Volume 237 — Federal Reporter

<p>1. Commerce' <S=>8(6)—Master and Servant <§=>250%, New, vol. 15 Key-No. Series—Injuries to Servant—Actions—What Law Governs.</p> <p>Where the defendant railroad company was engaged in interstate commerce, a servant injured while engaged in interstate commerce may sue under the federal Employers’ Liability Act April 22, 1908, c. 149, 85 Stat. 65 (Comp. St. 1918, §§ 8657-8665), and that act and the federal Safety Appliance Act March 2, 1893, c. 396, 27 Stat. 531 (Comp. St. 1913, §§ 8605-8612), will govern the company’s liability.</p> <p>[Ed. Note.—For other eases, see Commerce, Dec. Dig. <@=>8(6).]</p> <p>2. Master and Servant <@=>111(1)—Duties—Safety Appliance Act.</p> <p>The duty of a railroad to comply with the federal Safety Applianco Act is absolute, and it is no excuse that the company exercised reasonable care and effort to comply with the law.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 215, 255Dec. Dig. <@=>111(1).]</p> <p>8. Master and Servant <@=>204(2), 228(2)—Injuries to Servant—Assumption op Risk—Contributory Negligence.</p> <p>Safety Appliance Act, § 2 (Comp. St. 1913, § 8606), declares that after a fixed date it shall be unlawful for any common carrier to haul or permit to be used on its line any car in moving interstate traffic not equipped with automatic couplers, while section 8 (section 8612) declares that any employé of any common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of the act shall not be deemed to have assumed the risk although continuing in the employment after the unlawful use had been brought to his knowledge. Federal Employers’ Liability Act, § 3 (Comp. St. 1913, § 8659), declares that, in all actions brought against any common carrier by railroad to recover damages for personal injuries, the fact that the employé may have been guilty of contributory negligence shall not bar recovery, but damages shall be diminished in proportion to the amount of negligence attributable to such employé, but no employé 'who may have been injured or killed shall be held to have heed guilty of contributory negligence, where the violation of any statute enacted for the safety of any employés contributed to the death of such employé. Section 4 (Comp. St. 1913, § 8660) declares that an employé shall not he held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for his safety contributed to bis injury or death. Plaintiff, a switchman, who went between the cars because the automatic coupler was broken, was injured when bis foot caught in a frog and other cars passed over him. Held that, as plaintiff would not have been in a position of danger had the coupling been in proper order, his action for damages cannot be defeated on the ground of contributory negligence or assumption of risk.</p> <p>®^>For other eases see same topic & KEY-NUMBillli in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 545, 671; Dec. Dig. <@=>204(2), 228(2).]</p> <p>4. Judgment <@=>248—Conformity—Pleading and Proof.</p> <p>In a negligence action, recovery can be had only on the case pleaded and proven.</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. <@=>248.]</p> <p>5. Master and Servant <@=>112(4)—Injuries to Servant—Railroad Com- . PANY.</p> <p>A railroad company is not liable for an accident due to an unblocked frog, though it may. be liable where a switchman caught his foot in a frog which had been originally blocked but had been allowed to fall into disrepair.</p> <p>[Bd. Note.—For other cases, see Master and Servant, Cent. Dig. § 221; Dec. Dig. <@=>112(4).]</p> <p>6. Master and Servant <@=>264(4)—Injuries to Servant—Actions—Evidence—Variance.</p> <p>The petition of a railroad switchman alleged that, because of a defect in'a coupler, he went between the cars, fixed the coupler with his hands, and gave the signal to back the other cars, but that, when he attempted to step from between the cars, his foot was caught in an unblocked switch or frog, or open space between two rails, and he was injured when the cars ran him down. Averments that the railroad company had negligently failed to block the switch were stricken. Held that,, as allegations in the petition as to the condition of the frog or switch contained in the recital of the accident were not stricken, evidence thereof was admissible despite the rule that the proof must be restricted to the allegations.</p> <p>[Bd. Note.—For other cases, see Master and Servant, Cent. Dig. § 865 ; Dec. Dig. <@=>264(4).]</p> <p>7. Appeal and Error <@=>1053(7)—Review—Harmless Error.</p> <p>In such case, the- admission of evidence concerning the frog was harmless, where the court charged the jury that there was only one question, and that was the condition of the coupler, and that if the couplers on the cars were intact and in good order there could be no recovery.</p> <p>[Bd. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4183; Dec. Dig. <@=>1053(7); Trial, Cent. Dig. § 977.]</p> <p><@=uFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal Law @=>1186(4)—Review—Technical Error—Indictment.</p> <p>Under Rev. St. § 1025 (Comp. St. 1913, § 1691), which provides that no Indictment shall be deemed insufficient by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant, an indictment is sufficient which contains a sufficient accusation of crime, and alleges facts which are sufficient in law to sustain a conviction, ánd which furnish the accused with such description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against future proceedings for the same offense.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3215; Dec. Dig. @=>1186(4).]</p> <p>2. Conspiracy @=>43(6)—Conspiracy to Violate Law of United States— Indictment.</p> <p>In an indictment for conspiracy to violate the laws of the United States, the conspiracy itself is the gist of the offense, and the law to be violated need not be set out with the particularity required if its direct violation were charged.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 86, 91; Dec. Dig. @=>43(6).]</p> <p>3. Monopolies @=>31—Anti-Trust Act—Conspiracy in Restraint of Trade —Indictment.</p> <p>An indictment for conspiracy in restraint of interstate trade or commerce, under Sherman Anti-Trust Act July 2, 1890, c. 64¡7, § 1, 26 Stat. 209 (Comp. St. 1913, § 8820), need not aver that defendants were engaged in interstate commerce, nor the doing of an overt act, nor that the conspiracy was successful.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. @=31.]</p> <p>4. Indictment and Information @=59—Description of Offense.</p> <p>When the definition of an offense, whether it be by common law or by statute, includes generic terms, it is not sufficient that an indictment charge the offense in the same generic terms, but it must aver the particulars.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig, §§ 180, 181; Dec. Dig. @=59.]</p> <p>5. Indictment and Information @=125(5%)—Duplicity—Conspiracy.</p> <p>A charge in a single count of a conspiracy to violate two or more laws of the United States does not render the indictment duplicitous.</p> <p>[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 381; Dec. Dig. @=125(5%); Conspiracy, Cent. Dig. § 81.]</p> <p>6. Criminal Law @=1149—Indictment and Information @=163—Motion for Bill of Particulars—Discretion of Court.</p> <p>A motion by tbe defendant in a criminal case for a bill of particulars is addressed to tbe discretion of the court, and its action thereon is not reviewahle.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3039-3043, 3058; Dec. Dig. @=1149; Indictment and Information, Cent. Dig. § 525; Dec. Dig. @=163.]</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>7. Monopolies <3==>29—Anti-Trust Act—“Combination in Restraint op Trade.”</p> <p>The National Association of Master Plumbers was formed prior to 1890, and at once took measures to prevent manufacturers and dealers in plumbers’ supplies from selling direct to consumers, by resolving not to patronize such manufacturers and dealers as refused to agree to such restrictions, and by adopting a system of espionage. This policy was continued after 1890, and so extended as to bind the members to restrict their purchases to manufacturers and dealers who sold only to members of tbe association, excluding all other customers, although they might also be master plumbers. Members were listed in a book issued and distributed by the association. Held that, on the enactment of the Sherman Anti-Trust Act, the association became an illegal combination in restraint of interstate trade, and that any member who thereafter joined or affiliated with it, with knowledge of its illegal purposes and methods, was guilty of a criminal offense under section 1 of the act.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 19; Dec. Dig. <&=a20.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Combination in Restraint of Trade.]</p> <p>8. Monopolies <S=»31—Anti-Trust Act—Prosecution por Conspiracy in Restraint op Trade—Evidence.</p> <p>On the tria] of members of the association for criminal conspiracy in restraint of interstate trade, the official record of the proceedings of the association, showing the resolutions passed declaring its purposes, and the methods adopted for carrying them out, was admissible in evidence.</p> <p>[Ed. Note.—For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. <S=»81.]</p> <p><gs»For other cases see same topic & KEY-NUftíBER in all Key-Numbered Digests & Indexes</p>

Action at law by the Erankfurt-Barnett Company against the William Prym Company, Limited. Judgment for defendant, and plaintiff brings error. This action was commenced in the Supreme Court, state of New York, on October 17, 1914, and upon motion of defendant was removed by that court to the United States District Court, on the ground of diversity of citizenship.

<p>L Words ,and Phrases—“Repair”—“Improvement.”</p> <p>The word “repair,” as defined by Webster: “Act of repairing; restoration or state of being restored, to a sound or good state aft.er decay, waste, injury, etc.”—is applied by courts in the construction of statutes and contracts. The word “improvement,” defined by the same authority as “a valuable addition or betterment as a building, clearing, drain, fences, etc., on land,” is a broader word,than “repair,” but includes the latter and is also practically applied by the courts.</p> <p>[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Improvement; Repair.]</p> <p>2. Landlord and Tenant <@=>29(1)—Leases—Validity and Construction—>■ Effect of Subsequent Legislation.</p> <p>Defendants leased a large hotel building from plaintiff’s grantor for a term of years. The lease required them to operate a first-class hotel on the premises, and they agreed to “accept the premises » * * in the condition which they are now in and hereby further covenant and agree to beep the same on the inside of said building in good repair, and to make all improvements and repairs which may be necessary during the term of this lease at their own cost and expense.” For the latter purpose they were to be allowed a credit of $3,000 on rent. The lessor covenanted to keep in repair the exterior of the building during the term of the lease in as good condition as it then was. The building was then equipped with outside fire escapes in compliance with the state law, which however also required interior standpipes, or in their absence outside standpipes, and the building had neither. The statute imposed the duty of providing such equipment, under penalty on both “proprietor and lessee.” During the term of the lease a law was enacted (Laws Minn. 1913, c. 569, § 8; Gen. St. 1913, § 5120) requiring stairways as fire escapes on the outside of such buildings, to be supplied within six months, instead of ladders as were on the leased building, and making it a misdemeanor for any one to lease such a building without first complying with its provisions. Defendants remained in possession for nearly a year after the passage of such act without making any demand for the installation of such fire escape, and then abandoned the lease refusing to pay rent for the .latter part of their occupancy. In an action to recover the rent, held, that the lease when made was valid, the obligation to construct the inside standpipes being by its terms imposed on defendants; that, assuming that it did not also impose upon them the duty of building the outside stairways required by the subsequent statute' as “improvements,” such statute did not make prior valid leases invalid and unenforceable, and that the direction of a verdict for defendants was error.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eon other cases, see Landlord and Tenant, Cent. Dig. § 85; Dec. Dig. <§=529(1).]</p>

Action at law by the Ramey Lumber Company, Limited, against the John Schroeder Lumber Company. Judgment for defendant, and plaintiff brings error. Held: The contract to be void for want of certainty and mutuality. (2) That defendant was ignorant of conditions as to volume of lumber which plaintiff could produce. (3) That certain of the lumber was not up to contract quality. (4) That said lumber was being shipped too rapidly.

<p>1. Pledges <@=>16(2)—Parol Evidence—Admissibility.</p> <p>Where the property and securities of a, defendant bank were transferred to another bank under a written instrument providing that the transferee should discharge the debts and obligations of defendant, evidence of a parol agreement, whereby defendant agreed to indemnify the transferee should the assets be insufficient to discharge all debts and liabilities, is admissible to show that the instrument was not a sale but a pledge; equity looking to the substance and not the form.</p> <p>[Ed. Note.—For other cases, see Pledges, Cent. Dig. §. 25; Dec. Dig. <@=>16(2); Evidence, Cent. Dig. § 2136.]</p> <p>2. Sales <S=6—Instrument—Construction.</p> <p>By written agreement, defendant bank transferred its assets to another bank, which agreed to discharge the debts and liabilities of defendant bank. Individuals named as parties of the second part, who signed the contract guaranteed at the end of three years, should the assets be insufficient to discharge all debts and liabilities, to indemnify the transferee; it being further agreed that, should the guarantors pay any such deficiency, the transferee would deliver to them all assets not reduced to cash. About a year later, the defendant bank executed a note for a large sum and delivered it to the transferee bank as evidence of the indebtedness then existing, and subsequently, the indebtedness having been reduced, a note for a lesser amount was given. Held), that the contract was not one of sale, but was a conveyance to enable the transferee to pass title to the assets of the defendant) bank and dispose of them for the payment of debts, and therefore, defendant bank being bound to reimburse its transferee, one who subsequently purchased the stock of defendant bank cannot complain of the execution of the notes.</p> <p><®33Por other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 14; Dec. Dig. @=>6.]</p> <p>3. Banks and Banking @=>45—Stockholders—Rights oe.</p> <p>Where defendant bank, which was in difficulties, transferred its assets to another institution, which agreed to pay its debts and liabilities, one who subsequently purchased stock of the defendant bank could hot, the debts having exceeded the assets, reclaim assets remaining before he had paid the amount of indebtedness for which defendant was liable to its transferee.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 61; Dgc. Dig. @=>45.]</p> <p>@=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

H. Pope, Judge. Dee Moy and Sam Hee were convicted under Penal Code, § 37, of conspiracy to commit an offense by bringing into the United States Chinese persons not lawfully entitled to enter or remain in the country, and by aiding and abetting therein, in violation of Act May 6, 1882, § II, as amended by Act July 5, 1884, and they bring error.

Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge. In the matter of the Eamar-Wells Company, alleged bankrupt. On petition of the Hamilton Company and others, the Eamar-Wells Company was adjudicated a bankrupt, and it petitions to superintend and revise a decree of the District Court.

<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 Hannah Page against the Dee Dine Steamers. There was judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error. @=>784—Mode op Review—Appeals.</p> <p>In view of Judicial Code, § 274a, as added by Act Marcb 3, 1915, c. 90, 38 Stat. 956, declaring that, though a suit at law should have been brought in equity or a suit in equity should have been brought at law,, the courts shall order amendments to the pleadings as shall be necessary to conform them to the proper practice, and Act Sept. 6, 1916, § 4, declaring that no court having power to review shall dismiss a writ of error solely because appeal should have been taken, or dismiss an appeal solely because a writ of error should have been sued out, an appeal from the Supreme Court of Porto Rico fn a case turning upon questions of law only will not be dismissed, because review should have been sought by writ of error.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. @=>784.]</p> <p>2. Courts @=>387(4)—Precedence—Porto Rico—Local Laws.</p> <p>A decision of the Porto Rico Supreme Court that under its Civil Code (sections 1110-1112) one who signs a note as a principal debtor is governed by the form, and cannot show himself to be a surety, relating to a matter of the local law, will not be disturbed by a reviewing court, unless clearly erroneous.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1037; Dec. Dig. @=>387(4); Appeal and Error, Cent. Dig. § 3397.]</p> <p><§E5>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dyer, Judge. Bill by the General Film Company of Missouri, a corporation, against the General Film Company of Maine, a corporation, which filed a cross-bill. From a decree for defendant on its cross-bill, complainant appeals.

