Volume 238 — Federal Reporter

<p>Appeals from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.■</p> <p>Suit by the G. & C. Merriam Company against the Saalfield Publishing Company and another for an injunction to restrain defendants from using the same name in the title of their dictionaries as was used by plaintiff.. From a decree'permitting the use of the name under certain restrictions, both parties appeal.</p>

<p>In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge.</p> <p>Action by David A. Gelvin against the Chicago, Burlington & Quincy Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>Suit by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company. Decree dismissing the bill (229 Fed. 234), and plaintiff appeals.</p>

<p>Coubts <&wkey;347 — Equity Rules — Pleading—Amendment.</p> <p>Where a bill to restrain a railroad company from removing the line of a telegraph company from its right of way claimed that the telegraph company had an irrevocable, perpetual easement to maintain its line, but the only facts alleged in the bill showing that the telegraph company’s rights were under contracts for a limited period which had expired, plaintiff will be given an opportunity to amend its bill under equity rules 19 and 20 (198 Fed. xxiii, xxiv, 135 C. C. A. xxiii, xxiv), providing for amendments in furtherance of justice and for more specific statements of the nature of claims, so as to set forth the facts which áre the-basis of it's claim of a perpetual easement.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; -Dec. Dig. <&wkey;>347.]</p>

<p>Appeal from the District Court of the United States for the Northern District of Georgia; William T. Newman, Judge.</p> <p>Suit by the Western Union Telegraph Company against the Nashville, Chattanooga & St. Louis Railway. Decree dismissing the bill (233 Fed. 605), and plaintiff: appeals.</p>

<p>Appeal from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge.</p> <p>Suit between the Western Union Telegraph Company and the Western Railway of Alabama. From the decree, the Telegraph Company appeals.</p>

Sessions, Judge. Action by Michael Horrigan, trustee in bankruptcy for the estate of one Reitz, against George H. Arnold. There was a judgment for plaintiff, and defendant brings error.

<p>1. Courts <&wkey;489(13) — Federal Courts — Jurisdiction.</p> <p>The federal courts sitting in equity have no general jurisdiction in matters of probate and the administration of decedents’ estates.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1325; Dec. Dig. &wkey;489(13).]</p> <p>2. Courts <&wkey;489(13) — Federal Courts — Jurisdiction.</p> <p>Where the state courts have not taken jurisdiction, a federal court sitting in equity may, on the ground of diversity of citizenship of the parties, take jurisdiction of proceedings involving a decedent’s estate only for the purpose of preserving the same and determining the rights of creditors and others to share in the estate.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1325; Dec. Dig. &wkey;489(13).]</p> <p>3. Courts &wkey;>200 — Georgia Courts oe Ordinary.</p> <p>The court of ordinary of Georgia is a court of competent jurisdiction to administer the estate of decedents.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 441, 442, 454, 469-471; Dec. Dig. &wkey;>200.]</p> <p>4. EXECUTORS AND ADMINISTRATORS <&wkey;29(4)-RIGHT OF ADMINISTRATOR-COLLATERAL Attack.</p> <p>Where temporary administrators were appointed by the court of ordinary of Georgia for the county in which the estate of decedent lay, the federal court cannot take jurisdiction of a bill involving the administration of the estate, on the theory that such temporary administrators were not officers of the court because of irregularities and fraud in their appointment, for, the court of ordinary being a court of competent jurisdiction, its appointment could not thus be collaterally attacked.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § ISO; Dec. Dig. &wkey;29(4)J</p> <p>5. Courts &wkey;>505 — Authority of Administrators — Appointment.</p> <p>Though administrators are acting under temporary letters, which might have been issued by the clerk, but were issued by the ordinary, they are nevertheless officers of the court of ordinary, and a contrary claim, as a basis for the federal court’s taking jurisdiction of a suit involving the estate, cannot be supported. '</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1410; Dec. Dig. &wkey;505.]</p> <p>6. Courts <&wkey;505 — Court oe Ordinary — Conflicting Jurisdiction.</p> <p>Where a petition for the administration of an estate was filed with the court of ordinary, such court, though not in actual possession of the estate, is entitled to possession, and has such jurisdiction over the administration proceedings that the federal court cannot entertain jurisdiction of a bill involving the estate on the theory that no administration was pending.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1410; Dec. Dig. &wkey;505.]</p> <p>7. Courts <&wkey;505 — Jurisdiction—Grounds of.</p> <p>A court of equity cannot take jurisdiction over an estate to prevent waste and dissipation, unless the administration is vacant and the danger of loss imminent, and so, where. administration was pending, the federal court cannot take jurisdiction.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 1410; Dec. Dig. &wkey;505.]</p> <p>8. Executors and Administrators <&wkey;29(4) — Title—Right to Collateral. Attack.</p> <p>Where temporary administrators had given adequate bond, and additional temporary administrators, who were qualified to act, had been appointed, the right of the original temporary administrators cannot be questioned in a suit where it was sought to secure the appointment of a receiver by the federal court on the ground that such administrators had received their appointment through fraud and irregularities.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 180; Dec. Dig.- <&wkey;29(4).]</p> <p>9. Courts &wkey;>505 — Administration—Appointment of Receiver.</p> <p>Temporary administrators were appointed by the ordinary pursuant to the Georgia practice. Thereafter a bill was filed in the federal court seeking the appointment of a receiver, it being contended that the administration was vacant, because the temporary administrators had no-right to carry on the business of the decedent. Held that, as it did not appear that there was any necessity for the carrying on of any business except the conduct of decedent’s plantation, and his farming operations were in the hands of' his tenants, a receiver, who would have no greater power to carry on the business, cannot be appointed on the theory that the administration was vacant.</p> <p>[Ed. Note. — For other cases, see Courts, 'Cent. Dig. § 1410; Dec. Dig. &wkey;505.]</p> <p>10. Courts <&wkey;505 — Receivers—Waste.</p> <p>Where temporary administrators had given sufficient bonds in the amount of $1,000,000, and a number of them were persons of property, a receiver cannot be appointed by the federal court on the ground of waste or dissipation of assets, though the administrators were claimed to have exceeded their authority.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1410; Dec. Dig. <&wkey;>505.]</p> <p>11. Courts &wkey;>506 — Federal Courts — Jurisdiction.</p> <p>The federal courts have no authority to stay' proceedings in the state court, while they are in progress and before they are concluded by the final judgment or decree, save in the aid of bankruptcy proceedings or their own previously acquired jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. &wkey;>506.]</p> <p>12. Courts &wkey;>509 — Federal Courts — Jurisdiction.</p> <p>A bill for the appointment of a receiver to conserve the estate of a decedent cannot be maintained, on .the ground that the decree of the ordinary appointing temporary administrators was obtained through fraud of the parties, for, while the federal courts may relieve against a judgment of the state court induced by fraud, such judgment must be final, and it cannot be presumed that, upon the granting of the permanent letters of administration, injustice will be done.'</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 1364-1371; Dec. Dig. &wkey;509.j</p>

In the matter of the bankruptcy of the Mullings Clothing Company. From an order (230 Fed. 681) dismissing the petition of John B. Mul-lings for a review of the rulings of the referee, petitioner appeals. This cause comes here on appeal from a decree of the United States District Court for the District of Connecticut.

Dickinson, Judge. Proceeding by the 'United States against Louie Dai, alias Mar Ginn, for his deportation as a Chinese laborer unlawfully within the United States. From an order of deportation, defendant appeals.

Appeals from the District Court of the United States, for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Separate proceedings by the United States against Louie Lit and Louie Fong for their deportation as Chinese laborers unlawfully within the United States. Prom orders of deportation, the defendants appeal.

<p>1. Master and Servant @=107(8) — New York Employers’ Liability Act— Construction — '“Plant.”</p> <p>Under the New York Employers* Liability Act (Consol. Laws, c. 31, §§ 200-204), as amended by Laws 1910, c. 352, which gives an employé a right of action for an injury received while in the exercise of due care “by reason of any defect in the ways, works, machinery or plant” of the employer, owing to the negligence of the employer, or of any one in his service intrusted with the duty of seeing that his ways, works, machinery, and plant are in proper condition, as such statute is construed by the state courts, a skid or gangplank furnished by a railroad company for use in unloading freight cars, one end of which is placed on the floor of the car and the other on the platform or pier, is a part of the “plant” of the company.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <@=>107(8). For other definitions, see Words and Phrases, First and Second Series, • Plant.]</p> <p>2. Master and Servant @=107(S) — New York Employers’ Liability Act—</p> <p>Construction.</p> <p>An employer cannot avoid the liability imposed by such act by his omission to supervise the condition of his ways, works, machinery, and plant, and by imposing upon its employes the responsibility which the act imposes upon him.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. @=107(8).]</p> <p>3. Master and Servant @=107(8) — Master’s Liability for Injury to Servant — Defective Plant.</p> <p>Plaintiff, with other longshoremen, under a foreman, was employed by defendant railroad company in loading and unloading its cars a.t a. pier to which the cars were brought on floats. His gang was directed by the foreman to finish unloading a car, which had been partly unloaded by another gang. The latter had left the door open, with a skid in place, reaching from the car door to the pier, over which the goods were moved on trucks. As plaintiff was passing down with his truck, 'the skid fell, and he was severely injured. Owing to the action of the tide, which varied the height of the floats, it was necessary to safety that the skids should be made fast to the car, and for that purpose they were in general equipped with ropes. Defendant kept a number of skids on the pier for the use of the workmen, who made their own selections and put them in place. There was evidence warranting a finding that the skid in question was not so equipped, and was not fastened to the car, and that plaintiff, whose gang did not make the selection, did not know sucn facts. Meld that, under the statute, defendant was not relieved from liability by the fact that it supplied skids in good condition, and that a judgment for plaintiff was sustained by the evidence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <S=>107(8).]</p>

Appeals from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Suits in equity by the Bankers’ Trust Company to foreclose mortgages of tire Wabash Pittsburgh Terminal Railway Company and the Wabash Pittsburgh Railway Company. Charles Fearon and others, composing a bondholders’ committee, appeal from an order refusing them permission to intervene, and from an order confirming a sale of the property.

<p>Appeal from the District Court of the United States for the South'ern District of New York.</p> <p>Suit in equity by Stephano Bros., Incorporated, against Stamatis D. Stamatopoulos and Peter D. Stamatopoulos, Stamatis D. Stamatopou-los, and George Papageorges, copartners trading under the firm name of Stamatopoulos & Co. Decree for complainant, and defendants appeal.</p>

Orr, Judge. Action by Clara Kelly, as executrix of Elmer J. Kelly, deceased, against the Pennsylvania Railroad Company. Judgment refusing to take off a compulsory nonsuit, and plaintiff brings error.

Action by John W. McKinnon, as agent for shareholders of the National Bank of North America in New York, against Rida M. Fleitman, as administratrix of the estate of F. Augustus Heinze, deceased. Judgment for plaintiff, and defendant brings error.

Action by Henry D. Joyce against the Hudson Navigation Company. Judgment for the plaintiff, and defendant brings error. A corporation, to whose rights the Hudson Navigation Company (plaintiff in error and defendant below) succeeded, received from the city of New York, through the commissioner of docks, a lease dated May 9, 1901, of the wharf-age, etc., of certain pier on Manhattan Island for the term of ten years.

<p>1. Partition &wkey;>39 — Suit—Forfeiture.</p> <p>As the Illinois statutes require complainants in a partition suit to make all parties defendant who have any interest or alleged interest in the land in controversy, defendants, who were joined and claimed a leasehold in the property sought to be partitioned, cannot defeat partition on the ground that, as complainants asserted their leasehold had been forfeited for nonperformance of covenants, the suit was one to enforce a forfeiture; for equity, having taken jurisdiction of the proceeding for partition, could dispose of that portion of the suit involving the forfeiture.</p> <p>[Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 93-96; Dec. Dig. i&wkey;39.]</p> <p>2. Landlord and Tenant <&wkey;157(l) — Conditions—Waiver -of Conditions.</p> <p>Where a lease, which reserved an annual rental of $3,000, required the lessees to erect before 1893 a temporary building on the demised premises, costing not less than $7,000, and to erect a permanent building by 1898, costing not less than $50,000, and the two covenants were wholly separate, the lessor being given different remedies for breach, the fact that the lessor received rent after 1898, though the lessee had not complied with the building covenant, does not establish a waiver precluding the lessor from subsequenty asserting a forfeiture on the -lessee’s failure, after notice pursuant to the lease, to erect the permanent building according to the covenant.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572; Dec. Dig. &wkey;157(l).]</p> <p>3. Landlord and Tenant <&wkey;157(l) — Covenants—Enforcement—Laches.</p> <p>In such case, where the building covenant provided that, in event of failure, the lessors might declare forfeiture at afny time upon the lessees’ failure to comply therewith after having received 90 days’ notice, the fact that the lessors delayed demanding enforcement for nearly 15 years does not show that the lessors were guilty of laches precluding subsequent enforcement, particularly where the demised premises did not at the outset show such availability for renting purposes as was contemplated.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572; Dec. Dig. &wkey;157(l).]</p> <p>4. Landlord and Tenant <&wkey;157(l) — Covenants—Insistence Upon Estop-pel.</p> <p>In such case, notwithstanding the lessors for a considerable time did not demand the full amount of the reserved rent, they are not estopped from subsequently insisting upon performance of the building covenant; the tenant having been in no wise injured by delay, not having changed his position after erecting the first temporary building.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 571, 572; Dec. Dig. &wkey;157(l).].</p> <p>On Petition for Rehearing.</p> <p>5. Appeal and Error &wkey;>169 — Review—Presentation of Grounds in Court Below.</p> <p>A contention not urged in the trial court cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. <&wkey;>169.]</p> <p>6. Landlord and Tenant <&wkey;94(3) — Leases—Termination. _ „</p> <p>_ Where lessees breached a covenant entitling the lessors to terminate, notice to terminate is sufficient,- though not signed by one of the lessors, who was also a lessee, for any other rule would render the lessors powerless to enforce a compliance with the covenant.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 318-319; Dec. Dig. &wkey;94(3).]</p> <p>7. Landlord and Tenant <&wkey;152(3) — Covenants—Conditions.</p> <p>Where a lease reserving an annual rental required the lessees to erect before the year 1893 a témpora,ry building on the demised premises, costing not less than $7,000, and to erect a permanent building by 1898 costing not less than $50,000, which building should be maintained, the lessor being entitled in case of default in such covenant to terminate the lease, should the default continue 90 days after notice, the provisions for a building and the maintenance of the sáme, as well as the clause protecting the lessor, constitute a continuing obligation.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 540, 547, 551; Dee. Dig. &wkey;152(3).]</p>

Petition to Revise an Order of the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. .... .... Petition in the District Court for the Eastern District of Kentucky for involuntary bankruptcy by Roszelle Bros, and others against the Continental Coal Corporation, to which the trustee in voluntary bankruptcy of the defendant in the District Court for the Eastern District of Tennessee and others filed answers.

Suit by J. W. Jackson and others against E. S. Cravens, Supervising Inspector of Naval Stores or purporting to be Supervising Inspector of Naval Stores, and others. An application for preliminary injunction (235 Fed. 212) being denied, complainants appeal.

Petition to Revise and Review Order of the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. In the matter of the bankruptcy of the Hawley Down-Draft Furnace Company. The petition of the National Trust & Credit Company for delivery of a particular fund, opposed by A. D. Chidsey, trustee of the estate of the bankrupt, was denied by the District Courh and petitioner files petition to revise.

Van Valkenburgh, Judge. Petition by John B. Thomas against A. J. Britton, trustee in bankruptcy of the estate of Claud Daniels, bankrupt. Prom an order of the court affirming a decision of the referee in bankruptcy in favor of petitioner, the trustee appeals. Affirmed.

H. Seward Thomson, Judge. Action by V. W. Pancoast against the Du Bois Electric Company. After the death of plaintiff, the Fidelity Title & Trust Company, as ancillary administrator, was substituted. Judgment for the plaintiff, and defendant brings error.

