Volume 240 — Federal Reporter

Clarke, Judge. Action by the Western Indemnity Company against William H. Crafts and others. There was a judgment for defendants, and plaintiff brings error.

In the matter of the bankruptcy of Creech Bros. Lumber Company, a corporation. The claim of H. W. MacPhail to a preference was allowed, and from such order A. R. Titlow, as receiver of the United States National Bank of Centraba, appearing in the name and stead of Robert G. Chambers, as trustee of the bankrupt company, appeals and petitions to revise the order in matter of law. Petition for revision dismissed, and order affirmed on appeal. Creech.

Petition to Revise Order of and Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. In the matter of the Cox-Blodgett Dry Goods Company, bankrupt.

Clarke, Judge. Two actions by the United States against the Erie Railroad Company to recover the statutory penalties for violation of the Safety Appliance Act. Judgment for the plaintiff, and defendant brings error.

C. Van Fleet, Judge. Action by the General Bonding & Casualty Insurance Company, a corporation, against the Pacific Coast Casualty Company, a corporation. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Arizona. ' '</p> <p>Bill by John H. Martin, as trustee in bankruptcy of the Imperial Copper Company, a corporation, against the Development Company of America, a corporation. From a decree dismissing the bill, complainant appeals.</p> <p>The plaintiff, Martin, trustee in bankruptcy of the Imperial Copper Company of Arizona, brings this bill in equity against the Development Company of America, a Delaware corporation, owning property and transacting business in Arizona. The bill alleges that the defendant Development Company held a contract for the purchase of certain mining properties in Pima county, Ariz., for the sum of $515,000, and that thereafter, on or about May 11, 1903, the defendant created and caused the said Imperial Copper Company, a corporation, to be organized under the laws of Arizona for the purpose of consummating said purchase for the use and benefit of defendant Development Company; that all of the incorporators, directors, officers, etc., of the Copper Company were at all times employés of the Development Company, and until on or about March 31, 1915, owned all of the capital stock of the Copper Company; that until the latter’s adjudication as a bankrupt, in 1911, it elected all the directors, officers, etc., of the Copper Company from its own (Development Company’s) employés, directors, etc., and transacted all the business ana handled and appropriated to its own use all the moneys derived from the operation of the said mining properties, and caused the title to the mining properties involved to be taken in the name of and' operated by the Copper Company for the use and benefit of the Development Company in order to facilitate the business of the latter in developing the mining properties; that F. M. Murphy, of Arizona, was president of the Development Company, and is now, and has been since November 9, 1909, the president of the Copper Company, and that the Development Company created and used the Copper Company as an auxiliary, subsidiary, branch, agent, and instrumentality in carrying on its mining business; that the Development Company in 1903 caused the Copper Company to execute a first mortgage or deed of trust upon all the mining property referred to, to -secure a $2,000,000 bond issue of the latter, for the use and benefit of the Development Company; that all such bonds were issued and delivered to the latter company, which used the proceeds of their sale in its business of operating mining properties, and also used the capital stock of the Copper Company, of the par value of $5,000,000, to the same purpose; that the Development Company, in 1903 and 1904, also caused to be organized under the laws of Arizona two “dummy corporations,” known as the Arizona Southern Railroad Company and the Southern Arizona Smelting Company, elected all their officers, directors, etc., and at all times controlled their affairs as departments of its own business, and caused all the shares of the capital stock to be issued to and held in the name of the said Copper Company, and then (in 1904) caused all the shares to become subject to the lien of the Copper Company mortgage as additional security for the before-mentioned $2,000,000 bond issue.