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>In the matter of the bankruptcy of Horrell & Criss. Petition for reclamation by the Regal Shoe Company, opposed by E. M. Bransford, trustee in bankruptcy. On certificate from the referee, an order denying the petition was reversed, and petition granted, whereupon E. M. Bransford, trustee, petitions to superintend and revise the order.</p> <p>The following is tire opinion of Meek, District Judge, in tire court below;</p> <p>Horrell & Criss, a mercantile corporation, doing a retail clothing and shoe business in the city of Ft. Worth, Tex., was adjudged a bankrupt on the -day of-, 1915, on its voluntary petition. A receiver was appointed and, having qualified, took charge of the bankrupt stock of merchandise, including a stock of shoes shipped to the bankrupt by Regal Shoe Company, of Boston, Mass.' Later a trustee of the bankruptcy estate, being appointed and having qualified, took possession of the stock of merchandise, including the stock of shoes. Regal Shoe Company intervened and claimed title to the shoes, and asked that they be returned to it by the trustee. The trustee denied this claim of title. Pending settlement of the issue thus made, the shoes, on account of prospective rapid deterioration in value, were sold for an agreed price, and the sum so realized is the present subject of controversy. After hearing, the referee in bankruptcy found from the evidence that title to the shoes had passed to the bankrupt, and so entered an order denying the prayer of the Regal Shoe Company for the proceeds resulting from their sale. That company seeks this review.</p> <p>On August 7, 1911 the Regal Shoe Company entered into a written contract with Horrell & Criss wherein the former agreed to consign to the latter certain shoes not to exceed in value the sum of $5,000. This contract was to be in force for a period of 18 months from its date. Horrell & Criss agreed not to permit any of the merchandise so consigned to be removed from its store until sold or returned to- Regal Shoe Company in accordance with the terms of the contract; that Horrell & Criss would properly care for said goods and indemnify and save harmless Regal Shoe Company from all loss, cost, or expense arising from loss or damage to said' goods, caused by fire, accident, or otherwise; that it would at its own expense keep all of said goods properly insured in the name of the Regal Shoe Company to an amount and in a company satisfactory to that company; that it would use its best endeavor to sell the goods so consigned; that it would allow the party of the first part at any time to make a detailed inventory of the consigned goods then on hand; that it would keep accurate and complete• books of account with reference to the goods consigned under the contract and the sale thereof, which books, together with all statements and memoranda concerning same, should a.t all times be open to the inspection of Regal Shoe Company; that it would on the first of each month render Regal Shoe Company a complete, accurate, and detailed statement of the sales of said consigned goods made by Horrell & Criss during the preceding month, and that it would at that time turn over in cash'to Regal Shoe Company'the purchase price and one-half of the selling allowance of all consigned goods sold by it during said preceding month, said purchase price to be equal to the invoice valuation of said goods sold; that it would at any time on demand forthwith return to the party of the first part any and all goods consigned as aforesaid and then unsold.</p> <p>Clause (g) of the contract provided as follows: “That upon the termination of this agreement it (Horrell & Criss) will (and its executors and administrators shall) purchase of the party of the first part (Regal Shoe Company), all consigned goods then on harid at invoice prices and terms.” The contract made further provision that “all goods consigned hereunder shall be and remain the property of! the party of the first part until sold, and thereupon the title to the proceeds arising from such sale shall likewise vest in the party of the first part until the purchase price has been turned over in accordance with the terms hereof.” It further provided that: “This agreement may be terminated at any time by the party of the first part upon the breaching of any of the terms and conditions hereof by the party of the second part. It may also be terminated by party of the first part at any time by giving thirty days’ notice in writing to that effect to the party of the second part. A termination of this agreement shall in no manner affect the title of the party of the first part to the goods consigned hereunder and to the proceeds arising from the sale of such goods.”</p> <p>At the termination of the contract period Horrell & Criss did not purchase the consigned goods then on hand. Instead, on March 1, 1913, a few days after such expiration the following agreement was entered into: “It is mutually agreed that the agreement made on the 7th day of August, 1911, between Regal Shoe Company, of Boston, Mass., and Horrell & Criss of Ft. Worth, Tex., regarding the local agency at said Ft. Worth, is hereby continued without change until February 7, 1914, subject to the same conditions, and that this rider shall be attached to and be made a part of the original contract.” A few days after the expiration of the period as thus extended and on, to wit, February 14, 1914, a further contract was entered into in terms identical with the above extending the agreement until February 7, 1915.</p> <p>The record and exhibits accompanying the certificate of the referee abundantly reveal that Regal Shoe Company and Horrell & Criss acting in good faith, entered into the contract of August 7, 1911; that they were agreed as to its terms and their meaning; that in so far as the exigencies of trade permitted they observed and complied with the terms of the contract as above outlined during the entire period for which it was made to run, to wit, 18 months. This contract has in it all the provisions usually found in a contract by the terms of which merchandise is consigned by a manufacturer to an agent, or retailer, for sale for the account of the manufacturer—the title to the merchandise remaining in the latter until sold. It would be so construed without question, were it not for the presence therein of clause (g) with its provisions and what has transpired between the parties with relation thereto.</p> <p>[1] As stated above, upon the termination of the contract period Horrell & Criss did not purchase the consigned goods then on hand; but, instead, a few days after such termination, entered into an agreement, designated a “rider” which was attached to the original contract, and stipulated that the original contract with its terms should bei in effect and control the relation of the parties for another term. A few days after the termination of the extended term another extension of the original contract was undertaken to be made by a “rider” identical with the former one. It does not appear from the record that, between the time of the termination of the original contract and the execution of the respective “riders,” the rights of any third party or parties intervened. After execution by the parties of the respective “riders,” they continued to do business under and comply with the terms of the original contract, thus revealing their good faith and indicating their purpose and intention. Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the court in giving effect to its provisions. And the subsequent acts of the parties, showing the construction they have put upon the agreement themselves, are to be looked to by the court and in some cases made controlling. 9 Oye. 58S.</p> <p>The parties have the undoubted right to make their own contract, and to put their own construction upon it, and to regulate their rights and liabilities thereunder. If the court leaves the parties to be governed by their own ■understanding of their own language, it in effect enforces the contract as actually made. That they should be so permitted to construe their own agreement accords with every principle of reason and justice. Metropolitan National Bank v. Benedict Co., 74 Fed. 182, 20 C. C. A. 377. “And when both parties to a contract, acting in good faith, are agreed as to its meaning and their rights under it a stranger having no interest in the subject-matter of the contract cannot insist that a different interpretation shall be put upon it, or compel the parties to put that interpretation upon it which will benefit him. The law will not override the will of the parties in the construction of their own contracts, for the benefit of a third party, whose interests are not affected thereby, or who acquired his interest with full knowledge of what the parties conceded and agreed was their contract.” Metropolitan National Bank v. Benedict Co., supra.</p> <p>[2] The trustee contends that there was no consideration for the attempted renewal of the contract through the “riders,” and that therefore, upon the expiration of the contractual period, the shoes in virtue of the provisions of section (g) by absolute sale became the property of Horrell & Criss. Therefore what, if any, consideration was given in the attempted renewals through the “riders” ? In addition to the parties’ agreeing to an extension of the terms of the original contracts, with its consequent liabilities upon both parties, the renewals by such “riders” were in and of themselves a sufficient consideration. Parties may change or modify a contract by a subsequent one, and both of these may be modified by a third. Davis Brothers v. Dallas National Bank, 7 Tex. Civ. App. 41, 26 S. W. 222; Ellet-Kendall Shoe Co. v. Martin, 34 Am. Bankr. Rep. 502, 222 Fed. 851, 138 C. C. A. 277.</p> <p>A strong evidential fact that Horrell & Criss considered title to the merchandise to be in Regal Shoe Company is the fact that Regal Shoe Company was not listed as a creditor of the bankrupt, nor were the shoes in question included in the assets. The contention of the trustee cannot, in my opinion, rightly be upheld. The referee erred in denying the claim of the shoe company to the shoes in question and consequently to the fund resulting from their sale.</p> <p>The order of the referee, denying the right of claimant and directing such fund to be turned over to the trustee for distribution under the terms of the bankruptcy law, will stand reversed, and an order will be entered directing the fund to bé turned over to the Regal Shoe Company.</p>

<p>In Error to the District Court of the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.</p> <p>Action by Ada T. Stewart against the Prudential Insurance Company of America, a corporation. There was a judgment for plaintiff, and defendant brings error.</p>

J. Hamilton, Judge. Proceeding by Welch & Co. against the Central San Cristobal, Incorporated, in which one Juan R. Garzot and another intervened; the motion for intervention.being opposed by Alexander R. O’Neill, receiver, and others. From a decree denying the petition of the interveners, they appeal.

<p>1 Bankruptcy @=165(1)—Preference—Vacation.</p> <p>Within four- months of proceedings in bankruptcy, and at a time when the bankrupt was insolvent and the defendant bank knew it, the bankrupt transferred to defendant as security for an antecedent debt fire policies under which a loss and claim had arisen. The hank collected the policies,, credited the amounts to the bankrupt on its books, and received his check in payment of a mortgage, which the hank discharged, given by the bankrupt, on lots on which the burnt buildings stood. The bank ha.d no lien on the policies or* their proceeds, hut had it enforced its mortgage its debt or the major portion would have been,satisfied. Held, that the transaction could not be sustained on the theory that the bank, by reason of its mortgage on the lots, was not in the same class with unsecured creditors, and was entitled to obtain full payment in any way it could from general assets, while the remedy of the trustee was to assert by way of subrogation the mortgage lien which the bank had discharged, for as to the policies the bank was an unsecured creditor.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 266; Dec. Dig. @=165(1).]</p> <p>2. Bankruptcy @=326—Claim—Set-Off.</p> <p>No right of set-off in the bank results from the assignment of the policies, collection and deposit of the proceeds to the bankrupt’s credit, and the receipt of the bankrupt’s check in payment of its demand in the action by the trustee to recover the preferential payment.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 514; Dec. Dig. @=326.]</p> <p>3. Bankruptcy @=311(1)—Preference—Vacation.</p> <p>Where a decree for the amount of a preferential payment was recovered by the trustee of the bankrupt, the creditor against whom decree was had may prove his claim as a general creditor upon satisfying the decree.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 497-499; Dec. Dig. @=311(1).]</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action by Maude Allen against the Travelers’ Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Eastern District of Arkansas.</p> <p>Action by the United States of America against J. B. Lewis and Others. There was a judgment for defendants, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.</p> <p>Action by Smith & Co., Limited, against the Kingfalfa Mills. There was a judgment for defendant, and plaintiff brings error.</p>

Meek, Judge. In the matter of J. J. Eangever, bankrupt. J. W. Stitt, trustee, refused to set aside as exempt a diamond ring possessed by the bankrupt, and on certificate the order of the referee denying the exemption was affirmed, whereupon the bankrupt appeals. The following is the opinion of Meek, District Judge: At the-time J. J. Langever filed his voluntary petition in bankruptcy, the record reveals he was the head of a family, residing in Ft. Worth, Tex.

<p>1. Patents <©=>114—Suit to Obtain Patent—Effect of Patent Office Decision.</p> <p>While the decision of the Court of Appeals of the District of Columbia in an interference proceeding is not conclusive in a subsequent suit by the defeated applicant to obtain the issuance of a patent under Rev. St. § 4915 (Comp. St. 1913, § 9460), even though the evidence is the same, the District Court must be convinced that it furnishes no substantial support for the decree before it will be justified in overturning the same.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 166; Dec. Dig. <©=>114.]</p> <p>2. Patents <©=>114—Patent Office Decision.</p> <p>This rule is applicable, whether the controversy bears on the credibility of witnesses and the weight of evidence, or on questions peculiar to patent laws, such as the construction and scope of the patent application.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 166; Dee. Dig. <@=>114.]</p> <p>3. Patents <@=>114—Suit to Obtain Patent—Issues and Peoof.</p> <p>In a suit under Rev. St. § 4915, to obtain the issuance of a patent, the issue is not limited to the question of priority of invention between the parties, but to entitle complainant to a decree he must fully establish his right to the patent. • •</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 166; Dec. Dig. <©=>114.]</p> <p>4. Patents <@=>328—Suit to Obtain Patent—Hose Coupler.</p> <p>Complainant in a suit under Rev. St. § 4915, held not to have established his right to a patent to the invention covered by the Gold patent, No. 948,667, for a coupler for hose for connecting the steam-heating pipes of railway cars.</p> <p><§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District •of Massachusetts; Frederic Dodge, Judge.</p> <p>Bill by Fthelbert A. Moore against the Wright Wire Company. From a decree dismissing the bill, complainant appeals.</p>

<p>In Equity. Suit by the Bijur Motor Lighting Company against the Eclipse Machine Company and Vincent Bendix.</p>

<p>In Equity. Suit by the Grinnell Washing Machine Company against the Clarinda Lawn Mower Company.</p>

In the matter of the petition of the City of Seattle to condemn, appropriate, and damage private property for the purpose of protecting the supply of fresh water of the city from pollution, as provided for and specified in Ordinance No. 35647 of said city. On petition of the Chicago, Milwaukee & St. Paul Railway Company and another, the cause was removed to the federal courts. On motion to remand.

<p>Bankruptcy <@=>116—Money in Custody of Court—authority of Court.</p> <p>The bankrupt and another were indicted for conspiracy to conceal assets from the trustee. Petitioner was arrested in another district, and at that time a sum of money was found upon his person, whereupon he consented to the forwarding of the money to the bankruptcy court, stating that, if it was decided in the bankruptcy proceedings the money belonged to the bankrupt, he was willing to relinquish it, but asserting that the money belonged to him. Thereafter petitioner filed in the bankruptcy proceedings a petition for delivery of the nioney to him, to which payment creditors objected. Bold) that, in view of Bankr. Act July 1, 189S, c. 541, §§ 60b, 67e, 70e, 30 Stat. 562, 564, 565 (Comp. St. 1913, §§ 9644, 9651, 9654), providing for vacation of preferences, for recovery of property transferred by the bankrupt within four months of bankruptcy, and for the avoidance of transfers which creditors might have avoided, the court of bankruptcy should retain the money until the right thereto was adjudicated, and the trustee should be required to join issue on the petition.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Dec. Dig. <@=>116.]</p> <p>«g^pFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Provident Life & Trust Company and Catherine Stewart Wood, as executors of tire will of William Brewster Wood, deceased, against Austin B. Fletcher, as testamentary trustee of Conrad Morris Braker, under the will of Conrad Braker, Jr., deceased, and Conrad Morris Braker.

<p>1. Bankruptcy <®=>180—Fraudulent Transfers—Intent—Evidence.</p> <p>To constitute a fraudulent conveyance, voidable under Bankr. Act July 1, 1898; c. 541, § 67e, 30 Stat. 564 (Comp. St. 1913, § 9651), there must have been an actual intent to hinder, delay, or defraud creditors, and the measure of proof required to establish such intent is the same that would be required to set aside a conveyance as fraudulent against creditors at common law. Evidence which only justifies a suspicion of fraud is not sufficient.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 252, 253; Dec. Dig. <§=»180.]</p> <p>2. Bankruptcy <®=s>184(2)—Preferences—Transfers of Property—Recording Laws.</p> <p>A state statute requiring conveyances of real estate to be recorded to render them valid against subsequent purchasers or incumbrancers in good faith without notice, but under which they are valid without recording as against general creditors of the grantor, is not a law requiring them to be recorded, within the meaning of Bankr. Act 1898, § 60a, as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 (Comp. St. 1913, § 9644), and for the purposes of the act a conveyance in such state is effective from its date.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 276; Dec. Dig.'@=lS4(2).]</p> <p>^=cFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the Milton Manufacturing Company against the Chicago, Burlington & Quincy Railroad Company, in which Henry C. Taylor, trustee, intervened. On demurrer to the petition and petition of intervention.

<p>1. Trade-Marks and Trade-Names <@=>93 (3)—Trade-Mark—Right to.</p> <p>While the mere adoption of trade-mark confers no property right, a single instance of user, with accompanying circumstances showing an intention to continue the use of trade-name or trade-mark is sufficient to establish a right to its use.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 106; Dec. Dig. <@=>98(3).]</p> <p>2. Trade-Marks and Tbade-Names <@=>40—Persons Entitled to Attack.</p> <p>Where complainant adopted a trade-mark for motor cars, it intended to place on the market and had built two ears bearing such trade-mark, defendant, having contracted to build cars so marked for complainant, cannot, particularly as it thereafter disposed of cars bearing such trademark, and as complainant had spent large sums in introducing the trademark to the trade, deny complainant’s right to the same.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 45; Dec. Dig. <@=>40.j</p> <p>8. Tbade-Mabks and Tbade-Names <@=>40—Contracts—Breach.</p> <p>Where defendant agreed to manufacture motor cars for complainant, the same to be delivered monthly, and time was of the essence of the contract, defendant’s failure to deliver one installment of the cars according to contract warranted complainant in rescinding the whole contract, where slight changes in the structure of the cars had not necessitated a delay, and defendant had requested none, while payments for which complainant was liable had not accrued, and so defendant was not entitled to dispose of the cars under the provision allowing it to use complainant’s trade-mark in case of the latter’s breach.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §. 45; Dee. Dig. <@=>40.]</p> <p>4. Tbade-Mabks and Trade-Names <@=>98—Damages—Measure.</p> <p>Where defendant sold goods under complainant’s trade-mark, any profits made by defendant in violation of the trade-mark rights of complainant are recoverable, including damages to its business, regardless of any profit which would have been made by complainant.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. <©=>98.]</p> <p>5. Trade-Marks and Trade-Names <@=>98—Violation—Damages.</p> <p>Defendant agreed to manufacture motor cars for complainant, which complainant had contracted to sell to the trade. Defendant breached its contract, whereupon complainant rescinded the ~ entire contract, and defendant made sales, wrongfully using complainant’s trade-mark. Held, that while the profits which complainant would have made on the cars should be taken into consideration, yet as complainant is entitled to recover any profits made by defendant, as well as' damages for injuries to its business, the difference between complainant’s manufacturing and selling prices are not necessarily the measure of damages, but the profits should be ascertained by an accounting.</p> <p><&3>For other cases see same topic & KEY-NUMBEB, in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. <S==>98.]</p> <p>6. Damages <S=»22—Breach of Contract.</p> <p>Where defendant breached a contract to manufacture motor cars for complainant, damages recoverable are those flowing directly and pioximately from defendant’s breach.</p> <p>[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 59-61, 63; Dec. Dig. <@=»22.]</p> <p><£^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Bills by the Copper Queen Consolidated Mining Company, a corporation, against Wiley E. Jones and others and W. P. Geary and others to enjoin enforcement of Civ. Code Ariz. 1913, pars. 2228, 2243, on the ground that they are unconstitutional.

In Bankruptcy. Jn the matter of the bankruptcy of the Footville Condensed Milk Company. The claim of Charles Demerow was allowed by the referee as a preferential claim owing to a clerk, servant, or workman, etc. In the matter of the bankruptcy of the Valeria Condensed Milk Company. The claim of Phillip Meister was allowed as preferential because owing to a clerk, servant, or workman, etc. Proceedings to review the allowance of such claims.

In Bankruptcy. In the matter of the bankruptcy of Arthur S. Braus. On objection by Frederick T. Van Beuren and others to bankrupt’s petition for discharge. This cause comes up upon a petition for discharge. Certain creditors have objected, on the ground of a fraudulent transfer under the following circumstances: The bankrupt was engaged in the cloak and, suit business for about 15 years, having 20 stores scattered about, of which 7 were in the city of New York.

<p>In admiralty. Libel by John A. Clyma against the steamship Ixion, her apparel, tackle, and furniture. On exceptions to libel.</p>

Suit by Emilia-Victoria Henna and others against Sauri & Subirá and others. A judgment for defendants was affirmed by the Supreme Court of Porto Rico, and plaintiffs appeal.

, Actions at law by Chester W. Lane and by the Interior Elevator Company against Joseph Leiter. Judgment for defendant, and plaintiffs bring error. These actions, commenced September 30, 1911, arise out of the same transactions and were tried together. The first was on a note for $58,034.92, made to Monarch Elevator Company, indorsed to plaintiff in error, an officer of payee, who took title merely for convenience, and does not claim to be a holder in due course.

Libel of information by the United States of America and others against Twenty-Two Barrels of Potatoes and other property claimed by Hilaire Daigle. There was a judgment of forfeiture, and claimant brings error.

Dyer, Judge. Action by David Sidey against the City of Marceline, in the County of Linn, and State of Missouri. There was a judgment for defendant, and plaintiff brings error.

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by P. W. Williams against the Home Insurance Company of New York. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by P. W. Williams against the London & Lancashire Fire Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Trusts <@=>63%—Creation—Assumption of Debts—Novation.</p> <p>A bankrupt merchant’s offer of a composition, to be paid partly in cash and partly in notes, having been accepted, and the bankrupt being unable to make the cash payment, his property was transferred to a corporation formed to carry on the business, which assumed payment of the composition notes, as well as advances made by the principal creditor to make cash payments to those creditors who would not waive them. Held, that as the transfer to the corporation was absolute, the creditors reserving no lien, there was no trust or trust relation which could be asserted by the creditors, whereby they could reach the property conveyed.</p> <p>[Ed. Note.—For other cases, see Trusts, Cent. Dig. §§ 91, 92, 98, 99, 100; Dec. Dig. <@=>63%.]</p> <p>2. Bankruptcy <@=>164—“Preference”—What Constitutes.</p> <p>In such case, where there was no agreement by the other creditors that the principal creditor, who made advances to assist the corporation, should have priority over them, it appearing that all the creditors deemed a substantial equity would remain for the bankrupt after payment of the composition notes, a payment to the principal creditor on account of his advances, the corporation having become bankrupt, constitutes a “preference,” where in derogation of the rights of other creditors.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 267; Dec. Dig. <@=sl64.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Preference.]</p> <p><&zaFor other cases see same topic & KEY-NUMÉEK in all Key-Numbered Digests & Indexes</p>

Lewis, Judge. Action by the United States against William A. Trogler, E. W. Keitel, E. M. Dorsey, H. S. Dorsey, the Commonwealth Trust Company, and others. Decree for the United States, with order of sale, and from the action of the District Court in declining to enter a modified decree, asked for in á stipulation presented by the United States and the Dorseys, the United States and the Dorseys appeal.