Petitions to Revise and Appeals from the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Peter Geddes Grant and Rufus E. Reavitt, individually and as copartners doing business under the firm name of Reavitt & Grant, and the firm of Reavitt & Grant.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit by the Pantomimic Corporation against Dudley Field Malone, Collector, and another. From a decree dismissing the bill, complainant appeals.</p>

<p>Appeal from the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>Petition in involuntary bankruptcy by J. H. Wright and others against W. V. Rumph. From a decree of dismissal, petitioners appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Bill by George D. Gideon against Arthur Hinds and Hinds, Noble & Eldredge, impleaded with G. Clifford Noble. From a decree dismissing the bill as to the answeriñg defendants, complainant appeals.</p> <p>On March 9, 1904, and as part of a scheme for uniting and incorporating two existing businesses, the capital stock of a then formed corporation was divided among Gideon (plaintiff below and appellant), Hinds (principal defendant below and appellee), Noble (a defendant who did not answer), and one Eldredge. By the same written instrument that apportioned the stock in question the following agreement was entered into between Gideon, Hinds, and Noble: “The said George D. Gideon shall have the right and option to purchase at any time, in equal amounts from Arthur Hinds and G. Clifford Noble, shares of their stock in the corporation (then formed) until the holdings of said Gideon shall be equal to those of said Hinds and Noble, respectively, or of the one of them holding the larger amount of stock.” The contract also contains provisions regarding the price to be paid for stock so transferred, which are immaterial in the view taken of this case.</p> <p>No attempt was made by Gideon to exercise this option until November 19, 1914, at which date he notified both Hinds and Noble of his desire and intent to'acquire from each of them a number of shares of stock not exceeding the amount he was entitled to under the agreement hereinabove set forth. Noble acquiesced in the demand, Hinds refused to comply, and this action was' brought to compel specific performance; i. e., require Hinds to turn over to Gideon the demanded number of shares at a price to be ascertained by the court, if Hinds continued contumacious and refused to proceed in the manner set forth in the contract. Hinds answered, and in his answer set out (among other defenses) that the action was barred by the New York statute of limitations and that the demand was stale. The issues having thus been framed, Hinds moved under equity rule 29 (198 Fed. xxvi, 115 C. O. A. xxvi) to dismiss the bill, asserting that the action was barred by the statute. This motion was granted, and final decree entered, dismissing the bill, from which Hinds took this appeal.</p>

<p>Bankruptcy <&wkey;140(3) — Brokers—Rights of Customers.</p> <p>Where bankrupt brokers have not enough stock in their box and hy-pothecated to cover all their customers who were long of it on the day of failure, such customers may recover their pro rata shares; the shares of any who make no specific claim going to the general creditors.</p> <p>[Ed. Note. — For other cases,, see Bankruptcy, Cent. Dig. § 225; Dec. Dig. &wkey;140(3).]</p>

Action by Tomasz Krysienski against the Erie Railroad Company. There was a judgment for plaintiff, and defendant brings error. Krysienski (plaintiff below)' worked as a laborer for the Erie Railroad (defendant below) in its machine and repair shop. In said shop dirt and grease were removed from engine parts prior to repair work by immersing the same in a vat containing a hot fluid.

<p>1. Judgment &wkey;>582 — Meegeb—Effect of Meegeb.</p> <p>While merger of debts in a judgment is the general rule, yet, when justice and equity require, the judgment will be construed as a new form of the old debt.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1079, 1082; Dec. Dig. <&wkey;582J</p> <p>2. Bankruptcy <&wkey;354 — Rights of Paetneeship Ceeditoes — Rights of In-dividuad Ceeditoes.</p> <p>Partnership creditors reduced their debts to judgment in the state court according to the local law against both the firm and the individual members. All were adjudicated bankrupts within nine days after the rendition of the judgment. Bankr. Act July 1, 1898, c. 541, § 5f, 30 Stat. 548 (Comp. St. 1913, § 9589), declares that the net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts; but, should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets, and, should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners. Held that, as the judgment did not change the character of the partnership debts, the judgment creditors were not, despite the usual theory of merger, entitled to primary participation in the distribution of the individual assets of the partners.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 555-564; Dec. Dig. <@=3354.]</p>

Action at law by Emily Watts, as executrix, against Walter Weston and Alfred J. Weston. Judgment for defendants, and plaintiff brings error. Writ of error to a judgment of the District Court, entered upon a verdict directed for defendant.

, Appeal from the District Court of the United States for the Western District of New York. Suit by the Chautauqua School of Nursing against the National School of Nursing. From a decree for complainant (211 Fed. 1014), defendant appeals.

Bill by the Baldwin Company against the R. S. Howard Company. From a decree for complainant (233 Fed. 439), defendant appeals. On appeal from a decree in an action brought by the Baldwin Company against the R. S. Howard Company for unfair competition by reason of the use by the defendant of the complainant’s trade-mark “Howard” upon pianos not made or sold by the complainant. The opinion of the District Court is reported in 233 Fed. 439.

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

In Error'to the District Court of the United States for the Southern District of New York. Action at law by the Tide Water Oil Company against the Globe Indemnity Company. Judgment for defendant, and’ plaintiff brings error.

Bill by the President Suspender Company against Hugh C. Macwil-liam. From a decree for complainant (233 Fed. 433), defendant appeals. The defendant, prior, to October 1, 1898, was manufacturing and selling at St. Paul, Minn., a certain suspender which he had devised and to which he had affixed the word “President” as a trade-mark, together with a red, white, and blue banner emblem. On August 16, 1S98, the defendant took out a patent on the suspender, being patent No. 609,286.

<p>In Error to the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Action by the TEolian Company of Missouri .against the Victor Talking Machine Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Patents <&wkey;328 — Validity and Infringement — Outlet Box for Electric . Conduits.</p> <p>Tbe Bonnell reissue patent, No. 13,432 (original No. 921,584), for an outlet box for electric conduits, claims 10 and 16, are void as setting up new matter not covered by tbe original patent. Claim 6, assuming its validity, must be narrowly construed, and, as so construed, held not infringed.</p> <p>2. Words and Phrases — “Clamp”—“Wedge”—“Draw”—“Drawing.”</p> <p>' Tbe words “clamp,” “wedge,” and “draw” convey a progressive con-'’ ception of tbe application of mecbanical force. “Clamp” represents one extreme; “draw” tbe other. To “clamp” is merely to fasten or secure. “Drawing” signifies active propulsion in addition. “Wedge” is an intermediate term, and looks both ways; but, used in any accurate mecbanical sense, it looks more toward drawing than it does toward merely clamping.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Clamp; Dra,w; Drawing; Wedge.]</p>

Suit in equity by the_ Cheatham Electric Switching Device Company against the Brooklyn Rapid Transit Company and others. Decree for defendants, and complainant appeals. Appeal from final decree dismissing bill in equity on patents 612,-702 (claim 3) and 917,541 (claims 1 and 2), entered in the District .Court for the Eastern District of New York.

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Suit in equity by the Irving-Pitt Manufacturing • Company against the Blackwell-Wielandy Book & Stationery Company. Decree for defendant, and complainant appeals.</p>

<p>Patents <&wkey;328 — Infringement—Bottle Capping Machine.</p> <p>The Lawson patent, No. 1,095,406, for a bottle capping machine, held infringed by a modified structure built by defendants.</p>

<p>1. Patents <&wkey;328 — Invention—Operating Means for Fabe Registers.</p> <p>The Ohmer and Tyler reissue patent, No. 11,911 (original No. 635,343), for mechanism for operating fare registers, claims 12 and 13, construed broadly, are void for lack of invention, in view of the prior art.</p> <p>2. Patents &wkey;>17 — Invention—Scope of Patent.</p> <p>In considering the scope of an invention, to determine whether the advance made amounts to invention or only mechanical skill, the question is one of fact, taking into account the entire prior art.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 16, 17; Dec. Dig. &wkey;>17.]</p> <p>3. Patents <&wkey;328 — Validity and Infringement — Fare Recorder.</p> <p>The Ohmer patent, No. 646,757, for a fare recorder, in view of the meritorious result obtained by the combination, marking a substantial advance in the art, discloses invention and is valid; also held infringed as to claims 4, 6, and 13, and not infringed as to claims 7 and 14.</p> <p>4. Patents &wkey;>26(2) — Combinations—Combination or Aggregation.</p> <p>To constitute a combination, and not merely an aggregation, it is not necessary that all the constituents so enter into the combination as to coact all the time with all the others, or change the mode of connection with every other; but it is sufficient that the elements so coact that as a consequence of their union a new and useful result, and not a mere aggregation of several results, follows.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 29; Dec. Dig. <&wkey;>26(2).]</p> <p>5. Patents <&wkey;328 — Infringement—Fare Register.</p> <p>The Ohmer, Tyler, and Breidenbach patent, No. 694,322, for a fare register, narrowly construed, as required by the prior time recorder art, held not infringed.</p> <p>6. Patents <&wkey;56 — Prior Art — Analogous Arts.</p> <p>The time recorder art is analogous to the fare recorder art.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 89; Dec. Dig. ■&wkey;>56.]</p> <p>7. Patents <&wkey;22 — Infringement—Mechanical .Equivalents.</p> <p>The doctrine of mechanical equivalency requires that the result be accomplished in substantially the same way, and the range of equivalents depends upon the advance made by the inventor in the art.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 24; Dec. Dig. <&wkey;>22.]</p> <p>8. Patents <&wkey;166 — Construction—Voluntary Dimitation.</p> <p>An intentional limitation by a patentee is none the less effective, because unnecessary or self-imposed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 241; Dec. Dig. <&wkey;>165.]</p>

Proceeding in error by C. A. P. Turner against the United States to review an order adjudging him guilty of criminal contempt. On motion to dismiss.

<p>1. Patents <S=s>328 — Invention—System foe Controlling Operation op Filtebs.</p> <p>The Jewell patent, No. 649,410, for a system for controlling the operation of filters, claim 1, Which covers broadly the idea of the control of the valves of a filter from, a central station, is void for lack of invention, in view of the prior art.</p> <p>2. Patents <©=>328 — Invention—Filter.</p> <p>The Jewell patent, No. 649,411, for a filter, claim 14, is void for lack of novelty and invention.</p>

<p>Patents @=>328 — Validity—Patentability.</p> <p>Patents Nos. 835,717, 844,973, and 844,974, for building columns, the improvement in which, consisted of the filling of a cap telescoped into a hollow steel column with cement, in addition to filling the column itself with cement, and the insertion of a reinforcing rod extending from the cement-filled casing of one column through the cement-filled cap into a socket in the base of the superimposed column, heló, invalid for lack of invention.</p>

<p>1. Patents <S=>328 — Validity and Infringement — Cable Carrier Apparatus.</p> <p>Tbe Amsden patent, No. 960,617, for cable carrier apparatus, discloses invention and covers a meritorious improvement, but not a pioneer in-. vention; also held valid as against tbe claim of public use more than two years prior to tbe application, but, as limited by tbe prior art, not infringed.</p> <p>2. Patents <@=»328 — Validity and Infringement — Locking Device fob Carriers.</p> <p>■ Tbe Amsden patent, No. 1,071,018, for a locking device for cable carriers, held valid, but limited to tbe particular construction of tbe device shown and described; also held infringed.</p>

<p>1. Patents &wkey;>328 — 'Validity and Infbingement — Machine foe Homogenizing Milk.</p> <p>The Gaulin patent, No. 756,953, for an apparatus for intimately mixing milk or other liquids, was not anticipated, and is of a pioneer character, and entitled to a liberal construction, the machine being the first to successfully homogenize milk; also held infringed.</p> <p>2. Patents &wkey;>238 — Infringement—Change of Fokm.</p> <p>The impairment of the function of a part of a patented structure by omitting a portion will not avoid infringement; nor will a mere change in form, where the principle of operation is preserved and appropriated.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 376; Dec. Dig. &wkey;>238.]</p> <p>3. Patents <&wkey;312(3) — Defense of Invention by Another — Sufficiency of Evidence.</p> <p>The defense that another than the patentee was the original inventor of a patented structure must be established beyond any reasonable doubt, and not merely by a fair preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 548, 549; Dec. Dig. &wkey;312(3)J</p>

<p>Patents <&wkey;82S — Validity and Infringement — Boiler Eeed Regulator.</p> <p>Tbe Copes patent, No. 002,687, for a boiler feed regulator, claim 6, is valid, if narrowly construed, but, as so construed, held not infringed.</p>

<p>1. Shipping <&wkey;39 — Breach of Charter — “Lawful Merchandise.”</p> <p>Contraband, goods, carried by a neutral vessel from a neutral country to a port of a belligerent in time of war, are “lawful merchandise,” within a clause of the charter party limiting her use to the carriage of such merchandise, where the export of such goods was not prohibited by the laws of the country from which the shipment was made.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 141-148; Dec. Dig. <&wkey;39.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Lawful Merchandise.]</p> <p>2. Shipping &wkey;>38 — Breach of Charter — “Restraint of Princes.”</p> <p>Where a Dutch vessel, under a time charter to libelant, an American company, and subchartered, also by time charter, to respondents on arrival at an Italian port with a contraband cargo, was prohibited by the Dutch government from leaving port under the charter for any voyage while the vessel was under charter to the charterers or subcharterers, the order being modified after some months by permitting her to proceed, but on condition that she should not trade to any port of a belligerent country, such • action constituted a “restraint of princes,” within a mutual exception of such risk in the charter, and was such a frustration as justified the subeharterers in abandoning it.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 136-140; Dec. Dig. <&wkey;38.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Restraint of Princes.]</p>

