In Error to the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p>

In the matter of the bankruptcy of Max Barnett. Proceeding between Paul A. Balbach and Charles L. Surprise, trustee. From an order of the referee, affirmed by the District Court, Paul A. Balbach appeals.

<p>Petition to Revise Certain Orders of the District Court of the United States for the Southern Division of the Southern District of California.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California.</p>

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge. Action By the Luse Land & Development Company, Limited, a corporation, against Hugh Gannon, who counterclaimed. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p>

<p>In Error to the District Court of the United States for the District of Nevada.</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; Thos. S. Maxey,. Judge.</p>

Libels by Rosa Lee Cherry, administratrix of Benjamin Luther Cherry, deceased, and by Lena E. Harper, administratrix of Lee Harper, deceased, against the steam tug Prudence. Prom decrees for libelants (191 Fed. 903), defendant appeals.

W. Lambdin, Judge. Suit by the Union Trust Company against the Great Eastern Lumber Company, in which the Savannah & Northwestern Railway intervened. From the decree in favor of complainant, intervener appeals.

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of California.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts. Application for leave to apply to District Court for leave to amend answer.</p>

<p>In Error to the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p>