<p>In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.</p> <p>Action by Fred C. Eastham against the United States Cast Iron Pipe & Foundry Company. There was a judgment for plaintiff, and defendant brings error.</p>

Riner, Judge. Bill by the Continental & Commercial Trust & Savings Bank, as trustee, and others, against the North Platte Valley Irrigation Company and others. From the decree adjudging priorities in the property, complainants appeal.

On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Eastern District of Virginia, at Norfolk, in Bankruptcy; Edmund Waddill, Jr., Judge. In the matter of A. L. Hyman, bankrupt.

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

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Ed. Chancellor was convicted of violating Act March 1, 1895, by introducing intoxicating liquor from without into that part of the state of Oklahoma which was formerly Indian Territory, and he brings error.</p>

Action by the Fajardo Sugar Company against Allan H. Richardson, Treasurer of Porto Rico. A judgment for plaintiff was affirmed by the Supreme Court of Porto Rico, and defendant brings error and appeals.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur U. Brown, Judge.</p> <p>Suit in equity by the Central Railway Signal Company against the Metallic Shell & Tube Company. Decree for defendant, and complainant appeals.</p>

Suit in equity by the Fowler Car Company against the Chicago, Burlington & Quincy Railroad Company. Decree for defendant, and complainant appeals. From a decree dismissing its bill for infringement of certain patents, plaintiff appealed. Appellant is the owner of the Murray patent, No. 967,412, issued August 16, 1910, and also of the Fowler reissue patent, No. 13,561, issued May 13, 1913. The original Fowler patent, No. 962,425, was issued June 28, 1910.

<p>In Equity. Suit by the Snook-Roentgen Manufacturing Company against the Stetson Hospital of Philadelphia. On final hearing.</p>

In Equity. Bill by Hugh Bronson against the Boards of Supervisors of Emmet and Kossuth Counties, in the State of Iowa, and others. On motion to dismiss the bill for lack of jurisdiction and want of equity.

<p>1. Removal of-Causes ¡@=>49(3)—Separable Controversies—What Constitutes Separable Controversy.</p> <p>In a servant’s action against a master and vice principal or general foreman, financially interested in tbe work being done, for injuries received through, the negligence of the master and vice principal, there is no separable controversy,, the tort being a joint one, and where the servant and vice principal were residents of the same state, the master, though a resident of another state, has no right to remove the cause to the federal courts on the ground of a separable controversy.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Removal of Causes, Cent. Dig. § 97; Dee. Dig. @=49(3).]</p> <p>2. Removal oe Causes @=61—Right to Removal—Fraudulent Joinder.</p> <p>While the cause of action, the subject-matter of the controversy, is whatever plaintiff declares it to be in his complaint, nevertheless, where a fraudulent joinder of a party defendant to defeat the right of removal to the federal court is charged in the petition for removal, that issue forms the basis upon which the proper forum is to be determined.</p> <p>[Ed. Note.—Eor other cases, see Removal of Causes, Cent. Dig. § 115; Dec. Dig. @=61.]</p> <p>3. Removal oe Causes @=36—Fraudulent Joinder oe Defendants—What Constitutes.</p> <p>For a servant of a mining company, who sued in a state court for injuries by the detonation of an unexploded charge of dynamite to join the master’s vice principal with the master on the theory that the vice principal, who was financially interested in the work was reckless and negligent, does not show a fraudulent joinder intended to defeat the jurisdiction of the federal court, though the vice principal was a citizen of the same' state as the servant and the master was a citizen of another state, there being such a relation between the master and vice principal as would make the tort a joint one.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. @=36.]</p> <p>4. Removal of Causes @=36—Right to Removal—Matters to • be Determined.</p> <p>In determining the right of a defendant, charged with a joint tort, to remove .the cause to the federal court, on the ground that the joinder with his codefendant was fraudulent, the questions of defendant’s liability, or the sufficiency of the pleadings to show liability, cannot be decided; those being matters for the trial court, and not affecting the right of removal. '</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. @=36.] *</p> <p>@=For oilier cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>1. Injunction @=>136(3)—Preliminary Injunction — Grounds — Nature ’and Extent of Injury. Tlie balance of convenience or hardship frequently is a factor of controlling importance in cases óf substantial doubt existing at the time of granting or refusing a preliminary injunction; but the injunction should usually be granted, where its denial would result in irreparable injury to complainant, if ultimately successful in the suit. [Ed. Note.—For other cases, see Injunction, Cent. Dig. § 306; Dee. Dig. @=>136(3)].</p> <p>2. Perpetuities @=>8(7)—Religious or Charitable Purposes—Limitation of Beneficiaries.</p> <p>Lands may validly be dedicated in perpetuity for a religious or charitable use, although the enjoyment thereof may not extend to the public at large, but only to the limited portion included in a certain congregation or society, incorporated or unincorporated.</p> <p>[Ed. Note.—For other cases, see Perpetuities, Cent. Dig. §§ 63, 64, 66; Dee. Dig. @=>8(7).]</p> <p>3. Cemeteries @=>13—Gift to Religious Society—Power to Sell.</p> <p>In 1737 the owner conveyed certain real estate in Wilmington, Del., in fee to the trustees, overseers, and elders of the Presbyterian Church and their successors, “for the use of a meeting house, burying ground, and such other pious uses forever.” At that time the church was an unincorporated society, having no legal status, but in 1744 an act was passed which confirmed all prior grants for such purposes to Protestant societies, but only for the use of the same religious societies for whom they were first granted, “according to the true intent and meaning” of the grant. In 1787 another act made the trustees of the churches bodies corporate. A part of the property was set apart for a burying ground, and has been maintained as such ever since. There have been 1,000 or more interments therein, although none in' very recent years. The grounds have been kept in good condition, with walks and trees, and there are monuments and a number of tombs thereon. In 1843 the church sold and conveyed to complainants’ ancestor and to his heirs and assigns a lot in the cemetery, upon which an expensive monument has been built and a tomb, where such ancestor and other relatives of complainants are buried. Held: (1) That the original grant impressed upon the land a religious or pious use in perpetuity, and that defendant church, as successor to the original grantees, holds the title in trust for such use, and as against lot owners without power of alienation for secular uses, even under a subsequent general statute conferring power to convey property; (2) that the conveyance of the lot to complainants’ ancestor vested him with title in fee, subject to such proper regulations as might be made for the government of the cemetery.</p> <p>©=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Cemeteries, Cent. Dig. § 14; Dec. Dig. <@=>13.]</p> <p>4. Deeds <@=>31—Execution—Errob in Name of Corporation Grantor.</p> <p>A deed lield not invalid because of its execution in the name of the-“trustees of the First Presbyterian Church of the borough of 'Wilmington,” instead of “the First Presbyterian Congregation of the borough of Wilmington,” which was the true name; it appearing that the same church corporation was intended.</p> <p>[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 60-63; Dec. Dig. <@=>31.]</p> <p>5. Vendor and Purchaser <@=>235—Bights of Parties—Bona Fide Purchaser.</p> <p>One who has contracted for the purchase of land and made a very small payment of earnest money, the remainder to be paid on the furnishing of a good title by the vendor, is not protected as a bona fide purchaser.</p> <p>TEd. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 567-569, 571-576; Dec. Dig. <@=>235.]</p> <p>6. Evidence <@=>372(3)—Ancient Documents—Proof of Execution.</p> <p>A deed to a cemetery lot more.than 73 years old, shown to have been in proper custody, and under which the grantee and his successors have since used and improved the lot for burial purposes, proves itself: as an ancient document.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1615; Dee. Dig. <@=>372(3).]</p> <p>7. Cemeteries <@=20—Title and Bights of Owners of Lots—Enjoining Wrongful Trespass.</p> <p>A court of equity at the instance of proper parties has power to restrain the threatened wrongful destruction or removal of tombs, vaults, monu.ments, or bodies from a cemetery, or wrongful injury thereto or to the burial premises.</p> <p>[Ed. Note.—For other cases, see Cemeteries, Cent. Dig. § 22; Dec. Dig. <@=>20.]</p> <p>8. Courts <@=>343—Parties—Suit by Bepresentative of a Class.</p> <p>Under equity rule 38 (198 Fed. xxix, 115 C. C. A. xxix) one lot owner may maintain such a suit in behalf of himself and other owners, where the threatened injury affects all.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 915, 916, 919, 920'; Dec. Dig. <@=>343.]</p> <p><@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit for collision by C. W. Visser, master of the steamship Samarinda, against the steamship Brandon, with cross-libel.</p>

At Law. Action by Clarence Key and his guardian, Joseph Wag-goner, against the West Kentucky Coal Company and another. On motion to remand to the state court.

<p>At Law. Action by O. P. Nelson against the Black Diamond Mining Company and another. On motion to remand to the state court.</p>

At Daw. Actions by James H. Minds and others and by the Bulah Coal Company against .the Pennsylvania Railroad Company. Sur rules in arrest of judgment and for a new trial.

<p>At Law. Action by the Hillsdale Coal & Coke Company against the Pennsylvania Railroad Company. Sur rule for new trial.</p>

<p>At Law. Action by T. W. Jenkins & Co., a corporation, against the Anaheim Sugar Company, a corporation. On demurrer to the complaint.</p>

<p>1. Conspiracy @=>27—Overt Act—Necessity.</p> <p>A violation of the Sherman Act (Act July 2, 1890, c. 647, 26 Stat. 209) is complete, where a conspiracy to do acts in restraint of trade is entered into, though no overt act is committed.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 38, 39; Dec Dig. @=>27.]</p> <p>2. Conspiracy @=27—Overt Acts—Necessity.</p> <p>The offense denounced by Criminal Code (Act March 4,1909, c. 321) § 37, 35 Stat. 1096 (Comp. St 1913, § 10201), declaring that if two or more persons conspire to commit any offense against the United States or to defraud the United States, and one or more such parties do any act to effect the object of the conspiracy, each shall be punished, is not completed until an overt act is committed.</p> <p>[Ed. Note.—For other cases, see Conspiracy, Cent. Dig. §§ 38, 39; Dec. Dig. @=27.]</p> <p>3. Criminal Law @=620(2)—Trial—Consolidation oe Indictments.</p> <p>Defendants were charged with a conspiracy to do acts in restraint of trade, in violation of the Sherman Act, and also with a conspiracy, under Criminal Code, § 37, to violate section 13 (Comp. St. 1913, § 10177), declaring that whoever, within the territory or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state or people with whom the United States are at peace, shall be punished. The indictment under the Sherman Act charged no overt act, but charged that the conspiracy was entered into within the district, while the indictment under section 37 charged the commission of an overt act within the district, although the contemplated activities would take a wide range. Both conspiracies were directed against the munitions trade of the United States with France, Russia, England, and Japan, and defendants’ purpose was to prevent the shipment Or transportation of munitions of war to such countries, either by destroying munition plants in the United States or destroying ships and railroads outside of the United States engaged in carrying munitions. H.elQ, that, as there was an identity of parties and of subject-matter, and both conspiracies were entered into in the same district, though defendants were indicted under the Sherman Act for their conspiracy against munition plants in the United States, the indictments should be consolidated and tried together ior convenience.</p> <p>[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1376; Dec. Dig. @=620(2).]</p> <p>@^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Bill by William N. Conley and others against the International Pump Company, consolidated with a bill by the Guaranty Trust Company of New York, as trustee, against the same defendant. On application of Roger S. Sturgis and others, as holders of preferred stock of defendant, for leave to intervene.

<p>Municipal Corporations <3=752—Liability foe Injury by Servant—Contract to Perform Work for Another.</p> <p>A stevedoring company, having a contract to load a cargo of steel rails which were delivered on the pier in cars, contracted with the port of Seattle, which maintained an electric crane on the pier under charge of an engineer and assistants, who were its employés, to move the rails from the cars to the pier at a stated price per ton, and also to furnish the use of the crane and its attendants to deliver the rails on the vessel for an agreed price per hour. The operation of the crane was wholly in charge of the engineer. Held, that he did not become a servant of the stevedoring company, but remained the servant of the port, in the performance .of the work, and that the port was liable for damages to the vessel caused by his negligent operation of the crane.</p> <p>[Ed. Note.—Eor other cases, see Municipal Corporations, Cent. Dig. § 15S3; Dec. Dig. @=>752.]</p> <p><©==>For other eases ¿ee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Proceeding by the United States against the Philadelphia & Reading Railway Company. Sur motion to quash writ of venire facias.

<p>In Bankruptcy. In the matter of the bankruptcy of David Alpert. On motion to confirm referee’s report, approving a composition offered.</p>

<p>At Law. Action by the Peninsula Lumber Company against the Royal Indemnity Company. On motion of plaintiff to remand to state court.</p>

<p>1. Bankruptcy @=3305—Order to Deliver Property oe Bankrupt—Defenses.</p> <p>The treasurer o£ a bankrupt company was mentioned in the schedule filed as a debtor, and, after the trustee' called on him to turn over a sum of money, the treasurer filed a claim against the bankrupt for a larger sum. The referee disallowed the claim of the treasurer and found his indebtedness at a fixed sum. The report showed that the referee found that the amount stated as a debt was not a mere debt, but was money which the treasurer, without right or title, took from the company while •he was treasurer, and had failed to return. Held, that an order directing, the treasurer to surrender such sum of money cannot be defeated on the ground that the referee found he was merely indebted to the company; the evidence justifying the finding that he had appropriated the company’s funds, and the treasurer having submitted to the court’s jurisdiction by filing a claim.</p> <p>@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 466-468; Dec. Dig. <g=>305.]</p> <p>2. Bankruptcy <@=>288(1)—Authority of Court of Bankruptcy—Jurisdiction over Officers of Bankrupt.</p> <p>Though an officer of a bankrupt company did not submit to the court’s jurisdiction, nevertheless, having been an officer, the bankruptcy court has jurisdiction to order him to deliver such of the bankrupt’s property as ha wrongfully retained.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 447; Dec. Dig. <§=3288(1).]</p> <p>(gx:^>For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Trade-Marks and Trade-Names @=>60—Infringement of Trade-Mark— Imitation of Label.</p> <p>A label, the size, shape, and general appearance of which, combined with the appearance of the bottle on which it was placed, are strikingly like the trade-mark placed on a well-advertised article, so as to justify a finding that it was adopted for the purpose of leading the public to believe it was buying the well-advertised article, is an infringement, notwithstanding changes in the name thereof.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent,' Dig. §§ 73, 74; Dee. Dig. @=360.] _</p> <p>2. Trade-Marks and Trade-Names @=398—Damages—Reference to Master.</p> <p>Where the proofs in a suit for injunction to restrain the infringement of a copyrighted trade-mark showed only one sale of the infringing article and the possession of other of such articles on defendants’ shelves, the court will not exercise its discretion to send the case to a master, hut will take the account itself, especially where reference to the master was urged by plaintiffs, so that they mi^ht enter upon an examination of defendants’ business.</p> <p>@=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 112; Dec. Dig. @=598.]</p>

<p>Bankruptcy @=299—Suit by Receiver—Right of Intervention.</p> <p>In a suit brought by the receiver of a bankrupt New Jersey corporation in a District Court in Washington by. which he had been appointed ancillary receiver to wind up the affairs of a Washington! corporation in which bankrupt claimed to be a large stockholder, other claimants of the stock held by the bankrupt may properly be allowed to intervene; the court in Washington, rather than that in New Jersey, being the proper forum in which to determine rights in a Washington corporation.</p> <p>[Ed¡ Note.—For other cases, see. Bankruptcy, Cent. Dig. § 448; Dec. Dig. @=299.] /</p> <p><©z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Division of the Southern District of Ohio; John E. Sater, Judge. Action by the. Pitt Construction Company against the City of Dayton. There was a judgment for defendant on the pleadings, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Suit by the United States Fidelity & Guaranty Company against G. W. Naylor and others. From a decree dismissing the suit, complainant appeals.</p> <p>Dickerson and Starrett were copartners doing business in Kansas under the firm name of the Toronto Bank in January and February, 1902, and Dickerson continued to do business under that name until some time in January, 1903. On February 1, 1902, the bank was indebted to Woodson county, Kan., on account of county funds deposited with it, in the sum of $7,917.50, and it remained indebted to the county in various amounts until on January 14, 1903, it failed owing the county $9,443.67. On February 3, 1902, the county accepted and approved a bond of the copartners and the United States Fidelity & Guaranty Company as their surety in the sum of $5,000, conditioned that the bank should promptly pay over on demand all funds of the county deposited with it between January 30, 1902, and January 30, 1903. On March 3, 1902, the county accepted and approved a bond of the owner of the bank, Dickerson, and the defendants Naylor, Thompson, I-Ioggatt, Gilroy, and Braley, as sureties, in the sum of $10,000, conditioned that the bank should promptly pay over on demand all funds of the county deposited with it during the year commencing February 1, 1902, and ending February 1, 1903. The slight difference in the date of the commencement and conclusion of the terms of the two bonds made no difference in the actual debt secured' thereby. The county sued the Fidelity Compauy on its bond, and recovered the full penalty thereof and interest thereon, amounting to $6,027.30. The Fidelity Company paid this amount, $536.40 court costs and expenses and claimed to have expended $1,000 for counsel fees in that litigation. Out of the assets of the bank the receiver paid to the county $1,669.02 on the debt of the bank, and the remainder owing by the bank, which amounted to about. $2,300.22, the sureties on the $10,000 bond paid. The Fidelity Company brought this suit in equity against the sureties on the latter bond for an accounting and contribution, on the theory that they were cosureties with it for the payment of the same debt. During the pendency of the suit the defendant Braley died, and Josie C. Braley, his sole heir, who succeeded to all his property, real and personal, was substituted for him as a defendant. Those alleged to he liable to contribute on account of tbe bond for $10,000, who are hereafter called the personal sureties, answered, among other things: First, that the bond which they signed was not given to secure the same debt as was the $5,000 bond made by the Fidelity Company, that the latter bond was given to secure the indebtedness of the bank to the county to the amount of $5,000, and the former was given to secure the indebtedness of the bank to the county for tbe amount in excess of that $5,000; and, second, that the Fidelity Company, in addition to the deposit of the county funds in the bank, received a money consideration for the making of its bond, while the only consideration which the personal sureties received was the deposit of the county funds in the bank to an amount not exceeding $5,000, in addition to the $5,000 which the bank had the right to receive on account of the bond of the Fidelity Company. There was a final hearing of the case upon the pleadings, an agreed statement of facts and the testimony of a few witnesses, and upon it the court sustained the two defenses stated above, and upon that ground dismissed the suit on its merits.</p>

Quo warranto by the City of Clay Center against the Clay Center Eight & Power Company, the Merrimack River Savings Bank, and F. L. Williamson. Decree for complainant, and defendants Williamson and the Savings Bank bring error and also appeal. In Error to and Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Action at law for damages by F. E. Williamson against the City of Clay Center and others.