<p>In Equity. Suit by the Sherman National Bank of New York against the Shubert Theatrical Company (a New Jersey corporation), Lee Shu-bert, Jacob J. Shubert, the Shubert Theatrical Company (a New York corporation), Irving M. Dittenhoefer, trustee in bankruptcy of Theodore A. Eiebler and George C. Tyler, copartners as Eiebler & Co., and the Welden National Bank of St. Albans. On motion by complainant for injunction and to strike out the defenses pleaded by the Shubert Theatrical Company of New Jersey.</p> <p>The bill is in the nature of a bill of. interpleader, for which the plaintiff claims no original jurisdiction, but only jurisdiction ancillary to an action at law, now pending in this court, in which the defendant herein, Shubert Theatrical Company of New Jersey is plaintiff, and itself is defendant. The allegations regarding the citizenship of the various parties are most inadequate, and, in view of the presumptions against jurisdiction obtaining in this court, they must be taken as'though they were as follows: The plaintiff is a citizen of New York; the Shubert Theatrical Company of New Jersey is a citizen of New Jersey; Lee Shubert and Jacob J. Shubert are citizens of New York; the Shubert Theatrical Company of New York is a citizen of New York; Irving M. Dittenhoefer, as trustee in bankruptcy of Liebler & Co., is a citizen of New York; the Welden National Bank of St. Albans, Vt., is a citizen of Vermont. In fact, no allegations of the citizenship of any of the individual defendants are alleged in the bill, but the facts probably correspond with the presumption of law.</p> <p>The bill asserts that in the month of March, 1912, Liebler & Co., a firm composed of Theodore A. Liebler and George C. Tyler, were indebted to the plaintiff in the sum of $25,000, composed of three notes theretofore executed, and were indebted to the Welden National Bank of St. Albans in the sum of $15,000, composed of three notes for $5,000 each. On the 15th day of March, 1912, Liebler & Co. executed to the plaintiff and to the Welden National Bank of St. Albans, as security for the payment of these notes, a joint assignment of one-half of the interest of such firm in all its share, under a contract herei-after mentioned, in the profits of Shubert Theatrical Company of New York from the production of a play called “The Blue Bird,” during the seasons of 1912-1913 and 1913-1914. Such notes were renewed from time to time, and , on the 4th day of December, 1914, there were due substantial sums of money to both the plaintiff and the Welden National Bank of St. Albans. Irving M. Dittenhoefer in 1915 was chosen trustee in bankruptcy of Liebler & Co., who became bankrupt on December 4, 1914. The profits of Liebler & Go. arose from an agreement on October 17, 1910, with Shubert Theatrical Company of New York, by which it agreed to pay to Liebler & Co./ one-half its own profits from its presentation of “The Blue Bird.” During the month of November, 1911, the defendants Lee Shubert and Jacob J. Shubert opened an account with the plaintiff, which contained profits arising from the production of “The Blue Bird” under the agreement between them and Liebler & Co. On December 7, 1914, Dittenhoefer, the bankruptcy receiver of Lieb-ler & Co., served on the plaintiff a certified copy of an order of this court restraining all persons from paying over any funds in which Liebler & Co. claimed interest, and demanded that plaintiff hold all such sums iri its possession. The plaintiff refuses to pay to Lee Shubert, Jacob J..Shubert, or any one else, the sums remaining in said account, and on'August 2, 1915, the defendant Shubert Theatrical Company of New Jersey, whose connection with the other defendants is now shown, began the action at law in this court upon the deposit, which is mentioned at the outset, and which is still pending. The bill concludes with the allegations that Dittenhoefer, as trustee, has a claim upon the funds; that Lee Shubert and Jacob J. Shubert have the right to draw cheeks upon the deposit, and .the plaintiff has received no release or authorization from either of them to pay the balance; that the Shubert Theatrical Company of New York claims some right to the deposit, as does the Welden National Bank of St. Albans, Yt.; that; the plaintiff claims an interest in it by virtue of such assignment; that it is impossible in the action at law to obtain a judgment or decree settling the rights of all the parties hereto.</p> <p>The answer of the Shubert Theatrical Company of New Jersey, after certain traverses, alleges for a first defense that on February 23, 1909, Liebler & Co. and the Shubert Theatrical Company of New York entered into an agreement, by which Liebler & Co. agreed for five years to present all their plays in theaters controlled by the Shubert Theatrical Company of New York, with certain exceptions, commencing September 1, 1909, in consideration of which Shubert Theatrical Company of New York would assume one-half the expenses of a certain operatic tour, to be undertaken by one Pietro Mascagni, under an agreement with Liebler & Co., and to share in a contract between one Bessie Abbott and Liebler & Co., under which she was to appear in an opera called “Ysobel.” The statements of Liebler & Co. to Shubert Theatrical Company of New York at the time of the contract were that Bessie Abbott would appear in such opera for $1,000 a week, and that Mascagni would give his services in connection with the opera for $10,000. In the year 1910 Lee Shubert learned that these statements were intentionally false, and demanded back •all the money he had advanced to Liebler & Co. for losses they claimed to have sustained on such tour, and rescinded the contract of the Shubert Theatrical Company of New York with them. Such moneys amounted to the sum of $34,665.20, and they were liable for $25,000 in addition. Yet in October, 1910, the Shubert Theatrical Company of New York promised Liebler & Co. to give them a one-half interest in the profits and losses of “The Blue Bird,” on condition that Liebler & Co. should continue booking their plays at the Shubert Theater for five years. On the 10th.day of May,'1911, Liebler & Co. asked the Shubert Theatrical Company to pay $25,000, the balance still due under the contract of February, 1909, but told the Shubert Theatrical Company of New York that they intended to book their plays with Klaw & Erlanger. Thereupon the'Shubert Theatrical Company of New York procured the discount of the note of Liebler & Co. for $25,000 with the Hudson Trust Company, and charged the same against the interest in “The Blue Bird,” but agreed that, if Liebler & Co. should carry out the agreement to book their plays, he would divide the profits of “The Blue Bird” for the season ending June, 1912, and would deduct the $25,000 borrowed from the Shubert Theatrical Company’s share. In March, 1912, apparently for the second time, Lieb-ler & Co. refused to book their plays with the Shubert Theatrical Company of New York. For a second defense, the answer alleges that an action was brought by Liebler & Co. against Lee Shubert for an account of the profits of “The Blue Bird,” which action was dismissed. For a third defense, that this court is without jurisdiction.</p> <p>The cause comes" up on a motion by the plaintiff to enjoin the defendants from instituting any actions at law against it, and to strike out all the defenses of the answer of the Shubert Theatrical Company of New Jersey.</p>

<p>Action by the United States against the Guggenheim Exploration Company to recover the excise tax.</p>

In Admiralty. Suits by Christine M. Olsen, administratrix of the estate of Olaf Olsen, deceased, by Susie M. Fickett, administrator of the estate of William B. Fickett, deceased, and by Sarah H. Torkilsen, administratrix of Flans Torkilsen, deceased, against Edgar F. Eucken-bach and John W. Weber.

<p>1. Bankruptcy <&wkey;S34 — Claims—Proof—Secured Claim — Deficiency.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 57b, 30 Stat. 560 (Comp. St. 1913, § 9641), providing that the value of securities held by secured creditors shall be determined by converting them into money according to the agreement under which they were delivered to the creditors, or by the creditors and the trustee, by agreement, arbitration, compromise, .or litigation, as the court may direct, and that the amount of such value shall be credited upon such claims, and a dividend paid only on the unpaid balance, a creditor, whose claim was secured by mortgage which he had foreclosed in an action begun after the bankruptcy proceedings were instituted, in which the receiver was made a party with the consent of the bankruptcy court, but not the trustee, cannot prove against the bankrupt’s estate the amount of deficiency judgment as such, but only the difference between the mortgage debt and the reasonable value of the property, since the judgment could not bind the trustee, who was not a party to the action.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 501-507; Dec. Dig. <&wkey;334.]</p> <p>2. Bankbuptcy <&wkey;334 — Proof of Claims — Secured Claim — “Litigation.”</p> <p>In Bankr. Act, § 57h, providing that the value of the security held by a creditor of a bankrupt may be ascertained by litigation, as the court may direct, the word “litigation” is a comprehensive term, meaning any appropriate action or proceeding in the courts wherein the secured creditor and the trustee may each be heard, including foreclosure and sale.</p> <p>[Ed. Note. — For. other cases, see Bankruptcy, Cent. Dig. §§' 501-507; Dec. Dig. <&wkey;334.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Litigation.]</p> <p>3. Bankruptcy <&wkey;334 — Proof of Claims — Secured Claim — Agreement.</p> <p>Knowledge and acquiescence by the trustee in bankruptcy of proceedings for the foreclosure of a mortgage given by the bankrupt, if construed as an agreement by the trustee as to the method of liquidation of the-security under Bankr. Act, § 57h, is invalid, because not under the' direction of the bankruptcy court, as required by that section.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 501-507; Dee. Dig. <&wkey;334.]</p> <p>4. Bankruptcy <&wkey;336 — Proof of Claims — Amendment—Statute.</p> <p>Under Bankr. Act, § 57k, providing that claims which have been allowed in part may be reconsidered for cause, and reallowed or rejected, before the estate has been closed, and section 57n, limiting the time for proving claims, a claim by a mortgagee for the amount of a. deficiency judgment rendered in the state, court, which was erroneously allowed by the referee-on the judgment alone, may be amended, so as to show the excess of the debt over the reasonable value of the property, and allowed as to such excess.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 523, 524; Dec. Dig. &wkey;>336.]</p>

<p>Interpleader by the Federal Cement Company against William B. Shaffer. Sur trial hearing on bill, answer, and proofs.</p>

In Admiralty. Suit for collision by the Central Railroad of New Jersey, owner of the lighter Mechanic, against the tug North America and the scow R. R. No. 8, with the tug Interstate impleaded.

<p>Seamen <@=>16 — Shipping <@=>69 — Wages—Capture of Vessel as Pbize.</p> <p>The master and engineer of a neutral vessel, seized as prize by a belligerent, are not entitled to wages during the time they were held in custody as witnesses by the foreign government; it not appearing that they rendered any voluntary service to the vessel during such time.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 56-65; Dee. Dig. <@=>16; Shipping, Cent. Dig. §§ 201, 293-307, 312, 313, 315, 317, 318; Dec. Dig. <@=>69.]</p>

At Law. Action by the Burroughs Bros. Manufacturing Company against Henry S. Dulaney and others. On objection by the plaintiff to fees charged by the marshal for service of process.

<p>1. Reformation of Instruments <§=45(2) — Mutual'' Mistake — Sufficiency of Proof.</p> <p>Evidence considered, and held insufficient to entitle a. corporation to reformation, on the ground of mutual mistake, of a written contract, •which was executed after having been read and fully considered at a directors’ meeting, and where the other party denied any mistake, and was supported by the circumstances and probabilities of the case. ,</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 158, 184-188, 190; Dec. Dig. <§=45(2).]</p> <p>2. Reformation of Instruments <§==>43, 45(2) — Actions—Burden and Measure of Proof.</p> <p>In a suit to reform a written contract for mutual mistake, or for mistake on one side and fraud, deceit, or inequitable conduct on the other, the burden of proof rests on complainant, and nothing less than evidence that is plain and convincing beyond reasonable controversy is sufficient.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 154, 158, 184-188, 190; Dec. Dig. <§==>43, 45(2).]</p> <p>3. Reformation of Instruments <§=19(1) — Right to Relief — Negligence as Defense. <</p> <p>It is negligence and clear failure to exercise ordinary care for intelligent business men, holding in their hands and reading a proposed written contract, which clearly states their agreement, to rely on any statement or assent made by the opposite party regarding its terms or obligations, rather than’upon the written terms themselves, and they are not entitled to invoke the aid of a court of equity to alter the contract after its execution.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74r-78; Dec. Dig. <§=19(1).]</p> <p>4. Estoppel <§=90(2) — Equitable Estoppel — Statements as to Terms of Unexecuted Contract.</p> <p>A party to a proposed written contract, which has not been executed, by assenting to or acquiescence in misstatements by the other party as to its terms, is not estopped to rely upon and enforce the actual terms of the agreement as subsequently executed.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 244; Dec. Dig. <§=90(2).]' '</p>

Foster, Judge. In the matter of the Smith Bros. Company, Limited, bankrupt. A. C. Wuerpel and another, trustees, appeal from an order directing payment in full of the claim of Commercial Germania Trust & Savings Bank.

<p>Appeal from the District Court of the United States for the feastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>In the matter of R. B. Hutchcraft, bankrupt. From a judgment affirming, on petition for review, the order of the referee sustaining exceptions of W. D. Yerkes, trustee in bankruptcy, and others, to the claim of the First National Bank of Paris, Ky., and another, said creditors appeal.</p>

Sheppard, Judge. Suit by R. B. Simpson, as trustee in bankruptcy of the estate of Knowles Bros., a corporation, bankrupt, against Thomas W. Brent and others, as executors of the last will and testament of F. C. Brent, deceased.. Decree for the plaintiff, and defendants appeal.

T. Newman, Judge. Suit by the Central of Georgia- Railway Company a'gainst B. M. Blount and another. From a decree sustaining defendants’ motion to dismiss the bill, plaintiff appeals. This is a suit in equity, brought by the appellant, Central of Georgia Railway Company, against the appellees, B. M. Blount and Blount Buggy & Carriage Company, a corporation.

Pollock, Judge. Suit in equity by W. H. Sanford, trustee in bankruptcy of the W. O. Cr.aig Manufacturing Company, against the First National Bank of Marysville, Kan., and others. Decree for complainant, from which he appeals.

<p>Novation <s=al0 — Claims—Release.</p> <p>Where the holders of all the stock of a corporation, who also held notes given by it for large amounts, sold the stock to the manager of the business and surrendered the notes in consideration of the manager’s agreement to pay the agreed price out of the proceeds of the business and to pledge the stock as security for such payments, the former stockholders could not, after the" bankruptcy of the corporation in a year, assert claims against the estate on the theory that they retained their claims against the corporation and that the manager’s agreement was that the corporation would pay those claims to the extent and in the manner agreed.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. § 10; Dec. Dig. <@=3l0.]</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action by Lauri Wilhelm Walkonen against Elickwir '& Bush, incorporated. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.</p> <p>Action by Anna Pontynen against Flickwir & Bush, Incorporated. Judgment for plaintiff, and defendant brings error.</p>

Action at law by the Sound Transportation Company against the Delaware, Lackawanna & Western Railroad Company. Judgment for plaintiff, and defendant brings1 error. On writ of error to review a judgment entered November 29, 1915, in favor of the Sound Transportation Company, the plaintiff below, and against the Delaware, ■ Lackawanna & Western Railroad Company, the defendant below, in the sum of $44,103.49.

Action by the United States against the International Railway Company to recover penalties for violation of Safety Appliance Act March 2, 1893, as amended by Act March 2, 1903. Judgment for the United States, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore; John C. Rose, Judge.</p> <p>Suit by Gilbert F. Heublein and another against John H. Wight, and others. Decree for the plaintiff (227 Fed. 667), and defendants appeal.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin F. Keller and John C. Rose, Judges.</p> <p>Action by Basil Gray, administrator of the estate of Paul Jackson, deceased, against the Sunday Creek Company. Judgment for plaintiff, and defendant brings error.</p>

Trippe't, Judge. Action by the Union Hollywood Water Company against John P. Carter, as Collector of the United States Internal Revenue for the Sixth District of the State of California. Judgment for defendant, and plaintiff brings error.

<p>1. Witnesses &wkey;>321 — Cross-Examining Own Witness — Discretion.</p> <p>How far a party may be allowed to, in effect, cross-examine his own witness, is usually a matter in the sound judicial discretion of the trial judge.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1004, 1009, 1100; Dec. Dig. <&wkey;321J</p> <p>2. Master and Servant <&wkey;286(19> — Safe Peace to Work — Question for Jury.</p> <p>Under tlie evidence in an action for death, of a member of the slate gang in a coal mine, killed by the fall of a stone from the roof, held, that the question whether the master had performed its duty of seeing that he was given a safe place in which to work was for the jury.</p> <p>[Ed.' Note. — For other cases, see Master and Servant, Cent. Dig. § 1026; Dee. Dig. &wkey;286(19).]</p> <p>3. Master and Servant <&wkey;190(l) — Safe Place to Work — Nondelegable Duty.</p> <p>The master’s duty of providing a safe place for work is one that cannot be delegated, so that any negligence in that respect of a boss, to whom the master leaves the determination of the question of safe place, is the master’s negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449, 450, 453, 468; Dec. Dig. &wkey;190(l).]</p>

• Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., -Judge. Suit by Eogan D- Mallard against Paul Garrett and another. From a decree for complainant, defendants appeal.

<p>1. Bankruptcy <&wkey;388 — Compositions—Discharge—Effect of.</p> <p>Where a bankrupt has obtained a release by an ordered composition, the moral obligation of the bankrupt to satisfy his debts in full is sufficient to support a new promise, made after composition, to a creditor voting in favor thereof, the same rule applying as in case of an ordinary discharge in bankruptcy; and subsequent creditors of the bankrupt cannot question a note secured by mortgage given to pay a creditor whose claim was barred by composition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 618; Dec. Dig. <&wkey;388.j</p> <p>'2. Bankruptcy <&wkey;388 — Composition—New Promise — Consideration.</p> <p>Where a bankrupt, after a composition was approved, executed a note secured by a mortgage to one of his creditors for the full amount of the debt, subsequent creditors of tbe bankrupt can attack tbe obligation as partially without consideration, if tbe composition creditor bad also received a dividend.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 618; Dec. Dig. &wkey;}388.]</p>

Johnson, Judge. In the matter of Raymond Beatty, bankrupt. From a decree of the’ District Court, setting aside the report of the referee and allowing the claim of the Bank of Anderson against the estate, S. M. Wolfe, trustee in bankruptcy, appeals.

<p>Contracts <&wkey;83 — Sales—Consideration—Action fob Price — Injunction' Against Use.</p> <p>The contract by which plaintiff sold to and installed for defendant, wireless apparatus for immediate use is abrogated, and defendant relieved of liability for price; it having by injunction in infringement suit been deprived of the use, which plaintiff cannot furnish, unless the injunction order affirmed by the Circuit Court of Appeals be vacated, and' defendant having returned the apparatus.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 388-398; Dec. Dig. <&wkey;83.]</p>

Suit for collision by the Royal Mail Steam Packet Company against the steam tug Morristown. From the decree, the Delaware, Lacka-wanna & Western Railroad Company, claimant, appeals.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Habeas corpus by Arnk Bing and others against the United States.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>On petition for rehearing.</p>

Appeals from the District Court of the United States for the Western District of New York. Suit in equity by Rudolph Conrader and the Jarecki Manufacturing Company against the Judson Governor Company. From the decree, both parties appeal.

