Volume 239 — Federal Reporter

In Error" to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Action by Catherine Marland, administratrix of the estate of William. Edgar Marland, deceased, against the Philadelphia & Reading Railway Company. Judgment for plaintiff, and defendant brings error.

Dickinson, Judge. John Knoell and another were convicted of conspiracy to violate the Bankruptcy Act, their motion for new trial was overruled (230 Fed. S09), and they bring error.

■ In the matter of the Porto Rico Progress Publishing Company. Petition by the Mergenthaler Dinotype Company against Harwood Hull, trustee, for the delivery of certain machines claimed by it. Decree denying the petition, and petitioner appeals.

Keller, Judge. Ejectment by Andrew Squire against Harvey Ewart and C. L. Parker, administrators of the estate of James A. Parker, deceased, and James T. McCreery. Judgment for plaintiff, and defendants bring error.

, Judge. Action by Z. E. Mays against the Southern Railway Company to recover for personal injuries. Judgment for plaintiff, and defendant brings error.

Suit in equity by Thomas T. Boswell and others against the Big Vein Pocahontas Coal Company. From an order confirming report of Edward P. Keech, Jr., and Harry H. Heiner, late receivers, the Spring Coal Company, intervener, appeals.

<p>1. Corporations @=>312(5) — Transactions with Directors — Options.</p> <p>Where a director of a corporation acquired timber land from the' corporation under an agreement giving the corporation an option to purchase within a time fixed, the director, notwithstanding the nature of the contract, is bound to pay value, and cannot take the land at an immense profit.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1383, 1385, 1386, 1388, 1389; Dec. Dig. @=312(5).]</p> <p>2. Corporations @=>312(5) — Directors—Knowledge op.</p> <p>A director, who acquired land from his corporation, is charged with knowledge that the coiporation had acquired such land from a second company.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §<j 1383, 1385, 1386, 1388, 1389; Dec. Dig. @=>.312(5).]</p> <p>3. Corporations @=>312(5) — Directors—Transactions.</p> <p>Where a director purchased corporate property, the corporation may avoid the sale, at its option, unless the sale was fairly made, and the price was fair, and it was subsequently ratified by the stockholders, or the corporation delayed too long in seeking to avoid the sale.</p> <p>[Ed. Note.: — For other cases, see Corporations, Cent. Dig. §§ 1383, 1385, • 1386, 1388, 1389; Dec. Dig. @=>812(5).]</p> <p>4. Corporations @=312(5) — Transactions with Directors — Price.</p> <p>Where the director of a corporation acquired from it timber land patented only a year before acquisition, the inadequacy of price cannot be justified on the ground that the director took the title subject to attack by adverse holders, for limitations do not run against the state, and no title by limitations could have been perfected within the time title was out of the state.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1383, 1385, 1386, 1388, 1389; Dec. Dig. @=312(5).]</p> <p>5. Corporations €=>312(5) — Transactions with Directors — Price.</p> <p>Where a corporate director acquired from his company timber land recently patented by the state to a third person, such director cannot justify the inadequacy of price on the ground that the right of the patentee to acquire the land was being brought into question, for that issue could not arise in collateral proceedings.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1383, 1385, 1386, 1388, 1389; Dec. Dig. €=312(5).]</p> <p>6. Corporations €=312(7) — Transactions with Directors — Delay in Setting Aside.</p> <p>Where the director of a corporation, which was in financial difficulties, acquired timber land belonging to it, advancing sums of money to discharge corporate debts, a delay of about 20 months in attacking the sale is not such a delay as will prevent the corporation from avoiding it.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1391; Dec. Dig. €=312(7).]</p> <p>7. Corporations €=312(5) — Transactions with Directors^ — Vacation.</p> <p>Where a director of a corporation acquired timber land belonging to it at a price allowing him approximately $250,000 profit, the transaction is voidable at the option of the corporation or its receiver; the rule being the same, though the director had paid value.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1383, 1385, 1386, 13S8, 1389; Dec. Dig. €=312(5).]</p> <p>8. Corporations €=312(7) — Directors—Vacation op Sale.</p> <p>Where a corporate director, at the request of the president, who was its general counsel, and his codirectors, six of whom were attorneys, acquired land belonging to the corporation, advancing sums to discharge its liabilities, such director is entitled, having been assured that the transaction was not objectionable, to an allowance of attorney’s fees on' the vacation of the sale at the suit of the receiver of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1391; Dec. Dig. €=312(7).]</p>

<p>Appeal from the District Court of the United States for the District of Porto Rico; Hamilton, Judge.</p> <p>Suit by Isabel Gonzalez y Gonzalez and another against Francisco Arzuaga e Izaguirre and others. From an adverse decree, defendants appeal.</p>

Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge. _ _ Suit in equity by John M. Gatewood against the New River Consolidated Coal & Coke Company. From the decree, both parties appeal.

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; Benjamin E. Keller, Judge;</p> <p>Action at law by J. M. Wright against the Warren Bros. Company. Judgment for plaintiff, and defendant brings error.</p>

Sanford, Judge. Action by George W. Stroup, by next friend, Mary Stroup, against the Carolina, Clinchfield & Ohio Railway Company. There was a judgment for plaintiff, and defendant brings error.

Appeal .from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge. In the matter of Jacob Jacobson, alleged bankrupt. From an order fixing attorney’s fees, the alleged bankrupt appeals.

Andreas C. Bosselman was convicted of corruptly influencing, obstructing, and impeding the due administration of justice, by directing and requesting others to malee certain erasures, changes, and insertions in his books and records, material to a matter under inquiry by the grand jury, and he brings error.

<p>In Error to the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Action by Casto Merced and another against Sucesores de U. Villamil & Co., S. en C. Judgment for plaintiffs, and defendants bring error.</p>

<p>Appeal from the District Court of the United States for the District of Utah; J. A. Marshall, Judge.</p> <p>Suit in equity by Enos A. Wall against the United States Mining Company. Decree for defendant, and complainant appeals.</p>

Proceeding in admiralty by the Indra Line, Limited, owner of the steamship Indrakuala, against the Palmetto Phosphate Company and others, for limitation of liability. Prom a decree holding the ship in fault for a collision and allowing claims against her, petitioner appeals.

<p>1. Evidence <@=22(1) — Judicial Notice — Citizenship op Parties.</p> <p>In an action by a New I-Iampsbire corporation against a railroad company incorporated in Massachusetts, the federal court will take judicial notice that defendant was also incorporated under Laws N. H. 1835, c. 14, and Laws 1841, c. 6, and doing business in such state, and was therefore a citizen thereof.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 23; Dec. Dig. <@=22(1).]</p> <p>2. Courts <@=314 — Federal Courts — Jurisdiction—Diversity op Citizenship.</p> <p>The federal District Court for New Hampshire is without jurisdiction on the ground of diversity of citizenship over an action by a New Hampshire corporation against a railroad company incorporated, not only in Massachusetts, but also in New Hampshire, for the court will regard the corporation intended as defendant as the one created and existing by the laws of New Hampshire.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 860; Dec. Dig. <@=314.]</p> <p>3. Courts <@=299 — Federal Courts — Jurisdiction—Suit Arising Under Laws op United States.</p> <p>A suit by a railroad company, which leased its line, to compel the lessee company to issue passes pursuant to the lease agreement, is not one over which the federal courts have jurisdiction 'under Act Aug. 13, 1888, c. 866, 25 Stat. 433, as a suit arising under the Constitution and laws of the United States, because the lessee’s probable defense, based on the inhibition against the issuance of passes found in the acts to regulate commerce (Act June 29, 1906, c. 3591, 34 Stat. 584, and Act June 18, 1910, c. 309, 36 Stat. 539), was anticipated and attacked on the ground that such defense was unavailing under the Constitution.</p> <p>[Ed. Note. — For! other cases, see Courts, Cent. Dig. §. 841; Dec. Dig. <@=299J</p>

Action by Katherine Olt against the City of Superior. There was a judgment for plaintiff, and defendant brings error. Action for damages. Verdict and judgment for plaintiff. While walking on Fourteenth street in the city of Superior on the evening of November 16, 1&14, plaintiff stepped upon or stumbled over some bricks, or pieces of broken brick, and fell, breaking her ankle, for which she brought this aetioii.

Action by Roy W. Smith against the Pennsylvania Railroad Company. There was a judgment dismissing the complaint at the close of i plaintiff’s, case, and he brings error.

<p>1. Courts <@=325 — Jurisdiction—Waiver oe Objections.</p> <p>In an action in the federal court, defendant, a foreign corporation, by answering to the merits and setting up a counterclaim, without raising by demurrer the question of the court’s jurisdiction by virtue of service on defendant’s agent, waived all objections, and cannot thereafter urge them.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 884; Dec. Dig. <@= 325.]</p> <p>2. Evidence <@=487 — Admissibility—'Value of Services — Attorney and Client. v</p> <p>In an action to recover the value of personal services rendered by plaintiff in effecting a settlement, whereby a third person was induced to confess judgment in favor of defendant for infringement of defendant’s filter patents, a witness familiar with the patent situation with respect to filters may testify as to the value of the services of plaintiff, in view of the surrounding circumstances.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2272; Dec. -Dig. <@=487.] -</p>

Suit by Philip Klein, as executor, and Lilian Klein, as executrix, of the last will' and testament of Charles Klein, deceásed, against Rex Beach and the Selig Polyscope Company, Incorporated. From a decree dismissing the complaint as against defendant Selig Polyscope Company, Incorporated (232 Fed. 240), complainants appeal. The decree below dismissed the complaint as against the defendant Selig Polyscope Company, Incorporated, on motion.

<p>1. Collision <@=>74 — Moving and Anchoeed Vessel — Inefficient Lookout.</p> <p>A finding by the trial court that a collision in Chesapeake Bay at night between an anchored and a moving vessel was due solely to the fault of the moving vessel for failing to keep a proper lookout held sustained by the evidence.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 104; Dec. Dig. <@=74.]</p> <p>2. Collision <&=>75 — Moving and Anchored Vessei^-Anciior Lights.</p> <p>That the stern light of a vessel anchored at night was not more than 10 feet lower than the forward light, instead of 15 feet, as required by the ' Inland Rules (Act June 7, 1897, c. 4, § 1, art. 11, 30 Stat. 98 [Comp. St. 1913, § 7884]), is not sufficient to charge her with fault for a collision with a moving vessel, where the evidence showed that the lights were otherwise in proper position, were burning brightly, and could be seen for a long distance.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. §§ 105-121, 207; Dec. Dig. @=»75.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. ’</p> <p>In the matter of the bankruptcy of Samuel Braun. From an order denying the discharge of the bankrupt, he appeals.</p>

Suit by David Senft, as trustee in bankruptcy of Joseph White, against Burt G. Lewis and another, to set aside a conveyance by the bankrupt to the defendants. Decree for plaintiff, and defendants appeal.

Suit in admiralty for collision by Mary A. Dempsey and Thomas Monahan against the Atlantic, Gulf & Pacific Company. The steam-tug Ticeline impleaded. Decree for libelant against respondent and the impleaded tug, and respondent appeals.

<p>Navigable Waters @=26(3) — Obstruction by Rocks in Channel — Suit for Damages.</p> <p>Evidence held, insufficient to sustain the allegation of a libel that an injury to the bottom of libelant’s steamer was caused by striking rocks thrown up by respondent dredging company in the course of its work.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 152-166.]</p>

In the matter of the Glas-Shipt Dairy Company, bankrupt. Petition of George Kraft against A. M. Otman, trustee in bankruptcy, was denied by the referee. Prom decree of the court affirming the order, petitioner appeals. Appeal from an order directing petitioner to pay the trustee in bankruptcy $29,500 and denying petitioner’s petition to withdraw his bid on the real estate of the bankrupt.

<p>In Error to the Distrid/Court of the United States for the Western Distrid of Pennsylvania; W. H. Seward Thomson, Judge.</p> <p>Action by Elliott Frederick, as trustee of John F. Schmidt, bankrupt, against the Metropolitan Fife Insurance Company of New York. Judgment for defendant (235 Fed. 639), and plaintiff brings error.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Suit by John D. Rockefeller against P. C. O’Brien, County Treasurer of Cuyahoga County, Ohio, to restrain the collection of taxes. Decree for the complainant (224 Fed. .541), and defendant appeals.</p>

Petition to Superintend and Revise Order of the District Court of the United States for the Western District of Texas; Thomas SMaxey, Judge. In the matter of Woulfe & Co., bankrupt. Petition of William Cameron & Co., Incorporated, against W. Goodwin and others to superintend and revise an order of the District Court.

In'Error to the District Court of the United States for the Northern District of New York. Action by the United 'States against the New York Central & Hudson River Railroad Company. There was a judgment for plaintiff (232 Fed. 179), and defendant brings error.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by John M. Kenny against Edward C. Worden. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Courts @=405(4) — Jurisdiction of Appbddat,e Court.</p> <p>Act Aug. 24, 1912, c. 390, § 9, 37 Stat. 565 (Comp. St. 1913, § 10045), gives jurisdiction to the Circuit Court of Appeals of the Fifth Circuit to review, revise, modify, reverse, or affirm judgments or decrees of the District Court of the Canal Zone, only where the Constitution or any statute or treaty, etc., of the United States is involved, and a right thereunder denied, or in cases where the value in controversy exceeds $1,000, or in criminal cases, where the offense charged is punishable as a felony. Defendant was convicted of contempt in the District Court of the Canal Zone and fined $25. Held, that as he was not, under the Constitution of the United States, entitled to a jury trial, the Circuit Court of Appeals had no jurisdiction to review the conviction; the 'fine amounting to less than $1,000, and the offense not beng punishable as a felony.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1098; Dec. Dig. @=-105(4).]</p> <p>2. Jury @=21(4) — Contempt—Right to Jury Trial.</p> <p>In a proceeding in a federal court to punish for contempt, defendant is not entitled to a jury trial under the federal Constitution.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. § 139; Dec. Dig. @=21(4).] ■</p>

Bill by the Robbins Manufacturing Company against the Atlas Floor Company. From a decree for complainant, defendant appeals. The action was in equity for infringement of patent No. 825,952 issued July 17, 1906, for an improvement on metal frame window screens. The District Court sustained the patent and found it infringed. Validity is substantially conceded, but it is urged that defendant omits one if not two elements of the claims sued on, and so does not infringe.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by Walter D. Johnston against Clarence W. Stewart for infringement of letters patent No. 650,824 for building material, granted June 5, 1900, to J. B. Cottom. Decree for defendant, and complainant appeals.</p> <p>The following is the opinion of Learned Hand, District Judge, in the court below:</p> <p>I think the meaning of this patent is not primarily to make a ventilated wall at all, although the claims do contain that element. A ventilated wall is provided for; that is undoubtedly true, but there is no mention of ventilation until we get to line 101, after the patent itself has been very carefully described in full. Then provision is made for ventilation by a tube which is afterwards to be withdrawn. It seems to me it is quite clear that what the patentee chiefly intended was to get a series of concrete blocks, which he could anchor together by solid concrete bars going from the top to the bottom \ of the wall. I refer particularly to the passage on the first page, which begins at 86: “When the blocks are thus laid in the construction of a wall, it will he observed that each block does not depend for its security on the mortar or cement as usually applied between the faces of bricks, but, on the contrary, have ‘cement bars,’ so to speak, which extend through them at two points in the body of each block and which also securely unite the ends of said blocks to form continuous horizontal row of blocks.” That last clause probably refers to the dwelling; but it is quite clear, when one looks at the figures, that he had in mind something quite different from whqt has been called here by one of the witnesses a doughnut or mortise of cement squeezed out by the weight of the blocks, which is all that Stewart uses.</p> <p>This conclusion is re-enforced by the fact that all of the figures on the first page--that is, Bigs. 1, 2, and 3 — showi the cement bar, but do not show the ventilation. The ventilation is shown only in Figs. 5 and 6, and these are apparently alternative features, as appears in line 101. Ooming to the claims, it is quite true that the ventilation is made an element, and so we must accept it; but we have on that account no right to disregard the ‘‘cement bars,” which the claims also incorporate, and which have been clearly shown in all the drawings. The language of the claim .in this respect is as follows: “By means of which a continuous body of cement may be placed to rigidly secure said blocks from top to bottom of a wall.”</p> <p>Furthermore, the description of the process on the second column of page 1 is illustrative. It is quite clear that the semi-liquid cement is to be poured in until it fills the whole column made by the holes in the blocks when superposed on one another. This filling or cement accounts in part for the singular shape of the funnels themselves, each one being double. I think the patentee’s theory was that, by securing a break in the line of each block, he could get a stronger bond than if he had a straight cylindrical column going all of the way through. I do not therefore think, taking the patent alone as it stands, we should call Stewart’s blocks when laid an infringement, because there was no column of concrete running through, no “continuous body.”</p> <p>If we were so to interpret the claim, I should, moreover, have great doubt of its validity in the face of Smithmeyer. It is true that Smithmeyer. did not disclose the bond between brick and brick as part of what he wanted to accomplish, but he did have it in mind, whether he desired it or not, in the language of lines 51 to 54: “The cup-shape depressions forming receptacles for any excess of mortar without infringing upon the ventilating capacity.”</p> <p>Of course' Smithmeyer was laying bricks, and bricks are shallow for their length and width. They do not need anything but a surface bond. It was natural that Smithmeyer should not have spoken of that bond as one of the advantages secured by his patent^ but he provided for it, nevertheless, and I cannot agree that it was a mere casual or accidental result of his invention. It was an inevitable and necessary result of his invention that there should be an anchor of cement at each orifice, caused by the extrusion of cement. I am justified in making that assertion without any express evidence, because the laying of bricks and the mortar is a commonplace thing in everyone’s experience ; I think I can take notice of the fact that mortar is a plastic bonding material, and that bricks, when they are laid, are laid with a little pressure or tapping. We know that the brick itself, when laid on the mortar, will squeeze a little of the mortar out. It is a very familiar recollection of every person who has lived where building has been going on to see mortar scraped off the face where solid bricks are laid. Since Smithmeyer’s bricks had holes In them, the necessary squeezing and tapping would cause some of this mortar tA go into this space B. The patentee was aware of that and provided for it, although he did not suppose it to be of advantage. Mr. Kenyon says that very little will be squeezed through. I cannot say how that would be, and I do not think it is of any consequence. The action is there; the degree of the action depended upon what the consistency of the mortar was, but the action was there. In this connection it must be noted that Smithmeyer does not confine himself to bricks; he speaks of blocks as well, and specifically says that he does not wish to limit himself in any manner as to material used, but may employ any of the well-known materials which may be desired. That was in June, 1883, when working in concrete ,was well known.' Therefore, if it were proper so to interpret claim 1 as to cover Stewart’s construction, I should have a very grave doubt as to whether it was valid in the face of Smithmeyer.</p> <p>I do-not think, however, that it is essential that I should make a finding upon that question, in view of the construction I have put upon the claim.</p>