<p>Appeal from the District Court of the United States for the South■ern District of Alabama; Harry T. Toulmin, Judge.</p> <p>Bill by the Metropolitan Trust Company of the City of New York against the New Orleans, Mobile & Chicago Railroad Company to foreclose a mortgage, under which the. property of defendant was sold, whereupon Laura McDonald Stallo Rospigliosi and others petition to ■intervene, attacking the sale and the decree confirming the sale. From a decree dismissing the petition, petitioners appeal.</p> <p>The following is the opinion of Toulmin, District Judge:</p> <p>In the matter of the petition of intervention of Laura McDonald Stallo Rospigliosi, Helena McDonald Stallo Murat, and James E. Harrington. Said interveners in their said petition except to the master’s report and return of sale filed in this cause, and object to the confirmation of said sale, and pray that said sale be not confirmed, and that the same be vacated and held for naught, upon the following grounds, namely:</p> <p>Because of fraudulent and illegal practices, and the fraudulently conceived ■scheme designed for the purpose of preventing competition at the sale and of ■destroying the rights and equities of stockholders of said New Orleans, Mobile & Chicago Railroad Company, particularly the interveners; that the price obtained for the properties of the said railroad company, as reported by the special master, was and is grossly inadequate, unfair, fraudulent, and clearly the result of collusion. The interveners aver: That' the purchase price, to wit, $2,763,220, was entirely inadequate, and not more than one-eighth or one-ninth of the value'of the property sold, and said sale was so conducted that a greater amount could not be realized therefrom. That the sale was unfair, irregular, collusive, and fraudulent, in that by the terms of sale competitive bidding was prevented. That - said terms of sale destroyed all equity between the bondholders and all other persons, and were illegal, unfair, improper, and contrary to the justice of the court, and resulted in but ■one bid for the property. That said sale is a part of the collusive, fraudulent scheme to deprive the stockholders of said New Orleans, Mobile & Chicago Railroad Company of their large and valuable equity in said property.</p> <p>[1,2] It is “a rule that courts can deal with bondholders only through their trustees.” It is “a rule of convenience proceeding upon the assumption that -the eestuis que trust are fully and fairly represented by such trustees.” Farmers’ Loan & Trust Co. v. Northern Pacific R. R. Co. (C. C.) 66 Fed. 169-174; Jones Corp. § 338. “The action of the trustee within the scope of his duties is, in the absence of fraud, binding upon bondholders, and in exercising his trust he may exercise his discretion within the scope of his powers.” Credit Co. v. A. C. R. Co. (C. C.) 15 Fed. 46; Toler v. E. Tenn. G. R. Co. (C. C.) 67 Fed. 168.</p> <p>[3, 4] The first and second ground on which the interveners seek to set aside the sale in this case is that the price at which the property was sold was grossly inadequate, and because of fraudulent and illegal practices, and the fraudulently conceived scheme designed for the purpose of preventing competition at the sale, and of the rights and equities of stockholders, and that the price obtained for the property was grossly inadequate, unfair, fraudulent, and clearly the result of collusive design, and that said sale was so conducted that a greater amount could not be realized therefrom, and further that the sale was unfair, irregular, collusive, and fraudulent, in that by the terms of sale competitive bidding was prevented. “A judicial sale of real estate will not be set aside for inadequacy of price, unless the inadequacy be so great ag to shock the conscience, or unless there be additional circumstances against its fairness. Great inadequacy of price at a judicial sale of real estate requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise a presumption of fraud.” Graffam v. Burgess, 117 U. S. 180, 192, 6 Sup. Ct. 686, 692, 29 L. Ed. 839. “The purpose of the law is that the sale shall be final; and to insure reliance upon such sales, and induce biddings, it is essential that no sale be set aside for trifling reasons, or on account of matters which ought to have been attended to by the complaining party prior thereto.” Pewabic Mining Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. 887, 36 L. Ed. 732; Ballentyne v. Smith, 205 U. S. 289, 27 Sup. Ct. 527, 51 L. Ed. 803.</p> <p>It is charged that by the terms of sale competitive bidding was prevented, that said terms destroyed equality between the bondholders and all other persons, and that they resulted in but one bid for the property. The only fact alleged to sustain this charge is the decree itself, and the court puts no such construction- on the decree. It provides, as is usual in such cases, for a certain amount of money to be deposited in cash or certified check with the special master, or, in lieu of a certain amount of cash, bonds of the railroad company. If any bondholder desired to bid, or other person, corporation, or syndicate desired to do so, and owned no bonds, but was financially able to buy a railroad of the size and character of the one in question, he could have raised the amount of money to make the necessary deposit; or if the objectors herein desired to do so, and were in fact bondholders, they had the right and opportunity to co-operate with their cobondholders in the matter. There was, in the opinion of the court, nothing in the decree to prevent their doing so. The decree did not, in the terms of sale provided therein, prevent competitive bidding or limit or restrict the bid.</p> <p>[5] It is charged by the objectors that the proceedings, from the time of the filing of the original bill to the final sale of the property, were “consent proceedings.” Such proceedings are not necessarily fraudulent, collusive, or void. The bondholders had the right under the provisions of the mortgage to request the trustee to file a bill for a foreclosure of the mortgage in default of payment of interest on the bonds of the New Orleans, Mobile & Chicago Railroad Company. This request was made by a majority of the bondholders. The trustee, the complainant in the cause, on the part of said bondholders, and as the representative of all the bondholders, filed a bill against said railroad company, the defendant. It was represented by counsel. No objection was made to the proceedings, and no defense as they progressed. This suit is characterized as one “by consent,” it was nevertheless a legal and proper proceeding and between the proper parties—the trustee as the representative of all the bondholders and the defendant railroad company. The so-called “consent proceedings” were more expeditious and less expensive than if a decree pro confesso had been taken.</p> <p>If the objectors herein were, in fact, stockholders or bondholders, they must surely have had knowledge of the proceedings taken and of their progress. If they were objectors to what was being done a.nd the purpose of the proceeding, and considered their interest jeopardized, why did they not by intervention or otherwise make known their grievance or complaint, if any, to the trustee or to their cobondholders for redress or protection during the pendency of the proceeding? Pewabic Mining Co. v. Mason supra. There are no facts, alleged to sustain the charge of a collusive and fraudulent scheme to deprive the stockholders of said railroad of their alleged large and valuable equity in said property. None of said stockholders are named, and none are here making any such claim. If it be a fact that the interveners were or are stockholders, that fact is not affirmatively alleged in their petition of intervention. That fact, if shown to exist, is by implication only.</p> <p>[6] The petition of L. S. Berg, as set forth in the sixth ground of the petition, has, in my opinion, no place in this proceeding. He is not a party to this proceeding, and the allegations made by him in his petition are not made or adopted by interveners as their allegations in their petition. Moreover, Berg’s petition was not insisted on by him, but in fact it was withdrawn, or abandoned, and dismissed.</p> <p>[7, 8] One of the counsel for the objectors stated in his brief that “the rule of inadequacy of price must be so gross as to shock the conscience of the court is not applicable to this cause.” The court concurs with the learned counsel in this opinion, for the reason, as stated by him, that the decree of the court reserves the unconditional right to reject all bids, and for the further reason that, in the opinion of the court, the inadequacy of price has not been shown by sufficient or satisfactory legal evidence in the case to be so gross as to shock the conscience or excite the suspicion of the court.</p> <p>The evidence offered to prove the value of the property to sustain the charge of inadequacy of the price for which it sold is the estimated value at which'the reorganization committee proposes reorganization. There can be no reorganization until the purchasers have acquired the title and possession of the property. What they now propose or plan may be entirely changed before or when the reorganization is to be made effective. It is certainly not competent or sufficient. evidence to satisfy the court that the inadequacy of price is such as to justify it in refusing to confirm the sale, on the alleged estimate of said committee. The only other evidence on the subject that I find submitted by the objectors, likewise insufficient, is the testimony of T. F. Whittlesey. He shows that he had considerable experience as a railroad man, and might properly be consideréd generally as an expert. He testifies that from 1905 to 1907 he was general manager of the Mobile, Jackson & Kansas City Railroad Company, now the New Orleans, Mobile & Chicago Railroad Company. He states that he has just made an examination of the line of the said New Orleans, Mobile & Chicago Railroad, and has visited and observed many improvements since he was an officer of the Mobile, Jackson & Kansas City Railroad. He gives no opinion as an expert as to the value of said Mobile,- Jackson & Kansas City Railroad at the time he was the general manager, and of the present value of the New Orleans, Mobile & Chicago Railroad. He does not state that he has an opinion on the subject, but he does say it was his understanding that the cost of the Mobile, Jackson & Kansas City Railroad and the Gulf & Chicago, combined, was $8,000,000, arid that, taking into consideration the improvement of the property since he left it, he. is of the opinion that the price of approximately $2,750,000 for the property is wholly inadequate.</p> <p>[9] There is no advance bid on the price at which the property sold by any one, and none offered or suggested. “To warrant a court in disregarding the rule which precludes the intervention of an individual bondholder in foreclosure by the mortgage trustee as representative of all bondholders, the petition for intervention must allege traversable facts which, if true, show that the trustee occupies a hostile position, or other reason why he cannot fairly represent petitioner, and general allegations that the suit is fraudulent and collusive, and that the trustee is co-operating with bondholders in a reorganization scheme, are insufficient.” “The petition must disclose facts bringing it within the principles governing the right to intervene; and in determining whether such facts are disclosed, the allegations of the petition must be subjected to, and must meet, the same tests as are applied to ordinary proceedings to determine whether a cause of action or defense is stated.”</p> <p>General allegations that the trustee acted in bad faith and in opposition to petitioner’s rights and interests, and characterizing his action and the situation resulting therefrom as “fraudulent, collusive; and the like, are insufficient, in the absence of allegations of facts themselves giving rise to an inference of such partiality, fraud, or collusion.” There must be an allegation of traversable facts sufficient for the court to determine whether a cause for intervention or a defense is stated. A wholesale charge of fraud and collusion does not satisfy the degree of particularity and definiteness required by the rules of pleading. Continental & Commercial Trust & Savings Bank v. Allis-Chalmers Co., et al. (D. C.) 200 Fed. 600. “A bill in a suit founded on. fraud must aver particularly the facts constituting the fraud.” Rice v. Wilson (D. C.) 225 Fed. 159.</p> <p>The objectors charge the Metropolitan Trust Company, trustee, committed wrongs which showed it was not a proper person to represent the objectors, upon the question under consideration, and charge said trustee with bad faith, fraud, and collusion in co-operating with bondholders in a reorganization scheme. Wholesale charges of wrongdoing, general allegations of fraud and collusion, without disclosing the.facts on which they are based, are insufficient. But counsel in his brief states that, “if the facts alleged by the objectors, supported by the affidavit of Mr. Stallo, be proved, then the sale of certain stocks to the St. Louis & Francisco Railroad was a fraud upon the-rights of the objectors.” The converse of this proposition must also be true, to wit: If the facts alleged'by the objectors, supported by the affidavit of Mr. Stallo, be not proved, then the sale of the stocks referred to was not a fraud upon the rights of tire objectors. Fraud justifying relief in equity must be strictly proved. Rice v. Wilson, supra. There are at least three witnesses who, in their affidavits, contradict Stallo’s statements, and declare them to be untrue. The evidence of these witnesses destroy the probative force of said Stallo’s evidence.</p> <p>[10] The reorganization committee represents only the depositing bondholders, and is not the same party as the complainant trustee, representing all the bondholders. In the case of Investment Registry v. Chicago & M E. R. Co., the court in the course of its opinion said that, “when a nondepositing bondholder objects to confirmation solely oh the ground that the reorganization' committee’s bid * * * was substantially short of the fair value, the answer is that his co-owners of the common mortgage and the common decree offered him the opportunity to deposit his bonds and to share equally with-them the benefits of the purchase.” In the concurring opinion of Judge Seaman in the same case, he said: “I believe it to be well recognized that reorganizations on the part of bondholders are needful and legitimate means for the purpose of purchasing the mortgaged property a.t foreclosure sales; that no bondholder can be brought into such reorganization without his consent; that bonds may be purchased of a nonassenting bondholder for the purpose-of foreclosing Ids objections or attempts to interfere with the reorganization-plans ; that equality in prices so paid is not, generally speaking, an essential requirement in such transaction; and that suppression of competition, either for reorganization or for the purposes of the sale, which may arise in such purchases or arrangements, neither disqualifies the purchasers to become bidders at the sale, nor per se invalidates the sale. Accordingly, in judicial sales of railroad properties these several elements are frequently involved, resulting in a single bid much below the estimated actual value of the properties, and the sale thereupon may rightly be confirmed by the court.” 212 Fed. 594, 613, 129 C. C. A. 130, 149.</p> <p>A great part of the petition of intervention'and by counsel for the objectors is taken up with complaints against the proposed plan of reorganization. In addition to what I have already said in reference to the same, I will quote the language of Judge Hough of the United States District Court of the Southern District of New York, who said: “I do not think that courts sit- to redraw, or move, or make suggestions, concerning such voluntary business arrangements as organization plans. * * * It is certainly a curious conception of practice which leads a small body of shareholders to seek to answer a foreclosure bill merely because they are dissatisfied with what the foreclosing complainant says it intends to do after the final decree is procured.” Conley v. International Pump Co. (September 14, 1915), 237 Fed. 286.</p> <p>The case before this court is where a few alleged stockholders or bondholders seek to set aside a sale under a decree of foreclosure at which 95 per cent, of the bondholders were the purchasers, and said objecting stockholders are dissatisfied because the purchasers have agreed on a plan in wijiich they declare what they intend to do after they acquire the title and possession of the property sold and bought by them.</p> <p>[11, 12] This court is of opinion that the following exceptions to the exceptors’ and objectors’ petition of intervention in this cause should be, and they •are hereby, sustained:</p> <p>Ninth. That the aforesaid exceptions and objections are not sufficient in law or in fact to justify this court in refusing to confirm the sale of the property herein, pursuant to its decree of June 24, 1915.</p> <p>Tenth. That the said exceptions and objections do not state facts sufficient to entitle the exceptors and objectors to intervene in this cause.</p> <p>Twelfth. That the exceptors and objectors do not allege any demand upon •the defendant railroad company, or request of said company to take any action in behalf of the exceptors and objectors, nor do said exceptions and objections show that, if said demand or request were made, the same had been or would, be refused by the defendant railroad company.</p> <p>Thirteenth. The exceptions and objections do not allege, with the particularity or definiteness required by law, any fraud, collusion, conspiracy, or misrepresentation on the part of any of the parties to this cause in the conduct thereof, or otherwise, or any facts or circumstances upon which the general and indefinite charges of fraud, collusion, conspiracy, or misrepresentation or illegal acts can be predicated or sustained.</p> <p>Fifteenth. The amount of the present securities outstanding on the property of the defendant railroad company and the amount proposed to be issued are not pertinent or relevant to the exceptions and objections, which allege that the price bid for the property is inadequate.</p> <p>Eighteenth. Further answering the exceptions and objections, the complainant alleges that the allegations of the exceptors and objectors in respect to the legality of the proposed plan of reorganization are not material or relevant to the motion before the court to confirm the sale.</p> <p>The petition of intervention is denied, and the petition dismissed; and it is so ordered.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Action by the St. Louis, Iron Mountain & Southern Railway Company against the National Refining Company. There was a judgment for plaintiff (226 Fed. 357), and defendant brings error.</p>

. In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge. Action by Robert E. Dickson against the Chattanooga Railway & Eight Company. Judgment for defendant, and plaintiff brings error.

<p>Corporations @=>448(2)—Contracts—Liability.</p> <p>A sale was negotiated to C., acting in behalf of a corporation to be formed, G. dealing with him in that character; and while C.’s individual notes were taken by G., both understood that the corporation’s notes would take their place as soon as this could be done, and on formation of bankrupt the property passed to it, and it for three or four years made payments on and renewals of the notes. Melé, that there was in effect a sale by G. to bankrupt, so that G.’s claim on the balance of notes given in substitution and renewal of the purchase-money notes was properly allowed. ■</p> <p>[Bd. Note.—Por other eases, see Corporations, Cent. Dig. §§ 1790, 1792; Dec. Dig. @=>448(2).]</p> <p><g^»For other cases see same topic & KEY-NUMBER in all Key-Numhered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in equity by the Akers Steering Gear Company against "the Great Lakes Engineering Works. Decree for defendant,- and complainant appeals.</p>