</p> <p>It is alleged on ihformation and belief that on July 3, 1911, the Development Company, being then a holder of the majority of the bonds and capital stock of the Copper Company, instituted a suit in the district court of the First judicial district of the territory of Arizona to foreclose the mortgage or deed of trust on all of the mining properties and on the shares of stock of the Railroad and Smelting Companies; that on December 28, 1914, it obtained a decree of foreclosure and order of sale; that the Development Company then caused all of said mining properties and shares of stock to be sold under the foreclosure, and to be bid in, in the name of Leo Goldschmidt, at the price of $90,000 for the mining properties and $12,000 for the Railroad .and 'the Smelting Company stock, all this for the use and benefit of the Development Company and Murphy, its president, and that they (Development Company and Murphy), as the real parties in interest in the purchase at the -foreclosure sale, are now negotiating for the sale of all the above-mentioned properties and stock to the American Smelting & Refining Company of New Jersey, which company is now in possession of and working the mining properties; that on July 5, 1911, a petition in bankruptcy was filed against the Copper Company by certain creditors, and on July 25, 1911, it was adjudged a bankrupt ; that the total of allowed claims in said bankruptcy proceeding is $1,280,-686.22; that at the first creditors’ meeting, held on August 12, 1911, M. P. Freeman was elected trustee, and acted as such until July 2, 1914, at which time he resigned, and plaintiff was elected and qualified as such trustee.</p> <p>Plaintiff then proceeds to allege, on information and belief, that there was some character of agreement between the Development Company and Murphy, its president, on the one hand, and the creditors of the bankrupt company, on the other; that it was to the effect that the bankruptcy proceedings should lie dormant to enable the Development Company and Murphy to raise sufficient funds with which to discharge said debts, and that the creditors, relying upon the promises made by the Development Company and Murphy, allowed the proceedings to lie dormant until 1914, and until the qualification of the plaintiff as trustee, and that any seeming delay was caused by the Development Company and Murphy themselves, whom he alleges, on information and belief, controlled the bankruptcy proceedings until plaintiff was elected trustee; that the action of the Development Company in causing the mining properties and railroad and smelting stock to be sold at foreclosure resulted in stripping the •Copper Company of practically all of its assets, with the exception of certain personal property for which $500 was bid at public and $1,400 at private sale, and that insufficient moneys and property have come into plaintiff’s hands, as trustee, to pay any dividends upon claims filed and allowed by the referee; that by reason of the matters set forth the Development Company became and is liable for all of the debts of the Copper Company, and that all of the said mining properties and shares of stock purchased at the foreclosure by the Develqpment Company, or for its use and benefit, are liable for all of said debts.</p> <p>The prayer asks that plaintiff have judgment for $1,280,6S6.22, the amount of the allowed claims in the bankruptcy proceeding, and that it be decreed that all the mining'properties and shares of stock in the Railroad and Smelting Companies be liable for the claims of creditors of the Copper Company, and that such claims of creditors be decreed to be liens upon the properties acquired by the Development Company under the foreclosure proceeding, etc., and for alternative relief. The District Court dismissed the bill for lack of equity, and the trustee in bankruptcy appeals.</p>