Suit in equity by the Stahlbrodt Company: against the Ford Motor Company. Decree for complainant, and defendant appeals. This is an appeal from a decree holding valid and infringed claims 2, 3 and 5 of reissued letters patent No. 13,574 granted to Henri Saul Samuel June 10, 1913. These claims are as follows: “2.

Suit in equity by the Klauder-Weldon Dyeing Machine Company against John H. Giles and the John H. Giles Dyeing Machine Company. Decree for defendants, and complainant appeals. On appeal from a decree dismissing the hill of complaint based on letters patent No. 659,906 granted to Leonard Weldon, October 16, 1900, for improvements in yarn dyeing machines. The first claim only is in issue.

<p>Patents <&wkey;328 — Invention—Truck Mechanism.</p> <p>The Fetzer reissue patent, No. 12,653 (original No. 723,662), for truck mechanism, field void for lack of patentable invention.</p>

<p>In Equity. Suit by the Page Machine Company against Dow, Jones & Co. On exceptions to report of master.</p>

<p>In Equity. Suit by Claude A. P. Turner against the Deere-Webber Building Company and the Deere & Webber Company. On final hearing.</p>

<p>1. Shipping &wkey;>164 — Carriage op Passengers — Personal Injuries — Duty op Treatment.</p> <p>In tke absence of any statute requiring it, there is no duty resting upon a coastwise vessel to have a physician or surgeon on board for the treatment of passengers who may be injured.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 533; Dec. Dig. &wkey;164.]</p> <p>2. Shipping <&wkey;166(l) — Carriage of Passengers — Treatment of Injured Passenger.</p> <p>Libelant, while a passenger on a steamship bound from Savannah to New York, fell from her berth and sprained her ankle. The injury was treated by the steward, as shown by the evidence, by the proper application of standard remedies. Held, that there was no negligence on the part of the vessel or its steward which rendered it liable for any ill effects which may have followed the' injury.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 538-546, 549; Dec. Dig. <&wkey;>166(l).]</p>

In Equity. Suit by the Chicago, Milwaukee & St. Paul Railway Company against the City of Minneapolis and others, to restrain the enforcement of a municipal ordinance which required the railway company to depress its tracks, in which the Minneapolis Steel & Machinery Company and others intervened. On final hearing. Permanent injunction against the enforcement of the ordinance issued.

<p>1. Aliens <&wkey;68 — Naturalization—Declaration op Intention — Statutes— “Such Declaration.”</p> <p>The first paragraph of Naturalization Act June 29, 1906, c. 3592, § 4, 34 Stat. 596 (Comp. St. 1913, § 4352), requires an applicant-to declare his intention to become a citizen, and that such declaration shall set forth certain facts, provided that no alien, who, in conformity with the law in force at the date of his declaration, had declared his intention, need renew such declaration. The second paragraph provides that, not less than two years nor more than seven years after he has made such declaration of intention, he shall petition for naturalization. The proviso at the end of the first paragraph was added by amendment to the act as originally introduced for the stated purpose of avoiding injustice to those who had already maile declarations and acquired rights thereunder. It was construed, at the time and since, by the Naturalization Bureau and by most of the courts, as not requiring a new declaration, where one had been made under the old law, even if more than seven years had elapsed since the enactment of the new law. Numerous certificates of naturalization had been granted, which would be subject to attack by the district attorneys under section 15 of the act (Oomp. St. 1913, § 4374), if such construction were overthrown. Meld, that the words “such declaration,” in the second paragraph, referred only to a declaration filed under that act, and one who had filed a valid declaration under the old law could be naturalized without a new declaration, though more than seven years had elapsed since the new act took effect.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. <@=»68.]</p> <p>2. Statutes <&wkey;217 — Construction—History op Enactment.</p> <p>,The history of a statute from its introduction to its passage, the reports of committees, the amendments, and the opposition mg.de to its passage in its various forms are legitimate aids to its construction.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 293; Dec. Dig. &wkey;217J</p> <p>3. Statutes <&wkey;219 — Construction—Contemporaneous Construction by Administrators. i</p> <p>The contemporaneous and practical construction of a statute by those whose duty *it is to carry it into effect, though not absolutely controlling, is entitled to great respect in court, since it is usually made by able men, masters of the subject, and frequently the draftsmen of the statute.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296, 297-; Dec. Dig. &wkey;?219.]</p>

<p>Bankruptcy <&wkey;59 — “Acts op Bankruptcy” — Fraudulent Conveyance op Transfer — Judgment.</p> <p>An insolvent debtor wbo, intending to transfer real estate out of tbe reach of his creditors and to prefer one creditor, confessed a judgment or was a party to securing a judgment against himself by default for a sum in excess of the value of the property on which execution was withheld more than four months after the entry of the judgment has committed an act of bankruptcy under Bankruptcy Act July 1, 1898, c. 541, § 3a, cl. 1, 30 Stat. 546 (Comp. St. 1913, § 9587), making a conveyance with intent to defraud creditors an act of bankruptcy, and clause 2 making a transfer, while insolvent, of any property to a creditor with intent to prefer such creditor an act of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82-; Dec. Dig. <&wkey;>59.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p>

In Bankruptcy. In the matter of the bankruptcy of the Eastman Oil Company. On petition by the trustee and creditors to review an order of the referee overruling objections to the claims of J. W. Brock.

In Bankruptcy. In the matter o£ Alfonse Vonhee and Robert Hayes, copartners as Vonhee & Hayes, and Alfonse Vonhee and Louise Vonhee, husband and wife, bankrupts. On petition to review order of referee.

<p>Actions by the United States against the Philadelphia & Reading Railway Company, for penalty for confinement of cattle in violation of Thirty-Six Hour Raw. Trial by the court.</p>

<p>Action by Burton E. Stevenson against William Harris, Jr., and others. On motion for a preliminary injunction.</p>

In Bankruptcy. Involuntary proceedings in bankruptcy against the Order of Sparta. On motion to vacate the order of adjudication and dismissing the petition.

<p>Cotjbts <@=^347 — Pleading—Vbeotcation.</p> <p>Under equity rule 18 (198 Fed. xxiii, 115 C. C. A. xxiii), which provides that “unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished,” and rule 24 (198 Fed. xxiv, 115 C. C. A. 'xxiv), providing that every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading, that upon instructions given him there is good ground for the same, and that it contains no scandalous matter and is not interposed for delay, a defendant is not required to sign his answer individually, nor need it be verified by his oath, or that of any person in his behalf.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <&wkey;347.]</p>

<p>1. Courts <&wkey;>351 — Federal Courts — Practice—Matters as to Which Discovery may be Obtained.</p> <p>Under equity rule 58 (198 Fed. xxiv, 115 O. C. A. xxiv) a party’s right of .discovery extends only to facts resting in the knowledge of the adverse party or documents in his possession material to the support of the case of the interrogating party, although the right to discovery as to such matters will not be defeated by the fact that they also involve the ground of defense or action of the interrogated party.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. <S&wkey;351.]</p> <p>2. Courts <&wkey;351 — Federal Courts — Practice—Matters as to Which Discovery may be Obtained.</p> <p>To the extent that discovery may be granted as to material matters of fact, it must be limited to inquiry as to the material facts, and does not extend to the disclosure of evidence, or of facts which merely tend to prove material facts.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 924; Dec. Dig. &wkey;351.]</p> <p>3. Discovery <&wkey;8 — Matters as to Which Discovery may be Obtained.</p> <p>As a plaintiff’s right of discovery does not extend to the discovery of the manner in which, or the evidence by means of which, the defendant’s case is to be established, he is also precluded from ascertaining the names of the witnesses by whom his adversary purposes to prove his ease.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 10; Dec. Dig. <S&wkey;8.]</p> <p>4. Discovery &wkey;>13 — Matters as to Which Discovery may be Obtained.</p> <p>A plaintiff cannot require discovery in aid of an action at law of facts of which he has equal knowledge, or equal means of knowledge, with the defendant.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 23-26; Dec. Dig. <&wkey;13J</p> <p>5. Courts <&wkey;351 — Federal Courts — Interrogatories—Form.</p> <p>An interrogatory filed under equity rule 58 (198 Fed. xxiv, 115 C. O. A. xxiv) sho'uld embrace a single question, and be so framed that it may be clearly seen what the interrogated party is called upon to answer, and if this is not done the court in its discretion should direct that it be not answered.</p> <p>[Ed. Note. — For other cases, see Courts, Cent.' Dig. § 924; Dec. Dig. <&wkey;>351.]</p>

<p>Aliens <&wkey;68 — Naturalization—Statute.</p> <p>Under Act June 25, 1910, c. 401, § 3, 36 Stat. 831, amending. Act June 29, 1906, e. 3592,'§ 4, 34 Stat. 597 (Comp. St. 1913, § 4352), providing that any person qualified to be naturalized who has resided five years continuously in the United States prior to May 1, 1910, and who, because of misinformation regarding his citizenship or the requirements of law, has labored and acted under the impression that he was or could become a citizen, and has, in good faith, exercised the rights and duties of a citizen or intended citizen, may become naturalized without proof of a former ■ declaration of intention, the belief that he could become a citizen and action thereunder, as well as the continuous residence, must have con-tinned during the five years preceding the date mentioned, not merely during five years preceding the application for naturalization.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig. <&wkey;68.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by Everett A. Tripp against the Michigan Central Railroad Company. Judgment for defendant on directed verdict, and plaintiff brings error.</p>

Van Fleet, Judge. Action by Taggart Aston against the Examiner Printing Company and William Randolph Hearst. Judgment for plaintiff, and defendants bring error. Action at law to recover damages for libel. Judgment for plaintiff. Defendants allege error. The Sierra Blue Lakes Water & Power Company was the owner of certain water rights on the Mokelumne river in California, which were said to be available and adequate as a source of water supply for San Francisco.

<p>In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge.</p> <p>Separate mandamus proceedings by Eewis Apperson by Elizabeth ■Creager; by Hugh S. Gardner, by Mildred E. Hocker, and by the Sterling Hand & Investment Company against W. -T. Hendrickson, Judge of Taylor County Court, and J. D. Jones, W. H. Bennett, A. W. Miller, L. Morgan, Ruel Eads, and T. E. Wise, Justices of the Peace of Taylor .County, Ky. From judgments granting the writs, defendants bring error.</p> <p>The following is the opinion of Walter Evans, District Judge:</p> <p>The plaintiff's demurrer to th'e defendants’ answer raises questions which we have often considered and decided in the course of the many years of litigation growing out of the bonded indebtedness of Green and Taylor counties, respectively, incurred by each in aid of the construction of a certain railroad. The indebtedness of both counties is alike, it grew out of the same railroad situation and similar legislation, and the character of the resistance made by each county against the payment of the debts has been the same. We have, therefore, quite a settled jurisprudence in this connection, at least so far as this court is concerned. The validity of th'e indebtedness must be regarded as having been settled by the decision of the Supreme Court in Green County v. Quinlan, 211 U. S. 582, 29 Sup. Ct. 162, 53 L. Ed. 335.</p> <p>The routine steps taken in resisting payment after the validity of the indebtedness had been settled by the decision of the Supreme Court have been practically uniform and as follows: First. A contest upon the validity of the bonds being hopeless, the first resistance appears when a writ of mandamus is applied for, requiring the fiscal court to make a levy of taxation to pay the debt. Second. Failing to prevent the writ of mandamus, and after the taxation has been levied and proceedings for its collection have begun by putting or trying to put tax books in the hands of the sheriff, that officer either refuses to qualify, or, having qualified, resigns. Third. A collector of state taxes is then appointed separately, which, under the law of Kentucky, is admissible. Fourth. A collector of county taxes is then appointed, who usually refuses to accept the office if he is required to collect taxation to pay the railroad debts at the same time and under the same bond taken from him for the collection of the other county taxation, or he resigns if that requirement is made after he has qualified.</p> <p>This brings the creditor to a standstill. It was perceived, however, that the county could not collect taxes for paying its other liabilities, especially the taxes necessary to pay the salaries of its officers, unless a collector should be appointed, and so an attempt became customary to place all the assessments for county purposes in the hands of the collector, except that which levied taxes for the payment of the railroad bonds, and a' creditor owning those bonds would find it impossible to obtain a result favorable to himself if he could not have the taxation for his benefit levied and collected simultaneously with the other taxation by the collector, and, as we thought one county debt was as sacred as another, we enforced the Kentucky statute. The county officers who wanted their salaries paid usually found that they could be elected more easily if they opposed the payment of th'e bonded indebtedness. Their appeal to the spirit which demanded a repudiation of the bonded indebtedness usually secured them popular favor, and it was very plain that, if the taxes for the salaries of the officers and taxes for the payment of the ordinary county expenses could all be collected, and those necessary to pay the railroad bonds could be left out, things would move quite satisfactorily to those who desired to repudiate the county’s bonded indebtedness. We did not concur in this plan, and concluded that this state of case should not be tolerated, inasmuch as the bonded indebtedness has been found by the Supreme Court to be a valid one. So it became our habit, under section 4131 of the Kentucky Statutes, to require the county or fiscal court, whichever had control of the matter, to make an assessment covering all, and to require that the collector, under such circumstances, should collect all alike, or else collect none, and in order to accomplish this, our writs of mandamus would require that there should be exacted from any sheriff or collector who collected county taxation a bond which would include alike an obligation to collect the levy for the railroad bonded indebtedness and the taxation for ordinary county expenses, including salaries of officers. In this way, and in this way only, could the creditors who held the bonds of the county have anything but a mere nominal remedy. Without such a requirement the collector would collect money to coyer all the other county expenses, and its officers, who got their salaries, might laugh at such of its creditors as had taken its bonds. The proper local court was also required, when appointing a collector of county taxes, to make his appointment cover all alike.</p> <p>Section 4131 of the Kentucky Statutes provided a remedy to meet this situation, and in several instances in the course of this litigation we have heretofore endeavored to enforce that remedy in the way indicated. The Court of Appeals in Commonwealth, etc., v. Wade’s Adm’r, etc.-, 126 Ky. 791, 104 S. W. 965, had construed that section, and in our proceedings we have followed that construction. It afforded a good remedy for the creditors who held the county’s bonds. But at the instance of the two counties named the Legislature of the state in 1906 (Sess. Acts 1906) amended section 4131 by adding thereto the following words: “But such collector shall only be required to give bond for and collect such taxes or moneys as may be mentioned or provided for in the order of the county court appointing Him.” In Commonwealth, etc., v. Moody, 150 Ky. 571, 150 S. W. 680, the Court of Appeals upheld the amendment. In this case we are asked to accept and to follow that construction. We have been asked heretofore to do so, and have declined, and must again decline upon grounds similar to those controlling us in previous cases, though if the amendment to section 4131 of the Kentucky Statutes is to be applied only to debts which arise in the future, we see no reason why it might not be enforceable as to them. But as to any indebtedness which existed prior to the amendment of 1906, as the indebtedness in this case did, we must disregard that amendment and will briefly state our reasons for this conclusion:</p> <p>The meaning of the language of a state Constitution or a state statute, as ascertained by decisions of the court of last resort of that state, is always accepted by the federal courts as binding upon them. So are decisions of such courts as to the validity of state legislation under the provisions of the state Constitution. But the federal courts are not bound by the decisions of any of the state courts as to the validity of a state statute, if the validity of such statute is challenged upon the ground that it is violative of the Constitution of the United States. These propositions are so familiar as to require no citation of authorities. The federal Constitution forbids a state to enact any law which impairs the obligation of a contract. The remedy for enforcing the contract is essentially a part of the contract itself. If a remedy is provided when the contract is created, it may indeed be changed, but only on condition that one equally efficient and equally available is substituted. In this instance the amendment to section 4131 of the Kentucky Statutes took away the only efficient remedy left the holder of any of the bonds of Taylor county, and, instead of providing another equally efficient, left those creditors helpless, or at least dependent upon the caprice of the county court. It is so plain that this cannot be constitutionally done that we have felt constrained to hold that the creditors who held the railroad bonds of the county were entitled to the remedy as it existed previous to the passage of th'e amendment of 1906, and especially as section 4131 which gave that remedy had been upheld in Commonwealth, etc., v. Wade’s Adm’r, 126 Ky. 791, 104 S. W. 965, above referred to, which was decided in 1907, but in an action which arose before 1906. Of course, school taxes (which the Kentucky Court of Appeals has held to be state taxes) will not be affected by this ruling, but will be excepted from it, as will be shown in the judgment herein.</p> <p>It Is insisted that the road taxation provided for in the act approved March 24, 1914 (Acts 1914, p. 441), is a state tax, and stands upon the same footing as the school tax. So far as the taxation of 5 cents oh the $100 provided for in section 4 of that act is concerned, the contention is sound, and we cannot and shall not, by our judgment in this case, interfere with that taxation or its collection; but section 21 of the same act provides that any ro.ad constructed or reconstructed under its provisions shall forever be a county road, and “the duty of keeping the same in repair devolves upon the fiscal court of the county to be maintained out of the general county fund as provided by law, and all other powers and duties respecting such road shall be imposed upon and invested in the said fiscal court.” This act refers to state aid roads, which constitute only a small per cent, of the county roads. The expense of maintaining the roads not aided by the state is, of course, a county matter. It is thus quite clear that the taxation imposed by the fiscal court of a county, for the purpose of constructing' or reconstructing roads is a county expenditure, and not a state indebtedness, and, consequently, that the school tax decision has no bearing upon the question.</p> <p>The demurrer to the answer is sustained, and if the defendants do not answer further, or manifest a desire to do so, judgment, as prayed for, will be entered.</p>

Clarke, Judge. Suit in admiralty for collision by the Shenango Steamship & Transportation Company, owner of the steamer Shenango, against the Great Lakes Towing Company, owner of the tugs Reidenbach and Sunol, and the Pittsburgh Steamship Company, owner of the steamer Rensselaer. Petition of 1he Pittsburgh Steamship Company against the Great Lakes Towing Company, and cross-libel of the Pittsburgh Steamship Company against the Shenango' Steamship & Transportation Company.