<p>1. Patents <@=>66—Limitation—Prior Act.</p> <p>A patent is not a part of ilie prior art as relates to another patent to the same patentee, issued later, but on an application filed before the first patent issued.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 79; 81; Dec. Dig. <©=>66.]</p> <p>2. Patents <@=>26(1)—Invention—Combination of Old Elements.</p> <p>Although each separate element of a combination is old, there may be invention in the combination, if it produces a better result)) and by new means.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. <@=>26 (1).]</p> <p>3. Patents <@=>328—Validity and Infringement—Store Front—Construction.</p> <p>The Plym patent, No. 852,450, for store front construction, was not anticipated, and discloses invention; also held infringed.</p> <p>($^>l->'or other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the -Northern District of Illinois.</p> <p>Suit in equity by George Adams against the Boston Store. Decree (216 Fed. 626) for defendant, and complainant appeals.</p> <p>The appeal is from a decree of the District Court finding the issues for appellee and dismissing appellant’s bill for want of equity. There-is involved claims 1 and 2 of United States patent No. 923,235, to George Adams, June 1, 1909.</p> <p>Claim 2 is as follows: “A joint for a metal bedstead, or the like, comprising a hollow member provided with a hole or opening, a mold plate, means for securing said mold plate within said hollow member, said mold plate being shaped to form a recess or cavity within said hollow member into which the opening in said hollow member opens, the means for so securing said mold plate in position comprising a screw in screw-threaded engagement with a hole or opening in said mold plate, an end of which is adapted to bear against the inner surface of said hollow member and to dra.w said mold plate into close engagement with the side thereof around the hole or opening therein, said screw being of such length that it will project into the recess or cavity defined by said mold plate, a part of or projection on the other connected member which extends through the hole or opening in said hollow member into the recess or cavity defined by said mold plate, and an abutment cast within said recess or'cavity, with or upon said part of or projection on said second connected member which projects into the cavity or recess defined by said mold plate and also upon the end of the screw for securing the mold plate in position which projects into said recess or cavity, substantially as described.”</p> <p>Claim 1 is the same as claim 2, omitting therefrom, after the words “opening therein,” the clause “said screw being of such length that it will project into the recess or cavity defined by said mold plate,” and omitting also, just preceding the word “substantially,” the clause “and also upon the end oí the screw for securing the mold plate in position which projects into said recess or cavity.”</p> <p>The controversy concerns the joining together of the various members of the head and foot ends of metal beds, particularly attaching to the tubular corner post the member to receive and hold the side rails of the bed. Earlier construction showed-a “chill” or casting upon the post completely surrounding it. This required considerable metal, adding undesirable weight and expense, and marring the symmetry of the bed. In 1877, Bryett secured a British patent for casting, or “frenching,” as it is called the corner member upon the post making an orifice or hole in the post placing next thereto the mold for making the corner piece, and pouring into the mold the molten metal, which, filling the mold, and passing through the orifice into the post, on hardening made a solid casting firmly held to the post by the metal abutment thus cast therein. To avoid filling the entire cavity of the hollow post with liquid metal, plugs were inserted within the post a short distance above and below the orifice, so only that part of the cavity of the post between these plugs was filled with metal. This plugging process was considerably used, and is shown in some of the exhibits in evidence. But filling the entire post cavity between the plugs involved waste of metal and extra expense and weight, and it was deemed advantageous to restrict the cavity to a capacity affording just enough metal to give the necessary holding strength to that part of the completed casting constituting the abutment within the post.</p> <p>There appears a patent to J. M. Adams, No. 808,501, December 26, 1905, in which is described a corner piece attached to the post by the “frenching” process, and illustrating an abutment within the post, not occupying the entire diameter as in the British patent! but only a comparatively small part thereof, immediately within the orifice. In order to restrict the bulk of the casting within the post, there must be formed a cavity, by means of a mold or receptacle within the post, to receive and hold the metal while it is being poured, and until it becomes hardened. This means is not described in that patent, but in the testimony it appears that in practice a mandrel, with a mold or cup at one end corresponding with the desired shape of the internal abutment, was inserted from the end of the post,, and held in position next the orifice or hole in the post, so that this mold or cup, together with the mold for making the external corner piece, constituted one mold or form for making the entire casting. The metal then poured into the mold, within as well as without the post, becoming hard, the mandrel was removed, leaving the abutment within the post as a part of the casting.</p> <p>A large maker of metal beds, the Art Bedstead Company of Chicago, owned by E. W. Adams, who is a brother and employer of J. M. and George Adams, made use of the process described in J. M. Adams patent, employing the means stated for casting the inner abutment. The Simmons Manufacturing Company of Kenosha, another large manufacturer of metal beds, and who, as makers of the particular beds of which infringement is here claimed, have assumed and conducted the defense of this action, appears also to have employed various means for frenching the corner piece to the post, and for making joints for uniting the tubular members of the bed.</p> <p>October 20, 1908, patent No. 901,482, was granted to O. Rudd, assignor to Simmons Manufacturing Company, 'for a joint for metal beds, the mold or cup for casting the inner abutment of which was constituted by a depression in a section of inner metallic lining frictionally held in place within the post or tube, and which remained permanently in its place after the casting was made.</p> <p>January 8,1909, application .was filed whereon was issued Patent No. .933,355, to J. M. Adams, for a joint for metal bed. He describes a mold plate for the purpose of making the internal casting to constitute the abutment within the post, and specifies “means for rigidly Securing said mold plate in position,” preferably that in casting the abutment the mold plate becomes a constituent part of the joint, and.the specific means he shows for holding the mold plate are clips secured into the mold plate, with the ends bent over the edges'of the hole. 1-Iis first three claims are very similar to those here in issue, but instead of describing the screw as a means for holding the plate in place, he ■claims generally means for securing the mold plate in position within the hollow member—other claims describing the holding clips.</p> <p>January 27, 1909, application was filed for the patent in issue. The internal abutment of the post shown by this patent, after it is cast, is not substantially different from those in the joints shown by the J. M. Adams patents or the Rudd patent. But the distinct feature claimed is that George Adams’ mold plate or cup for forming the inner part of the casting, or the abutment on the inside of the post, is held in its place, by a screw, S', which passes through a threaded hole in the bottom of the mold plate, so that by turning this screw until it impinges on the opposite' wall of thei post the mold plate is pressed against the side of the post next to the casting, as shown by following Fig.' 5 of the patent drawing:</p> <p>Exclusive rights under the patent were granted to Seng & Co., large makers of and dealers in manufacturers’ specialties, who pay a royalty to the patentee on all the mold plates sold, excepting those sold to the Art Bedstead Company. Seng made and sold a great number of them and paid a considerable amount in royalties. Simmons declined to recognize the patent, but made many beds embodying -the particular feature claimed for it; i. e. with the mold plate or cup held in position by threaded wire or screw passing through it until its end impinges against the opposite wall of the post or other hollow member.</p> <p> </p>

<p>1. Patents <@=»129—Suit fob. Infringement—Estoppel of Assignor.</p> <p>The assignor of a patent is estopped to deny its validity when sued for its infringement, or that it is entitled to a sufficiently broad and liberal construction to give full protection to the invention; but he is not estopped from showing its limitation by evidence of the prior a.rt, or any other relevant fact.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 182%-186; Dec. Dig. cg=>l29.]</p> <p>2. Patents <®=^>129—Suit foe Infringement—Estoppel.</p> <p>A corporation which commenced business under a license from the owner of certain patents, who was made its general manager, held affected by his estoppel with respect to prior patents which he had assigned to complainant.</p> <p>[Ed. Note.—For other eases, see Patents, Cent. Dig. §§ 182^-186; Dec. Dig. <§^>129.]</p> <p>3. Patents <g=^328—Infringement—Hand Plow.</p> <p>The Hanger patent, No. 764,051, and the Hanger and Thomas patent, No. 792,703, both for improvements in garden hand plows, construed, and held not infringed by the structures of the Click patent, No. 853,961, and the Coffman patent, No. S78.774.</p> <p><§=s>For other cases see same topic & KEY-NUMBER in ^11 Key-Numbered Digests & Indexes</p>

<p>1. Patents <©=288—Suit for Infringement—Jurisdiction—Waiver • of Objection.</p> <p>In a suit for infringement of a patent, the objection that the court is without jurisdiction, which goes only to the venue, is waived by the defendant by entering a general appearance and pleading to the merits.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 460-466; Dec. Dig. <@=288.}</p> <p>2. Patents <©=328—Validity and Infringement—Manufacture of Cellular Boards.</p> <p>The Langston patent, No. 878,403, for manufacture of cellular boards, was not anticipated, discloses patentable invention, and'is valid. Claims 1, 3, and 4 also held infringed, and claims 2, 5, and 6 not infringed.</p> <p>3. Patents <@=286—Suit for Infringement—Defenses.</p> <p>Conceding that an agreement by the assignor of a patent not to engage in business which will compete with the manufacture and sale of the patented article during the life of the patent is invalid, it does not affect the right of the assignee to maintain a suit in equity for infringement of the patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 453-456; Dec. Dig. <@=286.]</p> <p>4. Patents <@=62—Anticipation—Evidence to Carry Back Date to Invention.</p> <p>Evidence held sufficient to carry the date of conception and disclosure of the invention of a patent back to a time prior to the issuance of an alleged anticipating patent, under the rule which requires such proof beyond a reasonable doubt.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 78; Dee. Dig. <©=62J</p> <p>5. Patents <@=322—Suit for Infringement—Accounting.</p> <p>Complainant in an infringement suit, having proved one infringement at the hearing, is entitled on an accounting to a sworn statement from the defendant as to what other infringements he has committed and the profits of each, and if dissatisfied with the statement may, under Equity Rule 63 (198 Fed. xxxvii; 115 C. C. A. xxxvii), examine the defendant viva voce upon interrogatories before the master.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 590-595; Dec. Dig. <@=322.]</p> <p>6. Patents <@=321—Suit for Infringement—Hearing.</p> <p>An infringement case will not be reopened a year after an interlocutory decree for complainant has been entered to permit defendant to introduce other alleged anticipating patents, no reason being shown why they were not produced on the hearing.</p> <p><©=For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indéxes-</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 588, 589; Dec. Dig. @=321.]</p> <p>7. Patents @=328—Anticipation.</p> <p>The Langston patent, No. 878,403, for manufacture of cellular boards, held not anticipated by the Laeaux French patent. •</p> <p>8. Patents @=26(1)—Invention—Combination.</p> <p>Whether a combination of several elements requires invention is the commonest issue in patent cases, and depends upon the degree of originality which the court chooses to set up to protect the public against monopolization of what ordinary artisans, with ordinary incentives, would have accomplished anyway.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. @=26(1).]</p> <p>9. Patents @=26(1)—Combination—Invention.</p> <p>A person who, by persistence in a series of experiments, eliminates one after another of all possible combinations, may be an inventor, though each combination is obvious enough as a possible permutation.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. @=26(1).]</p> <p><§=x>For other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

<p>1. Patents <§=124—Validity—Fraud in Pbocueing.</p> <p>Where, though a prior patent was cited against some of plaintiff’s claims, plaintiff proceeded and secured a patent including other claims, the fact that he subsequently applied for a reissued patent, on the theory that in view of the disclosures of the prior patent another of his original claims was too broad, does not establish fraud in securing tbe patent, though plaintiff doubtless read the prior patent; for actual fraud must be proven, and it cannot be assumed that plaintiff saw the interference which was not discovered by the Patent Office examiner.</p> <p><&=3For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes^</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 176; Dec. Dig. <@=>124.]</p> <p>2. Patents <@=>138(1)—Reissued Patents—Laches in Seeking.</p> <p>Though plaintiff’s original patent was issued in 1905 on an application filed in 1904 and he did not until 1915 apply for a reissued patent, on the ground that one of his claims was too broad, the reissued patent will not be held invalid on the ground of laches in seeking a reissue, notwithstanding about nine months before application therefor defendant’s attorney advised plaintiff that his broad claim was anticipated; for, while a patentee must use reasonable diligence in seeking a reissue, yet knowledge that a claim is too broad is necessary before action is required, and plaintiff was not bound to accept the statement of defendant’s attorney made in negotiations for the disposal of his patent.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 201, 201%, 203; Dec. Dig. <@=>138(1).]</p> <p>3. Patents <@=>62—Validity—Anticipation. .</p> <p>A patent will not be held invalid on the ground of anticipation, where the evidence was sufficient only to raise a doubt as to whether the patentee’s invention was anticipated.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 78; Dee. Dig. <@=>62.]</p> <p>4. Patents <@=>157(1)—Claims—Construction.</p> <p>Where a patent by reason of slight use, notwithstanding appreciable advertisement, appears to have been of little practical value, it is not entitled to a broad construction.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. §§ 229; 230; Dec. Dig. <@=>157(1).]</p> <p>5. Patents <@=>328—Validity—Infringement.</p> <p>The Shipman patent, No. 783,902, of February 28, 1905, and reissued patent No. 13,903, of April 20, 1915, for a carbureter, held limited to a device where the closing movement of the valve was retarded by a dash pot, and, as limited, not infringed by defendant..</p> <p>oi' other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <®^»109—Claims Inserted by Amendment.</p> <p>On reargument additional patents bearing on tbe prior state of the art would not change the decision on claims which, though inserted in a patent by amendment long subsequent to filing of application, have been held valid because the drawings and specifications were sufficiently made a part of and embodied in the claims to limit them to a patentable invention.</p> <p>[Ed. Note.—For other cases, see Patents, Gent. Dig. § 152; Dec. Dig. <@=^>109.]</p> <p>{gz^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by the Minerals Separation, Limited, against the Butte & Superior Copper Company for infringement of a patent. On motion by plaintiff for an increase of a bond given in lieu of an injunction pendente lite, together with motion by defendant for discharge from further performance of the order requiring the bond.

<p>In Admiralty. In the matter of the petition of the Cornell Steamboat Company, owner of the steam tug George W. Fields, for limitation of liability. On motion to dismiss.</p>

In Admiralty. In the matter of the petition of the Standard Transportation Company, owner of steam tug No. 16, for limitation of liability. On motion to vacate injunction. This arises on a petition to limit the liability of a shipowner for a collision at a pier near Fifty-Sixth street, Brooklyn, N. Y. The petition alleges that its tug was moving out one of its barges from a slip.

<p>J. maritime Liens <®=»42—Supplies—Application of Payments.</p> <p>Intervener sold oil from time to time to the owner of a vessel for commercial purposes, and also for the use of the vessel. It was all charged' in a general account, and all payments were credited to such account. Held that, after suit brought against the vessel by other lien claimants, intervener could not change the application of the payments made to the items bought for commercial purposes, and assert a lien for the oil furnished to the vessel during the entire period.</p> <p><@=s>For other cases see same topic & KEY-NUMBEB in ail Key-Numbered Digests & Indexes.</p> <p>[Ed. ■ Note.—For other cases, see Maritime Liens, Cent. Dig. § 80; Dec. Dig. <@=>42.]</p> <p>2. Payment <@=>47(1)—Application op Payments.</p> <p>Ah application of payments, once made, cannot be changed, so as to affect the rights of third persons.</p> <p>[Ed. Note.—For other cases, see Payment, Cent. Dig. § 127; Dee. Dig. <§=>47(1).]</p> <p>■<@=oFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of Archbold & Hamilton. Proceedings to review an order of the referee refusing to approve the selection of Joseph Golden as trustee.

<p>At Law. W. J. Prendergast was charged with mailing postal cards containing language of a threatening character, or calculated to reflect upon the character and conduct of another, in violation of Criminal Code, § 212. On demurrer to the indictment.</p>

. In Bankruptcy. In the matter of the Wright & Barron Drug Company, bankrupt. Petition to review order of referee refusing petition of the Uampton, Crane & Ramey Company to reclaim property. On ■certificate from referee.

<p>1. Courts @=>489(13)—Jurisdiction oe Federal Courts—Suits Relating to Estates.</p> <p>A federal court has jurisdiction to determine the right of one to a share in the estate of a decedent as an heir, the limitation or extent of his share, and rights under an assignment as betweeen the parties,- but not to settle the estate or direct distribution.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1325;- Dec. Dig. @=>489(13).]</p> <p>2. Courts <&=312(1)—Jurisdiction oe Federal Courts—Suits by Assignee.</p> <p>A suit by the assignee of an interest in the distributive share of an heir in the estate of a decedent, to establish such interest and enforce his assignment, is not within Judicial Code, § 24 (Act March 3, 1911, c. 231, I 24 [1], 36 Stat. 1091; Rev. St. § 629 [Comp. St. 1913, § 991]), relating to jurisdiction of federal courts of suits.by assignees of ehoses in action, since the interest of the heir is not a chose in action, but a beneficial interest not arising out of contract, and where the necessary diversity of citizenship exists between the parties to the suit the court has jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 873-875; Dec. Dig. @=>312(1).]</p> <p>3. Courts @=>312(1)—Jurisdiction oe Federal Courts—Citizenship oe Parties.</p> <p>Defendant, in consideration of money advanced to him by a partnership, agreed to assign an interest in his share of an estate. He executed an assignment in the name of the firm which was designated therein as a corporation. At the request of the firm, he executed a second assignment in lieu of the first to one of the partners as an individual. The assignee afterward repaid the money advanced to the firm and brought suit to establish and enforce the assignment. Helé, that defendant was in no position to question the assignee’s right to maintain the suit in his own name, and that, he and defendant being citizens of different states, a federal court had jurisdiction regardless of the citizenship of the other members of the firm.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 873-875; Dec. Dig. @=>312(1).]</p> <p>4. Wills @=>743—Rights oe Devisees and Legatees—Validity oe Assignment oe Interest.</p> <p>An assignment of a definite sum of money out of the assignor’s share in an undivided estate, consisting of real and personal property, devised and bequeathed by a will containing a power of sale to the executors or trustees, if otherwise legal, is valid and enforceable.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1907-1910; Dec. Dig. @=>743.]</p> <p>5. Usury @=>18—Wills @=>743—Assignment oe Interest by Beneficiary— Legality—Construction of .Contract.</p> <p>Defendant, a resident of New York and married, as an heir of his deceased mother, was entitled to a share in the estate of his grandfather, subject to the life tenancy of his grandmother. The estate consisted of real and personal property located in New York and in the hands of executors and trustees who were accountable to the Surrogate’s Court. Being in straitened circumstances and in need of money, he applied to various parties for a loan on the security of his interest in the estate. The loan was refused, but after negotiations through an agent to' a firm in Philadelphia, of which complainant was a member, an agreement was made for tile sale by defendant of a definite amount of bis share in the estate and he executed an instrument by which, in consideration of $23,500 paid to and disbursed for him, he assigned to complainant $50,000 of his share of the estate, with interest after the death of the life tenant. The life expectancy of the life tenant was at that time about nine years, and she in fact died within four years, whereupon complainant brought suit to establish his rights under the assignment. Held that, although the contract was made in Pennsylvania, the rights of the parties under the assignment were governed by the law of New York where the property was located and where alone it could be enforced; that by such law, while the assignment was in form and was intended by the parties to be one of sale, and while the facts do not justify a finding that it was merely a loan and an attempted evasion of the usury statutes, nevertheless, the amount assigned being largely in excess of the amount paid with legal interest during the life expectancy of the life tenant, it was unconscionable and inequitable under the law of New York, and would be denied enforcement by a court of equity on condition that defendant pay to complainant the amount advanced with legal interest and such sum for expenses and profits as should be fixed by the court.</p> <p>@s»For otilar casas see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 31-34, 36-38, 40; Dec. Dig. @=>18; Wills, Cent. Dig. §§ 1907-1910; Dec. Dig. @=>743.]</p>

<p>In Admiralty. Four suits by the Gilchrist Transportation Company- and one hy the -Franklin Transportation Company against the Great Lakes Towing Company. On final hearing.</p>

<p> (Syllabus by the Court.) </p> <p>1. Citizens <§=>13—Expatriation.</p> <p>A citizen of the United States, who with his family goes to Canada, and there later enlists in the army of that country for oversea service, making the necessary declarations, and takes an oath of allegiance that he will be faithful and bear true allegiance to His Majesty King George the Fifth, his heirs and successors, and that he will as in duty bound honestly and faithfully defend His Majesty, his heirs and successors, in person, crown, and dignity, against all enemies, and will observe and obey all orders of His Majesty, his heirs- and successors, and of all the generals and officers set over him, so help him God, and actually enters the service, thereby effectually expatriates, himself under the provisions of 2 U. S. Comp. Stat. 1913, § 3959, p. 1591, Act March 2, 1907, e. 2534, § 2, 34 Stat. 1228, which declares that “any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws or when he has taken an oath of allegiance to any foreign state,” etc. Expatriation is complete, even if, after a few days’ service, he deserts and surreptitiously returns to the United States.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dee. Dig. <®=>13.]</p> <p>2. Aliens <§=>46—-Deportation—Expatriated Citizen.</p> <p>Such person, -by such acts, if voluntary, not only abandons and renounces his citizenship in the United States, but becomes an alien, and by such removal, enlistment, and oath of allegiance to a foreign power initiates naturalization in such foreign country and comes under its protection. Therefore, when he thereafter deserts such service and surreptitiously returns to the United States, not coming through any port of entry, he comes in violation of law, and may be deported under the provisions of section 36 of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 908 (Comp. St. 1913, § 4285), which provides that “all aliens who shall enter the United States except at the seaports thereof, or at such place or places as the Secretary of Labor may from time to time designate, shall be adjudged to have entered the country unlawfully and shall be deported as provided by sections twenty and twenty-one of this act: Provided, that nothing contained in this section shall affect the power conferred by section thirty-two of this act upon the Commissioner General of Immigration to prescribe rules for the entry and inspection of aliens along the borders of Canada and Mexico.”</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 105; Dec: Dig. <§=>46J</p> <p>8. Citizens <§=>13—Expatriation-—Consent—-“Foreign State”—Oath oe Allegiance.</p> <p>Such oath of allegiance to the king of Great Britain is an oath of allegiance to a “foreign state” within the meaning of the statute, and even if the consent of the United States and of such person is necessary to complete expatriation, the necessary consent is found in the statute and the voluntary acts of such person. Mackenzie v. Hare, 239 U. S. 299, 36 Sup. Ct. 106, 60 L. Ed. 297.</p> <p>(gnwFor other oases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>[Ed. Note.'—-For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. <@=>13.</p> <p>For other definitions, see Words and Phrases, Second Series, Foreign State.] ,</p> <p>4. Aliens <@=>46—Deportation—Expatriated Citizen.</p> <p>The petitioner, born in the United States and residing in New York, went with his family to Gananoque, Canada, June 30, 1916, enlisted in the Canadian army for oversea service July 15, 1916, and took the oath of allegiance, deserted August 5, 1916, and surreptitiously returned to the United States August 6, 1916. Held, that he had voluntarily expatriated himself and was an alien, and was subject to deportation as such.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 105; Dec. Dig. <@=>46.]</p> <p>5. Citizens <@=>13—Expatriation—Oath op Allegiance.</p> <p>The fact that the enlistment was for “one year or during the war” between England and Germany and six months thereafter did not change the effect of taking the oath of allegiance, which contained no limitation.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. <@=>13.]</p> <p> (Additional Syllabus by Editorial Staff.) </p> <p>6. Citizens <@=>13—“Expatriation.”</p> <p>“Expatriation” is the voluntary renunciation of citizenship; the renouncing allegiance to one’s own government, usually accompanied by forsaking one’s own country.</p> <p>[Ed. Note.—For other cases, see Citizens, Cent. Dig. §§ 20-22; Dec. Dig. <@=>13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Expatriate.]</p> <p>other cases see same topic & KEY-NUMBER in hll Key-Numbered Digests & Indexes</p>

In Equity. Suit by the McLean Ljhuber Company, the Berry Lumber & Stave Company, the J. M. Card Lumber Company, and the Williams & Voris Lumber Company against the United States, in which the Interstate Commerce Commission intervened. On motions by complainants for preliminary injunction and by defendant and intervener to dismiss.