Sawtelle, Judge. In the matter of the bankruptcy of the Southern Arizona Smelting Company, a corporation, bankrupt. Suit by John R. Martin, as trustee in bankruptcy of the Imperial Copper Company, a corporation, against M. P. Freeman, as trustee in bankruptcy of the Southern Arizona Smelting Company, a corporation. From a decree for complainant, defendant appeals.

<p>In Error to the District Court of the United States for the District of Oregon; C. E. Wolverton, Judge.</p> <p>Action by Max Wolf against J. M. Edmunson and another who counterclaimed. Judgment for defendants, and plaintiff brings error.</p> <p>Action to recover $3,001, advanced by Klaber, Wolf & Netter, the predecessors in interest of the plaintiff in error, under a contract for the sale to that firm of 30,000 pounds of the 1912 crop of hops to be grown upon the land of ffie defendant in error M. J. Edmunson.' Plaintiff in error alleged breach of contract on the part of the defendants in error in failing to deliver hops of the quantity and quality described in the contract. The answer of the defendants in error alleged breach of the contract by the predecessors of plaintiff in error in failing to accept hops tendered in accordance with the terms of the contract, and set up, by way of counterclaim, that defendants in error were damaged to the extent of $3,900 through the default of the predecessors of plaintiff in error. Judgment for defendants in error for $400. The parties will be designated hereafter as plaintiff and defendant, as in the court below.</p> <p>On May 29, 1912, the defendants entered into a contract with plaintiff’s firm whereby they agreed to sell and the firm to purchase at 25 cents per pound 30,000 pounds of their 1912 crop of hops grown upon the Edmunson farm, near Goshen, Or. The hops were to be of ‘first quality, i. e., of sound condition, good and even color, fully matured, but not overripe, flaky, cleanly picked, properly dried and cured, and free from sweepings and other foreign matter, and not affected by spraying or vermin damage.” It was agreed that the buyer should have the privilege of inspecting all of the hops, either on the farm of the seller or at any place the hops might' be stored or located, and selecting therefrom the quantity sold under this contract. It was also agreed that “if in the judgment of the said buyer the quality of all or any portion of the hops tendered under this contract by said seller should be inferior, from any cause whatever, to the quality of hops above specifically called for, it shall, be the duty of the seller to tender to said buyer the said hops raised, and the said buyer may have the right of accepting the entire quantity contracted for, or any part less than the entire quantity contracted for, at a reduction in price, which reduction shall be equal to the difference between the market value of such hops tendered under this contract by said seller and the market value of such hops at the time of the execution of this contract as are herein specifically called for to be delivered.” It was further agreed that “if, from any cause whatever, the said seller should deliver or tender for delivery a quantity of hops less than the quantity above contracted for, it shall be the duty of the seller to tender to said buyer the said hops raised, and the said buyer may have the right of accepting the quantity tendered, and shall be entitled to damages for the amount short delivered, which damage shall be equal to the difference in market value at the time of delivery of this contract between the quantity and quality above called for and the quantity and quality actually tendered or delivered.” The seller agreed to deliver to buyer all hops accepted under this agreement, free of all liens and incumbrances, f. o. b. cars or warehouse at Goshen, Or., as the buyer might elect. In accordance with the terms of the contract, plaintiff’s firm, on May 1, 1912, advanced to defendants the sum of $1,200, and on August 31, 1912, the sum of $1,800, as part payment for the hops.</p> <p>It was alleged in plaintiff’s complaint, filed in the United States District Court for the District of Oregon on June 19, 1915, that during the month of October, 1912, defendants furnished samples from the hops grown on the ¡premises during the year 1912, and, finding them of inferior quality and not according to the specifications of the contract, plaintiff’s firm inspected the hops fully and completely, and found them slack-dried, bad and uneven in color, of unsound condition, not fully matured, not cleanly picked, not properly dried or cured, and affected by vermin damage, whereupon the firm rejected the said hops as first quality hops as defined by the contract. It was further alleged that defendants refused to tender the hops to plaintiff’s firm at any reduction in price, and refused to act any further under the contract, or comply with any of the terms or provisions thereof, and, without the knowledge or consent of plaintiff’s firm, proceeded to and did sell'the hops to other parties in violation of the contract. It was further alleged that since selling the hops to other parties defendants have refused to repay to plaintiff the sums advanced under the contract, aggregating $3,001, and this action is brought for the purpose of recovering the advances so made.</p> <p>Defendants answered, alleging a tender by them of sufficient hops to fill the contract, and denying that they were not first quality as specified therein. It was further denied that defendants sold these hops to other parties at any time before March, 1913, but alleged they were stored in the warehouse until that time, in readiness to fill plaintiff’s order under the contract. It was alleged that plaintiff’s firm abandoned the contract upon the sole ground that the market price of hops was much lower than the contract price. Further answering, and by way of counterclaim, defendants alleged they were damaged to the extent of $3,900 by reason of the wrongful refusal of plaintiff’s firm to accept the hops tendered by defendants, and prayed that judgment be entered in their favor for the excess of $900 above the amount of the advances received from the plaintiff’s firm, and for their costs.</p> <p>Plaintiff replied, denying the various allegations of the answer, with the exception that it was admitted the market price of hops in October, 1912, was lower than the contract price.</p> <p>The case was tried in the District Court before a jury, who returned a verdict in favor of the defendants in the sum of $400, and judgment was entered upon such verdict for $400 and costs. A motion for a new trial was then made by plaintiff, upon the ground that the verdict was against the evidence, which motion was denied. Plaintiff alleges error in the rulings of the lower court, admitting certain evidence on behalf of the defendants, and denying plaintiff’s motion for a new trial.</p>