<p>In Equity. Suit by the De Laski & Thropp Circular Woven Tire Company against the Empire Rubber & Tire Company. On final hearing.</p>

<p>In Equity. Suit by the Thomson Electric Welding Company against Barney & Berry, Incorporated.</p>

<p>1. Usury <2=111(3) — Action to Recover — Statement oe Claim.</p> <p>The cause of action, set forth in a statement of claim, being that plaintiff borrowed money from defendant, and in discharge of the obligation defendant received a sum! in excess of that loaned and legal interest, and plaintiff has demanded return of the usurious interest thus exacted, making his demand and bringing his action within the statutory period, the statement of claim alleging, as the means through which defendant received the money, the distribution to defendant of plaintiff’s share in an estate, is not defective in not setting forth the full record of the proceedings in the matter of the estate.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. § 297; Dec. Dig. <2= 111(3).]</p> <p>2. Pleading <2=155 — Affidavit of Defense — Adding to Statement of Claim.</p> <p>Practice Act (Act Pa. May 14, 1915 [P. L. 483]) § 20, allowing defendant in his affidavit of defense to raise any question of law, without answering the averments of fact in the statement of claim, which question may be set down for hearing and disposed of in limine, does not allow defendant by his affidavit of defense to practically incorporate into the statement of claim matter unnecessary therefor, but constituting a defense, and thereon raise a question of law.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 309-311, 313, 314; Dec. Dig. <2=155.]</p>

<p>1. Internal Revenue <@=>28 — Excise Taxes — Limitation.</p> <p>The three-year clause in the Excise Law of 1909 (Act Aug. 5, 1909, c. 6, § 38, subd. 5, 36 Stat. 112 [Comp. St. 1913, § 630A]), imposing a special tax on corporation^, is not a limitation on the right of the government to sue for unpaid taxes, hut at most is a limitation on the collecting officers to make an assessment to enforce payment by summary proceedings.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. <@=>28J</p> <p>2. Internal Revenue <@=>28 — Corporations—Liability fob Taxes. <</p> <p>In the collection of taxes imposed on corporations by the Excise Law of 1909, the government is not confined to the summary proceedings therein, but may resort to a plenary suit.</p> <p>[Ed. Note. — -For other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. <@=>28.]</p> <p>3. Internal Revenue <@=>28 — Corporations—Collection oe Taxes-</p> <p>Where a tax of a fixed percentage like the one imposed by Excise Law of 1909 on corporations is so definitely described in the statute that Its amount or value can be ascertained and determined on evidence by a court, a suit therefor 'will lie without assessment. ■</p> <p>[Ed. Note. — Eor other cases, see Internal Revenue, Cent. Dig. §§ 76-81; Dec. Dig. <@=»28.]</p>

<p>1. Bankruptcy <§=51 — Voluntary Proceedings — Intervention.</p> <p>Stockholders oí a corporation, which petitioned for voluntary bankruptcy, cannot intervene to object to the adjudication, since the proceedings on such petition are ex parte, and no answer can be permitted.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 49; Dec. Dig. <§=51.]</p> <p>2. Bankruptcy <§=43 — Voluntary Petition — Authority oe Corporate Directors.</p> <p>The directors of a corporation have authority in Missouri to put the corporation into voluntary bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 38; Dec. Dig. <§=43.]</p> <p>3. Bankruptcy <§=51 — Voluntary Proceedings — Adjudication—Vacation.</p> <p>Where the petition for voluntary bankruptcy is in due form, properly verified, and avers all the jurisdictional and other facts essential to entitle the petitioner to an adjudication, such adjudication must be made, and thereafter any party in interest can move to vacate it upon jurisdictional grounds.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Efig. § 49; Dec. Dig. <§=51.]</p> <p>4. Bankruptcy <§=41 — Voluntary Proceedings — Ownership op Property.</p> <p>To entitle petitioner to be adjudicated a voluntary bankrupt, it is not essential that it should own any property, or that its property should be subject to administration in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 40; Dec. Dig. <§=41.]</p> <p>5. Bankruptcy <§=404(1) — Discharge—Right op Corporation.</p> <p>A corporation is entitled in the proper case to receive a discharge in bankruptcy.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 679, 681-691; Dec. Dig. <@=404(1).]</p> <p>6. Bankruptcy <§=20(2) — Voluntary Proceedings — Receivers op State Corporation.</p> <p>The fact that a state court has, by appointing a receiver, acquired jurisdiction over all the property of a petitioner for voluntary bankruptcy, and that such jurisdiction is exclusive, is no defense to the voluntary petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. <§=20(2).]</p> <p>7. Bankruptcy <@=41 — Voluntary Proceedings — Requisites—Insolvency.</p> <p>It is not essential that a petitioner for voluntary bankruptcy be insolvent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 40; Dec. Dig. €=41.]</p> <p>8. Bankruptcy <§=20(1) — Voluntary Proceedings — Injunction by State Court.</p> <p>A state court has no power "by any form of order or injunction to limit the operation of the Bankruptcy Act, or impair the jurisdiction of a court of bankruptcy, and cannot enjoin a corporation from filing a petition for voluntary bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <S=>20(1).]</p> <p>9. Bankruptcy <@=>43 — Voluntary Bankruptcy — Estoppel—Defending in State Court.</p> <p>The fact that a corporation and its directors appeared and contested a suit against them in the state court, in which a receiver was appointed, does not estop them from filing a voluntary petition in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 38; Dec. Dig. <@=>43.]</p> <p>10. Bankruptcy <@=>44 — Voluntary Proceedings —Petition — Provable ■ Debts.</p> <p>An allegation in a petition for voluntary bankruptcy that the bankrupt owes debts establishes prima facie the existence of provable debts against the bankrupt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 43-46; Dec. Dig. <@=>44.]</p> <p>11. Bankruptcy <@=>43 — Voluntary Proceedings — Right—Motive.</p> <p>The right of a corporation in a proper case under the Bankruptcy Act to file a petition for voluntary bankruptcy cannot be denied because of •improper motives.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 38; Dec. Dig. <@=>43.]</p> <p>12. Bankruptcy <@=>114(1) — Receivers—Right to Appointment.</p> <p>To warrant the bankruptcy court in appointing a receiver, it must find that it is absolutely necessary for the preservation of the bankrupt’s property that a receiver be placed in charge thereof, under Bankr. Act July 1,1898, c. 541, § 2 (3), 30 Stat. 544 (Comp. St. 1913, § 9585) authorizing the appointment of receivers- in case the court shall find it absolutely necessary for the preservation of estates.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 164, 165; Dec. Dig. <@=>114(1).]</p> <p>13. Bankruptcy <@=>114(1) — Receivers—Petition—Sufficiency.</p> <p>A petition for the appointment of a receiver in bankruptcy, which merely alleges the necessity therefor in the language of the statute is not sufficient ; but it must allege facts which reasonably establish such necessity.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 164, 165; Dec. Dig. <@=>114(1).]</p> <p>14. Bankruptcy <@=>114(1) — Receiver.—Previous Appointment by State Court.</p> <p>Where a voluntary petition in bankruptcy was filed by a corporation after the state court had handed down an opinion announcing the appointment of a receiver, but before the entry of the decree of appointment, no receiver will be appointed in the bankruptcy proceedings, since the appointment by the state court relates back to the announcement thereof.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 164, 165; Dec. Dig. <@=>114(1).]</p> <p>15. Bankruptcy <@=>20(2) — Receiver—Jurisdiction—State Receiver.</p> <p>Under Bankr. Act, § 3 (4) (Comp. St. 1913, § 9587), making it an act of bankruptcy while insolvent to apply for a receiver or where because of insolvency a receiver has been put in charge, section 67c (section 9651), making void a lien created by auy suit or proceeding begun within four months before the filing of a petition in bankruptcy, if it appears, among other things, that it was obtained while defendant was insolvent, and section 67f (section 9651), making void all levies, attachment, or other liens obtained against an insolvent person within four months prior to filing a petition in bankruptcy, the insolvency of a voluntary bankrupt is an. indispensable prerequisite to the exercise by the bankruptcy court of jurisdiction over property of the bankrupt in possession of a receiver of the state court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 23; Dec. Dig. @=>20(2).]</p> <p>16. Bankruptcy @=>114(1) — Receivership—Stjettciency op Showing — Insolvency.</p> <p>Where a petition for voluntary bankruptcy alleged insolvency, but that allegation was based on the guaranty, which the state court had declared to be ultra vires, and for which, if valid, the corporation would have a corresponding claim against the principal debtor, and in the suit against it in the state court the bankrupt had alleged it was solvent, there is not a sufficient showing of insolvency to warrant the appointment of a receiver in bankruptcy, who would take the property from the control of the receiver appointed by the state court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 164, 165; Dee. Dig. <§=>114(1).]</p>

The United States Brewers’ Association and others and the Altoona Brewing Company and others were indicted for conspiring to make money contributions in connection with an election at which Representatives in Congress were to be voted for. On motions to quash the indictments and demurrers -to the indictments.

<p>1. Courts <@=>501 — Actions Against Receivers — Jurisdiction.</p> <p>Judicial Code (Act March 3, 1911, c. 231) § 66, 36 Stat. 1104 (Comp. St. 1913, § 1048) providing that a federal court receiver may be sued, without previous leave of the court which appointed him, “in respect of any act or transaction of his in carrying on the business connected with such property,” applies only to suits brought for the purpose of imposing some liability on the receiver in respect to his acts. As to all matters relating to the possession, control, and management of the property by the receiver, or the conduct of the business, the jurisdiction of the court which appointed him, and which has possession of the property through him, is exclusive.</p> <p>[Ed. Note. — For other cases-, see Courts, Cent. Dig. § 1409; Dec. Dig. <@=>501.]</p> <p>2. Receivers <@=>90 — Management op Property — Assumption op Contracts.</p> <p>An executory contract made by a corporation is not binding on its subsequent receiver, unless he affirmatively assumes it.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 164-166; Dec. Dig. <@=>90.]</p>

At Taw. Assumpsit by the Burroughs Adding Machine Company against the Scandinavian-American Bank. On plaintiff’s motion to strike a portion of the answer, or in the alternative to compel defendant to state separately its causes of defense.

<p>1. Internal Revenue <@=>3S — Excise Tax — Action to Recover — Issues.</p> <p>In a suit to recover the excise tax erroneously paid by a corporation which was not doing business but merely leasing its property to another which operated its railroad and paid a fixed rental therefor, the lease cannot be collaterally attacked by showing that the lessee claimed under it as assignee though the lease was not assignable.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84;. Dec. Dig. <@=>38.]</p> <p>r>. Abatement and Revival <@=>53 — Death—Recovery of Customs Duties— Action on Implied Contract.</p> <p>An action to recover internal revenue taxes erroneously collected isassumpsit on an implied contract, and survives against the personal representatives of the collector if he dies pending the suit.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§■ 251, 252; Dec. Dig. <@=>53.]</p> <p>3. Internal Revenue <@=>38 — Tax Illegally Collected — Parties—Successors in Office.</p> <p>In the absence of statute, one from whom internal revenue was illegally collected cannot recover the amount from the successor in office of the-collector who made the collection.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84;. Dec. Dig. <@=>38J</p> <p>4. Internal Revenue <@=>38 — Tax Illegally Collected — Recovery—Statute.</p> <p>Act March 3, 1863, c. 76, § 12, 12 Stat. 741 (Comp. St. 1913, § 1635), providing that, when a recovery is had against a collector of the revenue for any money exacted by him and paid into the treasury and the court certifies that there was probable cause for the act of the collector, no execution shall issue against his property, but the judgment shall be paid out of the treasury, does not make the suit one against the officer in his official capacity, so as to permit recovery against him for money collected by his predecessor in office, since the granting or refusal of the certificate of probable cause is within the discretion of the court, and if it were refused the officer would be held liable for money which he never received.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <@=>38.]</p> <p>5. Internal Revenue <@=>38 — Recovery of Tax — -Successor in Office — Statute.</p> <p>Act Feb. 8, 1899, c. 121, 30 Stat. 822 (Comp. St. 1913, § 1594), providing-that suits begun against officers of the United States in their official capacity may be continued against their successors in office, does not authorize the institution of a suit against an internal revenue collector for taxes erroneously collected by his predecessor in office against whom no action was brought; plaintiff’s remedy being by proceeding against the predecessor under Rev. St. § 3226 (Comp. St. 1913, § 5949), or by proceeding under Judicial Code, § 24, par. 20 (Act March 3, 1911, c. 231, 36' Stat. 1093 [Comp. St. 1913, § 991]).</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 83, 84; Dec. Dig. <@=>38]</p>

At Law. Action by Louise Martin against the Matson Navigation Company, a corporation, and others, begun in the state court and removed to the federal District Court. On motion to remand.

<p>Bankruptcy <@=»391(3) — Proceeding in State Court — Stay.</p> <p>Action in a state court against bankrupt by a creditor will not be stayed by the bankrupt court, though it be creditor’s purpose, on any judgment obtained, to attach funds in the trustee’s hands, even if this would be a nullity.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 649-654; Dec. Dig. @=^391(3).]</p>

, Judge. In the matter of Robert Edward Baker, bankrupt. Petition by J. J. Dunlop against Robert Edward Baker and wife, and D. Hamilton Willcox, Lawrence P. Poole, and C. H. Joyner, trustees. From an order denying his petition for equitable relief, Dunlop appeals.

<p>Appeals from the District Court of the United States for the District of Arizona; William H, Sawtille, Judge.</p> <p>Suit in equity by Cornelius C. Watts and- Dabney C. T. Davis, Jrv against Joseph E. Wise, Margaret W. Wise, Lucia J. Wise, James E. Bouldin, Jennie N. Bouldin, David W. Bouldin, Helen Lee Bouldin, and the Santa Cruz Development Company. Decree for complainants and certain of the defendants, and the remaining defendants appeal.</p>

District Court of the United States for the Eastern District of Oklahoma; Ralph F. Campbell, Judge. Action at law by the First National Bank of McAlester, Okl., against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant brings error.