<p>1. Railroads <@=»229—Operation—Federal Safety- Appliance Act—Construction.</p> <p>Federal Safety Appliance Act April 14, 1910, c. 160, § 3, 36 Stat. 298 (Comp. St. 1913, § 8619), provides that the Interstate Commerce Commission may upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of the section with respect to the equipment of cars actually in service upon the date of the passage of the act. The Interstate Commerce Commission extended the time for the defendant railroad company to change and apply all appliances on freight cars so as to' comply with the act for flvq years from July 1, 1911, except that when a car should be shopped for work, amounting to practically rebuilding its body, it should be equipped according to the 'standards prescribed. A further provision of the act declared that when any car shall have been properly equipped as provided, and such equipment shall have become defective or insecure while such car was being used, it may be hauled from the place where such equipment was first discovered to be defective to the nearest available point where it might be repaired without liability for the penalty imposed. I-IelcL that, until expiration of the extension granted by the commission, the proviso extends to freight cars built and in service prior to July 1, 1911, which were not provided with all the required safety appliances, and which had not been shopped for work, amounting to practically rebuilding the body of the car before such cars became defective while in service.</p> <p><§=a3?or other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. @=229.]</p> <p>2. Railroads @=254(6)—Operation—Safety Appliances.</p> <p>Under federal Safety Appliance Act April 14, 1910, a railroad company cannot justify the operation of a train without the required percentage of air brakes being in use, due to the fact that the empty, bad-order, and chained-up ,cars composing the train were in such condition that the operation was not reasonably possible without establishing that it was not reasonably possible to have repaired the cars, either permanently or temporarily, so that the air brakes could have been connected up and used, for the proviso allows movement of cars only when necessary to make such repairs, and such repairs cannot be made except at repair point.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. @=254(6).]</p> <p>3. Railroads @=254(6)—Operation—Federal Safety Appliance Act.</p> <p>A railroad company seeking to justify, under the proviso of federal Safety Appliance Act April 14, 1910, the movement of bad-order cars not equipped as required, has the burden of showing that it falls within the proviso; those setting up rights under exceptions in a statute being bound to prove them.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. @=254(6).]</p> <p>4. Railroads @=229—Operation—Federal SÍfety Appliance Act.</p> <p>Under federal Safety Appliance Act April 14, 1910, providing that, when any car shall have been properly equipped and such equipment shall have become defective or insecure while such car was being used, it may be hauled from the place where the equipment was first discovered to be defective, to the nearest available point where the car might be repaired, a railroad company cannot justify the hauling of cars past the nearest repair points to far-distant repair point on the ground that the repairs could not be reasonably made at the nearer points because of congestion and insufficient forces of men, for the statute, being for the protection of employés and passengers, should be given such a construction as would prevent carriers from practically suspending its operation.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. @=229.]</p> <p><§=For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Georgia Railroad & Banking Company against William A. Wright, Comptroller General.</p>

<p>In Equity. Suit by Frank D. Shera against the Merchants’ Fife Insurance Company and others. Hearing on bill and answer.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of the Ohio Copper Mining Company. On ex parte petitions by the International InterContinental Mining & Refining Company and others to review an order of the referee in bankruptcy denying confirmation of a sale of the bankrupt’s property and authorizing a stockholders’ committee to buy in the property.</p> <p>These are several petitions to review an order of a referee in bankruptcy dated November 6, 1916, the terms of which are summarized below. Five petitions were filed, seeking to review some or all parts of that order. The circumstances leading up ,to the order are as follows:</p> <p>On September 11, 1914, the Ohio Copper Mining Company, a Maine corporation and the bankrupt herein, filed a voluntary petition in this court and was adjudicated a bankrupt in due course. The property of that company was incumbered by a mortgage previously executed to the Empire Trust Company as trustee to secure an issue of mortgage bonds of the face value of $1,242,000, upon which interest fell due on September 1, 1914. This default continuing for more than six months, on request of more than a majority of such bonds the trustee during the month of July, 1915, declared due the principal of the bonds in accordance with the mortgage and commenced with the leave of the bankruptcy court a suit of foreclosure in the District Court of Utah, the situs of the property in question. A decree of foreclosure followed on May 31, 1916, directing that' the property be sold to satisfy the bonds, the total amount of which was found to be $1,397,746.80 with interest from March 1, 1916. Following this decree the property was duly advertised for sale in accordance with the appropriate statutes of Utah and struck down at auction on August 30, 1916, for the sum of $751,000 to a representative of a bondholders’ committee, which had meanwhile been organized. The Utah court had appointed receivers, who were then and still are in possession of the property and at the present time in the receipt of large rentals due to the extraordinary rise in the value of metals.</p> <p>Meanwhile, and on August 15, 1916, the bankruptcy court passed an order directing the sale of all the other assets of the Ohio Copper Mining Company on August 31, 1916, in Utah and at the same place as the sale in foreclosure the day before. These assets as described in said order.and in the consequent advertisements consisted of the equity of redemption from the mortgage, all tools and mining supplies, all office furniture, certain specified choses in action, and the right of the trustees in bankruptcy upon stockholders’ subscriptions. Under the laws of Utah, the owner, and certain other interested parties, of property subject to a mortgage have a period of six months within which to redeem from any sale in foreclosure, and the equity of redemption had therefore an actual, and indeed, as the event proved, a very large, value, beyond the purchase price and the bond issue. The bankruptcy sale was advertised according to law, and the auctioneer struck off the property as a whole for the sum of $40,000 to the same representative of the bondholders’ committee who had bought under foreclosure on the day before. Becoming thus both purchasers under foreclosure and purchasers of the equity of redemption the bondholders were safe against any redemption under the Utah statutes, and the trustees in bankruptcy received for the assets of the company the sum total of $40,000.</p> <p>Meanwhile objection had been made to the order of sale of August 15, 1916, and an effort made to secure its modification, which the referee denied by order of August 24, 1916. A proceeding, somewhat irregular in form, having been brought before the District Judge to review the referee’s order of August 24, 1916, it was affirmed on September 1, 1916, by Judge Augustus N. Hand, who provided, however, that no application for confirmation should be made of any sale under the order of sale of August 15, 1916, until October 13, 1916. The purpose of this provision was to allow the stockholders by some joint action to redeem from the total indebtedness of the company and take it over either to the bankrupt or to a new company.</p> <p>On October 17, 1916, the confirmation of the sale of August 31, 1916, was brought on before the referee, and it then developed that two stockholders’ committees were preparing to redeem from the foreclosure sale and give security for all the remaining indebtedness, consisting of the deficiency judgment in foreclosure and some $65,000 of unsecured indebtedness, together with the expenses of administration.</p> <p>On November 6, 1916, after due deliberation, the referee upon the motion to confirm made the order now challenged which was in substance as follows: First he provided that any stockholders’ committee might purchase the property by paying a.ll the debts of the corporation and all expenses of administration to which purpose the funds already in hand should contribute. Second he fixed the 20th day of November, 1916, for a hearing at which- should be computed the claims of all creditors and the administration expenses, the net amount necessary to redeem from the sale in foreclosure, the deficiency judgment for the bonds, and the settlement of the form of conveyance to the proposed new purchaser on redemption. Third, he provided that the trustees should redeem the property from foreclosure, as soon as the proper sum was paid mto court, and that the purchaser on foreclosure should tender the certificate of purchase received from the Utah sheriff. Fourth, he provided that the trustees in bankruptcy should thereupon deliver a deed to the purchaser in redemption when he should pay the sum as fixed for redemption, and that the purchaser should release all stockholders from any liability. Fifth, he provided that any stockholders’ committee might give five days’ notice, compelling all other committees to contribute their shares of the redemption, and, if they failed, such committee might become the sole purchaser. Sixth, he provided a gross sum of $1,350,000 provisionally as purchase price in case the computation extended beyond November 20th. Seventh, he provided that any purchaser must offer to tdke all stockholders upon equal terms into the purchase. Eighth, he provided that, if any purchaser appeared and complied with the order of November 6, 1916, the motion to confirm should be denied, and if all committees failed it should be granted.</p> <p>Here, strictly speaking, end the facts necessary for the consideration of the petitions of review; but the referee has likewise certified what took place on November 20th and 21st, when the hearing fixed in the order took place. The hearing was advertised twice in 'the newspaper, and both the North American Liquidation Company committee and the Central Trust Company committee had notice of it. On November 20, 1916, these two stockholders’ committees offered to comply with the order of November 6, 1916, and on November 21, 1916, the North American Liquidation Company committee produced a check for $1,350,000, the amount fixed in the order. The referee took no action upon the bids, but certified the proceedings to the court.</p>

<p>1. Courts @=266—Federal Courts—Jurisdiction.</p> <p>A federal court for one district has no jurisdiction to go-beyond the territorial limits of its district in order to act in a suit against a party not a resident of the district, unless jurisdiction has been extended thereto by acts of Congress.</p> <p>(Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 806-808; Dec. Dig. @=266.]</p> <p>2. Courts @=344—Federal Courts—Process—Service.</p> <p>Service of process in an action at law in the federal District Court is not necessarily restricted to the United States Marshal and his deputies unless the process is directed to them.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. @=344.]</p> <p>3. Courts @=344—Federal Courts—Process—Service.</p> <p>Where a foreign corporation files a certificate within a state and designates an agent, the corporation does not thus become an actual resident of a federal district, within the state, wherein it has no place of business, and service of summons on the agent in another district does not confer jurisdiction upon the District Court of the former district.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. @=344.]</p> <p>4. Courts @=274—Federal Courts—Jurisdiction oe Foreign Corporation —Service oe Process.</p> <p>A domestic corporation may be sued in the federal courts by an alien in any district where it can be served and where it is doing business, if it does not properly raise the objection against being sued elsewhere than in the district of its residence; the case not being one depending on diversity of citizenship alone.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 814; Dec. Dig. @=274.]</p> <p>5. Courts @=276—Federal Courts—Jurisdiction oe Foreign Corporation —Waiver.</p> <p>Where a foreign corporation is sued in a federal court of a district of which it is not a resident, objection to the jurisdiction may be waived.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. § 815; Dec. Dig. @=276.]</p> <p>6. Corporations @=665(2)—Process—Service—Waiver oe Defects.</p> <p>To bring a foreign corporation within the jurisdiction of the courts oi a state, strict compliance with the local statutes under which the courts gain jurisdiction over the cause is necessary.</p> <p>[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2571, 2598; Dec. Dig. @=665(2).]</p> <p>7. Courts @=344—Federal Courts—Jurisdiction.</p> <p>In an action in the federal District Court for the Eastern District of New York by an alien against a domestic corporation, not a resident of the district, service of process was made upon a ticket agent of the corporation in charge of the office within the district. Code Civ. Proc. N. Y. § 432, declares that in an action against a foreign corporation process may be served upon a cashier or managing agent or director. Held, that while strict compliance with the statute is necessary to give jurisdiction of an action in the state courts against a foreign corporation, and while the section governs “so far as may be,” the corporation being foreign as to the court for the Eastern district, nevertheless, the agent must be deemed such an officer that service upon him was not void, but was sufficient to give jurisdiction where there was a waiver of objections to the jurisdiction of the court over the person of the corporation.</p> <p>@=For other cases see same topic & KEY-NUMBETR in all Key-Numbered Digests & Indexes</p> <p>[Ed..Note.—For other cases, see Courts, Cent. Dig. § 917; Dec. Dig. <®^>344.]</p>

<p>In the matter of the petition for payment of wages of Sigvard B. Ivertsen, a deserting seaman from the steamer Ventura.</p>

In Equity.. Suit for injunction by Heinrich Waldes and others, co-partners doing business under the firm name and style of Waldes & Co., against the International Manufacturers’ Agency, Incorporated. This is the usual suit for an injunction and accounting under Trade-Mark Registration Act, Feb. 20, 1905, e. 592, 33 Stat. 724. The bill also asks for cancellation of the defendant’s mark in so far as it conflicts with its own.

<p>1. Wiles <@=>634(4)—Construction—Interest Devised—“Use”—“Full Power to Sell and Convey.”</p> <p>A will giving the residue of his estate to testator’s wife for life, with “full power to use the same * * * as she may see fit,” and after her death to nieces and nephews, “all of the proceeds * * * left after death of my wife” vested at once in the remaindermen a fee simple title to whatever might remain undisposed of under the widow’s power, subject only to her life estate, since the word “use” does not signify the broad power of disposal for other purposes than her own use, nor does the grant of “full power to sell and convey” signify more than that the testator wanted to leave her unhampered in the handling of the estate to her use.</p> <p>[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1492; Dec. Dig. <@=>634(4).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Use.]</p> <p>2. Bankruptcy <@=>143(9)—Property Vesting in Trustee—Remainders.</p> <p>The interest of a nephew under such will passed to his trustee in bankruptcy as a vested remainder; it being a property right, although subject to be entirely defeated.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 223; Dec. Dig. <@=>143(9).]</p> <p><@c»For other cases see same topic & KEY-NUMBER in all Key-Numbered'Digests & Indexes</p>

<p>In Equity. Bill by Erancis E. Hess against Hugh Bowen.</p>

Pollock, Judge. Edward C. Chambers and Ernest L,. Russell were convicted of devising a scheme to defraud and intending to carry it out by using the mails, and they severally bring error.

<p>Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>Suit in equity ’by Sidney T. Mallory and others against Andy Sunday and others. Decree for complainants, and certain defendants appeal.</p>

Riner, Judge. Suit in equity by W. D. Valentine and others against the Mexico-Wyoming Petroleum Company and others. Decree for complainants, and defendants appeal.

<p>In Error to the District Court of the United Statés for the' District of Colorado; Robert B. Lewis, Judge.</p> <p>Action at law by the United Press Association against the National Newspaper Association. Judgment for plaintiff, from which it brings error.</p>

H. Seward Thomson, Judge. Suit in equity by the James Rees & Sons Company against the Pittsburgh & Cincinnati Packet Line. From the order of distribution, complainant appeals. The following is the opinion of Thomson, District Judge: On August 6, 1908, at the suit of Janies Rees & Sons Company at the above number and term of this court, the Pittsburgh & Cincinnati Packet Line, a corporation of the state of West Virginia, was placed in the hands of James A. Henderson, receiver.

<p>Appeal from the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Suit in equity by the James Rees & Sons Company against the Pittsburgh & Cincinnati Packet Line. From order of distribution, the Commonwealth of Pennsylvania appeals.</p>

Dyer, Judge. Suit in equity by Dee S. Smith and W. Linford Smith, doing business as the Lee S. Smith & Son Company, against the Meier Dental Manufacturing Company. Decree for complainants, and defendant ap.peals. This was a suit in equity brought by appellees, Lee S. Smith and W. Lin-ford Smith, doing business under the firm name of Lee S..

Wolverton, Judge; Suit in equity by E. W. Bernitt and. Victor Wittick against the Smith-Powers Dogging Company and the C. A. Smith Dumber & Manufacturing Company. Decree for complainants, and defendants appeal. The appellees brought a suit in the court below to recover certain moneys alleged to be due them for an interest in a boom, and for boomage and rafting of logs and piles, under a partnership agreement with the predecessors in interest of the appellants.

<p>Petition to Revise Order of the District Court of the United' States for the District of New Mexico; Wm. H. Pope, Judge.</p> <p>Petition by'the Kemp Dumber Company,-a corporation, against Thomas Howard to revise an order of the District Court in bankruptcy.</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>Suit in admiralty by the Masaba Steamship Company, owner of the steamer Joe S. Morrow, against the Great Bakes Towing Company and the Cleveland Terminal & Valley Railroad Company. Decree for libelant against the Towing Company alone, which appeals.</p>

Petition to Revise Order of the District Court of the United States for the District of New Mexico; William H. Pope, Judge. In the matter of the bankruptcy of Monte U. Powell and Minnie A. Powell. Petition by the American Trust & Savings Bank to revise an order of the District Court, made on application of B. Ruppe, trustee in bankruptcy.