<p>1. Criminal Law <&wkey;37 — Punishable Offenses — Criminal Acts Induced by GOVERNMENT OFFICERS. '</p> <p>While the mere aiding of one in the commission of a criminal act by a government officer or agent may not preclude the conviction of the person committing the crime, where the officers of the law have incited the person ”to commit the crime charged, and lured him on to its consummation with the purpose of arresting him in its commission, the law will not authorize a verdict of guilty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 42.]</p> <p>2. Criminal Law <&wkey;844(2) — Trial—Sufficiency of Exceptions to Instructions.</p> <p>Exceptions to the charge of the court in a criminal case held sufficiently specific to direct the court’s attention to the particular point objected to when taken in connection with an instruction requested by defendants and refused.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2025.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.</p> <p>Action by the Co-operative Raw Fur Company against the American Credit Indemnity Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge.</p> <p>Action by William Derr against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Action by James Hines against the Republic Iron & Steel Company.. Judgment for plaintiff, and defendant brings error.</p>

Clarke, Judge. Action by Mary A. Leahy, as administratrix of the estate of Gertrude Helen Delaney, against the Detroit, Monroe & Toledo Short Line Railway. There was a judgment'for defendant, and plaintiff brings error.

<p>1. Tbial &wkey;>142 — Questions fob Jury — Inferences from Writings.</p> <p>' Where, from numerous letters and cable messages exchanged between the parties, different inferences might be drawn as to whether the original instructions to defendant to apply the proceeds of drafts indorsed by plaintiff to the payment of sight drafts in plaintiff’s favor had been modified, so as to authorize defendant to credit the proceeds of the indorsed drafts to the general account of the drawer of the sight drafts, and there was a dispute as to whether plaintiff’s agent told the defendant, before the last instructions had been received, that the sight drafts had been returned, the question was for the jury, and not for the, court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 337.]</p> <p>2. Evidence &wkey;>275 — Declarations of Agent — Knowledge of Principal.</p> <p>Where defendant had received drafts indorsed by plaintiff, with instructions to apply the proceeds to the payment of sight drafts drawn by plaintiff, but refused to accept the former because they were indorsed by plaintiff without recourse, in determining whether the'subsequent correspondence between the parties, as result of which drafts indorsed by plaintiff without restriction were sent to defendant, modified the original instructions, so as to authorize defendant to credit the proceeds of the new drafts to the general account of the drawer, instead of to the payment of the sight drafts, a statement by plaintiff’s agent, who presented the sight drafts, that they'had been returned to plaintiff, can be considered, though it was not known to plaintiff. .</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1057.]</p> <p>3. Appeal and Eeeoe &wkey;>719(5) — Questions Presented — Eeeoe Not Assigned- — -“Plain Eeeoe.”</p> <p>Error in excluding that statemerit from the jury’s consideration, unless it was known to plaintiff, was a “plain error,” which the Circuit Court of Appeals can notice without assignment, under Circuit Court of Appeals, Second Circuit, Rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), especially where it was fully presented to and considered by the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2974, 3490.]</p> <p>4. Teovee and Conveesion <&wkey;22 — Pboceeds op JDeapt — Liabilities op Party.</p> <p>Plaintiff’s claim against defendant for the conversion of funds remitted to cover a sight draft, and against the drawer of the sight'draft, are different claims, not creating the relation of principal and surety between defendant and the drawer of the ■ drafts, so that a receipt in settlement -■ of the latter claim is no defense to an action on the former.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent.: Dig. §§ 152-162, 167-169.]</p>

Cush-man, Judge. Suit by the City of Centralia, a municipal corporation, against the United States National Bank of Centralia, a banking association, and A. R. Titlow, as receiver of said bank. From a decree for complainant, defendants appeal. The city of Centralia brought a suit against the United States National Bank of Centralia and A. B..