Keller, Judge. Involuntary proceeding by the Graham Manufacturing Company and others, as petitioners, against the Davy-Pocahontas Coal Company. From a judgment granting the alleged bankrupt’s motion to dismiss the petition, petitioners appeal.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by Howard Snowden against the Ft. Lyon Canal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Eminent Domain <@==289 — Joindee of Plaintiffs.</p> <p>The complaint, in an action to recover damages for the wrongful appropriation of right of way over a tract of land by an irrigation company, hel& not subject to demurrer for misjoinder of plaintiffs because of the joinder of a plaintiff whose part interest in the land had been disposed of to her coplaintiff, where it did not appear from the pleading whether defendant entered upon the land before or after such disposition.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 789-796; Dec. Dig. <@=^289.]</p>

<p>In Error to the District Court of the United States for the District of Colorado ; Robert E. Lewis, Judge.</p> <p>Action by Clara V. Smith against the Fti Lyon Canal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the District of North Dakota; Charles F. Amidon, Judge.</p> <p>Suit by the First National Bank of Duluth against the Merchants’ National Bank of Mandan and others. Decree for plaintiff, and defendants appeal.</p>

Burns, Judge. Tom Dunn and others were convicted of crime, and they bring error. This is a writ of error from a judgment of conviction on two indictments which, by order of the court, were consolidated. The indictments were filed on September 2, 1915, and September 6, 1915, respectively.

Pollock, Judge. Suit by the Coca-Cola Company against Charles G. Bennett and another, copartners doing business as Bennett Mineral & Distilled Water Company. Judgment for the defendants (225 Red. 429), and plaintiff appeals.

<p>Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Suit in equity by the Pioneer Irrigation Company against Adelbert A. Weiland, as State Engineer of the State of Colorado, and others. Decree for complainant, and defendants appeal.</p>

<p>Appeal from the District Court of the United States for the Middle District of Pennsylvania; Chas. B. Witmer, Judge.</p> <p>Suit by Estelle Dorrance against Benjamin F. Dorrance and others. From a decree for defendants (227 Fed. 679), complainant appeals.</p>

<p>In Error to the District Court of the United States for the Eastern District of South Carolina, at Florence; Henry A. M. Smith, Judge.</p> <p>Criminal prosecution by the United States against J. W. Bolland. Judgment of conviction, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Texas; Thomas S. Maxey, Judge.</p> <p>Four separate actions by the Jasper & Eastern Railway Company and others against A. S. Walker, Collector of Internal Revenue, which were consolidated for trial. Judgment for defendant, and plaintiffs bring error.</p>

Clayton, Judge. Action by Augustine Meaher and others against the Southern Railway Company. Judgment for plaintiffs, and defendant brings error. The record shows that this suit was originally instituted against the Southern Railway Company by Augustine Meaher and Henry Hall Clarke, individually, and Henry Hall and Norborne R. Clarke, as executors and trustees under the will of G. Clifton Clarke, deceased. The complaint contained two counts, each claiming $25,000 damages.

H. Seward Thomson, Judge.' In the matter of John Kuhn Evans and others, individually and as partners, bankrupts. As against the Commonwealth Trust Company, trustee in bankruptcy, the Columbia National Bank appeals from an order of the District Court dismissing appellant’s claim against the estate.

<p>1. Evidence <&wkey;595 — Positive Testimony and General Inferences.</p> <p>Direct and positive testimony, the good faith of which is undisputed, may not be overcome by inferences of the most general character, unsupported by a single detail.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. <&wkey;595.]</p> <p>8. PRINCIPAL AND SURETY <&wkey;97 — RELEASE—CHANGES IN CONTRACT.</p> <p>Changes in the principal’s contract, made before and with reference to which its surety’s obligation was assumed, do not release the surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 146-108; Dec. Dig. &wkey;97.]</p> <p>3. Appeal and Error <&wkey;999(l) — Review—Findings op Fact.</p> <p>Any dispute as to material changes prejudicial to the surety having been made in the principal’s contract after the surety became bound is settled by the verdict on definite proper instructions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3915, 3917-3921; Dec. Dig. &wkey;999(l).]</p>

<p>In Error to the District Court of the United States for the Western-District of New York.</p> <p>Action by Richard S. Patterson against the Corn Exchange of Buffalo and others. ■ Judgment for the plaintiff against some of the defendants, and those defendants bring error.</p>

<p>1. Master and Servant &wkey;289(28) — Injuries to Servant — Contributory Negligence — Safer Method.</p> <p>A derrickman, who used a plank scaffolding placed at one end of a building for the purpose of removing the windows, but shown by the proof to have been used whenever convenient, in oiling a shaft of the derrick, is not guilty of contributory negligence as a matter of law in using such plank, though it would have been safer to have oiled the shaft while lying upon the derrick.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1120; Dec. Dig. &wkey;>289(2S).]</p> <p>2. Master and Servant <&wkey;27S(9) — Injuries to Servant — Negligence of Master — Defective Scaffolding.</p> <p>While the fact that a bracket supporting a plank on which employSs were expected to stand gave way under plaintiff is not conclusive proof of negligence, such fact, together with proof that it was in a defective condition which could have been discovered by reasonable care and that it wa.s wet by steam from the whistle five times a day, was sufficient to support a verdict finding the master negligent, especially where he failed to preserve the bracket so that the jury might see its condition.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. &wkey;>278(9).]</p> <p>3. Master and Servant &wkey;>286(17) — Injuries to Servant — Dismissal of Action — False Testimony.</p> <p>In an action for injuries to a servant, erroneous testimony, whether mistaken or false, that the opposite end of a plank on which plaintiff was standing when the bracket under it gave way struck him on the head, does not require a dismissal of the complaint; there being sufficient other evidence to support a finding of the master’s negligence.</p> <p>[Ed. Note.- — For other cases, see Master and Servant, Cent. Dig. § 1021; Dec. Dig. &wkey;286(17)J</p> <p>4. Witnesses <&wkey;254 — Refreshing Recollection — Objection.</p> <p>The use by plaintiff of an affidavit previously verified by his witness to refresh his recollection, so as to qualify and add to his testimony, was not subject to objection that he was impeaching his own witness, though it may have been objectionable because the affidavit was not contemporaneous with the event.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 868-873; Dec. Dig. &wkey;>254.]</p>

Robert Towe was convicted of removing and concealing spirits on which the tax had not been paid, in violation of Rev. St. § 3296 (Comp. St. 1913, § 6038), and he brings error.

<p>INTERNAL REVENUE <&wkey;9-CORPORATION TAX-IMPOSITION.</p> <p>Code Miss. 1906, § 4273 declares that the president, cashier, or other officer having like duties of each bank, whether state or national, shall deliver to the assessor a written statement of the number and amount of shares of its capital stock paid in, and the value of such shares at par, and as increased by any surplus which shall be the basis of taxation of such shares to the holder or owner, but if they are of less value than par, they shall be valued accordingly. The statute makes no provision for recovery from the several shareholders of their proportional part of the amount so paid for them. Held, that notwithstanding such omission, the tax paid under such act cannot be deducted from a national bank’s net income under Corporation Tax Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112-117 (Comp. St. 1913, §§ 6300-6307), as taxes imposed, for the tax is imposed on the shareholders.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 13-28; Dee. Dig. &wkey;»9.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Delaware, Lackawanna & Western Railroad Company, owner of the ferryboat Ithaca, against the Central Railroad Company of New Jersey, owner of the ferryboat Goshen, and the Erie Railroad Company, owner of the tug Ro-selle. Decree for respondents, and libelant appeals.</p>

Petition to Superintend and Revise from the District Court of the United States for the Western District of Texas; Thomas S..Maxey, Judge.' In the matter of bankruptcy proceedings against Augustus Chapman Allen. On petition by the bankrupt against J. J. Sweeney and others to revise an order of the District Court, affirming an order of the referee which set for hearing at a future date the bankrupt’s petition for discharge.

Suit by the International Curtis Marine Turbine Company and another against the William Cramp & Sons Ship & Engine Building Company. Sur petition for writ of certiorari or mandamus to review order (232 Fed. 166) denying defendant’s motion to exclude evidence.

Action by Lola M. Overstreet, administratrix of R. S. Overstreet, deceased, against the Norfolk & Western Railway Company. Judgment for defendant on directed verdict, and plaintiff brings error.

<p>Appeal from the District Court of the United States for the Western District of Texas; Wm. B. Sheppard, Judge.</p> <p>In the matter of Richard Jurney, bankrupt. On petition of Mrs. I. N. Jurney against John Maxwell, trustee in bankruptcy, to review an order of the referee denying petitioner’s claim to a lien. The order of the referee was reversed, and the trustee appeals.</p> <p>The opinion of Sheppard, District Judge, was as follows:</p> <p>The question here presented on the record is whether or not a wife, contracting with her husband regarding her separate property, is entitled to a landlord’s lien for the rent of a certain part of her separate property let to the husband under a rental contract. The solution of this would depend primarily upon whether or not the rents derived from the wife’s separate real estate would, under the statute of 1913, be a part of the Wife’s separate estate, or a part of the community estate of the spouses.</p> <p>[1] Undoubtedly the wife in Texas can make a valid contract with’her hus-' band regarding her separate estate. Article 4621 of the act provides what shall constitute the separate property of the wife. It shall be “all property of the wife, both real and personal, owned or claimed by her before marriage, and that acquired, afterwards by gift, devise or descent, as also the increase of all lands thus acquired. * * * ” It is contended that this does not include the rents issuing from the wife’s separate real estate, but that such rents form part of the community property of the spouses. Article 4622 provides that “all property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only. * * * ”</p> <p>Had the Legislature stopped here, it might well be contended that the rents issuing from the wife’s separate real estate become a part of the community estate. But such a contention seems to the court to be untenable in the light of the provision contained in the same article (4622), viz.: That “the rents from the wife’s real estate * * * shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621.” For, if the Legislature gave the wife the “control, management and disposition” of the rents of her separate real estate, subject to the provisions of the section creating her separate property, it should become a part thereof.</p> <p>[2] I am constrained to the view that the “rents from the wife’s real estate” under the statute of 1913 is a part of her “separate property.” The wife, being able to make a valid contract with her husband regarding her separate property, is entitled to all tlte privileges and benefits which such a contract may confer, and is therefore under a rental contract entitled to a landlord’s lien.</p> <p>An order reversing the referee will be accordingly entered. •</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Suit in equity by the Rollman Manufacturing Company against the Universal Hardware Works. From an order, complainant appeals.</p>

<p>In Bankruptcy. In the matter of Casimer C. Wodzicki, bankrupt, on motion to amend an order.</p>

<p>In Bankruptcy. In the matter of the bankruptcy of one Chass. On exceptions to report of referee.</p>

In Equity. Suit by the United States against G. W. McCutchen and others. This controversy centers about the right of the government of the United States, in furtherance of its declared conservation policy and because of its withdrawal orders heretofore issued, to assert its paramount proprietary interest in, and title to, a certain quarter section of very valuable oil land in the California oil fields. See U. S. v. Midwest Oil Co., 236 U. S. 4.59, 35 Sup.

In Bankruptcy. In the matter of A. Rosenthal, bankrupt. On petition to review an order of the referee allowing the claim of the Georgia Railroad Bank as a secured claim.

<p>1. PARTNERSHIP <&wkey;183(5)-USE OP FIRM PROPERTY — PAYMENT OP INDIVIDUAL Debts.</p> <p>The rule of administration of the property of a, partnership in the courts that partnership creditors have a right to the application of the firm assets first to the payment of the firm debts does not supersede the rule of operation of partnership affairs that the partners can, with the consent of all of them, dispose of the firm property, transfer it into individual property, or apply it to the payment of individual debts, even if the firm is insolvent, until the property is in the custody of the court, so that the use of partnership property with the consent of all the partners to pay individual debts is not a fraud in law, nor can the partnership creditors complain thereof..</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 330, 331, 333, 334; Dec. Dig. &wkey;183(5).]</p> <p>2. Bankruptcy <&wkey;149 — Partnership <&wkey;179 — Trustees—Right Acquired — . Partnership; Property.</p> <p>Where one partner uses firm property to pay his individual debts without the consent of his partner, the latter can recover the property and his right to do so is one which passes to the firm’s trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 229; Dec. Dig. <&wkey;149; Partnership, Cent. Dig. §§ 310, 314; Dec. Dig. <&wkey;l79J</p> <p>3. Partnership <&wkey;54 — Evidence—Sufficiency.</p> <p>In a suit by the trustee of a bankrupt bank to recover assets of the bank applied to the payment of a debt of the cashier; evidence held to show that the bank was conducted by a partnership composed of the cashier and his brother.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 77, 79; Dec. Dig. &wkey;>54.]</p> <p>4. Partnership &wkey;>27, 52, — Contract—Implied Contract.</p> <p>Partnership relations are founded in contract, but the contract may be implied as well as express, and may be established by circumstantial evidence as well as by direct evidence.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 29, 75, 77, 79; Dec. Dig. &wkey;27, 52.]</p> <p>5. ■ Bankruptcy @=>303(1) — Actions by Trustee — Burden of Proof.</p> <p>Tn an action by a trustee in bankruptcy to recover firm assets applied to tbe payment of tbe debt of a partner, tbe burden is on defendants to prove that tbe payment was made with tbe consent of tbe other partner.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 458, 459 ; Dec. Dig. @=>303(1).]</p> <p>Q. Partnership @=>217(3) — Firm Assets — Application—Individual Debts— Consent — Evidence.</p> <p>Proof that one member of a banking partnership had permitted another to manage tbe bank, to become deeply indebted to it, and to dispose of tbe bank’s assets, without proof that tbe former knew of any previous sale of tbe bank’s notes for other than bank purposes, or that be bad knowledge of tbe application of tbe notes in controversy to the payment of an individual debt, does not show consent to such application.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 323, 330; Dec. Dig. @=>217(3).]</p> <p>7. Bankruptcy @=>149 — Bights of Trustee — Partnership Property — Application to Individual Debts.</p> <p>A trustee in bankruptcy, suing in tbe right of one partner to recover firm assets from one to whom they bad been transferred in payment of tbe individual debt of another partner, is not limited to a recovery of tbe amount received by tbe partner, though tbe latter bad authority to sell tbe notes for firm purposes and tbe transaction was in form a sale, but can recover tbe notes still uncollected and tbe amount collected on tbe others, since equity will not consider tbe form, but will look to the substance.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 229; Dec. Dig. @=>149.]</p>

<p>1. Courts <®=»509 — Jurisdiction—Federal and State Courts.</p> <p>■The federal District Court bas no appellate jurisdiction over a state District Court, and must respect a decree entered by tbe latter court within its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1364-1371; Dec. Dig. <®=»509.]</p> <p>2. Vendor and 'Purchaser <§==>227, 229(6, 7) — Entry oe Judgment — Mistake— Notice.</p> <p>The attorney for a party in a suit to determine the title to land, in which a judgment by agreement was rendered, but the entry thereof by mistake misstated the length of one of the boundaries, as a matter of fact as well as by legal presumption, had notice of the mistake, and purchased .the land from his client subject to the right of the other party to have a judgment entry corrected.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 474, 487; Dec. Dig. <$=>227, 229(6, 7).]</p> <p>3. Judgment <§=>306 — Entry—Correction—Mistake.</p> <p>The entry of a judgment is a ministerial act of the clerk, and cannot affect the judgment as rendered by the court, which is a judicial act, and therefore Rev. St. Tex. 1911, art. 7758, providing that any final judgment rendered in any action for the recovery of real estate should be conclusive as to title or right of possession, and does not prevent the correction of a mutual mistake in the entry of the judgment, whereby the land was described differently than in the judgment as rendered.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 598; Dec. Dig. <§=>306.]</p>

<p>In Equity. Suit by the Central Consumers’ Company of New Jersey against Conrad W. Austin and others. On motion for temporary injunction. Motion denied.</p>

In Bankruptcy. In the matter of Eugene T. Auge, bankrupt. Proceeding by bankrupt to review an order of the referee confirming the action of the trustee in setting aside a part only of the property claimed as exempt.