H. Sawtelle, Judge. Suit in equity by Cornelius C. Watts and Dabney C. T. Davis, Jr., against the Arizona Copper Estate. Decree for complainants, and defendant appeals. Mathews and Syme were the owners of 99,000 acres of land in Arizona, which they wished to sell. Through the intermediation of Col. Boyce as a broker, Syme met Senator Dorsey, a prospective purchaser.

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action by Isaac Bleznak against the Springfield Fire'& Marine "Insurance. Company. Judgment for plaintiff, and defendant brings error.</p>

Orr, Judge. Suit in equity by the American Casting Machine Company against the Pittsburgh Coal Washer Company. Decree for defendant, and complainant appeals. The following is the opinion of Orr, District Judge: This patent suit originally involved three patents.

Tuttle, Judge. " Suit in equity by the Clipper Belt Lacer Company against the E-W Company and others. Decree for defendants, and complainant appeals. The appellant brought suit below, alleging infringement of patent No. 806,556, dated December 5, 1905, issued to Mitchell and Gunn, for a belt stapling tool.

<p>1. Patents @=>328—Validity and Infringement—Process of Ore Concentration.</p> <p>Tbe Sulman, Picard and Ballot patent, No. 835,120, for a process of concentrating ores known as an air flotation process, was not anticipated and is valid. The process consists in finely pulverizing the ore and mixing it with water and less than 1 per cent, of oil computed on the weight of the ore, and subjecting the ore pulp to such agitation as will distribute the metallic particles of ore throughout the mixture and bring them in contact with bubbles resulting from the introduction of air into the mixture, the bubbles becoming attached to such metallic particles and carrying them separate from the particles of gangne up through the surface of the mixture where they can readily be collected by skimming, overflow, or other well-known means.' Claims 1 and 12 held infringed, and claim 9 held void as too indefinite as to the amount of oil.</p> <p>2. Patents <@=>44—Process—Patentability.</p> <p>The fact that the principle of operation of a process is not understood does not negative patentability.</p> <p>[Ed. Note.—For other cases, see Patents, Dec. Dig. @=>44.]</p> <p>8. Patents @=>328—Validity and Infringement—Process of Ore Concen- ’ TEATION.</p> <p>The Sulman, Greenway and Higgins patent, No. 962,678, for improvements in ore concentration, being for a process in which the ore particles are caused to float by the introduction into the acidified ore pulp of a small quantity of a mineral frothing agent, held valid and infringed.</p> <p>4. Patents @=>328—Invention—Process of Ore Concentration.</p> <p>The Greenway patent, No. 1,099,699, for a process for concentration of ores, held void for lack of invention, in view of the process of patent No. •962,678 and of the prior art.</p> <p>@=>Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=112(4)—Suit fob Infringement—Evidence of Anticipation —Interference Proceedings.</p> <p>In a suit for infringement against one not a party nor in privity with the parties to an interference proceeding in the Patent Office, wherein it is sought to antedate the patent to which priority was awarded, certified copies of Patent Office decisions or examiner’s opinions as to the facts adduced in the interference proceeding, if admissible at all, are so only in support of independent evidence to establish prior invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 165; Dec. Dig. <@=>112(4).]</p> <p>2. Patents <§=>112(4)—Suit fob Infringement—Priority of Invention— Burden of Proof.</p> <p>While the burden of proof rests in the first instance on the defendant in an infringement suit to establish prior invention by another, when a certified copy of a prior patent is introduced, it is presumptive evidence that the patentee was the original inventor of the device described therein, and that it was completed at the time the application for the patent was filed, and the burden is shifted to the complainant to establish to the satisfaction of the court a, still earlier date of invention.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 165; Dec. Dec. <@=>112(4).]</p> <p>On Rehearing and Reargument.</p> <p>3. Patents <@=>328—Anticipation—Starting Device fob Gas Engines.</p> <p>The Baldwin patent, No. 1,009,011, for a starting device for gas engines, the function of which is to prime the cylinders in gasoline engines to facilitate the starting of the engine when cranked, held not anticipated, valid, and infringed.</p> <p>4. Patents <@=>58—Suit fob Infringement—Proof of Anticipation.</p> <p>The burden rests on the defendant in an infringement suit to establish anticipation by cogent evidence, such as leaves no reasonable doubt'in the mind of the court.</p> <p>[Ed. Note.—For other cases, see Patents, Cent. Dig. § 75; Dec. Dig. <8=>58.]</p> <p><S=oEor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Patents <@=»328—Infringement—System of Electrical Distribution. The Creveling patent, No. 747,686, for a system of electrical distribution as applied to axle-driven car-lighting apparatus, held not infringed.</p> <p>2. Patents <®=»328—Infringement—System of Electrical Distribution. The McElroy patents, Nos. 720,605 and 893,533, for systems of electrical distribution as applied to car lighting, held not infringed.</p> <p><£c3>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by Charles W. Mayer against A. & H. G. Mutschler, the Rochester Wax Paper Company, and Daniel J. Coakley. On final hearing.</p>

<p>In Equity. Suit by the Hall Printing Press Company and the Miehle Printing Press & Manufacturing Company against George Mann & Co., Timited, George C. H. Wichmann, Arthur B. Evans, and Harold Dawson. On final hearing.</p> <p>This is the usual bill for infringement of a patent. The machine is in the art of rotary planographic transfer printing presses, the patent, No. 770,-188, being for the “tripping,” or movement of the middle or. transfer cylinder from the other two; such movement being within the control of the pressman, with sufficient speed to remedy the difficulties otherwise arising whenever a sheet is missed. In machines of this character the “form,” or printing, cylinder, which is furthest removed from the impression cylinder, has a sector of its periphery covered by the printing surface, which generally consists of a zinc or aluminum plate-tightly stretched, and upon each rotation inked by various inking and dampening devices which are well known in the art. The second, or transfer, cylinder, which contacts with the “form,” also has upon a sector of its periphery a rubber “blanket,” so called, which takes the ink impression from the aluminum plate in sufficient quantity to do the printing. Having received the ink from the aluminum plate, the transfer cylinder continues to rotate, and eventually contacts with the third, or impression, cylinder. When all goes well, the sheet separates the impression cylinder from the transfer cylinder during that part of the cycle when the transfer blanket is in contact; but, if a sheet be missed, the blanket will print upon the impression cylinder, losing a part of its ink. As the transfer cylinder continues to rotate, the zinc plate, which itself has been re-inked by the ink rolls, will give it a double quantity. The result will be that the. next sheet will not only get upon its front too great a quantity of ink, but it will receive an offset from the impression cylinder upon its back, and thus it will be ruined. The invention consists in the mechanism by which the transfer cylinder may be immediately moved out of contact with both the form cylinder and the impression cylinder, as soon as the operator sees that he has missed a sheet. This is accomplished by mounting the transfer cylinder eccentrically in a way quite common in the arts. The claims in suit are the following:</p> <p>“13. In a printing machine, the combination of a planographic form-carrying cylinder, ink and water rollers adjacent thereto, a transfer cylinder having a yielding surface, an impression cylinder, and means for separating the transfer cylinder from both the form cylinder and the impression cylinder, substantially as described.”</p> <p>“15. In a printing machine, the combination of a planographic form-carrying cylinder, ink and water rollers adjacent thereto, a transfer cylinder having a yielding transfer surface, an impression cylinder, and means for moving the transfer cylinder to place the transfer cylinder out of printing relation with both the form cylinder and the impression cylinder, when desired, substantially as described.”</p> <p>“23. In a printing machine having a planographic form-carrying cylinder, the form consisting of a metal sheet, clamps for holding said sheet to the cylinder, a transfer cylinder having a yielding blanket and straining devices for said blanket, and an impression cylinder, means for moving the transfer cylinder to place the transfer cylinder out of printing relation with both form cylinder and the impression cylinder, substantially as described.”</p> <p>The defendant raised two questions, invalidity and double patenting. As the second point is not considered in the claim, the facts are not given in regard to it.</p>

<p>1. Patents <$=>168(2)—Construction—Estoppel by Proceedings in Patent Office.</p> <p>While a patentee, who acquiesces in the rejection of his claim, and abandons it on references cited in the Patent Office, and accepts a pafent on an amended claim, is thereby estopped from maintaining that the latter claim covérs the combination shown in the references, and that it has the breadth of the abandoned claim that was rejected, that is the limit of the estoppel.</p> <p>[Ed. Note.—Eor other cases, see Patents, Cent. Dig. § 244; Dec. Dig. <$=>168(2).]</p> <p>2. Words and Phrases—“Adjacent.”</p> <p>The word “adjacent” is not inconsistent with something intervening, but is to be construed with reference to its context (citing Words and Phrases, First and Second Series, Adjacent.)</p> <p>3. Patents <$=>226—Infringement.</p> <p>Directions given to purchasers of an infringing article', made and sold by a defendant, as to the manner of its use, cannot evade infringement.</p> <p>[Ed. Note.'—For other' cases, see Patents, Cent. Dig. § 357; Dec. Dig.. <$=>226.]</p> <p>4. Patents <$=>328—Validity and Infringement.</p> <p>The Johnston patent, No. 1,044,533 for forms for openings in buildings held valid and infringed.</p> <p>—.For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>In Equity. Suit by Bayley & Sons, Incorporated, against the Braunstein Brothers Company. On motion to dismiss.</p> <p>This is a motion to dismiss a bill in equity for infringement of a patent. The relevant allegations are that George W. Bayley was “the first, original, and sole inventor of the new and useful improvement in electric light fixtures, and was entitled to a patent therefor under the provisions of the statutes in such case made and provided, and on the 4th day of June, 1915, made an appli.cation in due form of law to the Commissioner of Patents of the United States and complied with the requirements of the laws in such cases”; that later the applicant assigned his application to the plaintiff, and “on the 12th day of October, 1915, letters patent of the United States No. 1,156,454 were granted on the said application” to the plaintiff. The purpose of the motion is to test the question whether the new equity rules have changed the former requirements of pleading in patent causes.</p>

<p>In Equity. Suit by the Pacific Coast Pipe Company against the Conrad City Water Company and others.</p>

In Bankruptcy. In the matter of the Empress Pharmacy and others, bankrupts. On claim of the Des Moines Drug Company, adjudged' by the referee a preferred claim.

In Equity. Suit by Theodore G. Stein and others against the Eleischmann Company and others. On motion for injunction. This is a motion for an injunction against the defendants’ disclosing certain trade secrets alleged to have come into their possession confidentially. The three plaintiffs are alleged to be the joint owners of the secrets, which concern the manufacture of yeast, and the jurisdiction of this court depends upon diverse citizenship.

<p>In Bankruptcy. In the matter of the bankruptcy of Abraham Kean. On opposition to discharge.</p>

In Equity. Suit by Mary A. Balfe, administratrix of the estate of Myra Tilton, and another, against Genieve E. Tilton, executrix of Charles E. Tilton. On motions to confirm and set aside the report of the master.

In Equity. Suit by Louise T. Goodno, executrix of the will of Nathaniel S. Hotchkiss, deceased, and individually, and William Good-no, against Marie O. Hotchkiss, individually, as executrix of the will of Mary A. F. Hotchkiss, deceased, and as administratrix of the estate of William H. Hotchkiss, deceased, and Yale University.

Libel by the United States to forfeit One Blue Taffeta Evening Coat, Trimmed Lace, and Other Women’s Clothing. On exceptions by the claimants for insufficiency of the libel. This is a libel of information to forfeit certain clothing brought into the port of New York on December 10, 1915, from the republic of France, by the claimant, Charlotte A. Warren, and seized by the collector.

<p>In Equity. Suit by the Chicago, Milwaukee & St. Paul Railway Company against the Incorporated Town of Lost Nation, Edward Christiansen, Mayor, and L. Balster, R. E. Cressey, J. E. Gilroy, and W. J. Schultz, Councilmen of said town, and William E. Dougherty, Sheriff of Clinton County, Iowa.</p>

<p>Sales <Sss>200(3)—Contract for Sale or Grain—Delivery.</p> <p>Plaintiff contracted with defendant for the purchase of several carloads of wheat, which were shipped by defendant, consigned to itself, and bills of lading, indorsed by defendant, with drafts attached, were forwarded to plaintiff, which accepted and paid the drafts. Before reaching plaintiff’s elevator, some of the carloads were destroyed in the great Galveston storm. Both parties were members of the Texas Grain Dealers’ Association, whose rules required an exchange of confirmations of sales in writing expressing the terms of the sale, and provided that, where one party only confirmed, that confirmation should be binding on both, unless objecf/ed Jo at the time of receipt. Plaintiff sent a confirmation to defendant, containing the provision, “Delivery of grain not perfected until grain reaches destination specified and has been inspected and weighed.” This confirmation was not objected to, but was returned initialed by defendant. Held, that such confirmation governed the rights of the parties, and that, as the carloads destroyed had not reached destination, nor been inspected and weighed, the loss must fall on defendant.</p> <p><©5»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 527; Dec. Dig. <@=> 200(3).] '</p>

<p>1. Bankruptcy @=>309—Provable Claims—Partnership and Individual Estates.</p> <p>One having a claim against a bankrupt firm, evidenced by notes, and also a claim against one of the partners individually for breach of contract, the damages being measured by the same debt, may prove his claim against the firm estate, and, after crediting the dividend thereon, may prove the balance due as a claim against the estate of the partner.</p> <p>[Ed. Note.—Eor other cases, see Bankruptcy, Cent. Dig. §§ 555-564; Dec. Dig. @=>309.]</p> <p>2. Bankruptcy @=>228—Findings oe Referee—Review. '</p> <p>Findings of fact made by a referee will not be disturbed by a reviewing court, except upon a strong showing that they are erroneous.</p> <p>[Ed. Nóte.—For other cases, see Bankruptcy, Cent. Dig. § 387; Dec. Dig. @=>228.]</p> <p><@3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by Naylor & Co. and the D’avidson Chemical Company against the Terminal Shipping Company, the Arundel Sand & Gravel Company, and the Uondon Gate Steamship Company, Uimited.</p>

<p>Edward W.-Gaag was indicted for violation of the Anti-Drug'Act, and he demurs to the indictment.</p>

<p>In Admiralty. Suit by the J. M. Colman Company against the steamship Carlos; Olson & Mahony, a corporation, and others, claimants.</p>

<p>In Equity. Suit by the Eirst Trust & Savings Bank and others against the Bitter Root Valley Irrigation Company and others. On plaintiffs’ motion to strike a defense.</p>

<p>In the matter of the naturalization of Olaf Johansen Holland. On petition for amendment of record.</p>

Petition to Superintend and Revise from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Poster, Judge. ^ In the matter of the John T. Moore Planting Company, Limited, bankrupts. Petition by Thomas H. Roger and others trustees in bankruptcy against the J. B. Levert Company, Limited, in liquidation, and others, to superintend and revise an' order of the District Court granting the petition of J. B. Levert Company, Limited.

States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. . Proceeding for criminal contempt against William J. Creekmore. Conviction and sentence, and defendant brings error.

<p>1. Equity <S=»3—'Jurisdiction—Incidental Jurisdiction.</p> <p>A court of equity may administer a bare common-law remedy when, and only when, it is incidental to the enforcement of some equity which gives the court jurisdiction.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 7-12; Dec. Dig. @=>3.]</p> <p><g=»Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p> <p>.2. Equity <©=>43—Jurisdiction—Remedy at Law.</p> <p>A court of equity held, on the evidence, without Jurisdiction to render a money decree against a defendant corporation, based on the claim that defendant had assumed the indebtedness of another corporation, the liability in such case being purely a legal one, and where it further appeared that complainant’s claim had never been adjudicated, was disputed by defendant, and that the alleged original debtor was not a party to the suit.</p> <p>[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 121-140, 164r-166; Dec. Dig. <@=>43.]</p> <p>•<£=x>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Johnson, Judge. Petition by the Johnson-Baillie Shoe Company, a corporation, and others, against Bardsley, Elmer & Nichols, a partnership, for adjudication of defendants in bankruptcy. From a decree dismissing the petition, petitioners appeal.

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.</p> <p>Action at law by the Otis Elevator Company against the Palmetto Construction Company. Judgment for defendant, and plaintiff brings error.</p>

Clarke, Judge. Action by Laura Moore against William M. Duncan, as receiver of the Wheeling & Lake Erie Railroad Company. Defendant confessed judgment for part of the amount claimed, and plaintiff brings error.

Suit in admiralty by Gust FoncLahn against the schooner C. S. Holmes. Decree in part for respondent, and libelant appeals. At 6 o’clock in the afternoon of January 3, 1913, when the schooner C. S. Holmes was about 10 miles off Cape Flattery on her way to the sea, the appellant, a sailor on the schooner, received a compound fracture of his right arm. The injury was very serious, the periosteum was torn, and bones protruded from a ragged wound.

G. Haight, Judge. Action by the Newark Trust Company and Alfred Yankauer, trustee in bankruptcy of George E. Mausert, bankrupt, against the Agricultural Insurance Company. There was a judgment for defendant, and plaintiffs bring error.

<p>Petition to Review and Revise an Order of the District Court of the United States for the Eastern District of Pennsylvania;' Oliver B. Dickinson, Judge.</p> <p>In the matter of the bankruptcy of L. & R. Wister & Co.; Humbert B. Powell, trustee. The claim of Mrs. Sabine W. Wister was allowed, and Mrs. Betty Black Wister filed a petition for a review of the order. Thereafter she petitioned to dismiss, and J. N. M. Shimer petitioned to intervene. The petition to intervene being denied, and petition to review being dismissed by the District Court (In re Wister, 232 Fed. 898), J. N. M. Shimer petitions to review and revise the order.</p>

Petition to Revise Order of the District Court for the Southern District of New York. In the matter of Elias W. Samuels, bankrupt. Petition by Samuel C. Cohen, as trustee, to revise order of the District Court refusing the petition of the trustee that the bankrupt be compelled to pay him the cash values of certain policies of life insurance, or surrender the policies.