<p>In Error to the Supreme Court of the Territory of Hawaii.</p> <p>Suit to quiet title by Fred Harrison against Robert Wyllie Davis. Judgment for plaintiff was affirmed by the Supreme Cojirt of the ter-ritovy of Hawaii, and defendant brings error.</p>

Appeal and Petition to Revise from the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge. In the matter of the bankruptcy of the estate of Robert B. Hull. Petition by the International Agricultural Corporation to revise a decision of the referee denying petitioner participation as an individual creditor in.the distribution of the bankrupt’s estate, opposed by Charles Cary, trustee in bankruptcy, and others.

<p>Appeal from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, Judge.</p> <p>Bill by the Twenty-One Mining Company, a corporation, against the Original Sixteen to One Mine, Incorporated. Complainant was granted a temporary injunction, and defendant’s motion to dismiss was denied, although a cross-injunction was granted on condition that defendant furnish an indemnifying bond, and defendant appeals.</p> <p>Tbe appellant and tbe appellee own adjoining lode mining claims. Tbe ap-pellee was mining on a vein witbin tbe vertical plane lines of tbe appellant’s claim, asserting tbe right to do so on the ground that tbe vein bad its apex witbin tbe-surface of its own claim and in its dip passed beneath tbe surface of tbe appellant’s claim. Tbe appellant was mining, as tbe appellee alleged, on tbe same vein beneath tbe surface of its own claim at a lower level and at a point remote from tbe appellee’s place of working. Tbe appellant denied that tbe vein on which it was working bad its apex in tbe appellee’s claim, and asserted that the vein bad its apex in its own claim. Tbe appellee brought an action against tbe appellant to recover damages for extracting tbe ores on tbe vein, and at tbe same time, as ancillary thereto, filed its bill in equity to enjoin tbe continuation of the alleged trespass. Tbe court below issued a temporary restraining order, and after a bearing issued a preliminary injunction against tbe appellant, upon tbe filing by tbe appellee of a bond in tbe sum of §30,000. Thereupon, upon tbe advice of its counsel, the appellee ceased its work on tbe vein within tbe vertical boundaries of the appellant’s claim. Two months later it gave notice of a motion to compel tbe appellant to furnish a bond to indemnify the-appellee against damages by reason of such cessation of its work. Tbe court denied tbe motion. Thereupon tbe ap-pellee notified tbe appellant of its intention to resume work, stating that its purpose was to raise tbe question of its right to an indemnifying bond .from tbe appellant. After tbe appellee resumed work tbe appellant served its notice of a motion to dissolve tbe preliminary injuhction, on tbe ground that tbe appellee bad resumed mining, and thereby violated tbe spirit of its own injunction. Tbe motion was denied, but tbe appellant was granted, if it so desired, a cross-injunction against tbe appellee upon furnishing an indemnifying bond in tbe sum of $30,000. This tbe appellant declined to do, and it took its appeal from tbe order denying its motion.</p>

Action by Harry H. Seldomridge, as receiver of the Mercantile Bank of Pueblo, Colo., against the Harriman National Bank. Judgment for the plaintiff on directed verdict, and defendant brings error. A judgment for $32,100 damages was entered by direction of the court in favor of the defendant in error, who was the plaintiff below. The parties will be referred to hereafter as they appeared in the District Court, viz., as plaintiff and defendant.