<p>1. Appeal and Error <@=>853 — Instructions—Exceptions—Necessity. An instruction not excepted to stands as the law of the case.</p> <p>[Ed. Note. — For other cases, see. Appeal and Error, Cent. Dig. §§ 1524, 3405; Dec. Dig. <@=>853.]</p> <p>2. Brokers <@=>86(3) — Commissions—Right to.</p> <p>In assumpsit for commissions claimed under a contract for the sale of auto trucks, evidence held, insufficient to show that plaintiff had completely consummated the contract, so as to be entitled to commission as such, although warranting a finding that, but for defendant’s improper interference, he would have effected the sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117; Dec. Dig. <@=>86(3).]</p> <p>3. Brokers <@=>79 — Commissions—Right to.</p> <p>Defendant, a manufacturer of motor cars, desiring to go out of business, contracted with plaintiff for the disposal of its cars at reduced prices. Plaintiff began negotiations with third persons for the sale of a number of motor trucks, which sale would have been consummated, but for th.e interference of defendant, who disposed of the cars directly to the customer. Plaintiff brought assumpsit to recover compensation claimed, the case being finally submitted on the common counts. Held that, as the contract was not completed, plaintiff could not on the common counts recover commissions as a debt, recovery in that manner being allowable only when the contract is at an end, and nothing remains but the payment of the sum due; and hence, being restricted to recovery of damages by specially declaring on the contract, an instruction allowing plaintiff to recover the commissions provided in the contract was erroneous.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. <@=>79.]</p> <p>4. Appeal and Error @=1064(1) — 'Prejudicial Error — Instructions.</p> <p>In such case, if an instruction, which became the law of the case, because not excepted to, could be interpreted as authorizing recovery for plaintiff, if he had carried on negotiations to a point where a sale would have been effected, but for defendant’s interference, an instruction allowing plaintiff to recover the commissions provided in the contract amounted to reversible error, because it could not be determined whether the jury based tbeir verdict on the instruction not excepted to, or the one allowing recovery as damages of the commissions provided in the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. @=1064(1); Trial, Cent. Dig. §§ 525, 553.]</p> <p>5. Brokers @=7 — Contracts—Construction.</p> <p>In such case, though defendant reserved the right to make sales to customers in the territory given to the sales agent, it impliedly obligated itself not to interfere with the agent’s pending negotiations.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 5-8; Dec. Dig. <^»7.]</p> <p>On Petition for Rehearing.</p> <p>6. Appeal and Error @=888(2) — Amendments—Allowance.</p> <p>In such case the agent should not be allowed to file on appeal as an amendment a declaration in special assumpsit, and have the judgment affirmed, for it could not be determined that the jury’s verdict was based on the count in quantum meruit, and not the one of indebitatus assumpsit; the instructions allowing recovery on such count.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3619 ; Dec. Dig. @=SSS(2).]</p> <p>7. Appeal and Error @=1178(6) — Remand—Limitation op Remand.</p> <p>Where it did not appear that the jury might not have found for plaintiff on an incorrect theory of liability, the new trial, after reversal on appeal, should not be limited to the question of damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4614, 4615; Dec. Dig. @=1178(6).]</p>

Orr, Judge. Action at law hy the Standard Wood Company against Hall, Gardner & Co., a partnership, and James K. Gardner, Jane Hyde Hall Liddell, and Susan E. Hall, surviving partners. Judgment for defendants, and plaintiff brings error.

Sessions, Judge. In the matter of the Huron Iron Mining Company, bankrupt. Claim by S. W. Croxton and others against Joseph S. Courtney, as trustee in bankruptcy. Prom jan order allowing the claims, without deduction for indebtedness of the claimant to the bankrupt, the trustee appeals.

<p>1. Appeal and Error <@=>237(5), 268(1), 694(1), 719(10) — Presenting Questions Below — Want of Evidence.</p> <p>Where there was no request to direct a verdict, the charge is not contained in the record, and no exception was taken, nor error assigned to the ruling on a motion for new trial, defendant cannot urge the insufficiency of the evidence to support the verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1302, 1596, 1604, 2910, 2915, 2979, 2982, 3490; Dec. Dig. <@=>237(5),. 268(1), 694(1), 719(10).]</p> <p>2. Physicians and Surgeons <@=>18(9) — Action for Malpractice — Evidence —Sufficiency.</p> <p>In an action against a physician for malpractice in the treatment of a broken leg, evidence held sufficient to take to the jury the question whether defendant failed to exercise proper care and skill in the treatment.</p> <p>[Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 44; Dec. Dig. <@=>18(9).]</p> <p>3. Physicians and Surgeons <@=>14(4) — 'Degree of Skill Required.</p> <p>■ A physician is liable for negligently failing to exercise the care and skill ordinarily possessed by surgeons practicing in that locality and under the circumstances, in the light of modern advancements and learning.</p> <p>[Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 26, 27; Dec. Dig. <@=>14(4).] _ ,</p> <p>4. Accord and Satisfaction <@=>25(1) — Judgment <@=>948(1) — Payment <@=>59 —Release <@=>45 — Admissibility of Evidence — Pleading—Defenses.</p> <p>Under Shannon’s Code Tenn. § 4627, providing that the plea shall state the facts relied on as a defense, except as thereafter provided, and section 4686, providing that, whenever a general plea is filed, defendant shall'give notice of his real defenses, and no matter of defense of which notice is not given shall be given in evidence or relied on, evidence that plaintiff, who was suing a physician for malpractice, had settled with his employer for the injuries received, which was offered to show accord and satisfaction, payment, release, or former recovery, is inadmissible, where those defenses were not pleaded.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 151, 153; Dee. Dig. <@=>25 (1); Judgment, Cent. Dig. §§ 1787, 1789, 1791, '1792; Dec. Dig. <@=>948(1); Payment, Cent. Dig. § 143%; Dec. Dig. <@=>59; Release, Cent. Dig. § 87; Dec. Dig. <S=>45.]</p> <p>5. Courts <@=>347 — Rules of Decision — ¡State Statute — Admissibility os Evidence.</p> <p>Under the Conformity Act (Act June 1, 1872, e. 255, § 5, 17 Stat. 197 [Comp. St. 1913, § 1537]), Shannon’s Code Tenn. §§ 4627, 4636, regulating pleas and the evidence admissible thereunder, is controlling in the federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 921; Dec. Dig. <@=>347.]</p> <p>6. Evidence <@=>162(2) — Best Evidence — Judgment.</p> <p>The judgment itself and the judgment record is the best evidence of a judgment, and parol evidence concerning it is incompetent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 537; Dec. Dig. <@=>162(2).]</p> <p>7. ’ Appeal and Error <@=>854(4) — Reversal—Wrong Reason eor Court’s Ruling.</p> <p>A judgment will not be reversed for the exclusion of evidence wbicb was inadmissible, tbougb tbe reason assigned by the trial court was inaccurate or incomplete.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3413-3416; Dec. Dig. <@=>854(4).]</p> <p>8. Physicians and Surgeons <@=>18(7) — Action eor Malpractice — Evidence —Admissibility.</p> <p>In an action against a physician for malpractice, the admission of testimony as to a deformity which was not specifically alleged in the declaration was not reversible error, where it was admitted to show lack of skill dnd care, for which it was competent, and it appeared that the deformity had been corrected by subsequent operations, so that no recovery was asked therefor.</p> <p>[Ed. Note. — For other cases, sea Physicians and Surgeons, Cent. Dig. §§ 40, 41; Dec. Dig. <@=>18(7).]</p> <p>9. Appeal and Error <g=>1051(3) — Harmless Error — Admission oe Evidence —Fact Otherwise Established.</p> <p>The admission of evidence as to a fact not alleged in the declaration is harmless, where similar evidence had been more than once introduced without objection, and defendant admitted that he knew the condition existed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167; Dec. Dig. <@=>1051(3).]</p>

H. Seward Thomson, Judge. Action by Stella Glas, administratrix of the estate of Clarence Glas, deceased, against the Pennsylvania Railroad Company. Judgment for plaintiff, and defendant brings error.

In the matter of the bankruptcy of the Mossier Company. Petition by the Chicago Title & Trust Company, a corporation, as trustee, opposed by the Central Trust Company of Illinois, a cqrporation, trustee in bankruptcy. From a decree affirming an order of the referee denying the petition, petitioner appeals.

Suit in equity by the Guaranty Trust & Safe Deposit Company against the Indianapolis Traction & Terminal Company and others.’ From an order granting a preliminary injunction, defendants William D. Mahon and others appeal.

Appeals from the District Court of the United States for the Western District of New York; John R. Hazel, Judge. Suits in admiralty by the Pittsburg & Erie Coal Company, owner of the steam barge P. D. Armour, against the George Urban Milling Company and against the Buffalo Grain Company. Decrees for libelant, and respondents appeal. The libelant is a corporation existing under tbe laws of the state of Pennsylvania.

Niles, Judge. Habeas corpus by J. H. Dickerson against George C. Hoskins to obtain the custody of petitioner’s minor child. From a judgment directing respondent to immediately deliver the child to petitioner, respondent appeals.

Niles, judge. Petition by F. W. Funk for writ of habeas corpus against George C. Hoskins and others. From an order made by the judge in vacation, respondents appeal.

Niles, Judge. Application by O. J. Pell for writ of habeas corpus against George C._ Hoskins and others to obtain the custody of Oscar J. Pell, Jr. From a judgment commanding the immediate surrender of Oscar J. Pell, Jr., respondents appeal.

Dickinson, Judge. Action by William Sustock against the Shenandoah Abattoir Company. Judgment was rendered for the plaintiff, and defendant’s motion for new trial denied (232 Fed. 900), and defendant brings error.

Action by the United States against the Brooklyn Eastern District Terminal for penalties incurred by violation of the Hours of Service Act. Judgment fcJr the plaintiff on an agreed statement, of facts, and defendant brings error.

Appeals from the Supreme Court of Porto Rico. Suit by Nancy Nerón Longpré and others against Ramón Wolff Aboy and others, in which Mateo Rucabado intervened. Decree for the plaintiffs, and defendants and intervener separately appeal.

Action by Catharine Sullivan, as administratrix of the estate of Edward J. Sullivan, deceased, against The Ansonia. There was a judgment for plaintiff, entered upon a verdict in her favor for $5,000, and defendant brings error.

Action by Marcel Akalitis against the Philadelphia & Reading Coal & Iron Company. There was a judgment for defendant, and plaintiff brings error. On writ of error to review a judgment entered. December 19, 1915, in favor of the defendant and against the plaintiff for costs.

Woods, Judge. Suit in admiralty for collision by P. Manolondis, master of the steamship Orion, against John Scully and Thomas J. Scully, partners trading as the Scully Towing & Transportation Line, owners of the barge Scully. Decree for libelant, and respondents appeal.

<p>. 1. Master and Servant @=>304 — Liability to Third Persons — Violation of Speed Regulations.</p> <p>A corporation operating a motorbus is liable for injuries caused by the negligence of its chauffeur in running at a speed faster than permitted, since a corporation can act only through agents, and every act of an authorized agent within the scope of his employment is the act of the corporation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1226-1229; Dec. Dig. @=>304.]</p> <p>2. Damages @=>32 — Personal Injuries — Pain and Suffering.</p> <p>Under the jurisprudence of the Canal Zone, and under Civ. Code Republic of Panama, arts. 2341, 2356, in force in the Canal Zone, damages for physical pain and suffering are recoverable.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 40, 41, 71; Dec. Dig. @=>32.]</p> <p>3. Damages <§=>132(13) — Excessive Damages — Injuries to Eoot.</p> <p>Where plaintiff was knocked down by a motorbus, the wheels of which passed over him, crushing his right foot, breaking the bones thereof, and necessitating the amputation of the second toe of one foot, from which, however, no permanent injury, which would cause any diminution of his earning capacity, would result, a verdict for $2,500 damages is not so excessive as to justify interference by the Circuit Court of Appeals.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 384; Dec. Dig. <§=>132(13).]</p>

<p>1. Bankruptcy <§=>404(1) — Discharge—Nature of Right.</p> <p>Under the present Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544), a discharge is a legal right, unless some objection is filed and affirmatively sustained for reasons specifically enumerated in section 14 (Comp. St. 1913, § 9598) of the act.</p> <p>[IDd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 679, 681-691; Dec. Dig. <§=3404(1).]</p> <p>2. Bankruptcy <§=>40S(4) — Discharge—Objections—Conceaheng Assets — ■</p> <p>Ownership of Property.</p> <p>A voluntary bankrupt, to whom his brothers-in-law had conveyed a store under a recorded conditional sale contract, and. who had permitted it to be taken back by them under that contract more than two years before his bankruptcy, after which the bankrupt was employed in the store as manager for his brothers-in-law, and later for his brother, to whom the store had been conveyed by another recorded conditional sale contract, is not the owner of the store, so that his failure to list it among his assets is not a concealment of property, which prevents his discharge in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. <@=>108(4).]</p>

Petition to Revise Order of the District Court of the- United States for the Southern District of New York. In the matter of William Budd, bankrupt. Petition by the W. & E. Realty Company to revise an order of the District Court which reversed an order of the referee directing the trustee to pay the petitioner a certain sum for the occupation of the petitioner’s premises by the receiver.

<p>1. Patents @=326(2) — Invention—Combination of Old Elements.</p> <p>In looking for invention in a combination of old elements, the court is guided by the new and useful means which the combination may afford, or the new and useful results which may be obtained from it.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 27, 30.]</p> <p>2. Patents @=3328 — Validity and Infringement — Oil Well Derrick.</p> <p>The Neill patent, No. 933,386, for an oil well derrick of tubular metal, while not generic and for a combination of old elements, in view of its novel and useful qualities of simplicity, portability, durability, and economy, all of which have been recognized in the art in a marked degree, discloses patentable invention; also Held infringed.</p> <p>3. Patents @=>35 — Invention—Utility of Device. *</p> <p>While a mere summation of points of merit does not constitute invention, their presence in a markedly increased measure cannot be overlooked in estimating the utility of a device, and in deterinining whether it produces new and useful results, within the principle upon which patents are granted.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 39.]</p>

Appeals from the District Court of the United States for the-Eastern District of New York. Suits in Equity by the Mergenthaler Linotype Company against the International Typesetting Machine Company and Erskine Hewitt, receiver of such company, and against the Intertype Corporation. From the decree in the first suit, both parties appeal; in the second suit, plaintiff appeals.

<p>Patents <§=328 — Infringement—Engine Exhaust I-Ieater.</p> <p>The Kempshall patent, No. 670,080, for a device for using engine exhaust! for heating purposes as limited by its specific' description of the device, heló, not infringed.</p>

<p>1. Patents @=>262, 319(1) — Infringement—Remedies.</p> <p>The remedy of a patentee in case of infringement is an action at law to recover damages together with, the right to an injunction to restrain further infringement, in which case, because of necessity, a court of equity may, to do full and complete justice, awaid damages.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. § 403; Dec. Dig. @=>262, 319(1).]</p> <p>2. Patents @=>319(1) — Infringement—Jurisdiction—Relief. '</p> <p>In a suit for the infringement of a patent, the right of a court of equity to award damages is dependent on the granting of purely equitable relief.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. @=>319(1).]</p> <p>3. Patents @=222 — Infringement—Damages.</p> <p>Under Rev. St. § 4900 (Comp. St. 1913, § 9446), a patentee who did not mark his device with the word patented is not entitled to recover damages for an infringement except on proof that defendant after notice of the infringement continued it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 352; Dec. Dig. @=222.)</p> <p>4. Appeal and Error @=662(1) — Record—Conolusiveness—Moot Case.</p> <p>While the courts will not determine a mere moot question or pass on abstract claims, a suit for the infringement of a patent will not be dismissed on the ground that only a moot question is involved, because of the undenied statement by defendant’s counsel that the infringement was merely trivial and was desisted from as soon as the attention of defendant was called 'to it; the record showing a denial by defendant of every claim of right made by plaintiff and a stipulation that defendant after notice of plaintiff’s claim and knowledge of the assertion of infringement had disposed of articles which plaintiff claimed infringed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2850; Dec. Dig. @=662(1).]</p> <p>5. Patents @=328 — Construction—Infringement.</p> <p>The Clarke patent, No. 1,035,819, for au improved union suit undergarment, construed, and held in view of the prior art and patents not ■ to disclose patentable invention with respect to the claim of a closed crotch of a double thickness of elastic material and so not infringed by defendants.</p>

<p>In Equity. Suit by the Marconi Wireless Telegraph Company against the Kilbourne & Clark Manufacturing Company. On final hearing.</p>

<p>In Equity. Suit by the Keystone Type Foundry against David S. Wynkoop. On final hearing.</p>

In Bankruptcy. In the matter of the Reading Hat Manufacturing Company. On petition to review an order of the referee requiring petitioner to pay the unaccrued taxes- on land belonging to the- estate under an agreement.

In Equity. Suit by John A. S’. Brown and others against Austin B. Fletcher, as testamentary trustee of Conrad Morris Bralcer, etc. C)n motion to vacate an order for examination in supplementary proceedings.