<p>Peocess <§=>120 — Privileges and Exemptions — Attendance as Witness.</p> <p>Under the rule of the federal courts, a person who has come into a jurisdiction which is foreign to him to attend upon proceedings there being conducted, as by giving his testimony as a witness either in court or by deposition is protected from service of process while so attending, and in going to and returning from the same.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig.- § 160; Dec. Dig. <®=>120.]'</p>

<p>Carriers <@=»100(1) — Carriage of Goods — Car Demurrage — Construction of Tariff Bules and Charges — “Seasonal Tariff.”</p> <p>A railroad company issued and filed a local tariff, naming special car demurrage rules and charges on lake coal held by the company for transshipment at a lake port during the shipping season, which was fixed a.s from August 15th to December 31st. This tariff was tb become effective July 12th, and provided that all cars on hand August 15th should be recorded as arriving on that date, and that all cars remaining on December 21st should be recorded as released on that date, and after 10 free days should be subject to local demurrage. Held,, that such tariff was a “seasonal tariff,” operative only during the shipping season, and applying only to shipments made after July 12th each year, and that a new tariff, issued and filed in a subsequent year and effective before July 12th, governed as to shipments for the following shipping season, although such shipments were made before it became effective..</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 427-430, 432,.433; Dec. Dig! <@==>100(1).]</p>

<p>Application by Kuriijiro Toguchi for writ of habeas corpus.</p>

In Admiralty. Suit for collision by Thomas Tracy, owner of the tug Coleraine, against the tug M. Moran, the Moran Towing & Transportation Company, claimant, with cross-libel by claimant against the tug Coleraine.

In Bankruptcy. In the matter of the bankruptcy of Henry & S. G. Lindeman, a corporation. On certificate of the referee after an order sustaining objections to a claim of the Gotham National Bank.

<p>At Raw. Action by the Clark Bros. Coal Mining Company against the Pennsylvania Railroad Company. On motion by defendant for new trial.</p>

In Admiralty. Libel for wages by Jacob Nelleman and others against the steamship London. On trial hearing upon the libel, answer,- and proofs.

<p>1. Public Lands <@=>120 — Patents—Cancellation—Evidence.</p> <p>A patent to public lands, being by a solemn grant over the seal of the United States, and presumptive that the patentee has performed all conditions precedent to its issuance, cannot be annulled for fraud, unless the evidence is Unequivocal, clear, and convincing.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-835; Dec. Dig. <@=>120.]</p> <p>2. Public Lands <@=>35(3) — Homestead Laws — Absence—“Actual Residence.”</p> <p>Defendant, who entered land under the Homestead Law (Act May 20, 1862, e. 75, 12 Stat. 392), requiring actual residence, erected a house and established a residence upon the land. He substantially improved and cultivated the land, mainly by paid labor and croppers on shares, but, being a single man, worked for neighbors in the vicinity, though occasionally returning to his homestead entry. For some weeks he lived in the timber not far distant securing fence material, and during the period of residence was several times absent from the state on business. Held, that as “actual residence,” within the law, means no more than residence, true, substantial, and real, such absences did not prevent defendant from acquiring title; the law not insisting that he should remain upon the homestead entry when idle.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. pig. § 74; Dec. Dig. <@==>35(3).</p> <p>For other definitions, see Words and Phrases, First and Second Scries, Actual Residence.]</p> <p>3. Public Lands <@=>120 — Patent—Homestead Entries — False Statements.</p> <p>In such case, as defendant was entitled to the land despite his temporary absences, the statement in his final proof that he had not been absent from the land, made in response to a question to that effect, did not warrant cancellation of the patent, particularly as defendant testified that the officer taking the proof explained to him'that absence meant for a period interrupting continuous residence, and the answers of the other witnesses to the proof showed defendant’s temporary absence, so that the land department was not misled. '</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. <S=>120.]</p>

<p>At Raw. Action by the Henningsen Produce Company, a corporation, against William C. Whaley, as Collector of Internal Revenue of the District of Montana.</p>

<p>1. Bankruptcy <§=3205 — Effect of — Eights of Trustee.</p> <p>After bankkruptey, the trustee, and not the bankrupt, can claim money retained by the bankrupt’s employer under execution issued pursuant to Code Civ. Proe. N. Y. § 1391; execution on the judgment having been returned unsatisfied and the judgment creditor desiring to subject the bankrupt’s wages to the payment of his claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. <§=3205.] /</p> <p>2. Bankruptcy <§=>205 — Abjudication—Eights of Trustee.</p> <p>The trustee is not, as against the judgment creditor, entitled to funds reserved by the employer at a time more than four months before adjudication.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 23.4, 303; Dec. Dig. <§=>205.]</p> <p>3. Bankruptcy <@=>196 — Lien—Eights of Judgment Creditor.</p> <p>In such case, as the action was one at law, the judgment creditor had no equitable lien against the moneys retained under execution which could be asserted against the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 306-316; Dec. Dig. <§=>196.]</p> <p>4. Bankruptcy <§=>205 — Adjudication—Eight of Trustee.</p> <p>As there could be no levy on the bankrupt’s salary until there was a salary to levy upon, money retained by the employer within the four months period is subject to the claim of the trustee, being treated as property subjected to execution within four months of bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 234, 303; Dec. Dig. <§=>205.]</p> <p>5. Bankruptcy <§=>216 — Discharge—Necessity.</p> <p>In such case, as a debt is not barred until the bankrupt secures a discharge, -the bankrupt’s employer should, despite adjudication, continue to retain the required percentage out of his compensation pursuant to execution, the assertion of the claim by the trustee having reduced the amount retained to a sum insufficient to satisfy the creditor’s claim, which sum should be delivered to the bankrupt in event of discharge, or to the creditor in event of denial.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 328-333’; Dec. Dig. <@=>216.]</p>

<p>Corporations <§=>566(3) — Receivers — Claims Against —■ Preferences — Surety.</p> <p>Tbe surety on a supersedeas bond of an insolvent corporation is not entitled to a preference,, as against tbe bondholders, to tbe income or corpus of tbe property in tbé bands of receivers on tbe theory that the supersedeas bond by postponing tbe receivership benefited the bondholders, in tbe absence of a showing that the bondholders or their trustee procured the execution of the bond by the surety or acquiesced therein, with knowledge that the corporationwas insolvent, or that the money realized by the bond could be traced into the possession of the receivers and so shown to have benefited the bondholders.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2284; Dec. Dig. <§=>566(3).]</p>

<p>1. CORPORATIONS <@==>617(5) — DISSOLUTION—PENDING SUITS.</p> <p>The provisions of Code W. Ya. 1906, c. 53, § 59 (Code W. Ya. 1913, c. 53, § 59 [sec. 2891]), for the collection and distribution of the assets of a corporation whose franchise is annulled for failure to pay corporate license tax, are not exclusive, and suits either for or on behalf of the corporation, pending a.t the time of dissolution, are not abated.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2454; Dec. Dig. <@=>617(5).]</p> <p>2. Corporations <@=>630(1) — Dissolution—Right to Sue.</p> <p>At the time the contract in suit was made, plaintiff was a domestic corporation, organized under lihe laws of West Virginia, but in the year 1909 its charter rights and franchises were annulled for failure to pay the corporate license tax. Code W. Va. 1906, c. 32, § 136 (Code W. Ya. 1913, c. 32, § 136 [sec. 1269]), declares that the actual or attempted exercise of any powers under the charter of such corporation after the Governor’s proclamation of delinquency shall be a criminal misdemeanor. Chapter 53, § 59 (Code W. Ya. 1913, c. 53, § 59 [see. 2891]), provides for the collec- ■ tion and distribution of corporate assets. Held that as the mode prescribed is not exclusive, the institution of suit on such contract was not prohibited, not amounting to an exercise, or attempt to exercise, any corporate power.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2482, 2483; Dec.. Dig. <@=>630(1).]</p> <p>3. Corporations <@=>630(5) — Dissolution—Actions—Presumptions.</p> <p>In such case, it will be presumed that a suit by such corporation is for the purpose of collecting a debt for distribution, and the absence of evidence of corporate debts is immaterial, for the stockholders are entitled to corporate assets subject to payment of debts.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. <@=>630(5).]</p> <p>4. Corporations <@=>621(1) — Dissolution—Receivers.</p> <p>In such case, there was no imperative necessity for the appointment of a receiver.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2461-2464, 2469, 2471; Dec. Dig. <@=¿621(1).]</p> <p>B. Corporations <@=>623 — Dissolution—Trust Funds.</p> <p>In such case, assets collected in suit by corporation constitute a trust', fund, and are to be distributed by its directors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2472-2474; Dec. Dig. <@=>623.]</p> <p>6. Railroads <@=>25 — Contracts—Evidence—Sufficiency.'</p> <p>In a suit against defendant railroad company, evidence held to warrant a finding that defendant was the real party in interest to the contract involved; the ostensible party being its mere buffer or dummy.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 57; Dec. Dig. <@=>25.]</p> <p>7. Railroads <@=>17 — Contracts—Liability.</p> <p>Where the defendant railroad company in building an extension organized a buffer or dummy corporation, and defendant and its officers-represented that defendant was the/real party In interest, defendant is liable ,on contracts made by its dummy.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. <@=>17.]</p> <p>8. Evidence <@=>397(1)- — Parol Evidence Rule — Admissibility.</p> <p>Parol representations are not admissible to vary a written contract, purporting to' contain the entire agreement, in the absence of fraud or mutual mistake.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756,1763-1765; Dec. Dig. <@=>397(1).]</p> <p>9. Evidence <@=*145(7) — Parol Evidence Rule — Admissibility.</p> <p>Defendant railroad company, desiring to build an extension, contracted with plaintiff. The written contract made no provision as to the supporting of defendant’s tracks during excavation, but it was intended, and both parties expected, that the extension should not interfere with the traffic. Defendant refused to remove its tracks out of the( way of the excavation, and in making such excavations plaintiff supported the tracks. Held, that in .such case parol evidence that defendant agreed to pay a greater price for the- excavation to induce plaintiff to continue the work was admissible; the contract not purporting to speak on such matter and the agreement being collateral.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2062; Dec. Dig. <@=5445(7).]</p> <p>10. Contracts <@=>322(5) — Construction—Receipt oe Payment.</p> <p>In such case, plaintiff’s acceptance of payment of vouchers for the contract price for the excavations is not conclusive against its right to recover the increased compensation, in view of testimony that such funds were received with an understanding, that the balance should be paid when the entire work was done.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1465, 1534, 1535, 1538-1542; Dec. Dig. <@=>322(5).]</p> <p>11. Limitation op Actions <@=>46(1) — Running op Statute — Accrual op Action.</p> <p>Where a railroad contractor was to receive any balance due on the contract when the work was done, limitations against his right of action for such sums did not begin to run until the completion of the work.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240, 251, 253; Dec. Dig. <@=>.46(1).] (</p> <p>12. Principal and Agent <@=>101(1) — Authority op Agent — Effect op.</p> <p>Where the agreement was within an agent’s apparent authority, such agreement cannot be defeated by proof of lack of actual authority.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 255, 330, 346; Dec. Dig. <@=>101(1).]</p> <p>13. Trial <@=>139(1) — Province op Court and Jury — Submission op Issues.</p> <p>Where there is evidence in support of a cause of action, it is properly submitted to the Jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341; Dec. Dig. <@=>139(1).]</p> <p>14. Contracts <@=>284(4) — Construction—Duty op Engineer.</p> <p>Where a construction contract required the work to be done to the satisfaction of an engineer whose judgment should be conclusive on both parties, and who should be entitled to decide all controversies, the engineer’s action is final and conclusive, and binding on the parties in the absence of fraud, or such gross mistake as to imply bad faith, or failure to exercise an honest judgment.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1326, 1334; Dee. Dig. <§=>284(4)-.]</p> <p>15. Appeal and Error <§=>1068(4) — Review—Harmless Eeror.</p> <p>In an action on a construction contract, which provided that the work should be performed to the satisfaction of the company’s engineer, whose judgment should be conclusive on the parties, and who should have power to determine all controversies, the court charged that the action of the engineer was final, conclusive, and binding on the parties, and that his judgment could only be impeached when he has been so grossly mistaken that the mistake would suggest nearly something akin to fraud on his part. After the contractor had quit work, the engineer gave a final quantity sheet based on a completed contract, which stated the quantities of the several classes of labor called for by the written contract, and the first oral contract at the prices provided for therein, together with the amounts for each class of lab,or and the aggregate thereof. The contract provided that the engineer’s certificate should be given only when in the opinion of the engineer the contractor shall have finally completed all the work contemplated. There was testimony tending to show that the engineer in making the statement intended to accept the work done by the contractor subject to such deductions as should be necessary to complete the work in respects stated by the engineer. Held, that, where there was a verdict for the contractor for the full amount without any deduction, any error resulting from the instruction must be deemed cured by a deduction of the amount stated by the engineer as necessary to complete the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4228; Dec. Dig. <§=>1068(4); Trial, Cent. Dig. § 558.]</p>

Appeals from the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge. Libel by the Guaranty Trust Company of New York against the steamship Kronprinzessin Cecilie, claimed by the North German Lloyd, together with libels by Charles W. Rantoul, Jr., by Maurice Hansaens, and by the National City Bank of New York against the same vessel. From a decree dismissing the libels (228 Fed. 946), libelants appeal.

Cush-man, Judge. Suit in equity by the Fidelity Trust Company, trustee, against the Washington-Oregon Corporation, Willis D. Hoag, its receiver,' and others, in which the Crane Company intervened. From a decree denying it priority, the Crane Company appeals.