<p>1. Monopolies <&wkey;28 — Action for Damages — Evidence—Admissibility.</p> <p>In an action by a wholesaler against a manufacturer, who had refused to sell his product to plaintiff at less than the price charged retailers, because plaintiff had been selling the product at less than the price fixed by the manufacturer, where the declaration contained two counts, one for unlawful combination to control the price of the product, and the other for unlawful discrimination against plaintiff, it was error to admit evidence offered by defendant that the profit to dealers on the product at the list price was the average profit on other groceries, that defendant was not in any combination with manufacturers of other brands of the product to control the price, and that by the custom of the trade the price at which the jobber was expected to sell was fixed by the manufacturer, all of which was irrelevant and incompetent under the issues.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent: Dig. § 18.]</p> <p>2. Appeal and Error &wkey;>1050(2) — Prejudicial Error — Admission op Evidence.</p> <p>In view of the novelty and difficulty of questions presented in an action for unlawful combination and discrimination, the admission of such evidence, in connection fwith remarks by the trial judge as to the importance of the issues involved, was prejudicial to plaintiff, as obscuring the real issues in the case, though the court correctly charged the jury as to the issues, and told them to disregard the economic questions made by the.objectionable testimony; the rule that such a charge will make the error harmless being subject to exception, where the testimony has made such a strong impression on the jury that its withdrawal will not remove the effect caused by its admission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154.]</p> <p>3. Monopolies <&wkey;28 — Damages—Measure—Doss op Propits.</p> <p>The measure of a jobber’s damages for unlawful discrimination against him by a manufacturer whose product the jobber had been selling for several years, the sales increasing each year, is not limited to profits lost on sales which he proved he could have made; but the jury could have inferred, from the average increase of sales, the probable increase during the time of the discrimination, and could allow for the loss of profits on such sales.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18.]</p> <p>4. Monopolies <&wkey;28 — Damages—Loss op Other Sales.</p> <p>A jobber, to whom a manufacturer of a well-known product refused to sell his product at less than the regular price charged to retailers cannot recover as damages the loss of profits on sales of other articles to customers desiring that product, who dealt with competing jobbers in order to get all their goods at the same place, since such damages are too remote and uncertain, and could have been prevented by the jobber buying the product at the retailers’ price and reselling it without profit.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18.]</p>

Suit in admiralty for collision by Anthony O’Boyle, owner of the coal boat O’Boyle Brothers against the steam tug P. R. R. No. 32, the Pennsylvania Railroad Company, claimant, with the steam tug John J. Hague, the Tice Towing Dine, claimant, impleaded. Decree for libel-ant against the P. R. R. No. 32, and her claimant appeals.

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Ben. F. Bledsoe, Judge.</p> <p>In the matter of the bankruptcy of the Farmers’ Dairy Association. Proceeding by A. Levi against A. M. Shook, trustee in bankruptcy, to require the return of property. From an order and judgment of the District Court (234 Fed. 118), on petition for review of the order of the referee, directing the return of the same, the trustee appeals.</p> <p>Tlie appellant is trustee of the Farmers’ Dairy Association, a bankrupt. As such trustee he came into possession of nine head of horses, which he claims title to as an asset of the bankrupt’s estate. On September 13, 1915, A. Levi, the appellee, filed in the court below a petition claiming the legal title to the horses, and praying that they be adjudged to be his property. The basis of his claim is that prior to the time that the Dairy Association came into the possession of the property he was .the absolute owner, that he sold the same to the association by conditional sale, the title pot to vest until the full purchase price was paid by the association, and that promissory notes were given appellee for such balance of the purchase price as remained unpaid. Issue being joined, trial was had before the referee in bankruptcy, resulting in an order and judgment in favor of the appellant that he was owner of the horses. From this judgment a review was taken to the District Court, which held that the transaction had between the parties respecting the horses did not constitute a conditional sale, but that, under the circumstances, the only fair and equitable thing to do was to hold that the petitioner was still the owner of the horses, and that the bankrupt corporation was entitled to a, return of so much of the purchase price as had been paid thereon, less such sum, not to exceed the amount paid, as would reimburse the petitioner for the reasonable value of the use of the horses during the time that they were in possession of the bankrupt. Order and judgment having been entered accordingly, the trustee prosecutes review to this court.</p>

Orr, Judge. Action by Joseph S. Courtney, as trustee in bankruptcy of the estate of the Groveland Mining Company, against Edwin N. Ohl. Judgment for the defendant on directed verdict, and plaintiff brings error.

Appeal, from the District Court of the United States for the Southern District of New York. 'Suit in admiralty by the American Warehouse & Trading Company against the Davison Lumber Company, with Winfield S. Pendleton impleaded. From the decree, libelant and respondent Pendleton appeal.