<p>In Admiralty. Suit by the Universal Transportation Company, Incorporated, against the steamship Ada and the Rederiaktiebolaget Amie.</p>

<p>1. Bankruptcy <§=59 — “Aot op Bankruptcy” — Failure to Discharge Lien.</p> <p>The failure of an insolvent debtor to discharge a lien obtained through legal proceedings more than four months prior to the filing of a petition in bankruptcy against it, five days before the time fixed for sale of the property thereunder, does not constitute an “act of bankruptcy,” although such time of sale was within the four months period.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 81, 82; Dec., Dig. <§=59.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Act of Bankruptcy.]</p> <p>Additional Opinion.</p> <p>2. Execution <§=113 — Levy—Date op Lien — Eppect op Ancillary Proceedings.</p> <p>A petition by an execution creditor, filed in a court of bankruptcy, alleging that the debtor has tangible personal property subject to levy, but that such levy cannot be made because the property is in possession of a, trustee in bankruptcy in another proceeding, and praying that it be released, is equivalent to a bill in equity to remove an obstruction to the levy, and may he maintained, although the execution has not been returned nulla bona, and where the petition is granted, and the property surrendered, the lien of the subsequent levy thereon relates back to the time of the filing of the petition.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 241-248; Dec. Dig. <®=113.]</p>

<p>1. Release @=>17(1) — Seamen.</p> <p>Where, after salvage service has been performed, a full and fair disclosure of the amount of salvage received is made to the crew of the salving vessel, the extent of their rights is fully and fairly explained to them, and they are given an opportunity to consult with some disinterested third person, if they then make an agreement as to their share, and on its payment execute a release, they will be bound by the settlement; but, when such disclosure is not made, a release executed by a seaman, on payment to him of such sum as the owner sees fit, 'and especially where he is ignorant of his rights and of the value of salvage services, will not bar his right to maintain a suit to recover his proper share of the amount received. '</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(1).]</p> <p>2. Salvage @j>38 — Apportionment Between Vessel and Crew.</p> <p>The share of a salvage award to which a common seaman is entitled depends on the character of the service rendered, the danger to the crew, and the value of their individual services, as compared with those of the vessel.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102; Dec. Dig. @=>38.]</p> <p>3. Salvage @=>38 — Apportionment Between Vessel and Crew.</p> <p>The crews of tugs, which performed salvage services in several cases, held entitled to recover as their collective share, to be divided in proportion to their wages, from 10 per cent, to 20 per cent, of the salvage received by the tugs, the lower amounts where the service was chiefly one of towage, -but paid for on a salvage basis, and the higher amounts in cases where the service was rendered to vessels on fire.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102; Dec. Dig. @=>38.]</p>

In Equity. Bill for accounting and equitable relief by N. M‘. Dudley, receiver, against C. C. Hawkins and others. On motion to dismiss, filed by defendants. This bill is brought by N. M. Dudley, receiver of the Americus National Bank, against the several defendants, who were directors of the bank. The receiver was appointed by the Comptroller of the Currency because of the failure of the bank. At that date the liabilities were $449,581.71.

<p>In the matter of the application of Chin Own, father, and Chin Gow, son, for a writ of habeas corpus.</p>

In Admiralty. Suit for collision by Gustav Claude, master and part owner of the steamship La Flandre, and as bailee of her cargo, against the steam pilot boat Philadelphia.

<p>1. Pleading @=>93(1) — Inconsistent Defenses — Right to Plead.</p> <p>Under the code system of pleading in force in Washington, inconsistent defensés may not be pleaded.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 189, 190; Dec. Dig. @=>93(1).]</p> <p>2. Pleading @=>93(2) — Inconsistent Defenses — Denial of Conclusion.</p> <p>In an action to recover the penalty for importing an alien contract laborer, denial by defendant of the allegation that plaintiff was within the prohibition of the act is a denial of a conclusion which is not inconsistent with an affirmative defense. '</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 189, 190; Dec. Dig. @=>93(2).]</p> <p>3. Pleading @=>362(2) — Motion to Strike — Pleading Good in Part.</p> <p>A motion to strike denials from the answer as being inconsistent with the affirmative defense which was directed at all the denials collectively, not at the specific denials separately, must be denied, where some of the denials were consistent with the affirmative defense, though others were inconsistent therewith.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1148-1151; Dec. Dig. @=>362(2).]</p>

At Law. Action by Mary Carson Kidd against Thomas A. Edison, Incorporated. On defendant’s motion to set aside, on exceptions, a verdict for plaintiff. This is a motion by the defendant to set aside a verdict for the plaintiff on exceptions.

<p>1. Equity <§=^66 — Doing Equity.</p> <p>One seeking to enjoin collection of penalties for nonpayment of internal _ revenue taxes bias not, as is required of one seeking equity, done equity, ' not having paid or tendered the taxes admitted to be due.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 188-190; Dec. Dig. <@=»66.]</p> <p>2. Injunction <@=»19 — Prevention oe Multiplicity oe Suits.</p> <p>The court is not justified in taking jurisdiction of an injunction suit, on the ground of avoiding a multiplicity of suits, because of the many persons of the class represented by plaintiffs, where, at most, so far as appears, there are but two entitled to relief.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 18; Dec. Dig. <@=»19.]</p> <p>3. Internal Revenue <§»45 — Penalties—Enjoining Collection.</p> <p>Rev. St. § 3224 (Comp. St. 1913, § 5947), prohibiting suit to enjoin collection of any tax, applies to the penalty which Act Óct. 22, 1914, c. 331, 38 Stat. 764, to increase internal revenue, by section 23 provides shall be assessed and collected as other penalties incurred under internal revenue laws are assessed and collected; Rev. St. § 3176 (Comp. St. 1913, § 5899), one of the administrative provisions of law by reference made part of the act, providing that the amount fixed as a penalty shall be added to the tax and collected as part of it.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 109-113; Dec. Dig. @=»45.]</p> <p>4. Internal Revenue <@=>45 — Assessment of Penalties.</p> <p>Under section 23 of Act Oct 22, 1914, to increase internal revenue, declaring part of such act all administrative provisions of law, including that relating to assessment of taxes, the internal revenue collector has authority under Rev. St. § 3182 (Comp. St. 1913, § 5904), to make assessment of penalties arising out of the act.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 109-113; Dec. Dig. <@=>45.]</p> <p>5. Internal Revenue <@=>45 — Penalties—Relief from.</p> <p>One is not relieved from the penalty provided by section 23 of Act Oct. 22, 1914, to increase internal revenue, for failure to pay the tax, by section 22, making his default, when accompanied by criminal intent, a misdemeanor.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. §§ 109-113; Dec. Dig. <@=>45.]</p>

In Bankruptcy. In the matter of Charles Salmon, bankrupt. Erom an order of the referee expunging his claim, Hamilton H. 'Salmon, executor, appeals.

<p>1. Aliens @=>61 — Citizenship—All Persons — Philippine Islanders.</p> <p>Naturalization Law (Act June 29, 1906, c. 3592) § 30, 34 Stat. 606 (Comp. St. 1913, § 4366), authorizes the admission to citizenship of all persons, not citizens, who owe permanent allegiance to the United States, and who may become permanent residents of any organized territory of the United States. Rev. St. § 2169 (Comp. St. 1913, § 4358), which originally formed a part of Naturalization Act July 14, 1870, c. 254, § 7, 16 Stat. 256, as amended by Act Feb. 18, 1875, e. 80, § 1, 18 Stat. 318, provides that the provisions of the title shall apply to aliens who áre free white persons and to aliens of African nativity a.nd persons of African descent. The purpose of section 30, as shown by tbe congressional records, was to open American citizenship to citizens of Porto Rico and the Philippines, which were acquired as a result of the Spanish-American War, there being no way in which residents of such territory, whatever their race, could he admitted to citizenship in the United States, because they were not aliens. Helé that, as section 30 declares that it shall apply toi all persons, it includes residents of the new possessions who are neither white persons nor of African nativity or descent; the restrictions in section 2169 obviously being intended to apply only to aliens.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 119-122; Dec. Dig. @=61.]</p> <p>2. Aliens @=>68 — Citizenship—Proceedings.</p> <p>Act July 26, 1894, e. 165, 28 Stat. 123 (Comp. St. 1913, § 4356), relating to the admission to citizenship of aliens honorably discharged from service in the navy without the required declaration of intention and residence, does not apply to a citizen of the Philippine Islands who served in the navy and was honorably discharged; such person being entitled to apply for naturalization only under Naturalization Law, § 30 (Act June 29, 1900), tbe requirement of which as to declaration of intention and residence must be complied with.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145; Dec. Dig, @=68.]</p>

In Bankruptcy. In the matter of the voluntary proceedings of Frederick Ambrose Crisp, bankrupt. On referee’s certificate recommending that the petition be dismissed for want of prosecution.

<p>Towage <@==>11(9) — Liability fob Loss of Tow — Negligence of Tug.</p> <p>The master of a tug, who, after lying in a harbor for 10 hours because the weather was threatening and he expected a storm, left and passed out into Long Island Sound with five boats in tow, without inquiring for the reports of the Weather Bureau, which had within a few hours sent out two storm warnings, or paying any attention to its signals, which he could have seen, and in the face of a very low and long falling barometer, JielO, chargeable with negligence, which rendered the owner liable for the loss of four boats in the tow, which he was shortly afterward obliged to cut loose.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 22; Dec. Dig. <^11(9).]</p>

In Bankruptcy. In the matter of the Capital Paint Company, bankrupt. On petition by the trustee to' review an order of the referee allowing the claim of T. E. McShane as a preferred claim for wages.

<p>1. Highways <@=>113(1) — Construction—Contracts—Mistake.</p> <p>Where a contract for the construction and graveling of roads, which designated gravel pits along the right of way. declared that plaintiffs had satisfied themselves by personal visit and examination of the work to be done, and that they should not dispute or complain of statements or preliminary estimates of the engineer, or assert that there was any misunderstanding with regard to the depth of excavation or embankment to be made, or the nature or amount of material to be furnished or work to be done, there was no warranty implied from the contract, estimates, or specifications that suitable gravel would be found in all of the places designated.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348, 351, 355; Dec. Dig. <£=113(1).]</p> <p>2. Highways <@=>1Í3(1) — Construction—Contracts—Overhaul.</p> <p>Where a contract for the construction and graveling oí a road provided for payment per thousand feet in excess of one mile for overhaul of gravel hauled, the overhaul should be calculated from the center of gravity of the pit or place where the haul 'is made and the center of gravity of work on which distribution of the haul is made, and from the average haul, which is arrived at by adding the minimum haul to the maximum and dividing by two, the distance of one mile should be deducted, which leaves the average distance for which overhaul charge should be made.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348, 351, 355; Dec. Dig. <§=>113(1).]</p> <p>3. Contracts <@=>284(4) — Performance—Decision of Engineer.</p> <p>Where a contract for the construction and graveling of a road declared that in case of ambiguity of expression or doubt the engineer’s decision should be final, the decision of the engineer as to doubtful matters of construction is binding on the parties in the absence of fraud or gross mistake.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1326; Dec. Dig. <§=>284(4).]</p> <p>4. Highways <@=>113(1) — Construction'—Contracts.</p> <p>Where 'the contract for the construction and graveling of a highway provided that all clearing and grubbing should be paid for as an extra at a unit price for each acre actually cleared and grubbed, the contractor is not entitled to payment of a stipulated sum for each acre it is necessary to clear and grub, regardless of the extent of clearing and grubbing each particular acre.</p> <p>[Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 348, 351, 355; Dec. Dig. <@=>113(1).]</p> <p>5. Damages <@=>121 — Breach of Contract.</p> <p>Where road contractors wrongfully abandoned their agreement, the county, etc., is entitled to recover from them all additional cost for the completion of the work.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 306-308; Dec. Dig. <@=>121.]</p> <p>6. Damages <@=>140 — Liquidated Damages — Right to Recover.</p> <p>Where road contractors abandoned their work, and it was subsequently completed by their successors long after the time fixed for completion, the county is not entitled to liquidated damages for delay in completion at the rate of $20 per day, where such damages amount to $12,600; the ampunt being disproportionate to the breach.</p> <p>[Ed. Note. — For other cases, see Damages, Gent. Dig. §§ 404, 405; Dec. Dig. <®=sl40.]</p>

Appeal and Cross-Appeal from the District Court of the United States for the Southern District of Mississippi: Henry C. Niles, Judge. Bill by Charles D. Smith, W. L. Smith, and R. L. Leonard against Copiah County and others, who cross-complained. From the decree, plaintiffs appeal, and defendants cross-appeal.

McCall, Judge. Suit by R. P. Towner, trustee in bankruptcy of the Reliance Cotton Company, against the First National Bank' of Memphis, Tenn., to require the bank to surrender to the trustee for cancellation certain negotiable bonds and a deed of trust securing them. Decree for complainant, and defendant appeals.

Clarke, Judge. Petition by Oscar Diser, trustee in bankruptcy, against the Ft. .Pitt Coal & Coke Company and others. From an adverse decree, the named company appeals.

Action by Mary N. Rucas against Walter W. Scott, -Janet M. Scott, and Rubena F. Scott, minors, and the Bishop' Trust Company, Rimited, guardian of their estate. Judgment for defendants, and plaintiff brings error. This is a writ of error to' review the judgment of the Supreme Court of Hawaii upon a case submitted to that court under sections 2381, 2382, and 2383 of the Revised Laws of Hawaii of 1915, upon an agreed statement of the fhcts.

Orr, Judge. Suit in admiralty by the Clyde Steamship Company against the tug Louise Rugge, the Board of Chosen Freeholders of the County of Essex, the Board of Chosen Freeholders of the County of Hudson, and the Snare & Triest Company. Decree for libelant against .the Snare & Triest Company, from which it appeals.

Petition to Revise and Appeal from the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge. In the matter of the bankruptcy of the Tapp Clothing Company. The landlord’s lien of P. H. Tapp and another was adjudged to have priority, and the Louisville Woolen Mills, a corporation, petitions _ to revise and appeals.

<p>1. Bankruptcy <@=>125 — Trustee—Exports to Control Election.</p> <p>The choice of a trustee, subject to approval of the court, which should be given, except for good cause, being by Bankr. Act July 1, 1898, e. 541, § 44, SO Stat. 557 (Comp. St 1913, § 9628), intrusted to the creditors, efforts of creditors to control election of a trustee, so long as directed to the welfare of the entire body of unsecured creditors, are not objectionable, ‘as is interference therewith by the bankrupt, or one on his behalf.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 170, 180, 181, 133, 184; Dec. Dig. <@=>125.]</p> <p>2. Bankruptcy <@=>132 — Trustee—Removal.</p> <p>The trustee in bankruptcy failing to carry out the wishes of, and placing himself in direct antagonism to, the creditors by whom he was chosen, thus making it impossible to secure their co-operation, especially when indispensable to efficient administration of the trust, should be removed, reason for his action based on the welfare of the entire body of creditors not being shown; it being unnecessary that he shall have been guilty of any personal dishonesty.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 190; Dec. Dig. <@=>132.]</p>

Suit by Marie Marjorie Ambrosius, an infant, by Kate Ambrosius, her next friend, against Iva H. Ambrosius, as administratrix of the goods, chattels, and credits of Herman Z. Ambrosius, deceased. Erom a decree dismissing the bill, complainant appeals.

■ In Error to the District Court of the United States for the Southern Division of the Western District of Michigan; Clarence W. Sessions, Judge. Action by Leeta M. Eddy against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.

Orr, Judge. Suit in admiralty by the Wright & Cobb Lighterage Company against the Snare & Triest Company, and the Boards of Chosen Freeholders of the Counties of Hudson and Essex. Decree for libelant against the Snare & Triest Company, which appeals.

Keller, Judge. Suit for specific performance by Cary C. Hines and others against John E. Roller and another. Decree dismissing the bill, and complainants appeal.

<p>Navigable Watebs <@=>19 — Depositing Refuse in — Liability of Vessel.</p> <p>Under Act March 3, 1899, c. 425, §§ 13, 16, 30 Stat. 1152, 1153 (Comp. St. 1913, §§ 9918, 9921), which provides that, with certain exceptions, “it shall not be lawful to throw, discharge or deposit * * * from or out of any ship, barge, or other floating craft of any kind, * * * any refuse matter of any kind, * * * into any navigable water of the United States,” and which makes any vessel or other craft “used or employed in violating” such provision liable for the penalties imposed therefor, where a pile driver and a catamaran alongside, containing piles, were being used together in repairing a ferry rack in North River, the action of one of the pile driver crew in cutting off the ends of piles on the catamaran, which were too long for use, and throwing such ends into tne river, was a violation of the act, for which the pile driver is liable;</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 59-63, 67-72.]</p>

Clemons, Judge. Deportation proceedings by the United States of America against Toku Sakai. 'Defendant applied for writ of habeas corpus, and from decree discharging the writ, she appeals.

Boyd, Judge. Action by W. A. McClure and another, administrators of Grover McClure, deceased, against the Southern Power Company. Judgment for plaintiffs, and defendant brings error.