<p>1. Appeal and Error &wkey;>241 — Review—Motion for Judgment.</p> <p>Review of denial of motion for judgment is limited to the specific questions presented on the motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1413-1416; Dec. Dig. &wkey;>241.]</p> <p>2. Appeal and Error <5&wkey;671(6) — Record—Questions Presented for Review.</p> <p>A general finding being made on a trial without a jury, review is limited to such rulings in the progress of the trial as are presented by bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2872; Dee. Dig. &wkey;671(6).]</p> <p>8. Pleading <&wkey;345(l) — Motion for Judgment — Clerical Error in Bond.</p> <p>The complaint in an action on a bond to secure performance of a contract will not be held insufficient, on defendant’s motion for judgment, because, as appears by the exhibits, the bond antedates the contract by a year, the complaint showing the contract to be a modification of one a year earlier, and the bond showing that it was given after the making of, and to secure performance of, the modified contract; but the date of the bond will be disregarded as a clerical error in copying the bond for the original contract.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1055, 1057-1059; Dec. Dig. &wkey;>345(l).]</p> <p>4. Pleading <&wkey;7 — Presumption—Violation of Law.</p> <p>Plaintiff, suing on the bond of the contractor for construction of a bridge over a navigable stream, need not allege and prove that its construction was with the approval of its plans required, by Act March 23, 1903, c. 1130, 34 Stat. 84 (Comp. St. 1913, §§ 9961-9968); as it will not be presumed it was an unlawful structure.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 11; Dec; Dig; <&wkey;7.]</p> <p>5. Navigable Waters <&wkey;l(7) — Evidence of Navigability.</p> <p>That Congress passed an act authorizing the construction of a bridge in accordance with the act as to bridging navigable streams does not of itself establish navigability of the stream, in an action on the bridge builder’s bond.</p> <p>[Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 12-15; Dec. Dig. @=>1(7).] '</p> <p>6. Principal and Surety @=>117 — Discharge of Surety — Premature Payments.</p> <p>A contractor’s surety, at least a compensated surety, whether a company or individual, to be discharged by payments to the contractor before the stipulated times, must show that it suffered some injury therefrom.</p> <p>[Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. §§ 283-285,; Dec. Dig. &wkey;117.]</p> <p>7. Principal and Surety @=»90 — Discharge—Application of Statute.</p> <p>Act Mont. March 10, 1909 (Laws 1909, c. 139) § 3, providing how a surety company may be released from liability on a bond, having reference only to official bonds, has no application to the bond of a contractor "for construction for a county.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 140; Dec. Dig. @=>90.]</p> <p>8. Principal and Surety @=>117 — Discharge—Construction of Statutes.</p> <p>The second and third subdivisions of Rev. Codes Mont. § 5686, providing that a surety is exonerated, (1) in like manner with a guarantor, (2) to the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights, or which lessens his security, or (3) to the extent to which he is prejudiced by an omission of the creditor to do anything, when required by the surety, which it is his duty to do, axe controlling, notwithstanding section 5673, providing that a guarantor is exonerated, except so far as indemnified by his principal, if by any act of the creditor, without the guarantor’s consent, the obligation of the principal is altered in any respect; so that a, surety is not released by premature' payments to his principal, whereby the surety .could not be injured.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 283-285; Dec. Dig. &wkey;117.]</p> <p>9. Appeal and Error @=>931(4) — Presumption—Findings.</p> <p>It must be assumed, on appeal from the general finding for plaintiff suing a contractor’s surety, that the court found that deviations from plans and specifications were not at the instance of plaintiff, or that they . were such as were permissible under the terms of the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. @=931(4).]</p> <p>10. Principal and Surety @=>159 — Building Contract — Evidence to Hold Surety.</p> <p>Notwithstanding any difference between the bridge described in the bond Of a contractor for building a bridge, and that described in the specifications, the surety, sued on the bond because of the fall of the bridge constructed, is properly denied' judgment; there being no evidence to show which of the two described bridges was constructed.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 428-435; Dec. Dig. &wkey;159.]</p> <p>11. Principal and SURETY <&wkey;90 — Release—Gbounds.</p> <p>Though a contract for constructing a bridge for a county provides that certain worl? shall be done if ordered by the engineer, yet there being no provision requiring the county to be represented by an engineer, the. fact that it had none does not release the contractor’s surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 140; Dee. Dig. <&wkey;90.] '</p>

Rudkin, Judge. Action by Leslie Willard, a minor, by Joseph J. Lavin his guardian ad litem, against the Great Northern Railway Company. Judgment for plaintiff, and defendant brings error.

Petition to Revise Order and Appeal from the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge. In the matter of the B. A. Dockwood Grain Company, bankrupt. The claim of Francis Zenor against M. McFarlin as receiver and trustee in bankruptcy to a preference right to- the assets of the bankrupt was denied by the District Court, and the claimant appeals and petitions for revision.

Suit by American Steel Foundries against the Tri-City General Trades Council and others. From a decree for plaintiff, defendants appeal.

Dayton, Judge. Suit by Jacob S. Hayden against Josiah V. Thompson and others. From an order granting a preliminary injunction and denying a motion to dismiss, Ellen G. Davis and Cornelia B. Bassel, executrices of the will of John Bassel, deceased, apd others, defendants, appeal.

B. Sheppard,'Judge. Action by Samuel Zimmern against William A. Blount. Judgment for defendant, on demurrer to the amended counts of the complaint and to the replications, and defendant brings error. The plaintiff in error, plaintiff in the District Court, originally instituted this suit on a promissory note, alleged to have been executed by the defendant in error, who was defendant in the District Court.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action at law by the Ft. Pitt Mining & Milling Company against Fred E. Himrod. Judgment for plaintiff, and defendant brings error.</p>

Niles, Judge. Action by Corbet Erkhart, by J. H. Erkhart, his next friend, against the Cybur Lumber Company. Judgment for plaintiff, and defendant brings error. This is a writ of error to a judgment of the District Court for the Southern District of .Mississippi in a case in which the defendant in error was plaintiff in an action to recover damages for a personal injury sustained by him, while in the employment of the plaintiff in error, which was a lumbering company.

Bill by T. Coleman Du Pont against George N. Gardiner, upon his death revived against George N. Gardiner, Jr., and others, executors of defendant’s last will and testament. Prom a decree for complainant, defendants appeal.

<p>1. MASTER AND SERVANT <&wkey;154(l)-WARNING SERVANT-DANGER KNOWN TO Servant.</p> <p>An employer engaged in a dangerous occupation is not obliged to warn an employs, where the latter is aware of the danger accompanying his work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dee. Dig. <&wkey;154(l).]</p> <p>2. Master and Servant <&wkey;154(l) — Warning Servant — Danger Known to Servant.</p> <p>An employer will not be held negligent for failure to warn his employs of dangers accompanying his work, where from the circumstances, a fair-mmded person would have concluded that the employs knew of the danger, and misleading conduct or statements of employs may warrant such a conclusion.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 308; Dec. Dig. &wkey;>154(l).]</p> <p>3. Master and Servant <&wkey;286(40) — Warning Servant — Danger Known to Servant.</p> <p>Where fair-minded persons might draw different conclusions as to an employS’s knowledge of dangers incident to his work, or the lack of it, the employer cannot, as a matter of law, he held free of negligence in assuming employS’s knowledge of danger and not warning him.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1044; Dec. Dig. &wkey;286(4Q).-]</p> <p>4. Master, and Servant <&wkey;286(40) — Warning Servant — Danger Known to Servant — ‘Evidence.</p> <p>Plaintiff, having once assisted in blasting where charge was exploded by electricity, told employer that he thought he could do blasting with fuse, whereupon the employer did not warn him of danger of caps being exploded by sparks from fuse, and plaintiff was thereby injured. Held,, that question of defendant’s negligence in assuming that plaintiff knew danger, and of not warning him, should have been submitted to jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1044; Dec. Dig. <&wkey;-286(40).]</p> <p>5. Master and Servant <&wkey;154(2) — Warning Servant — Danger Known to Servant.</p> <p>Statement by a fellow workman that plaintiff ought not to carry explosive caps when blasting did not necessarily warn plaintiff of danger of explosion from leaving such caps lying around near scene of blasting.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 300; Dec. Dig. &wkey;154(2).]</p>

Dietrich, Judge. In the matter of the application of Uui Hip Chin, an alien, for a 'writ of habeas corpus against Lorenzo T. Plummer,'Chinese Immigrant Inspector in Charge at Helena, Montana. From a judgment denying the writ, applicant appeals. The appellant, a Chinese merchant of Canton, China, entered the United States on September 30, 1915, at the port of San Francisco.

Bledsoe, Judge. Suit by T. F. Turner against Kate J. Wells and another. From an adverse decree, plaintiff appeals. , This is a suit to recover a two-thirds interest in certain mining claims alleged to have been located under a grubstake contract.

Action by Elsie Donahue, an infant, by Thomas Donahue, her guardian ad litem, against the Delaware, Éackawanna & Western Railroad Company. Judgment for plaintiff, and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Abraham Menzin. Petition by Lewis Frank & Sons to revise an order of the District Court (233 Fed. 333) staying petitioners from proceeding under their specifications filed in opposition to the bankrupt’s discharge, unless they discontinue an action brought by them against the state court.

In the matter of the States Printing Company, bankrupt. Action by the Central Trust' Company of Illinois, trustee in bankruptcy, against Maurice S. Schoenbrod, to> set aside an assignment of an open account as a preference. From a decree of the District Court, reversing the order of the referee, and granting the relief asked by the trustee, the creditor appeals. .

<p>1. Master and Servant &wkey;>203(3) — Injuries to Servant — Assumption of Risk.</p> <p>Employés engaged in unloading car wheels from a railroad car do not, where the wheels were not loaded in accordance with the established practice, assume the risk of injury as an ordinary risk of the business.</p> <p>[Ed. Note. — For other cases, see Master and Servent, Cent. Dig. § 643; Dec. Dig. <&wkey;203(3).]</p> <p>2. Master and Servant <&wkey;217(25) — Injuries to Servant — Assumption of . Risk.</p> <p>A servant assumes extraordinary risks which are obvious and the danger of which he appreciates.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 593, 594, 598; Dec. Dig. &wkey;217(25).]</p> <p>3. Master and Servant <&wkey;288(6) — Injuries to Servant — Assumption op Risk — Jury Question.</p> <p>Though a railroad employé, unloading from a railroad car wheels which were not piled in the usual way, noticed that the wheels were in an upright position, such employé will not, as a matter of law, be deemed to have assumed the risk that they might fall, where he testified he did not appreciate the danger and the question is properly left to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1021; Dec. Dig. &wkey;288(6).]</p> <p>Hough, Circuit Judge, dissenting.</p>

<p>Appeal from the District Court of the United States for the Southern District of New. York.</p> <p>Suit by the Fred Gretsch Manufacturing Company against Michael E. Schoening and another. From an adverse order, defendants appeal.</p>

Niles, Judge. Suit by E. ]/ Bowers against the Edward Hines Dumber Company and others, originally begun in the state court and removed to the United States District Court. Decree for the plaintiff after defendants’ motion to transfer to the law side of the court had been denied, and defendants appeal and bring error.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York. In the matter of the bankruptcy of A. D. Matthews’ Sons, Incorporated. Petition by John J. Kuhn, trustee, to revise an order of the District Court. The bankrupts kept a department store wherein the Standard Fashion Company conducted a “department.” The fashion company paid rent for floor space in the bankrupts’ premises, and there sold its own goods, by its own clerks.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Harry B. Hollins and others-. Petition by A. Deo Everett, as receiver, to revise an order of the District Court (230 Fed. 920), made on application of Morris Hillquit and others.

In Error,to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Action by the Yazoo & Mississippi Valley Railroad Company against Samuel Zemurray. Judgment for defendant, and plaintiff brings error.

Petition to Superintend and Revise and Appeal from the District Court of the United States for the Eastern District of Rouisiana; Rufus E. Foster, Judge. In the matter of the bankruptcy of the R. Danos Planting & Manufacturing Company. Proceeding between William R. Erwin, under-curator, and the People’s Bank of Plaquemine and others, with Emile Plirsch as intervener. Petition by the Bank to superintend and revise the decree.

<p>In Error to the District Court of the United States for the Northern District of Texas; Edward R. Meek, Judge.</p> <p>J. E. Baldwin was convicted of violating the Drug Registration Act of December 17, 1914, and he brings error.</p>

Suit by David Lowenthal against the Georgia Coast & Piedmont Railroad Company, asking for the appointment of a receiver after the trustee for the bondholders had refused to institute such suit because a committee of the bondholders was in charge of the property. From an interlocutory order appointing the receiver (233 Fed. 1016), the defendant appeals.

<p>Bankruptcy <@^>444, 461 — Premature Appeal and Petition to Revise.</p> <p>Where to petition in involuntary bankruptcy by alleged creditors, setting forth a general assignment for creditors as an act of bankruptcy, an alleged creditor filed an answer suggesting legal reasons for invalidity of the whole proceeding, and denying every material fact of the petition, whereupon petitioners moved for adjudication, and order was entered merely declaring the “points of law raised by the answer” overruled, and directing a trial on the “issues raised by said answer,” appeal and petition to review are premature; the order, considered as a mandate, doing no more than directing a trial of the issues, as.was proper, and it being necessary that they be tried and adjudication granted or refused, before the case can be brought to the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 920-927; Dec. Dig. @=»444, 461.]</p>

P. Orr, Judge. In the matter of A. T. Wettengel and another, individually and as partners trading as Wettengel & Co.,- bankrupts. The petition of Robert S. George, in behalf of G. B. Kolb, praying that the trustee be directed to pay petitioner certain money alleged to belong to said Kolb, was denied, and petitioner appeals.

<p>1. Patents @=>328 — Validity and Infringement — Design for Shower Pan.</p> <p>The Holton design patent, No. 47,244, for a design for a gas and electric fixture known as a shower pan, discloses patentable invention; also, helé valid as against. the claim that it was not the invention of tha patentee and infringed.</p> <p>2. Patents @=>81 — Validity—Defense of Prior Use.</p> <p>A defense of a prior use, when introduced to invalidate an existing patent, must be established by the most convincing evidence.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. @=>81.]</p> <p>3. Patents @=>80 — Validity—Prior Sale and Use.</p> <p>A patent is not invalidated by the public sale and use of the patented article at any time within two years before the application was filed, unless abandonment is shown.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 102, 103; Dec. Dig. @=>80.]</p>

<p>1. Patents <@=>328 — Validity and Infringement — Draft Rigging.</p> <p>Tbe Miner patent, No. 668,655, for a draft rigging for railroad cars, while in an old art, is for a combination not anticipated, and covers a patentable improvement; claims 4 and 5 held infringed.</p> <p>2. Patents <@=>165 — Construction—Limitation of Claims.</p> <p>A limitation expressed in one claim of a patent cannot be read into another claim from which it is omitted.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 241; Dec. Dig. <@=165.]</p> <p>3. Patents <§=328 — Validity and Infringement — Draft Rigging.</p> <p>The Miner patent, No. 668,656, for a draft rigging for railroad cars, claim 8, held not anticipated, valid, and infringed; claim 2 held void for lack of novelty..</p> <p>4. Patents <@=>157(2) — Construction—Construction to Give Validity.</p> <p>The claims of a patent must be read in the light of the description, and if the evidence indicates different constructions, that construction governs which will sustain the patent, rather than the one which will defeat it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 231; Dec.. Dig. <@=>157(2).]</p> <p>5. Patents <@=>328 — Validity and Infringement — Draft Rigging.</p> <p>The O’Connor patent, No. 829,728, for a draft rigging, was not anticipated, and discloses invention. Claims 5, 6, and 7 also held infringed.</p>

In Equity. Suit by the Guaranty Trust' Company of New York ■and Benjamin F. Edwards, as trustees, against the Missouri Pacific Railway Company. On motion of complainants to strike from the files the intervening petition of the Boisot committee of bondholders, objecting to the plan of reorganization.