<p>In Error to the District Court of the United States for the Eastern District of Michigan'; Arthur J. Tuttle, Judge.</p> <p>Katherine Prdjun, alias Katherine Prodjan, was convicted of violating the White Slave Act, and she brings error.</p>

<p>1. Bills and Notes @=>237—Accommodation Indorsee—Liability.</p> <p>One who indorsed, without consideration to himself, a note given in renewal of a one-name note, when the bank informed the maker that it could no longer accept a one-name note, made the indorsement for the accommodation of the maker, not of the bank, and is liable, though the bank knew that the indorser received no consideration for his indorsement, under section 24 of the Negotiable Instruments Act of New Jersey (3 Comp. St. N. J. 1919, p. 3732), creating a presumption of consideration for a negotiable instrument, section 25 defining value, and section 29 defining an accommodation maker as one who has signed the instrument, without receiving consideration therefor, for the purpose of lending credit to another party to the instrument.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 563, 564, 567-569; Dec. Dig. @=>237.]</p> <p>2. Evidence @=>441(11)—Pabol Evidence—Varying Note—Payment in Installments.</p> <p>Parol evidence is not admissible to vary the unqualified terms of a note by proving an agreement that it might be paid off in installments.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2943, 2944; Dec. Dig. @=>441(11).]</p> <p><§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>3. Bills and Notes @=»140—Liability oe Indorses—Discharge—Extension oe Time oe Payment—Consideration.</p> <p>An agreement by the bank that, if the maker of a past-due note would pay part of it, the bank would wait for the balance, is based on no consideration, and is not binding on the bank, and therefore does not relieve an accommodation indorser from his liability, even if he be considered only secondarily liable under Negotiable Instruments Act N. J. § 120, providing that a party secondarily liable shall be entitled to be discharged by any agreement binding on the holder to extend ¡the time of payment.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 355-359; Dec. Dig. @=^140.]</p> <p><S=oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Maxey, Judge. Action by the Medina Valley Irrigation Company against F. P. t Seekatz. There was a judgment for defendant for damages, and plaintiff brings error.

In the matter of bankruptcy of the Economy Mercantile Company, Limited. The claim of Ernest Fudickar, which was contested by Walker Glenn, trustee, having been allowed by the referee, was largely disallowed by the District Court, and claimant appeals.

<p>Witnesses <@=>48(2)—Competency—Persons Convicted op Crime.</p> <p>One convicted of forgery in tbe state court while a minor, and sentenced to the reformatory for indeterminate sentence, is a competent witness.</p> <p>[Ed. Note.—Eor other cases, see Witnesses, Cent. Dig. § 111; Dec. Dig. <§=>48(2)J</p> <p>Ward, Circuit Judge, dissenting.</p> <p>©=»For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Action by George Stankus against William A. Jamison. There was a judgment for defendant, and plaintiff brings error. On writ of error by the plaintiff below to review a judgment which was entered after a decision dismissing the complaint at the close of the evidence. The action was brought to recover damages for injuries received by reason of the alleged negligence of the defendant, who is a member of the firm of Arbuckle Bros., which firm employed the plaintiff.

<p>On motion for modification of mandate of reversal.</p>

Action by Bridget Meares, as administratrix,, etc.,, against the Delaware, Lackawanna & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error.

Petition to Revise Order of District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of John Conroy. Petition by the bankrupt to revise an order vacating an order restraining James E. Connolly from continuing supplementary proceedings on a judgment recovered in the state court.

Tuttle, Judge. Suit in equity by the Vulcan Soot Cleaner Company against the Diamond Power Specialty Company. Decree for defendant as to two patents in suit, and complainant appeals. The following is the opinion of Tuttle, District Judge: The complainant herein owns letters patent of the United States No. 705,912, issued July 29, 1902, to W. Eichelberger, for soot cleaners for steam boilers.

<p>In Equity. Suit by the Standard Tobacco Stemmer Company against the Tobacco Stemming Machine Company. On final hearing.</p>

<p>In Equity. Suit by the Union Tool Company against the Wilson & Willard Manufacturing Company. On final hearing.</p>

<p>In Equity. Two suits by Elihu C. Wilson against the Union Tool Company, consolidated. On final hearing and petition for rehearing.</p>

<p>1. Patents @=>328—Infringement—Weather Strip.</p> <p>The Vose patent, No. 717,641, for a weather strip, held not infringed,</p> <p>2. Patents @=>198—Shit for Infringement—Title of Complainant.</p> <p>Proof of an assignment of a patent held) sufficient to vest title in the-complainant.</p> <p>[Ed. Note.—Pori other cases, see Patents, Cent. Dig. § 277; Dec. Dig. @=>198.]</p> <p><®=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.</p>

<p>1. Shipping <§=>163—Carriage of Passengers—Breach of Contract—Duty to Refund Passage Money.</p> <p>A moratorium or prohibition against withdrawal of bank accounts in a foreign country is not a defense to an action by a passenger in the United States for breach of duty to refund passage money in the foreign country, where it does not appear that it rendered performance of the duty impossible, bnt merely inconvenient.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 530-532; Dec. Dig. <§=>163.]</p> <p>©=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>2. Shipping <@=>163—Carriage of Passengers—Breach of Contract—Liability for Damages.</p> <p>Tlie purchaser of a steamship ticket for passage from a foreign country runs the risk of a declaration of war, and cannot recover damages for breach of the contract resulting from such a declaration and consequent action by the foreign government, which rendered performance by the carrier impossible, particularly where it is exempted from such liability by the terms of .the ticket.</p> <p>[Ed. Note.—For other cases, see Shipping, Cent. Dig. §§ 530-532; Dec. Dig. <g=s>163.]</p> <p><gc»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Frampton F. Ellis, administrator of the estate of Samuel A. Pegram, deceased, against Dodge Bros., a corporation. On demurrer to petition.</p>

<p>In Bankruptcy. In the matter of the. McKinnon Company, alleged bankrupt. Petition by M. Rosenman & Son and others for an adjudication in bankruptcy.</p>

<p>1. Bankruptcy <@=>151—Trustees—Eight oe.</p> <p>In the absence of preference or fraud, the trustee of a bankrupt, save as to an instrument reserving a lien on the bankrupt’s estate unrecorded at the time the bankruptcy petition was filed, has only the same right as the bankrupt.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. §§ 193, 239; Dec. Dig. <@=>151.]</p> <p>2. Courts <@=>366(1)—Precedence—Federal Courts.</p> <p>The federal courts will, save in very exceptional cases, follow the construction placed upon the statutes of a state by the courts of last resort of the state.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 956, 957, 967; Dec. Dig. <@=>366(1).]</p> <p>8. Bankruptcy <@=>188(2)—Liens—Priority—Eight oe Trustee.</p> <p>Code Iowa, § 2905, declares that no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser, unless recorded, while section 2906 declares that no sale or mortgage of personal property, where the vendor or mortgagor retains possession, is valid as against existing creditors or subsequent purchasers without notice, unless recorded. Claimant sold goods to a bankrupt under a contract of conditional sale, reserving title to itself, which contract was not recorded until a few days before the filing of the petition in bankruptcy. Held, that, as the lien reserved by the conditional sale contract did not constitute a preference, and the trustee obtained no greater rights than those which would have been acquired by creditors who might have secured a lien by attachment or otherwise on the day of the filing of the petition in bankruptcy, the trustee could not question the lien of claimant; the exceptions of the Iowa statutes in favor of creditors not extending to general creditors, though their indebtedness accrued after the execution of the contract and before recordation, such a creditor having no priority until he shall have obtained the lien, by attachment or otherwise, without notice of the lien of the contract.</p> <p>[Ed. Note.—For other cases, see Bankruptcy, Cent. Dig. § 292; Dec. Dig. <@=>188(2).]</p> <p>4. Sales <@=>454—“Conditional Sale”—Nature of Contracts.</p> <p>Contracts which' reserve title absolutely in thé vendor are not conditional sales, within the meaning of the Iowa recording acts, but are bailments; hut a contract of sale, contemplating resale by the buyer, is a “conditional sale,” and not a bailment. '</p> <p>[Ed. Note.—For other cases, see .Sales, Cent. Dig. §§ 1324, 1325, 1333, 1334; Dee. Dig. <@=>454.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Conditional Sale.]</p> <p>5. Sales <@=>461—Conditional Contracts of Sale—Validity.</p> <p>An order for goods, reciting that it was subject to the conditions and agreements on the back, which was signed by the purchaser, bore on its back the statement that title to, ownership of, and right of possession of all gopds shipped under the contract should be and remain in the seller until the same should be paid for. The goods were shipped under the contract. Held that, as between, the parties, a valid conditional sale was created.</p> <p>@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—Eor other cases, see Sales, Cent. Dig. §, 1349; Dec. Dig. <@=461.]</p> <p>6. Sales <@=462—Conditional Sales—Creation.</p> <p>In such case, though a clause in the order declared that the contract was subject to the approval of the seller, and should not be binding unless accepted in writing by it, a valid conditional sale was created, where a salesman of the seller wrote that the same was accepted subject to the approval of the seller, and the seller showed its approval by delivering the goods.</p> <p>[Ed. Note.—Eor other cases, see Sales, Cent. Dig. § 1350; Dec. Dig. <@=462.]</p> <p>7. Sales <@=472(2)—Conditional Sales—Contracts—Validity.</p> <p>In such case, as the Iowa statutes fix no particular time for execution and recordation of such contracts, the validity of the conditional sale contract was not affected, because it was not acknowledged by the buyer or recorded until a considerable time after delivery of the goods; the contract being acknowledged and placed on record before the rights of creditors intervened.</p> <p>[Ed. Note.—Eor other cases, see Sales, Cent. Dig. § 1370; Dec. Dig. <@=472(2).]</p> <p>8. Sales <@=477(3)—Conditional Sales—•Contracts—Validity.</p> <p>Where a seller reserved title by conditional sale contract, the fact that he thereafter secured additional security by chattel mortgages and notes, which were recorded, will not impair his security under the conditional sale contract.</p> <p>[Ed. Note.—For other cases, see Sales, Cent. Dig. § 1413; Dec. Dig. <@=477(3).]</p> <p><@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

<p>1. Tbade-Mabks and Tbade-Names @=>70(1)—Unfaib Competition—What-Constitutes.</p> <p>After complainants had advertised a coal-burning brooder stove, and established agencies through which an appreciable number of stoves had been sold, defendants, one of whom had designed a similar stove, began the sale of stoves which were copies of those sold by complainants; the patterns being taken from complainants’ stove. Compláinants’ stove, save in respect to the addition of a doorl at the base, resembled -an earlier patented stove. Held that, though on the door at the base, where complainants had placed their name, defendants marked their stoves with their name, nevertheless their copy of the characteristic features of complainants’ stoves in all nonessential elements amounted to unfair competition; complainants’ stove having been first advertised in a market already created.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent.. Dig. § 81; Dec. Dig. @=>70(1).]</p> <p>2. Tbade-Mabks and Tbade-Names @=>70(1)—Unfaib Competition—Copy of-Nonessential Details.</p> <p>In such case, those portions of the stove necessary to its performance-of the work intended, though importing to it a distinctive appearance, are not mere nonessential details, the adoption of which would constitute unfair competition; but the base, which was unnecessary for the discharge of the functions of the stove, was a nonessential detail, a copying of which would constitute unfair competition.</p> <p>[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. @=>70(1).]</p> <p><@c»For othnr cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

In Equity. Bill by William A. Rqgers, Rimited, against the H. O. Rogers Silver Company and John J. Nichols and another, as officers and directors thereof. On petition for preliminary injunction.

<p>At Law. Proceeding by the United States against Joseph Pablo for the forfeiture of one automobile, in which Floyd J. Logan intervened, claiming the motorcar.</p>

<p>1. Patents <@=287—Contributory Infringement—Measure of Liability.</p> <p>Where two parties contribute to an infringement, but by separate acts, as one by the sale of materials, and the other by the manufacture and sale of the infringing article, they are not liable jointly, but separately, each for his own part of the infringement.</p> <p>[Por other cases, see Patents, Cent. Dig. §§ 457-^59; Dee. Dig. <§=287.]</p> <p>2. Patents <§=286—Infringement—Damages Recoverable.</p> <p>In a suit by the owner of a patent for its infringement by the sale by defendant of material to be used in making the infringing article, complainant may recover for sales made in territory covered by exclusive licenses given by him, but limited to such territory, since the licensees cannot sue in their own names for such recovery.</p> <p>[Por other cases, see Patents, Cent. Dig. §§ 453-456; Dec. Dig. <®=288.]</p> <p>(g^iPor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the matter of the E. & D. Company, bankrupt. On motion to review the order of the referee appointing a trustee.</p>

Appeals from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. Suit by Robert H. Oneal against Julia G. Stewárt and others. From decree for complainant, three appeals are taken; one by the named defendant and others, one by defendant Samuel F. Cary and others, and one by all the defendants.

Appeals from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge. Suits in equity by the Central Trust Company against International' & Great Northern Railway Company, and by the Texas Company against the International & Great Northern Railway Company and others. From orders entered in each' suit, the Texas Company appeals.

<p>Appeal from the District Court of the Upited States for the Eastern District of Missouri; Jacob Trieber, Judge.</p> <p>Suit in equity by Charles G. Heinz against the National Bank of Commerce in St. Louis and others. Decree for defendants, and complainant appeals.</p>

C. Van Fleet, Judge. ' Action at law by the California Adjustment Company against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error seeks to reverse a judgment of the court below, rendereci in favor of the defendant in error for the sum of $3,9-28.01. The parties will be herein named plaintiff and defendant, as in the court below.

Riner, Judge. Suit in equity by Rufus C. Elder and Frank E. Mann, executors of the will of George W. Elder, deceased, and Frank E. Mann, against the Western Mining Company, Samuel D. Nicholson, the Adams Mining Company, Julius Rodman,'the American Smelting & Refining Company, the Guggenheim Exploration Company, the American Smelters Security Company^ the A. M. W. Mining Company, W. W. Sylvester, W. A. Rule, A. D. Grant, H. B. Louderman, Jr., J. F. Broemelsick, W. D. Waters,…

<p>■ In Error to and Appeal from the District Court of the United States for tire District of Colorado ; Robert E. Lewis, Judge.</p> <p>Criminal prosecution by the United States against Thomas R. Smart and others. From an order vacating an order adjudging forfeiture of a recognizance, the United States brings error and appeals.</p>

In, Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge. The Toledo Newspaper "Company and another were convicted of criminal contempt (220 Fed. 458), and they bring error.

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Action at law by the Anheuser-Busch Brewing Association against John P. Kleman. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Pleading <@=>35—Complaint—Surplusage.</p> <p>A paragraph of a complaint in a servant’s personal injury action, which alleged that it was the duty of the master to use reasonable care in furnishing and providing the servant with a suitable and safe place in which to work, and to provide the servant with competent and suitable overseers, foremen, and fellow servants, may be rejected as surplusage, because pleading matters of law, and not fact.</p> <p>[Ed. Note.—For other eases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. <@=>35.]</p> <p>2. Pleading <@=>35—Complaint—Surplusage.</p> <p>Where the averments of fact in the complaint did not show any violation of the duties alleged to exist in such paragraph, the paragraph may be stricken.</p> <p>[Ed. Note.—For other casés, see Pleading, Cent Dig. §§ 76-80; Dec.. Dig. <@=>35J r</p> <p>3. Master and Servant <@=>258(18)—Injuries to Servant—Negligence— Complaint.</p> <p>A complaint of an injured servant must allege facts showing .negligence on the part of the master, and, as it is not necessarily negligence to order an employé to perform a dangerous service, a complaint alleging that plaintiff, a rope tender in one of defendant’s mines, was directed to disentangle a cable used to propel a car, without stopping the engine operating the cable, and so was caught and injured, does not charge negligence; there being no averments of facts showing negligence or a necessity to warn.</p> <p>g^For oilier eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. <@=258(18).]</p> <p>4. Master and Servant <@=265(11)—Presumption—Warning.</p> <p>Where his complaint alleged that plaintiff had been in the employ of defendant mining company for some time, and there was no allegation of youth or inexperience, it must be presumed that he was in full possession of his faculties, and so capable of appreciating the danger of being caught by machinery; hence the, master was not bound to warn.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. <@=265(11).]</p> <p>5. Pleading <@=408—Defects—Waiver of Defects.</p> <p>Comp. Laws N. M. 1897, § 2685 (Code Civ.' Proc. subsec. 39) now Code 1915, §§ 4110, 4114, declaring that objections to the complaint shall be deemed waived, when not taken by demurrer or answer, excepting only the objection to the jurisdiction of the court over the subject-matter of the action and the objection that the complaint does not state a cause of action, merely declare the usual rule that the failure of a complaint to state facts sufficient to constitute a cause of action is not waived by failure to raise the objection by demurrer or answer, but that it can be raised at any time.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1362, 1366; Dec. Dig. <@=408.]</p> <p>6. Pleading <@=433(5)—Defects—Verdict.</p> <p>Where by motion for directed verdict defendant questioned the sufficiency of the complaint to state a cause of action, and again raised the matter in motion in arrest, the doctrine of cure by verdict cannot be extended to the complaint.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1459, 1469-1471, 1476; Dec. Dig. <@=433(5) ¡ Replevin, Cent. Dig. § 209.]</p> <p>other cases see same topic & KEY-NUMBER, in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.</p> <p>Action by Jocie McCallum, administratrix, etc., against the Western Coal & Mining Company. There was a judgment for plaintiff, and defendant brings error.</p>

Maxey, Judge. Proceeding by the United States of America against Pascual Orozco and others for forfeiture of a bail bond, in which Refugia E. De Orozco was allowed to become a party defendant on the death of the principal defendant. There was judgment for plaintiff, and defendants bring error. This was an action in the court below, instituted by thei defendant in error originally against Pascual Orozco and the sureties on a bail bond executed by him.

<p>1. Aliens <@=^32(5)—Chinese Exclusion—Burden of Proof.</p> <p>A Chinese person, contesting deportation on the ground that lie was born in the United States, has the burden of proof.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 84; Dec. Dig. <8=»32(5)J</p> <p><®=^>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests '& Indexes</p> <p>2. Aliens <S=>32(12)—Deportation—Review—Findings.</p> <p>Determination, of commissioner of question of fact as to birthplace of Chinese person, whose deportation was sought, having been approved by the District Court, will not be disturbed on appeal.</p> <p>[Ed. Note.—For other cases, see Aliens, Cent. Dig. § 95; Dec. Dig. ©=>32(12).]</p> <p><g^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Texas; William B. Sheppard, Judge.</p>

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

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Petition to Superintend and Revise Order of the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p>

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Assumpsit by Emil E. Lungwitz against the Ehret Magnesia Manufacturing Company. Judgment for plaintiff on the pleadings, and defendant brings error. Reversed, with directions to proceed to a trial.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p>

<p>Appeal from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p>

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

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

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

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge.</p>

<p>In Error to the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge.</p>

<p>Petition to Revise in the District Court of the United States for the Eastern' District of Michigan; Arthur J. Tuttle, Judge.</p>

<p>Appeals from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p>

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

<p>Appeal from the District Court of the United States for the First Division of the Northern District of California.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Wm. B. Sheppard, Judge.</p>

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

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p>

<p>In error to the District Court of the United States for the Western District of Texas; Henry D. Clayton, Judge.</p>

<p>Appeal from the District Court of the United States-for the Southern-District of Florida; Rhydon M. Call, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Southern District of Georgia; Emory Speer, Judge. Action by Mrs. Vinnie Butler against the Southern Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p>

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

<p>In Error to the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Burns, Judge.</p>

<p>Appeal from the District Court of the United States for the Western District of Louisiana; Aleck Boarman, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p>