<p>1. Appeal and Error @=>850(3) — Review—Record.</p> <p>An opinion will not take the place of findings, as regards the record, preserving right to review depending on findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3351-3362, 3375, 3376; Dec. Dig. @=>850(3) J</p> <p>2. Bills and Notes @=>525 — Holder in Due Course — Evidence.</p> <p>Evidence that negotiations of attorneys for sale to plaintiff of a note would naturally have informed it that they were acting for H„ and the fact that the form of indorsement thereon by defendant bank, after that of H., was: “Pay to the order of any'bank or banker. All previous indorsements guaranteed” — authorizes a finding that plaintiff was not a holder in due course, on the theory that it was put on inquiry, which would have disclosed that defendant bank was only a forwarding agent.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. @=>525.]</p> <p>3. Bills and Notes @=>504 — Accommodation Indorsement — Evidence.</p> <p>That defendant was an accommodation indorser of the note sued on may be shown by transactions occurring out of plaintiff’s presence; it being shown to be chargeable with notice.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1719-1727; Dec. Dig. @=>504.]</p>

Suit in admiralty by William Beard, owner of the dredge Beard, and others, against the Moran Towing & Transportation Company, with the steam tug George I. Forsyth impleaded. Decree for respondents, and libelants appeal. The following is the opinion of Hough, District Judge, in the court below: It is not easy to classify the libel in this case.

Suit in admiralty for collision by the F. W. Jarvis Company against the steamer Emeline; David C. Woolsey, claimant. Decree for libel-ant, and claimant appeals. The decree holding the steamer Emeline at fault for the collision which occurred between her and the canal boat Oneida on the morning of October 3, 1914, a dense fog prevailing at the time. The collision occurred in Haverstraw Bay, Hudson river, just north of Bowlines Point.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Bill by Ida N. Baxter, trustee in bankruptcy of the Auto Body & Top Company, against John Ord, doing business as the Brooklyn Sawmill Company. From a decree dismissing the bill, complainant appeals.</p> <p>The following is the opinion of Clarke, District Judge:</p> <p>By the bill filed in this case, Ida N. Baxter, as trustee in bankruptcy of the Auto Body & Top Company, seeks to set aside what she .claims was a preference in payment made by the defendant on the 24th day of January, 1912, and on the 30th day of January, 1912 — the two payments amounting to $575.17. The defendant admits the two payments, but claims that the Auto Body & Top Company was justly indebted to him for an amount greater than that paid, and denies that the payment was made in such manner and under such conditions as to constitute a preference under the Bankruptcy Act.</p> <p>[1] In Kimmerle v. Farr, 189 Fed. 295, 111 C. C. A. 27, the Circuit Court of Appeals of this circuit has decided that under the Bankruptcy Act prior to the amendment of 1910 (and for the purposes of this opinion the law is not affected by that amendment) the burden of proof is on a trustee in bankruptcy seeking to avoid what he claims is a preferential payment, and that before such payment can be set aside as preferential the creditor receiving the transfer must have had reasonable cause to believe that the debtor intended by the payment to give him a preference.</p> <p>[2] The evidence in this case shows that Ord had done business with Patterson, the president and manager of the defendant company, for many years in the way of furnishing him lumber in a small way for his business, and that from March 1st until December .19th of the year preceding the failure of the bankrupt company he sold to it lumber to the value of $1,328.72. The defendant testifies that, before he began furnishing this lumber, Patterson, speaking for the bankrupt, said that he had a contract to make 10 or 12 automobile bodies and would need an unusual amount of lumber. Ord was a man of limited resources, and said that he could not furnish the amount required unless Patterson, for the bankrupt, would agree to pay for the lumber as soon as he received payment from the purchasers of the automobile bodies, which would be manufactured from it, and this he agreed to do.</p> <p>Under this arrangement, which is not contradicted, Ord continued to furnish lumber until December 19th; but the bankrupt was not paying as promptly as Patterson had promised, and Ord says-that he personally became “hard up” and frequently demanded payment, and that finally, late in January, the payments were made which are sought in this proceeding to be set aside as preferential. This court has no doubt at all that Ord did not have actual knowledge that the Automobile Company was embarrassed at the time this payment was made, and the only question is whether he had such knowledge of its financial condition as should have put him, as a reasonable man, upon inquiry which might have resulted in discovering it to be insolvent.</p> <p>A voluntary petition in bankruptcy was filed against the company on the 26th day of February, 1912, or nearly a month after this payment was made. There is no testimony in this record which could charge Ord with knowledge or notice that the company was in a failing condition, except that it was slow in paying Mm and that Patterson was not keeping his promise to pay for the lumber as the automobile bodies were sold. He said, however, that Patterson had been slow pay in the past, but that he always finally paid him. That Ord did not suspect that the company was insolvent up to December 19th is clear enough, for on that date he made his last delivery of lumber, and there is no evidence that anything was brought to his attention between that time and the little over a month later, when the payment was made, which should have put Mm upon inquiry into the affairs of the company, unless failure to. pay as promised for that time is sufficient for that purpose.</p> <p>Since the burden of proof is upon the trustee to make out her case, I cannot bring myself to find that the circumstances I have detailed are sufficient to give to Ord that reasonable cause to believe that the bankrupt was insolvent at the time the payments in controversy were made, and that a preference was intended to he given Mm by the making of them, and therefore, under authority of the decision cited, the hill will be dismissed, and th,e defendant will recover his costs.</p>

Action by the American Oil & Supply Company against the Western Gas Construction Company. Erom an order of the District Court, after the cause was removed to that court from the state court, setting aside the service of summons, plaintiff brings error.

<p>1. Patents <S=>202(1), 218(1) — Assignment—Constbuotion oe Contract.</p> <p>A contract by which complainant assigned to defendant, a manufacturer, a number of patents /relating to the manufacture of glass, construed with respect to royalties reserved, and under the facts found, and a provision allowing it free use of the patented inventions up to a stated quantity of product, defendant held not liable for royalties. Held, further, that under the terms of the contract complainant was not entitled to a reassignment of certain of the patents because of their nonuse by defendant, and that defendant was not therefore liable in damages for their depreciation in value.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 281-288, 330, 333, 336-338; Dec. Dig. <S=>202(1), 218(1).]</p> <p>2. Patents <@=>202(1) — Assignment—Construction oe Contract.</p> <p>Under a further provision of the contract that defendant should pay all expenses incidental to obtaining patents on pending or future applications by complainant, provided that such “expenses shall be authorized by the company,” defendant was not required to take appeals from the action of the Patent Office denying any such applications, or to pay taxes necessary to keep foreign patents granted in force, if in its business judgment such action was not justified.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 281-288; Dec. Dig. <@=>202(1).]</p> <p>3. Corporations <9=^573(3) — Reorganization—Contract Between Assenting Stockholders.</p> <p>Where complainant, a stockholder and director of defendant corporation, was also chairman of a reorganization committee, and as such wrote and signed a proposed plan of reorganization, which was submitted to and accepted by all stockholders, he was bound by the contract so made, and entitled to no greater proportionate share of the new stock in exchange for his old stock than the other stockholders.</p> <p>[Ed: Note. — For other cases, see Corporations, Cent. Dig. § 2296; Dec. Dig. <9=^573(3).]</p>

<p>1. Patents <@=>328 — Invention—Automobile Axle.</p> <p>The Lindsay patent, No. 748,760, for a rear axle for automobiles, claims 2 and 3, in view of the prior art, held void! for lack of patentable invention.</p> <p>2. Patents <@=>174 — Invention—Claim.</p> <p>■ In determining whether the patentee made a material advance, the invention to be considered is that defined by the claim in suit.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 249.]</p> <p>3. Patents <@=>49 — Claims—Structural Details.</p> <p>When the device commercially accepted included features covered by claims not in suit and by other patents, and the claims in suit rest upon minor structural details, there is little reason to attribute the commercial success to these claims.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 59M32.]</p> <p>4. Patents <§=>26(1) — Invention—Importance.</p> <p>In determining whether changes involve invention, it is of some importance that they relate to assembly rather than to operation.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 27-30.]</p>

Suit in equity by the C. S. Pierce Company against George E. Belcher. Decree for defendant, and complainant appeals. ' The following is the opinion of Dodge, Circuit Judge, in the court below: The defendant is charged in this bill with infringing claims 4 to 7, inclusive, of United States patent No. 946,235, issued January 11, 1910, to Alfred G. Legg, for an improvement in shoe forms, which patent is now owned by the plaintiff company.

Suit in equity by Stephen G. Wright against the Wisconsin Lime & Cement Company and others. Decree for defendants; and complainant appeals. The bill, which is in the usual form, charges infringement of Wright’s patent No. 1,022,764, for roofing material, and prays injunction against further infringement. The claims of the patent, as appears from the bill, are: “1.

<p>Patents <§=>313 — Suit for Infringement — Dismissal on Motion.</p> <p>The dismissal of a bill for infringement of a concededly valid patent on motion based on complainants’ answers to interrogatories propounded under equity rule 58 (198 Fed. xxxiv, 115 C. C. A. xxxiv) held error, as not justified by such answers.</p>

Suit in equity by the Vacuum Cleaner Company against the Innovation Electric Company, Incorporated. Decree for complainant, and defendant appeals. This is an appeal from a decree of the District Court for the Southern District of New York, adjudging valid the fourth claim of letters patent No. 847,947, and granting a permanent injunction against infringement and an accounting of profits and damages subsequent to October, 1915.

<p>1. Patents @=>328 — Validity and Infringement — Sewing Machine Attachments.</p> <p>The Pierce patent, No. 1,154,337, for a picot cutting attachment for sewing machines, was the invention of the patentee and is valid; also, held infringed.</p> <p>2. Patents @=>328 — Validity of Reissue — Sewing Machine Attachment.</p> <p>The Bell reissue patent, No. 14,194 (original No. 1,111,432), for a sewing machine attachment, in the claims added goes far beyond the invention claimed in the original patent and is invalid.</p> <p>3. Patents @=>136 — Reissues—Grounds.</p> <p>The general purpose of the statute providing for reissues is to correct mistakes and errors, not to enable the inventor to extend his monopoly so as to cover progress by others in the art.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 198%.]</p> <p>4. Patents @=>147 — Reissues—Validity.</p> <p>The introduction in a reissue patent of claims for invention which ¿re described, but which the patentee neither claimed nor intended to claim by the original patent, is unauthorized and void.</p> <p>[Ed. Note. — Eor .other cases, see Patents, Cent. Dig. § 220.]</p>

<p>1. Patents <@=>81 — Anticipation by Prior Use — Measure of Proof.</p> <p>The issuance of a patent gives to the patentee the prima facie right to the invention, of which he cannot be deprived on tbe ground of prior public use of the same machine by others except upon clear evidence.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 104.]</p> <p>2. Patents <@=>83 — Validity—“Abandonment" of Invention.</p> <p>The fact of prior public use of a machine with permission of the inventor prior to the application for a patent may justify a' finding of abandonment, but such public use for a period of more than two years prior to the application is itself an “abandonment” in fact, unless such use is shown by clear, unequivocal, and convincing evidence to have been for experimental purposes only.</p> <p>[Ed. Note. — Eor other eases, see Patents, Cent. Dig. §§ 108, 109.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Abandonment.]</p> <p>3. Patents <g^328 — Validity—Prior Public Use — Ironing Machine.</p> <p>The Wendell patent, No. 1,137,438, for an ironing machine, is void for prior sale and public commercial use of the machines for more than two years prior to the application.</p>

In Equity. Suit by Claude A. P. Turner against the Tauter Piano Company and others. On motion by defendants to reopen the case for further testimony after decree had been directed (236 Eed. 252).

At Daw. Action by the Waverly Stone & Gravel Company against the Waterloo, Cedar Falls & Northern Railway Company, the Cedar Valley Railway Construction Company, and another, begun in the state court and removed to the United States District Court, on motion of the Cedar Valley Railway Construction Company, as to that defendant. On plaintiff’s motion to remand to the state court.

<p>At Law. Action by Emily R. De Ganay against Ephraim Federer to recover the amount paid under partition as income tax. On final hearing.</p>

At Daw. Action by the United States against the Pennsylvania Railroad Company to recover the penalty for noncompliance with the Hours of Service Act. On trial hearing without a jury.

<p>1. Seamen @=24 — Wages—Part Payment at Intermediate Ports — Construction oe Statute.</p> <p>Under Seamen’s Act March 4, 1915, c. 153, § 4, 38 Stat. 1165, which provides that every seaman shall be entitled on demand to receive one-half part of the wages which he shall have then earned at every port where the vessel shall load or deliver cargo, and that a refusal of his demand shall release him from his contract and entitle him to full payment of wages earned, “provided such a demand shall not be made before the expiration of nor oftener than once in five days,” a seaman is not entitled to make such a demand until the vessel has been in port for at least five days.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 123-128; Dec. Dig. @=24.]</p> <p>2. Admiralty @=25 — Suit Between Foreigners — Discretionary Jurisdiction.</p> <p>The practice, in case of the institution of a suit in admiralty between citizens of a foreign country, of notifying the consul of that country that he may if desired make objection to the taking of jurisdiction, has for object the speedy adjustment between the parties, and, where no such objection is made until final hearing and after one of the parties has left the jurisdiction, the court may properly, if justice to the other party requires it, retain jurisdiction of the case.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent Dig. §§ 260-264; Dee. Dig. @=25.]</p> <p>3. Seamen @=21 — Wages—Desertion.</p> <p>Seamen on a British vessel who left their ship in an American port without good cause held deserters and not entitled to recover wages under the British law.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent Dig. §§ 92-110; Dec. Dig. @=21.]</p> <p>4. Seamen @=21 — “Deserter.”</p> <p>The word “deserter,” as applied to seamen, means one continually and intentionally absent from the ship, constituting a quitting of the service of the vessel.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 92-110; Dec. Dig. @=21.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Deserter.]</p>

<p>1. Shipping @=>81(1) — Liability op Vessel — Injury to Submarine Cable— Negligent Navigation.</p> <p>A steamship which went ashore in the Narrows and dropped her anchor held liable for injury to the government cables from Ft. Wadsworth to Ft. Hamilton, which were broken by her anchor, both because of negligence in the grounding and in handling the anchor when she was floated, although the captain was advised of the presence of the cables.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 341, 344, 345, 347.]</p> <p>2. Admiralty @=>22 — Jurisdiction—Suit for Injury to Submarine Cable.</p> <p>Admiralty has jurisdiction of a suit for damages against a navigating vessel for injury to a submarine cable lying on the bottom of a channel.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 222-234.]</p>

<p>1. Equity @=>119 — Process—Substituted Service — Order—Necessity.</p> <p>Substituted service of a bill in equity against a foreign corporation, made on its attorney without any order having been procured therefor, is invalid; the proper procedure being to apply for an order for such service, accompanied by an affidavit showing its necessity.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig, §§ 296-302.]</p> <p>2. Carriers @=>177(4) — Damage to Freight — Liability of Connecting Carrier — Carmack Amendment.</p> <p>Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [Comp. St. 1913, § 8592]),. making the initial carrier liable to the shipper for damages to the goods while in the hands of any connecting carrier, which superseded as to interstate shipments all remedies given by the states, a shipper cannot sue a subsequent connecting carrier to restrain recovery of freight charges, and enforce a set-off against them for damages to the goods in shipment, where there is no showing as to the carrier on whose lines the damage occurred.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 791-803.]</p> <p>3. Carriers @=>196 — Freight Charges — Regulation—Set-Off.</p> <p>A plea of recoupment for damages to the shipment to defeat the railroad company’s charges is contrary to the act of Congress requiring the freight to be paid only in cash.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 879-887.]</p>

Riner, Judge. Bill by tire Manitou Springs Mineral Water Company, a corporation, against J. Schueler and others, copartners doing business under the name and style of Ute Chief Mineral Water Company. From a decree dismissing the bill, complainant appeals.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Suit in equity by the Scranton Coal Company against the Great Lakes & St. Lawrence Transportation Company, George E. M. Pratt, and others. From an order granting a preliminary injunction, defendants appeal.</p>