<p>In Equity. Suit by the Richmond Cedar Works against the Pitts-burg Rand & Lumber Company and others.</p>

<p>1. Municipal Corporations <@=>374(1) — Public Improvements — Liability op City — Void Contract.</p> <p>The Oregon rule that a municipality which fails to observe the requirements of its charter in mailing assessments for street improvements, or unreasonably delays enforcing them, is liable ex delicto to the contractor for the amount of the contract price, though it could not have contracted to pay such amount, does not apply so as to make the city liable for the contract price of such improvements, where it has no power to make such contract except on petition of a majority of the property owners and by ordinance adopted in compliance with certain requirements and there was no sufficient petition or ordinance.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. <§=>374(1).]</p> <p>2. Principal and Surety <@=>187 — Judgment—Conclusiveness—Parties.</p> <p>A suit by a city against a street contractor and his surety to recover for the contractor’s default in performance of the contract is essentially against the contractor, or at least against him as well as against the surety, so that the judgment therein was between the same parties as were parties to a subsequent suit by the contractor against the city to recover on the contract.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 554^556; Dec. Dig. <§=>187.]</p> <p>3. Judgment <§=>738-tConolusiveness — Matters Concluded — Validity of Contract.</p> <p>In that suit the validity of the contract under which the work was performed was necessarily in issue, though admitted by the contractor, so that the judgment therein was conclusive against the city as to the validity of the contract in a subsequent action by the contractor to recover the balance due under the contract.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1266; Dec. Dig. <§=>738.]</p> <p>4. Judgment <§=>713(2) — Conclusiveness—Matters Concluded — Uncontro-verted Issues.</p> <p>In an action upon the same claim and between the same parties, a ' former judgment is conclusive as to any admissible matter which might have been offered to sustain or defeat the claim; but, if the latter action is on a different demand, the previous judgment estops only matters actually in issue or controverted.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1241; Dec. Dig. <§=>713(2).]</p>

At Raw. Actions by the Baltimore Trust Company and by the Mercantile Trust & Deposit Company of Baltimore against the County of Screven and others. On demurrers and motions to dismiss for want of jurisdiction.

<p>At Law. Action by the United States, suing for and on behalf of Ellington & Guy, Incorporated, and others, against the Illinois Surety Company and others.</p>

<p>At Law. Action by the Southern Pacific Company against John Z. Lowe, Jr., as United States' Collector of Internal Revenue for the Second District of New York.</p>

<p>In Admiralty. Suit by the British & Foreign Marine Insurance Company, Limited, against the Portland & Asiatic Steamship Company, the steamship Indrapura, the Indrapura Steamship Company, Limited, claimant, in which the Oregon-Washington Railroad & Navigation Company intervened.</p>

<p>In the matter of the application of Frank Reichenburg for admission to United States citizenship.</p>

<p>In Bankruptcy. In the matter of William Spengler, bankrupt. On involuntary petition, and exceptions to report of special master thereon.</p>

In Equity. Suit for admeasurement of dower by Evelyn P. Ferry against the Troy Laundry Company, an Oregon corporation, and the Hibernia Savings & Loan Society, a California corporation. On motion to strike the further and separate answers.

<p>In Bankruptcy. In the matter of the Midtown Contracting Company, bankrupt. On review of order of referee.</p>

<p>1. Bankruptcy <&wkey;413(%) — Discharge of Bankrupt — Opposition.</p> <p>Where, after notice of hearing of trustee’s petition to oppose a bankrupt’s discharge, no creditor appeared to contest or authorize such action, the referee had no authority to order the trustee to oppose the discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;413(%)d</p> <p>2. Bankruptcy &wkey;>418(%) — 'Discharge of Bankrupt —• Opposition — Construction of Statute.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 14;b,'30 Stat. 550, as amended by Act June 25, 1910, e. 412, §i 6, 36 Stat. 839 (Comp. St. 1913, § 9598), that trustee shall not object to bankrupt’s discharge until authorized "at a meeting of creditors called for that purpose,” means authorization by the creditors, and the referee has no right to so authorize the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;413(%).]</p> <p>3. Bankruptcy <&wkey;413(%) — Discharge op Bankrupt.</p> <p>Under the Bankruptcy Act, a bankrupt is entitled to his discharge, unless the creditors, either singly or collectively, oppose it, and a mere volunteer may not oppose his discharge.</p> <p>[Ed. Note. — For other.cases, see Bankruptcy, Dec. Dig. <&wkey;413(%).]</p> <p>4. Bankruptcy <&wkey;413(%) — Discharge op Bankrupt — Opposition.</p> <p>Where creditors ha.d not authorized the trustee to oppose bankrupt’s discharge, the bankrupt’s objection to a hearing upon objections filed by the trustee by order of the referee should have been sustained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <&wkey;413(%).]</p>

Arden A. Buchanan was indicted for applying to his own use subsistence and supplies furnished to be used for military services. On demurrer to the indictment.

<p>Courts <&wkey;268 — Federal Courts — Penalties—Venue oe Action.</p> <p>The venue of an-action to recover the penalty provided by section 5 of the Immigration Act of February 20, 1907 (34 Stat. 900, c. 1134 [Comp. St. 1913. § 4250]), amended March 26, 1910, for the importation of a contract laborer, is governed by Rev. St. § 732, providing that all pecuniary penalties and forfeitures may be sued for either in the district where they accrue or in the district where the offender is found, and not by Judicial Code (Act March 3, 1911, c. 231) § 51, 36 Stat. 1101 (Comp. St. 1913, § 1033), providing that no person shall be arrested in one district for trial in another in any civil action, and such action may be brought against a foreign corporation in the district where the alien was. to perform labor.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 806, 807, 812; Dec. Dig. <&wkey;268.J</p>

Cushman, Judge. Suit by George B. Burke and another against the Mountain Timber Company for the foreclosure of a mortgage. From a decree of foreclosure, and for the recovery of a deficiency from the defendant and from the United States Fidelity & Guaranty Company as surety on a. bond given to prevent injunction (224 Fed. 591), the surety appeals.

Munger, Judge. Suit in equity by Hiram Chase, Jr., a minor, by his next friend, Hiram Chase, Sr., against the United States. Decree for the United States, and complainant appeals.

Action by Douis R. Hunter against the Baker Motor Vehicle Company and another. Judgment for' plaintiff (225 Fed. 1006), and defendants bring error. This cause comes here on writ of error to the District Court for the Northern District of New York. The plaintiffs in error will be referred to as defendants, and the defendant in error will be referred to as plaintiff. The plaintiff has obtained a judgment in his favor for $10,790.57. The case was tried without a jury.

Middleton Smith, Judge. Sam Wolf and Benjamin Wolf were convicted of concealing property from a trustee in bankruptcy in violation of Bankr. Act, § 29b, and they bring error.

Suit in admiralty by Basil George Mangakas against the Italian steamship Attualita. Order made by the District Court releasing the steamship from custody on the ground that she had been requisitioned by the Italian government. Libelant appeals. On the 9th of September, 1916, in the court below, the appellant filed his libel’ in rem against the steamship Attualita.

<p>Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston, in Bankruptcy; Henry A. M. Smith, Judge.</p> <p>Action by Joe. P. Dane, trustee in bankruptcy of John A. Hursey, bankrupt, against John A. Hursey and wife. Judgment for plaintiff, and defendants appeal.</p>

Middleton Smith, Judge. Action by Robert A. Woods, by his guardian ad litem, against the Atlantic Coast Line Railroad Company. There was a judgment for plaintiff, and defendant brings error.

Middleton Smith, Judge. . Action by J. C. Long and wife against the Atlantic Coast Line Railroad Company. Verdict was directed for defendant, and plaintiffs bring error.

<p>1. CONSPIRACY <&wkey;43(12) — Indictment—Variance.</p> <p>There is not a fatal variance between an indictment, charging both the conspiracy and the overt act in the state where the prosecution is had, and proof that only the overt act was committed there, while the conspiracy was entered into in another state, as the conspiracy is to be considered as extended into the state where the overt act is committed.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 90; Dec. Dig. &wkey;43(12).]'</p> <p>'2. Conspiracy <&wkey;43(12) — Indictment—Variance.</p> <p>There is no fatal variance because an indictment for violation of Criminal Code (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (Comp. St. 1913, § 10201), by conspiracy to present and prove a false claim against a bankrupt, charges the presentation of a false claim in a bankruptcy proceeding, and the proof is of its presentation in a composition; this being presentation and proof for all purposes in the bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 90; Dec. Dig. &wkey;43(12).]</p>

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

<p>In Equity. Suit by Charles S. Batdorf and the Automatic Coin Wrapping Machine Company against the Sattley Coin Handling Machine Company.</p>

<p>1. Patents &wkey;>328 — Validity and Infringement — Wire-Bound Box.</p> <p>The Inwood & Lavenberg reissue patent, No. 12,725 (original No. 799,854), Tor a. wire-bound box, is within the invention of the original patent, discloses patentable invention, and as covering a highly, useful and successful box, which was the first of its hind, is entitled to a fair range of equivalents; also held, infringed.</p> <p>2. Patents <&wkey;135 — Reissues—Grounds oe Reissue.</p> <p>The statute providing for reissues is not to be so construed as to deny a reissue, where by the inadvertent use of a limiting word the original patent does not protect the real invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 198.]</p> <p>3. Patents <&wkey;328 — Validity and Infringement — Wire-Bound Box.</p> <p>The Flora patent, No. 907,586, for a wire-bound box, is for an improvement only, and, while valid, is to be narrowly construed; as so construed, held not infringed.</p>

At Law. Separate actions by James Connelly, an infant, by Margaret Connelly, his guardian ad litem, and by Margaret Connelly, against the Central Railroad Company of New Jersey. On defendant’s motion to set aside the service of summons in each case because the court has not jurisdiction of defendant’s person.

. In Bankruptcy. Involuntary proceedings in bankruptcy against J. Ito Terusaki, doing business under the name and style of the Asahi News Company. On motion to dismiss the petition of the alleged bankrupt for the allowance of costs, expenses, and damages.

In Admiralty. Libel by Karmier Kruszewski against the steamship Student, and Terminal Shipping Company. On motion to dismiss the libel on the ground that it had abated because of the death of the libelant.

<p>In Equity. Suit by John S. Alexander and others against the- Fidelity Trust Company and others.</p>

<p>1. Saies <§=>413 — Action for Breach — Issues and Proof.</p> <p>Under a contract by defendant, a manufacturer of automobiles, to deliver ears on orders from defendant f. o. b. Detroit, to be paid for on or before such delivery, plaintiff could not recover damages for failure to deliver, without proof that it gave shipping directions, and of its readiness to mate payment, or of waiver of such condition.</p> <p>[Ed. Note. — EOr other cases, see Sales, Cent. Dig. §§ 1166-1169; Dec. Dig. <§=>413.]</p> <p>2. Appeal and Error <S=>882(14) — Instructions—Issues and Theories o® Case.</p> <p>A party cannot complain that a case was submitted to the jury on bis own theory of the issues, whether such theory was or was not correct.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3604; Dec. Dig. <§=>8S2(14).]</p>

<p>1. Courts <©=>493 (3) — State and United States Court — Receivers—Stockholders’ Suit — Dissolution.</p> <p>A bill by nonresident stockholders of an insurance company, which alleges that by reason of mismanagement and misappropriation of the corporation’s funds by its former officers it had become financially embarrassed and was pressed by a number‘of suits by its policy holders and creditors, but was not insolvent, and if its assets and the misappropriated funds could be recovered it could pay its liabilities, including its capital stock, that it transacted business in nine different states, and had assets and liabilities therein, and praying for the appointment of a receiver, seeks relief different from that sought in statutory proceedings in the state court by the Attorney General on information of the insurance commissioner to dissolve the corporation, and the appointment of the federal receiver prior to the decree of dissolution in the state court, but after the institution of the state proceedings, will not be vacated on petition of the state insurance commissioner a-nd Attorney General.</p> <p>[Ed. Note. — Por other eases, see Courts, Cent. Dig. §§ 1349^-1352; Dec. Dig. <§=5493(3).]</p> <p>2. Courts <§=>500 — Jurisdiction—State Laws — Appointment oe Receivers.</p> <p>Act Pa. April 23, 1909 (P. L. 167), providing that, whenever a receiver of k corporation is appointed by any court of the commonwealth on motion of the Attorney General at the instance of 'the insurance commissioner, he should forthwith supersede any receiver previously appointed by any decree of any court of the commonwealth, cannot take away the jurisdiction of the federal court under Judicial Code (Act March 3, 1911, c. 231) § 24, 36 Sta.t. 1091, as amended *by Act Dec. 21, 1911, c. 5, 37 Stat. 46 (Comp. St. 1913, § 991), giving federal courts jurisdiction of civil suits at law or in equity between citizens of different states where more than $3,000 is involved, to maintain a receiver in possession of the property of an insurance company at the suit of a nonresident stockholder to preserve its assets and liquidate its debts, notwithstanding a state decree dissolving the corporation at the instance of the commissioner.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. <@=>500.]</p> <p>3. Courts <@=500 — Comity—Appointment oe Receiver.</p> <p>Wh^re proceedings were instituted in a state court to dissolve an insurance company and distribute its assets before a bill was filed in the federal court by nonresident stockholders for the appointment of a receiver, but the federal receiver was appointed before the state court took the res into its possession, and there was no advantage to the creditors or stockholders in the state proceedings, while the necessity of ancillary proceedings to administer the corporation’s assets and liabilities in other states gives the federal courts distinct advantages, comity does not require the federal court to vacate the appointment of its receiver and deliver the property to the state insurance commissioner.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. <@=500.]</p> <p>4. Courts <@=500 — Jurisdiction—State and Federal Courts — Collusion..</p> <p>In such a case, the federal court would not retain jurisdiction, if that jurisdiction had been obtained in bad faith or through collusion.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. <@=500.]</p> <p>6. Courts <@=>600 — Jurisdiction—State and Federal Courts — Collusion.</p> <p>Mere allegations of collusion and bad faith in the petition of an insurance commissioner to vacate the appointment by a federal court of a receiver for an insurance company which had thereafter been dissolved by the state court, which allegations were denied in the answeif ánd not supported by any proof, do not require the federal court to vacate the appointment on the ground of collusion.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. <@=500.]</p> <p>6. Courts <@=3489(1) — Jurisdiction—Concurrent Jurisdiction of Federal Courts — Judicial Code.</p> <p>Under the Judicial Code, which omits the provision, found in earlier judicial acts, that the jurisdiction of the federal court shall be concurrent with courts of the several states, the federal court’s jurisdiction at the suit of nonresident stockholders to appoint a receiver for an insurance company is not limited to cases where the state court would have similar jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. <@=>489(1).]</p>

In Equity. Suit by Martha, E. Whitaker, individually and as executrix of the will of Carrie C. Updegraff, deceased, and Ruth E.… Held: and who participated therein. (12) Paragraph XVII (amended bill), so as to state the names of the defendants who made and recorded the “further” deed from the Corrugating Company to the Whitaker-Glessner Company, the properties described in. the deed of September 17, 1900, and said “reconveyance deed,” which are “apparently” conveyed…

<p>In Equity. Suit by S. F. Kelley, trustee of the Gibraltar Investment & Home Building Company, a corporation, bankrupt, against Fredericka Aarons and about 3,000 other defendants.</p>

<p>At Law. Action by the United States of America against John A. Heitz, Incorporated. Upon hearing on affidavit of defense.</p>

<p>1. Carriers <@=>62 — Carriage op Goods — Contracts.</p> <p>A contract for the transportation of commodities may be oral.</p> <p>[Ed. Note. — Dor other cases, see Carriers, Cent. Dig. §§ 195-206%; Dec. Dig. @=>62.]</p> <p>2. Evidence <@=>407(2) — Parol Evidence — Carriage op Goods — “Bill op Lading” — Nature op.</p> <p>A “bill of lading” is of twofold character, being a receipt and also a contract for the transportation of goods, which is not to be varied by parol evidence.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1827; Dec. Dig. <@=>407(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Bill of Lading.]</p> <p>3. Carriers @=>69(2) — Carriage op Goods — Actions—Demurrer—Bill op Lading.</p> <p>The complaint, which was predicated upon an oral agreement for the transportation of goods by a common carrier, after alleging that the oral agreement was made, stated that defendant issued its receipt or bill of lading for the shipment, which bill of lading was assigned to plaintiff by the shipper. Held that, as a. bill of lading, though a receipt, is also a written contract for the carriage of goods, which cannot be varied by parol, the .complaint is subject to demurrer, being based on an oral contract, which it must be presumed was superseded by the bill of lading, in the absence of allegations to negative the presumption.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 228, 232%-234; Dec. Dig. @=>69(2).]</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p>

<p>Appeal from 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 Southern District of New York.</p>