<p>1. Landlord and Tenant <@=>285(3) — Forfeiture of Lease — Equitable Relief-Assignment.</p> <p>In a suit in equity to forfeit a lease, which permitted subletting the premises, but not assigning them, the determination of whether a transfer was an assignment or a sublease is not of much consequence, since, if it was an assignment, it would not relieve the original lessee of his legal obligations, for breach of which there would be an appropriate remedy.</p> <p>[E'd. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1194-1196; Dec. Dig. <@=>285(3).]</p> <p>2. Landlord and Tenant <@=>55(3), 280 — Forfeiture of Lease — Equitable Relief — Grounds.</p> <p>If the original lessee of land and a water right, or those claiming under it, have diverted the water from the land to its substantial damage, there is a proper case for equitable protection, which might be given either by forfeiture of the lease or by the more common remedy of injunction and accounting for damages.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 143, 145-149, 1180; Dec. Dig. <@=>55(3), 280.]</p> <p>3. Equity <@=>24 — Relief Awarded — Forfeiture.</p> <p>Equity views forfeiture with disfavor, and will only interfere to work a forfeiture and ascertain damages where the remedies at law are plainly and substantially inadequate.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 69-76; Dec. Dig. <@=>24.]</p> <p>4. Landlord and Tenant <@=>280 — Forfeiture of Lease — Equitable Relief —Violation of Provisions.</p> <p>Where a lessee of land and a water concession, which could be forfeited by the government if the water was not used in connection with that land, • had separated the use of the water from the land, but there were not shown to be any other users of water from the same stream who were complaining to the government, it is not shown that the remedies of the lessors were in law, or by the usual remedies of equity, and so inadequate as to justify a forfeiture of the lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1180; Dec. Dig. <@=>280.]</p> <p>5. Appeal and Error <@=>1009(1) — Review—Findings of Fact — Suit in Equity.</p> <p>While in an equity proceeding the court of review must examine the case de novo, findings by the trial court, who saw the witnesses, and was in close touch with the locality and physical conditions, should not be disturbed, except in case of clear and unmistakable error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3970, 3978; Dec. Dig. <@=>1009(1).]</p> <p>6. Landlord and Tenant <@=>111 — Forfeiture of Lease — Equitable Belief — Injury.</p> <p>While a concession of water rights for use on certain lands provided tha,t it should be inseparable from the lands, but it appeared that for several years before the leasing of the land the water had not been used thereon, because of the destruction of the canal, permission given by the lessee in good faith to another to use the water on other lands for a term in consideration of his repairing the canal, and with a provision that all rights thereto should revert to the original land at the end of the term, though a technical violation of the lease, resulted in no substantial injury to the lessor, but rather benefited his land, and therefore does not entitle the lessor in equity to a forfeiture of the lease, since equity will not interfere to protect a mere technical or strictly legal right involving no substantial injury. »</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 336; Dec. Dig. <@=>111.]</p> <p>7. Landlord and Tenant <@=>111 — Forfeiture of Lease — Statute. .</p> <p>Under Civ. Code Porto Bico, § 1459, providing that, if the lessor or lessee should not comply with the obligations imposed by the preceding sections, they may request the rescission of the contract and damages, and section 1472, providing that the lessor may judicially dispossess the lessee for the infraction of any of the terms stipulated in the contract, breaches of the lease by the lessee do not ipso facto give the right of rescission, regardless of extenuating or moderating circumstances.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 336; Dec. Dig. <@=>111.]</p> <p>8. Landlord and Tenant <@=>285(3) — Forfeiture of Lease — Suit—Issues.</p> <p>In a suit to forfeit a lease for violation of the restrictions concerning the use of water rights, the lessor cannot raise the question that the lessee is violating Joint Besolution May 1, 1900 '(31 Stat. 715), because its holdings are excessive.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1194-1196; Dee. Dig. <@=>285(3).]</p> <p>9. Waters and Water Courses <@=>156(7) — Concession to Use Water — Bestriction to Land.</p> <p>Under a water right concession, which declared the water to be inseparable from the land for which.it was granted, that it could not be 'utilized for other purposes, nor the one alienated without the other, the lessee of part of the land, and those claiming under it, cannot legally use the water, except on the land.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 1S2 ; Dee. Dig. <@=>156(7).]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge.</p> <p>Suit by Joseph H. Estep and another against the Kentland Coal & Coke Company and others. From a decree denying relief, complainants appeal.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Kentucky;. Andrew M. J. Cochran, Judge.</p> <p>Bill by the Pond Creek Coal Company against Anderson Platfield and others. From decree dismissing the bill, complainant appeals.</p>

<p>1. Customs and Usages <@=1 — Effect—“Custom”—“Usage.”</p> <p>While “usage” and “custom” are often used synonymously, strictly speaking, “usage” is invoked to give meaning to a contract on the assumption that the parties contracted in reference thereto, if they knew of the usage, while “custom” is a length of usage which has become law, and which the parties are presumed to know.</p> <p>[Ed. Note. — For‘other cases, see Customs and Usages, Cent. Dig. § 1.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Custom; Usage.]</p> <p>2. Customs and Usages <@=3 — Effect—General Knowledge.</p> <p>To give usage the force of law, there must be acquiescence and notoriety from wbicb it may be inferred that it was known to the public, though it may be only to a small portion of the public engaged in the particular business affected by the custom.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent Dig. §§ 2, 6.]</p> <p>3. Customs and Usages-<@=12(2) — Persons Affected — Other Business.</p> <p>Under some circumstances, the customs of business different from that of the person sought to be charged cannot be recognized against them without showing actual knowledge; but if one employs another to work after the method of transacting the other’s business, be may be presumed to have intended the business to be performed according to the customs regulating it.</p> <p>[Ed. Note.^For other cases, see Customs and Usages, Cent. Dig. § 24.]</p> <p>4. Brokers <@=77 — Lien—“Factor”—“Goods.”</p> <p>A note broker, who according to the custom of the business gave the purchaser of notes an option to return after investigation of credit, and who became personally liable to the purchaser for the return of the purchase price, though such liability was not a custom of the business and was not known to his principal, is not entitled to a factor’s lien on all notes of his principal in his possession for the amount paid by him on return of certain notes after the insolvency of the principal, since, while he is within the old definition of a “factor” as one to whom goods are consigned to sell by a merchant at a distance from the place of sale, if notes are considered goods, the expression “goods” in the old law was limited to chattels, and did not include choses in action, and the lien, which is no longer of value to the merchant, but only to the factor in cases of insolvency of the merchant, will not be extended beyond its original limits.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 98.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Factor; Goods.]</p> <p>5. Factors <@=347(2) — Bien—“Expenses and Advancements.”</p> <p>If a note broker is considered a factor, amounts paid by him after his principal’s insolvency, on return of notes sold by him for his principal with option to return, for which he had assumed personal liability, though that was not the custom of the business, and was not known to his principal, are not “expenses and advancements on the notes,” for which alone a factor is given a general lien on all his principal’s goods.</p> <p>[Ed. Note. — For other cases, see Factors, Cent. Dig. § 66.]</p>

Ip Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. Action by Henry Spicer Kennedy, executor of the last will and testament of Harriet U. Kennedy, against Alfred Cordingly. Judgment for plaintiff, and defendant brings error.

<p>1. Waters and Water Courses <@=>230(6) — Irrigation Districts — Action on Bonds — -Prima Facie Case.</p> <p>In an action to recover the interest on irrigation district bonds payable to bearer, plaintiff makes a prima facie ease of bona fide ownership of the bonds by proof of their possession.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 319.]</p> <p>2. Appeal and Error <@=>1008(2) — Review—Findings oe Fact.</p> <p>A finding by the court in a case tried by consent without a jury, justified by the evidence received, cannot be re-examined.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3957, 3964.]</p> <p>3„ Waters and Water Courses <@=>230(1) — Irrigation Districts — Bonds— Estoppel to Deny Liability.</p> <p>Where irrigation district bonds, issued by officers authorized to hind the district, recited that all acts and things required to be done; and conditions and- things required to exist, pursuant to the issuance of the bond, to render it lawful, had happened and been done and performed, and did exist, in regular and due time, form, and manner as required by law, a purchaser of the bonds before maturity is not required to examine the record of the proceedings to determine whether the bonds were regularly issued; but the district is estoppéd to question the regularity of such proceedings, since anything which would tend to depress the market value of the bonds would defeat the purpose of the Legislature in authorizing such recital.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 319.]</p> <p>4. Waters and Water Courses @=>230(1) — Irrigation Districts — Bonds— Estoppel — Authority op Officers.</p> <p>An irrigation district is pet estopped to question the proceedings by which its bonds were issued by recitals in the bond that such proceedings were regular, unless the officers executing the bonds had lawful authority to make the recitals and to make them conclusive.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 319.]</p> <p>5. Waters and Water Courses @=>230(2) — Irrigation Districts — Bonds— Estoppel — Authority op Officers.</p> <p>The Colorado irrigation district statute (Laws 1905', p. 246), requiring the secretary of the board of directors to enter in the records and with the county clerk a statement of the result of the bond election, and providing that the bonds issued shall be negotiable in form, executed in the name of the district, and signed by the president and secretary, and the seal of the district be affixed thereto, and shall state that they are issued by the authority of the act, authorizes the president and secretary to make recitals in the bonds as to the regularity of the proceedings for their issuance, which shall be binding on the district.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 319.]</p> <p>6. Waters and Water Courses @=>230(5) — Irrigation Districts — Bonds— Nature op Obligation.</p> <p>Negotiable bonds issued by an irrigation district are subject to the same rules as other negotiable paper.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 319.]</p>

<p>1. Municipal Corporations <@=347(1) — Paving Contracts — Liability op Surety — Invalidity op Principal Obligation.</p> <p>A surety on the bond given by a paving contractor to secure the performance of the contract cannot, if the contract was invalid because in' excess of the mayor’s authority, be held liable for the contractor’s failure to conform to the specifications.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §• 876.]</p> <p>2. Municipal Corporations <@=368 — Paving Contract — Breach op Guaranty.</p> <p>Where a paving contract as signed by the mayor required the contractor to construct the paving so that it would endure without need of repairs for one year after its completion and acceptance, and provided that the city engineer should be the sole arbitrator to determine whether the paving conformed to the guaranty, and that when the engineer should determine that any defects existed therein he should give the contractor notice, and if the contractor failed to make good such defect the guaranty should be held to have been broken, while the specifications simply required the contractor to keep the paving in good repair for one year, and to make repairs promptly when required by the city council by written order of the mayor, the city cannot recover for breach of the guaranty, where it was admitted that the city engineer had given no notice of the defects during the year, on the theory that the mayor had no authority to include that provision in the contract, since, even if that contention be sound, the rights of the parties must then be determined by the specifications, which do not contain the guaranty.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 991.]</p> <p>3. Municipal Corporations @=»339(2) — Paving Contract — Authority op Mayor — Specifications.</p> <p>Under a provision of the specifications that if any part thereof should appear obscure tbe interpretation of the city engineer should be final, the mayor had authority to include such a condition as part of the guaranty, it being for the benefit of the city, since it did not deprive the council of their power, if they discovered defects, of ordering the engineer to give notice thereof, and in the event of his refusal of removing him and appointing another, who would give the notice.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig.- § 879.]</p> <p>4. Municipal Corporations <§=^368 — Paving Contract — Hep airs — Duty of-Contractor.</p> <p>The contract, fairly interpreted, required that the contractor so construct the paving that it would he accepted by the city authorities, and, in proof that the paving was what it purported to be, tbe contractor was bound to maintain it in repair if any defects appeared during the first year.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 991.]</p> <p>5. Municipal Corporations <®==>375 — Paving Contracts — Actions—Fraud.</p> <p>In an action at law by a city to recover for breach of a guaranty of paving, where the contractor relied on the failure of the city engineer to give notice of the necessity of repairs as required by the contract, the city could set up in reply that the engineer was corruptly hired by the contractor not to give such notice, since, when used purely for purposes of defense, not of affirmative relief, fraud not only may be, but must be, availed of in an action at law.</p> <p>6. Pleading <@=>269 — Amendment at Triai^-Rjsfusal.</p> <p>In an action at law by a city to recover for breach of guaranty of paving, where the contractor relied on the failure of the city' engineer to give notice of defects as required by the contract, it was not error to refuse to permit the city in the midst of the trial to amend its reply, so as to allege that the contractor corruptly hired the city engineer not to give notice, which was a fact which must have been known to the city at all times, especially where the engineer’s testimony, already given, and the offer to amend, showed that the purported amendment was merely a paper defense.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 811-815.]</p> <p>7. Pleading <@=^17 — Amendment—Reply—Conclusion—Fraud.</p> <p>Where the defense to an action for breach of a paving contract was the failure of the engineer to give notice of defects, an offer by the city to amend its reply to allege that the engineer had had no previous experience with paving of that character, that as soon as a portion of it was laid, and before its completion, he had been fraudulently employed by the contractors to prepare testimonials praising the pavement, which were circulated by the contractor, that thereby he corruptly and fraudulently became the employe and champion of the contractor, and by reason thereof, and of his incompetency, he fraudulently neglected and refused to give the required notice, the charge of fraud and corruption was merely an argumentative conclusion of the pleader from the fact that the city engineer commended the paving, and it was not error to refuse to permit the amendment to be filed.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 38, 41, 195, 350.]</p>

Suit by the Security Trust Company and others against the Summit Lumber Company and another, to foreclose a mortgage, in which the Bank of Bernice intervened and claimed a share of the funds in the hands of the receivers. From a decree directing the receivers to pay a portion of the intervener’s claim, complainants appeal.

<p>In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.</p> <p>Action by William E. Johnson against U. G. Robinson. There was a judgment for plaintiff, and defendant appeals.</p>

Petition to Superintend and Revise from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. In the matter of the bankruptcy of Hector Francis Crosier. On opposition of t,he New Orleans National Bank, the claims of Andrew G. Gugel, trustee in bankruptcy, and others, for commissions and attorney’s fees were denied, and the trustee and others petition to superintend and revise.

<p>1. Criminal Law <@=>1076(3) — Writ of Error — Bond—Payment of Costs.</p> <p>Rev. St. § 974 (Comp. St. 1913, § 1615), provides that, on every conviction for an offense not capital, the court may in its discretion award that the defendant shall pay the costs of the prosecution. Judicial Code (Act March 3, 1911, c. 231) § 128, 36 Stat. 1133 (Comp. St. 1913, § 1120), authorizes the Circuit Court of Appeals to review final decisions of the District Court, whether such decisions are in civil or criminal cases. Rev. St. § 1000 (Comp. St. 1913, § 1660), provides that every justice or judge signing a citation on any writ of error shall take security that the plaintiff in error shall prosecute his writ to effect, and if he fail to make his plea good shall answer to all costs, where the writ of error is not a supersedeas. Act Feb. 6, 1889, c. 113, § 6, 25 Stat. 656 (Comp. St. 1913, § 1703), provides that a writ of error shall be allowed as of right and without security in capital cases. Held,, that Rev. St. § 1000, applied to writs of error in criminal as well as in civil cases, where the court had exercised the discretion given it to adjudge the costs against defendant, and a bond given to secure the prosecution of a writ of error from such judgment and the payment of costs, though the writ was not made a supersedeas, is valid.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2710, 3201.]</p> <p>2. Criminal Law <@=>1004 — Review—Nature of Right.</p> <p>The right to an appellate review of a conviction in a criminal case does not exist, except by virtue of a statute conferring it, and the exercise of the right is dependent on compliance with the statutory requirements prescribed therefor.</p> <p>3. Courts <@=>92 — Rules of Decision — Opinion of Supreme Court — Diota.</p> <p>Expressions found in opinions of the Supreme Court cannot be given the effect of authoritative rulings on questions not involved in the particular cases respectively dealt with.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 335.]</p>

Action by- Esther Romi Pensó and another against the Oregon-Washington Railroad & Navigation Company. Judgment for plaintiffs, and defendant brings error. The river that separates East Hoquiam from West Hoquiam, iu the state of Washington, is crossed by a bridge used by the plaintiff in error in the operation of a line of railway in Ohehalis county, state of Washington.

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania; J. Whitaker Thompson, Judge.</p> <p>Action by Henry A. Hitner’s Sons Company against the American Credit Indemnity Company. There was a judgment for defendant, and plaintiff brings error.</p>

<p>1. Sams <§=>62 — Construction—Entire Contracts.</p> <p>A contract for the sale of 10,000 barrels of flour, 2,500 barrels to he shipped each month for a period of four months, is an entire contract; the provisions for delivery in installments not dividing it into separate contracts for each installment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 171-179.]</p> <p>2. Sales <@=>89 — Construction—Delivery in Installments.</p> <p>A contract for the sale of 10,000 barrels of flour provided for the delivery of 2,500 barrels per month for the months of January, February, March, and April. Concessions as to time of delivery of installments were made by each party, neither party repudiating the contract until the seller after numerous promises defaulted in June. Thereupon the buyer after reasonable notice purchased other flour and sued to recover the difference in the price of the flour so bought and that which the seller contracted to deliver. Held that, the contract being entire, the mutual concessions did not abrogate it, and the seller was liable for its nondelivery within a reasonable time after notice, although it might have thereafter asserted the right to mate delivery according to the specified monthly installments.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.]</p> <p>3. Sales <@=>89 — Modification—Time for Performance.</p> <p>When no time is fixed for performance of a contract for the sale of goods, the goods are to be delivered within a reasonable time; and hence, where parties by mutual concessions have carried the time for delivery beyond that fixed in the contract, each party is entitled to a reasonable time for performance to he determined under the circumstances of the case.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 251, 252, 259.]</p>

<p>Petition by the Brookstone Manufacturing Company and others for mandamus or prohibition or certiorari.</p>

Action by George N. Ostrander against Amos N. Blandin. Judgment for plaintiff, and defendant brings error. Writ of error to review a judgment entered in the District Court for the Northern District of New York, in favor of Ostrander, who was plaintiff below, and against Blandin, in an action to recover commissions as broker upon the sale of certain timber standing on lands in the state of Vermont.

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the United States Hair Company, bankrupt. Petition by J, & W. Seligman & Co. to revise an order of the District Court disallowing the claim of petitioners' as alleged creditors pf the bankrupt. The bankrupt is a New York corporation of which one P. M. Música was president during the occurrences giving rise to this litigation.

Whitaker Thompson, Judge. In the matter of involuntary proceedings in bankruptcy against Charles Frank. From an order of the District Court dismissing the petition (234 Fed. 665), the Sheibley Tyler Company and others, petitioners, appeal.

J. W. Coleman and another were convicted under Pen. Code, §§ 190, 192, of breaking into a post office with intent to commit larceny, etc., and they bring error.

<p>Commerce <&=>27(8) — Injuries to Servant — “Engaged in Interstate' Commerce” — Repairing Car.</p> <p>A car repairer, employed by an interstate carrier, who was injured while working on a car belonging to another interstate carrier, and which must he returned in interstate commerce, is not engaged in interstate commerce within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§' 8657-8665]).</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

Action by Hugo Sperling against the Holbrook, Cabot & Rollins Corporation. Judgment for plaintiff, and defendant brings error. It appeared without contradiction that Sperling had been an employé of the Holbrook Corporation, and in its service received personal injuries.

Action by Giuseppe Sbaratta, as administrator of Rosario Sariti, deceased, against the Schunnemunk Construction Company. Judgment for plaintiff, and defendant brings error. On writ of error to review a judgment in favor of the defendant in error who, as administrator of Rosario Sariti, deceased, brought this action to recover damages for the death of the said Sariti.

Wallace Lambdin, Judge. Suit by the M. C. Kiser Company and others against the Central of Georgia Railway Company and others. Complainants appeal from an order vacating a temporary restraining order and refusing to grant an interlocutory injunction.

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

<p>Appeal from the District Court of the United States for the District of Massachusetts; Frederic Dodge, Judge.</p> <p>Suit in equity by the Draper Company against Jonas Northrop and another. Decree for complainant, and defendants appeal.</p>

<p>1. Patents <@=328 — Validity—Road Leveling Machine — Prior Public Use.</p> <p>The Monroe reissue patent, No. .13,708, for a road leveling machine, hold void because of the unrestricted sale to a township for actual public use of one of the machines more than two years before the filing of the application for the original patent.</p> <p>2. Patents <@=76 — Validity—Prior Public Use.</p> <p>After proof of the sale without reservation of a machine for actual use more than two years before application for a patent therefor, evidence as to whether the patentee regarded it as a completed or experimental machine is immaterial.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 92, 98.]</p> <p>3. Patents <@=310(9), 311 — Suit for Infringement — Defenses.</p> <p>Objection to proof of prior public use, pleaded generally in the answer in au infringement suit, on the ground that notice of the names of the alleged users, required by Rev. St. § 4920 (Comp. St. 1913, § 9466), had not been given, is waived by failure to move to strike out the defense as insufficient, or to object to the evidence in due time to raise the question in the District Court.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 535-542.]</p> <p>4: Evidence <@=187 — Secondary Evidence — Photographs.</p> <p>The reception in evidence of photographs or descriptions of a chattel u place of the object itself is largely discretionary with the court.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 674, 675.]</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>Suit in equity by Frank Guy and George R. Shanklin against Meyer Stein, doing business as the M. Stein Manufacturing Company. Decree for defendant, and complainants appeal.</p>

Suit in equity by William K, Leonard against the Corn Products Refining Company. Decree, for defendant, and complainant appeals. On December 13, 189S, appellant was granted a patent, No. 615,863, for the process of producing rubber substitute and in the composition matter to be used therefor. The two claims of the patent read as follows, viz.: “1.

In Bankruptcy. In the matter of the bankruptcy of the Dayton Coal & Iron Company, Limited. On request by referee for ruling as to deposit of funds belonging to the estate of the bankrupt.

At Law. Complaint by the Rensselaer & Saratoga Railroad Company against Roscoe Irwin, United States Collector of Internal Revenue, Fourteenth District, State of New York. On demurrer to the complaint, on the ground that it did riot allege facts sufficient to constitute a cause of action.

In Equity. Suit by Drusa Sturm and others against John S. Stump and others. Held: used, and disposed of by him according to his own will and discretion, without right on the part of any one to call him to account for the said lands, or interests in lands, or any part thereof, except so far as necessary to make good the charges hereby created.” The charges thereby created are then set forth to be the reservation of…

<p>At Daw. Action by the United States against the Pennsylvania Company to recover penalties for alleged violations of the Hours of Service Act.</p>

In Bankruptcy. In the matter of Frances Bandersman, bankrupt. On exceptions and motion to confirm the report of the special master recommending that the bankrupt be denied a discharge.

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

In Bankruptcy. In the matter of the bankruptcy of the Imperial Textile Company. Application for the review of an order of the special master granting claimant, William E. Nelson, a lien upon certain accounts of the bankrupt and priority as to the amounts collected.

<p>1. Bankruptcy <§=>404(2) — Discharge—Right to.</p> <p>Where a bankrupt fails to apply in due time for a discharge, or is denied the discharge from debts provable in one proceeding, he cannot be discharged from such debts in a subsequent proceeding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 690.]</p> <p>2. Bankruptcy <§=>391(1) — Discharge—Bights oe Creditors.</p> <p>Bankr. Act July 1, 1898, c. 541, §§ 14, 65b, 30 Stat. 550, 563 (Comp. St. 1913, §§ 9598, 9649), while providing that a bankrupt shall not be granted more than one discharge in a voluntary proceeding within a period of six years, do not limit the number of petitions a debtor may file, nor their frequency. Section 17 (section 9601) declares that a discharge in bankruptcy shall relieve a bankrupt of all his provable debts. A bankrupt listed a debt not dischargeable in bankruptcy, and the creditor, instead of intervening in the bankruptcy court, proceeded by action at law in the state court. Held that, as the debtor might indefinitely prevent recovery on such claim, the creditor was not bound to go into the bankruptcy court and prove his claim, with a view to having it excluded from the order of discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 637-642, 644-648.]</p>

<p>1. Aliens <§=362 — Naturalization—'“Resided Continuously Within the United States.”</p> <p>An alien who had been for several years employed on a pleasure yacht belonging to a citizen, and had Been in the United States occasionally on the yacht prior to the outbreak of the war, but'had never lived ashore in the United States, and had never brought his family to this country, and who had not been in the country during the last three years, except to file a petition for naturalization and to attend the hearing, has not “resided continuously within the United States” for five years, or within the state for one year, as required by Act June 29, 1906, c. 3592, 34 Stat. 596.</p> <p>[Ed. Note. — For other eases, see Aliens, Cent. Dig. §§ 324-327, 329-332, 340.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Resided Continuously.]</p> <p>2. Aliens <§=302 — Naturalization—Continuous Residence — Temporary Absence.</p> <p>Merely temporary absence from the United States or a state within the period prescribed for continuous residence will not prevent an alien who has actually resided here from securing naturalization; but the absence in each case must be examined, to determine whether it has broken the continuity of the residence.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 324^-327, 329-332, 340.]</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 A. V. Wills and others against Bates County, Missouri. Judgment for the plaintiffs, and defendant brings error.</p>

<p>In Error to the 'District Court of the United States for the District of Porto Rico; Hamilton, Judge.</p> <p>Action at law by José Romero Fernandez against Jaime Calaf and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Quieting Title @=>44(5) — Action—Possession—Limitation.</p> <p>A bill to quiet title to property claimed by complainant under a deed, executed in 1855, conveying the property to its predecessor for railroad purposes, held not sustained by the evidence, which not only failed to show that complainant was in possession when the suit was commenced, or that it or its predecessors had 'ever been in possession, but showed, on the contrary, that defendants and their predecessors had been in possession for more than 30 years under a deed purporting to convey title in fee simple.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 92.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Suit in admiralty by John Dunseith and others' against the Erie & Michigan Railway & Navigation Company. Decree for libelants, and respondent appeals.</p>

<p>1. Shipping <@=145 — Carriage op Goods — Right to Freight — Bill op Lading.</p> <p>Under a contract for shipment of goods freight prepaid, where the dock receipts for the goods, given when they were delivered to the ship, stated that they were accepted for shipment subject to the provisions of the line’s usual bills of lading, and those bills of lading provided that the freight should be paid on delivery of bills of lading, but the goods were damaged by fire after loading, but before the delivery of the bills of lad-^ ing, and before it sailed, the delivery of bills of lading, on which was stamped a statement that the goods had been received in good order, but had been damaged, and were liable for general average and special damages, was not a compliance with the requirement for the delivery of bills of lading, winch was a condition precedent to the right to recover the freight.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 502-505.]</p> <p>2. Shipping <@=3106 — Bills op Lading — Delivery—Previous r Damage to Goods.</p> <p>The delivery by a carrier of ordinary bills of lading, reciting that the goods were received in good condition, which were dated as of the date when the goods were delivered to the ship, at which time the bill of lading was due, is not a fraud or misstatement for which the carrier would be liable to subsequent holders of the bills, though between the delivery of the goods and the actual issuance of the bills of lading the goods had been damaged by fire on the ship.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 225, 226, 4LL 419.]</p> <p>3. Shipping <@=>145 — Bill op Lading — Prepayment op Freight.</p> <p>A bill of lading, providing that freight shall be paid by the shippers on delivery of bills of lading, and that prepaid freight is to be considered as earned on shipment of the goods and is to be retained by the shipowner, vessel or cargo lost or not lost, must be construed as a whole, and, while prepaid freight might be construed as earned on the delivery of the goods to the ship, the ship could not demand payment of the freight until it delivered or tendered the bills of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 226, 502-505.]</p>

McCall, Judge. Action by Mary Dockery Gooch, by her next friend, William D. Gooch, against the Presbyterian Home Plospital and others. There was a judgment for defendants, and plaintiff brings error.

Action by the Halawa Plantation, Limited, a corporation, against the County of Hawaii. Judgment for the plaintiff was affirmed by the Supreme Court of the Territory of Hawaii, and defendant brings error.

B. Dole, Judge. Suit in admiralty for salvage by Inter-Island Steam Navigation Company, Limited, owner of the steamer Niihau, against the schooner Halcyon; J. A. T. Olson, master and claimant. Decree for libelant, and claimant appeals.

<p>1. Mortgages <§=>48(2) — Description—Ambiguity.</p> <p>Where there were two surveys of land in Bowie county under the same name, one being about 10 miles southwest of the city of Boston and the other about 14 miles therefrom, a deed of trust describing the property as the “east half of the” survey, “situated about 14 miles southwest from Boston, in Bowie county,” is sufficient; the description identifying only one of the surveys.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 127.]</p> <p>2. Mortgages <§=>553 — Foreclosure—Acquisition oe Title by Tenant-Burden op Pro op.</p> <p>Where defendant was a tenant of plaintiff when he acquired an outstanding title based on foreclosure of a deed of trust, defendant has the burden of proving the regularity of the foreclosure proceedings.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1581.]</p> <p>3. Evidence <§=^317(12) — Hearsay.</p> <p>Where the validity of a sale on foreclosure of a deed of trust, which provided that, if the trustee named should fail or refuse to act or became disqualified, the beneficiary should have full power to appoint a substitute in writing, was involved, testimony by the substituted trustee, who held the sale, that the original trustee, in response to his inquiry, wrote Mm that he had declined to act, is inadmissible, being hearsay; the refusal of the original trustee occurring before the inquiry was made.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1185.]</p> <p>4. Appeal and Error @=>1050(1) — Review—Harmless Error.</p> <p>In such case, where the beneficiary of the deed of trust was the only witness to the refusal of the trustee to act, the erroneous admission of the hearsay testimony cannot be treated as harmless, on the theory that it did not affect the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.1</p> <p>5. Appeal and Error @=>230 — Presentation oe Grounds op Review in Court Below — Objections—Necessity.</p> <p>Where it did not appear that the objection to the testimony was made before the witness answered the question, the receipt thereof cannot be complained of on appeal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 183.]</p>

Suit in admiralty by Nicholas Wandell, owner of the canal boat S. C. Meil, against Patrick H. Murray, surviving partner of the firm of Casey & Murray. Decree for libelant, and respondent appeals.

<p>Petition to Revise Order of the District Court of the United States for the Eastern District of New York.</p> <p>In the matter of Charles L. Obergfoll, bankrupt. Petition by the American Bluestone Company to revise an order of the District Court.</p>

Suit in admiralty by Albert H. Hastorf, owner of the dumper scow. Montreal, against the F. R. Dong-W. G. Broadhurst Company and Henry E. Fox, impleaded. Decree for respondents, and libelant appeals.

<p>1. Courts <®=>89 — Trial <§=»142 — Question For Jury — Inferences from Circumstances — Precedents.</p> <p>Where a question of fact exists, or reasonable'men could draw different inferences from circumstances shown without contradiction, the question is for the jury; but, where a rule of decision applicable to the facts has been established by controlling authority, that authority must be followed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Trial, Cent. Dig. § 337.]</p> <p>2. Commerce <®=>27(8) — Injury to Servant — Federal Employers’ Liability Act — Employment in Interstate Commerce.</p>

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by James P. Stevenson, owner of the steam yacht Osceola, against the steam lighter J. W. Wonson, Leah M. Saville, claimant, with cross-libel against the Osceola. Decree against the Wonson, and her claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>Suit in admiralty for collision by Edward M. Timmins, owner of the tug Mutual, against the steam lighter Easton; the Central Railroad Company of New Jersey, claimant. Decree for libelant, and claimant appeals.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in admiralty for collision by the Lehigh Valley Transportation Company, owner of the steam tug Slatington, against the steam tug Madison; the Delaware, Lackawanna & Western Railroad Company, claimant. Decree for respondent, and libelant appeals.</p> <p>The following is the opinion of Augustus N. Hand, District Judge:</p> <p>The libelant’s tug Slatington was proceeding up the East River carrying a cattle float on her port side and a car float on her starboard side. The claimant’s tug Madison, carrying on her port side a car float, came into view some distance up the river and blew one whistle, to which the Slatington responded by a single whistle. The captain of the Madison says that he was in the center of the stream, a little toward the New Tork shore; that he saw the red or port lights of the Slatington, and blew the,above whistle as a proper signal to pass port to port. The captain of the Slatington, on the other hand, sáys that he saw the green lights of the Madison, that she was toward the Brooklyn side of the river, and that the natural position would have been to pass starboard to starboard. However this may be, the Slatington answered the signal of the Madison, and therefore was bound to attempt to do all she could to pass port to port. The captain and floatman of the Madison say that they suddenly saw the green lights of the Slatington and realized that she was changing her course. He then blew an alarm, the Slatington blew an alarm, and, though the latter is said to have then changed her course again in an attempt to resume the port position, shortly after a, collision occurred.'</p> <p>I think the interpretation of the facts urged by counsel for the claimant is most consistent with the testimony and should prevail. His contention is that the accident was due to the fact that the mate of the Slatington, who was steering the vessel at the time the first whistle was blown, was keeping close to the New York shore to avoid the strong tide setting towards Brooklyn while rounding Corlear’s Hook. Indeed, this, I think is admitted by both sides. In coming around the Hook the Slatington would inevitably show her port lights first. If she then still kept towards the New York side of the river, as claimant’s witness contends, she would be in such a situation as to show her green lights. The captain of the Madison, having seen only the Slatington’s red lights, gave a signal to pass port to port, and was proceeding under a port helm. Suddenly he saw the green lights of the Slatington, realized there was danger, and blew the alarm whistle. The captain of the Slatington, who had in the meantime taken the wheel, returned a counter alarm whistle. The Slatington evidently, after blowing the single whistle, still kept on for a time on the west side of the stream, and in so doing in reality starboarded her helm, instead of porting her helm, as she should have done. When the Madison blew the alarm, the Slatington did port her helm, but it was then too late. The change of course and uncertain movement of the tug Slatington were, I think, the cause of the collision. I cannot see how the accident could ever have occurred if the Slatington, after answering the signal of one whistle, had ported her helm and continued on that course. The Madison is criticized for not proceeding further to port after blowing the first whistle, but I think the testimony indicates that s¿e was proceeding on a gradual course to port that would have been perfectly safe if the Slatington had not changed her course after the signal was given.</p> <p>The injury seems to have been caused wholly by the negligence of the Slatington, and an interlocutory decree should be granted, dismissing the libel, with costs.</p>

Suit in equity by the Safety Car Heating & Righting Company against the Gould Coupler Company. Decree for complainant, and defendant appeals. Appeal from decree in equity finding infringement by defendant-appellant of claims 4, 9, 10, 11, 12, and 13 of patent No. 1,070,080', granted August 12, 1913, to Harrison G. Thompson, for a “car-lighting system.” The claims in suit are as follows: “4.

Satihom, Judge. Suit in equity by Matthew Howard Reed against the Cropp Concrete Machinery Company and Andrew J. Cropp. Decree for defendants, and complainant appeals. Appeal from decree dismissing for want of equity bill to restrain alleged infringement of certain claims of United States patent No. 981,111 to Reed. Appellant, Reed, and his company, the Standard Scale & Supply Company, were in the business of making and selling scales and gas engines, but not concrete mixers.

<p>1. Patents @=>167(1) — Construction—Specification and Claims Construed Together.</p> <p>It is a general rule of construction of patents that no patent covers all the inventive conceptions of the patentee existing at the time when he procured it, but only such device, with reasonable equivalents of elements, as he described and claimed, and what the claimed invention is must be found in the specification, with such light as the drawings may throw upon it.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 243.]</p> <p>2. Patents @=>328 — Infringement—Window Envelope Machine.</p> <p>The Slater patent, No. 893,105, for an envelope machine, which is essentially a patch-applying mechanism for making window envelopes, and which can be used in connection with well-known machines of the prior art, held not infringed.</p>

Dickinson, Judge. Suit in equity by the Outlook Envelope Company and the United States Envelope Company against the Whiting-Patterson' Company. From an order (236 Fed. 940) granting a preliminary injunction, defendant appeals.'

<p>1. Patents <§=>243 — Inekingement—Combination op Old Elements.</p> <p>Infringement of a patent for a combination of old elements must be predicated on an appropriation of the same elements or their equivalents in the same combination.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 382-384.]</p> <p>2. Patents <§=>328 — Inekingement—Suit Case,</p> <p>The Dresner patent, No. 958,860, for a suit case, held not infringed.</p>

<p>1. Patents <®^>328 — Validity and Ineeingemenx>-Anti-Friction Bearing.</p> <p>The Baker patent, No. 753,820, for an anti-friction bearing for mounting and turning the front wheels of an automobile, claim 1, held valid and infringed.</p> <p>2. Patents <@=»42 — Invention—“New Result.”</p> <p>An invention achieves a new result, where a function which had been performed by other means was "performed to an efficient degree by an association of means never before combined, though all of them were old, and some of the changes seemed to be only in degree.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 49.]</p>

<p>Patents <§=>324(1) — Appeal—Final Decree — What Constitutes.</p> <p>A decree in an infringement suit on two patents, sustaining the first patent and awarding an injunction and accounting, and dismissing the bill as to the second, is not a final decree, and the complainant can maintain an appeal therefrom only under Judicial Code (Act March 3, 1911, c. 231) § 129, 36 Stat. 1134 (Comp. St. 1913, § 1121), as from an interlocutory decree refusing to grant an injunction, which appeal must be taken within 30 days.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 600, 604, 605.]</p>

Hollister, Judge. . _ _ Suit in equity by the Foglesong Machine Company against the J. D. Randall Company. From an order refusing to hold defendant in contempt for violation of injunction, complainant appeals.

<p>1. Patents <®^32S — Validity and Infringement — Milking Machine.</p> <p>Tlie Hinman and Hinman reissue patent, No." 13,876 (original No. 1,097,803), for a cow-milking machine, is a valid reissue, and, while the patent is for an improvement, it is for one of merit, and discloses patentable invention; also held infringed.</p> <p>2. Patents <§==j157(2) — Validity—Technical Objections.</p> <p>Where the court is convinced that a patentee has made a meritorious invention, it will not deprive him of its fruits on merely technical grounds.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 231.]</p>

<p>1. Patents <@=328 — Validity and Invention — Ioe Cream Freezer.</p> <p>The McCann patent, No. 1,013,672, for an ice cream freezer, discloses invention and covers a simple and efficient structure, constructed entirely of tin plate, which practically produced a new industry and is entitled to a broad and generous construction of its claims. Claims 3 and 5 also held infringed.</p> <p>2. Patents <@=>157(2) — Construction—Construction to Give Validity.</p> <p>When a patentee has produced a structure wbich inaugurates a new industry and at once becomes popular, and therefore of great value, a court should be zealous to so construe the claims as to give validity to what it believes to be a meritorious invention.</p> <p>[Ed. Notelr-For other cases, see Patents, Cent. Dig. § 231.]</p> <p>3. Patents <@=>215 — Infringement—Substituting Equivalent Elements in Combination.</p> <p>Infringement is not avoided by the omission of an element of the patented combination, if the same result is accomplished in substantially the same way by the substitution of equivalent means, or by the introduction of other devices and features which do not change the operation of the combination or the result attained.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 386.]</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio.</p> <p>Suit in equity by Meccano, Limited, against F. A. Wagner and others. Decree for complainant, and defendants appeal. On motion by appellants for injunction.</p>

Suit in equity by William H. Woerheide and the Barber Asphalt Paving Company against the H. W. Johns-Manville Company. De-, cree for complainants, and defendant appeals. Appeal from a supplemental decree, entered June 30, 1916, holding valid and infringed claims 2, 3 and 4 of letters patent No. 973,902 to William H. Woerheide dated October 25, 1910, for a cleat for securing prepared roofing.

<p>Patents <®=»328 — Invention—Lock.</p> <p>The Aliano patent, No. 873,481, for a lock, claim 10, held void for lack of invention, in view of the prior art.</p>

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Howard C. Hollister, Judge.</p> <p>Suit in equity by the Eagle Woodenware Manufacturing Company against the Dana Manufacturing Company. Decree for defendant, and complainant appeals.</p>

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur U. Brown, Judge.</p> <p>Suit in equity by the National Metal Molding Company against the Tubular Woven Fabric' Company. From an' order, complainant appeals.</p>

<p>1. Patents <@=328 — Validity—Method of Cutting 'Metal.</p> <p>The Jottrand patent, No. 831,078, for a method of cutting plates, pipes, and other metal articles, consisting specifically in directing a heating jet upon the object to be cut along the line of section, so as to raise the metal to a temperature enabling oxidation without fusion of the metal, in directing simultaneously a jet of oxygen under pressure upon the heated part of the object, and in moving simultaneously both jets along the line of section, is void for anticipation and lack of invention over the prior art, and especially the disclosures of the prior Menne American and German patents; the Jottrand process being merely the application of the Menne process to a particular purpose requiring only mechanical . skill.</p> <p>2. Patents <@=19¡ — “New Invention” — Process.</p> <p>A process is patentable, even if it uses old machinery, if the mode of treatment is new and useful; but the mere diminution in size or reduction in quantity, which may prove advantageous in a,n application of a cer- ' tain device to accomplish one specific object or result out of all those covered by a broad prior patent, does not of itself .constitute a “new invention.”</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 19.]</p> <p>3. Patents <@=39 — Invention—Process.</p> <p>A new and patentable method cannot be predicated upon directions to use a device in some particular way, which requires nothing but skill in the operator or attention to the relative size of the appliances, if the result and method of accomplishing the result were disclosed in the earlier patent.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. § 46.]</p> <p>4. Patents <@=198 — Assignment—Mode of Execution.</p> <p>Where an assignment of an American patent was executed by the heirs of the patentee in Belgium before a United States consul, which made it sufficient to pass title in the United States and to he entitled to record, it is immaterial that it was not so verified as to prove itself in the Belgian courts.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 277.]</p> <p>5. Patents <@=323 — Suit for Infringement — Decree. ;</p> <p>In a decree for defendant, in an infringement suit, on the ground of invalidity of the patent, the court will not include findings on issues determined in favor of complainant, which would not be reviewable by the appellate court.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 598-599.]</p>

<p>1. Courts ©=>367 — Rules oe Decision — Oil and Gas Lease.</p> <p>The validity of an oil and gas lease, which the lessee could surrender at his option, is a local question, the decision of which by the court of the state in which the land is located is binding on the federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 958, 959.]</p> <p>2. Hines and Minerals ©=»73 — Oil and Gas Lease — Estates Created.</p> <p>An oil and gas lease, purporting to convey to the lessee all the oil and gas in the land, and leasing the land to him to drill and operate wells for a specified term and so long thereafter as oil or gas was produced in paying quantities thereon, does not convey a vested interest in the oil and gas, since there can be no ownership of them until they have been reduced to possession, but does convey a vested interest in the right to explore for oil and gas, or an interest in those minerals contingent on their discovery and reduction to possession, and such lease is therefore not executory, but is executed as much as any other lease.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 201, 210.] .</p> <p>3. Mines and Minerals <@=5S — Oil and Gas Lease — Consideration—Adequacy.</p> <p>A consideration of $1 is sufficient to support an oil and gas lease by the terms of which the lessee’s interest is subject to defeasance for breach of condition subsequent to drill wells and pay royalties, though he is not bound by any covenant to perform the condition.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 168, 169.]</p> <p>4. Mines and Minerals <@=58 — Oil and Gas Lease — Consideration—Clauses Supported.</p> <p>In an oil and gas lease, given for the consideration of $1, which provided that the lessee should drill a test well within one year and should pay a specified sum per year for the time during which the completion of the well was delayed, the consideration supports, not only the right to drill the well during the first year, but also the privilege of paying the specified 'sum and securing a renewal of the right, so that the right to make such payment and secure the renewal is not dependent on a subsequent agreement by the lessee to make the payment.</p> <p>[Ed. Note. — For other eases, see Mines and Minerals, Cent. Dig. §§ 168, 169.]</p> <p>5. Evidence <@=432 — Parol Evidence — Contradicting Recital — Payment oe Consideration.</p> <p>Parol evidence is not admissible, even in equity, to show that the consideration pf $1, which the lease recited had been paid, was not in fact paid.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1981-1989.]</p> <p>6. Mines and Minerals <@=81 — Oil and Gas Lease — Remedy oe Lessee — Injunction.</p> <p>A suit by the lessee under an oil and gas lease to enjoin the removal of oil and gas from the premises by a subsequent lessee is a suit to prevent trespass and waste to the interest of the lessee, not for specific performance of the lease, and therefore the doctrines that equity will not specifically enforce a contract where there is no mutuality of rights and remedies, nor if the consideration was inadequate, or it was unfair to hold the party to it, do not apply.</p> <p>[Ed. Note. — For- other cases, see Mines and Minerals, Cent. Dig. § 211.]</p> <p>7. Mines and Minerals <@=81 — Oil and Gas Lease — Remedy oe Lessee — Injunction — Adequate Remedy at Law.</p> <p>A lessee under an oil and gas lease has no adequate remedy at law, which deprives him of his right to enjoin a subsequent lessee from removing the oil and gas.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 211.]</p> <p>8. Mines and Minerals <@=81 — Oil and Gas Lease — Remedy oe Lessee — Injunction-Adequacy of Consideration.</p> <p>The right of the lessee under an oil and gas lease to enjoin the removal of those minerals by a subsequent lessee is not affected by the inadequacy of the consideration for the lease.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 211.]</p> <p>9. Mines and Minerals <^=>58 — Oil and Gas .Lease — Validity—Mutuality.</p> <p>The rule that unperformed contracts, optional as to one party, are optional as to both, applies only to a contract which is wholly executory, in that it consists of mutual promises, each the consideration of the other, but does not apply where a consideration is paid for an oil and gas lease, which gives the lessee a present interest in the right to explore for the mineral and a'contingent interest in the minerals discovered, though he has the privilege of surrendering the lease at any time.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 168, 169.]</p> <p>10. Mines and Minerals @=>73% — Oil and Gas Dease — Period oe Tenancy.</p> <p>The lessee under an oil and gas lease for the term of 10 years, and as much longer as oil and gas should be produced in paying quantities, with right to surrender the lease and he discharged from liability thereon, the consideration for which lease had heen paid, was not a tenant at will, so that the doctrine that a tenancy at will of one party is at the will of the other does not apply.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 200.]</p> <p>11. Mines and Minerals @=>58 — Oil and Gas Lease — Validity—Surrender Clause.</p> <p>In an oil and gas lease, granting for the consideration of $1, paid by the lessee, the right to drill and operate wells and the right to the oil and gas discovered thereon, subject to a payment of royalty, a, clause authorizing the lessee at any time to surrender the lease and he relieved from all liability thereon does not invalidate the lease as a matter of principle, nor according to the weight of authority or the decisions of the courts of Kentucky, where the land was situated.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 168, 169.]</p> <p>12. Courts @=>365 — Bules oe Decision — Decision oe State Court — Scope.</p> <p>A decision of the state court that $1 is such an inadequate consideration for an option to purchase real estate as to invalidate the option does not require the holding that a similar consideration is not sufficient to support an oil and gas lease, under which the lessqe must expend a considerable sum of money, which will be a loss in the event of failure to discover oil.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971.]</p>

In Equity. Suit by the Eustis Mining' Company against Beer, Sondheimer & Co., Incorporated. On defendant’s motion for reargument after decree for plaintiff. This is a suit in equity to obtain the construction of a contract and to recover for damages for its partial breach. The ground of equitable jurisdiction need not be considered, as both parties assent.

<p>1. Street Railroads <S=»29 — Franchise—Strict Construction — Exclusive Franchise.</p> <p>A franchise given to a street railroad company, which does not expressly grant an exclusive right to operate on the streets named, nor exclude the city iron! establishing a street railroad of its own, will not be construed to give an exclusive right as against the city, since statutory grants by way of franchise or property in which the government or public has an interest must he strictly construed in favor of the public, and whatever is not unequivocally granted is withheld.</p> <p>[Ed. Note. — For other eases, see Street Railroads, Cent. Dig. § 46.]</p> <p>2. Constitutional Law <@=134 — Construction—Statute.</p> <p>Civ. Code Cal. § 499, which, as it existed in 1879, when a. street railroad' franchise, authorizing the city to grant to one other corporation the right to use the streets upon the terms stated in that section, was granted, provided that two street railroad corporations might he permitted to use the same tracks, each paying an equal portion for the construction thereof, hut in no case must two railroad corporations occupy and use the same street or track for a distance of more than four blocks, must be read as a whole, not separated into two parts, and, so read the restriction in the second clause is not a prohibition against the use of the street by two, railroad corporations, but a restriction on the power to grant permission for such use, which may be repealed by the Legislature.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 344.]</p> <p>3. Municipal Corporations <@=682(2) — Police Power — Street Railroad— Franchise — Municipal Line.</p> <p>While a city cannot exercise its .police power to destroy the franchise of a street railroad corporation, or exercise it arbitrarily, that power cannot he so limited as to prevent the city from constructing a street railroad of its own on the same streets, when that is made necessary by changing conditions.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1468.],</p> <p>4. Municipal Corporations <@=321(2) — Municipal Street Railroad — Necessity — Determination.</p> <p>The necessity for the construction of a municipal street railroad along a street occupied by tracks of a private corporation is a legislative rather than a judicial question, where there is no showing of the exercise of an arbitrary power by the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 838.]</p> <p>5. Eminent Domain <@=75 — Necessity for Compensation — Street Railroad Crossings.</p> <p>In the absence of a statute prohibiting one street railroad from crossing the tracks of another, it is not necessary that compensation be first paid by a city before .laying its municipal street railroad, and Civ. Code Cal. § 469, providing that if the owners of railroads cannot agree as to the compensation to be made for cutting and adjusting the rails at a crossing, the condemnation of the right of way over the one for the use of the other may be had in appropriate proceedings, and section 500, providing that any proposed railroad track may cross any track already constructed, do not require such compensation.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 198, 199.]</p> <p>6. Eminent Domain <@=86 — “Taking” Property — Street Railroad — Competing Municipal Road.</p> <p>The construction by a city of a municipal street railroad along the streets already occupied by a private street railroad is not a “taking” or damaging of the private corporation’s property, contrary to the United States Constitution or the Constitution of California.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 231.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Taking.]</p>

In Equity. Suit by the United States against the Southern Pacific Company and others to enjoin and dissolve an alleged monopoly and combination in restraint of trade and commerce.

<p>At Law. Action by the City of Seattle against the Great Northern Railway Company and others, begun in the state court and removed to the federal court. On motion to remand.</p>

In Bankruptcy. In the matter of the voluntary proceedings for the adjudication of the United Grocery Company as a bankrupt. On motion to dismiss a- petition by minority stockholders and creditors to vacate the adjudication.

<p>In Error ten th'e District Court of the United States for the Southern District of Texas; Waller T. Bums, Judge.</p>

<p>In Error to the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge. Action by William T. Hayden against the Bank of Inverness. Judgment for the plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia; Emory Speer, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge.</p>

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

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

<p>Petition for writ of mandamus.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio, in Bankruptcy; John M. Killits, Judge.</p>

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

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

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

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

Suit by Samuel O. Scotten and another against Albert D. Samuel and anoth’er. From an order and decree dismissing the bill, complainants appeal. On appeal from an order and decree dismissing the bill of complaint. The original bill was dismissed by Judge Learned Hand and the amended bill was dismissed by Judge Hough.

<p>Petition to Revise Order of the District Court of the United States for the Southern District of New York.</p>

<p>Petition for writ of mandamus.</p>

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

<p>In Error to the District Court of the United States for the Southern District of Mississippi; Henry C. Niles, Judge. Action by R. A. Kalmbach against the Texas Oil Company. Judgment for plaintiff, and defendant brings error.</p>

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

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

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