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; Alston G. Dayton, Judge.</p> <p>On petition for rehearing.</p>

<p>In Equity. Bill by Shrauger & Johnson against the Phillip Bernard Company. On application for temporary injunction.</p>

<p>1. Discovery <&wkey;3 — Bile of — Maintenance.</p> <p>When disability of parties as witnesses was removed, the chief ground for bills of discovery disappearedbut courts of equity did not lose their jurisdiction to entertain such bills, where the legal remedies are insufficient, though in most cases the necessary relief can be obtained by subpoena, or subpoena duces tecum.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 3, 4.]</p> <p>2. Discovery <&wkey;19 — Bill op — Sufficiency.</p> <p>In determining whether a bill for discovery to aid in an action at law is sufficient to entitle complainant to relief, the complaint in the action at law, as well as the contract on which it is based, may be considered.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 20-26.]</p> <p>3. Patents <&wkey;292 — Bill of Discovery — Sufficiency.</p> <p>Complainant entered into a contract with defendant, providing that, when defendant or any of its subsidiaries should use a car made embodying any of complainant’s patents, it should pay the sum of $10, and that it should give complainant the preference in car building so long as its bids were not more than $10 per ear above those of the lowest bidders. Defendant and some of its alleged subsidiaries entered into agreements with other companies to build cars which complainant claimed embodied some of its patent devices, complainant being the holder of at least 11 patents. Complainant sued for loss of profits on cars which it claimed it should have been allowed to build under its contract and for payment of royalties on the patents. Held, that, as defendant could be required at trial to produce the drawings, and the question whether the cars which numbered thousands embodied stay such patent devices could be then determined, a bill of discovery to aid in the action at law is properly allowable to prevent the interminable taking of evidence on such matters in the jury case, although discovery should not be allowed as to whether the bids of the successful bidders less than $10 per car under the bids of complainant, for that question could readily be ascertained at trial.</p> <p>[Ed. Note. — For other* cases, see Patents, Cent. Dig. § 446.]</p>

<p>\ In Equity. Suit for injunction, by Lucius A. Calkins and others against Julius F. Smietanka, as United States Collector of Internal Revenue of Chicago, and another.</p>

In Admiralty. Libels by the Piedmont .& George’s Creek Coal Company to enforce maritime liens against the fishing steamers William B. Murray, and others; the Atlantic Phosphate & Oil Corporation, claimant.

In Bankruptcy. In the matter of George A. Stafford. On petition by objecting creditors, asking that the order of discharge be opened, so that they may be permitted to appeal therefrom.

<p>In Bankruptcy. In the matter .of the bankruptcy of Samuel G. Eockwood. Motion to confirm report dismissing specifications of objection to discharge.</p>

In Bankruptcy. In the matter of the bankruptcy of Samuel G. Lockwood. Application to restrain the sheriff from levying á body execution upon the bankrupt pending'time within which the question of the 'discharge could be litigated, etc. Motion granted for a period in order to allow the bankrupt to apply to the state court for appropriate remedy to determine the effect of his discharge.

<p>In Admiralty. Suit by the Dieckmann Hardwood Company against the American barkentine Gleaner. On exceptions to amended libel.</p>

<p>1. Bankruptcy <&wkey;415(2) — Opposition to Discharge — Special Commissioner — Report—Form.</p> <p>A report by the special commissioner on specifications opposing a discharge in bankruptcy, which was in the form of an opinion, need not be returned for particular findings of fact and conclusions of law, since a report in that form is generally of m'ore value than in the other form.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 702, 705, 706, 70S, 719.]</p> <p>2. Bankruptcy <&wkey;415(3) — Opposition to Discharge — Report op Special Commissioner — Action by Court.</p> <p>The court will not overrule the findings of the special commissioner on specifications opposing a discharge in bankruptcy, if there is any evidence upon which they are based, unless the conclusions are contrary to laV, or the entire issue leads to a different construction of some of the acts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 698-701, 704, 707.]</p> <p>3. Bankruptcy &wkey;>408(2) — Discharge — False Statement — Decreasing Claim.</p> <p>Where a bankrupt, in making his schedules, stated the claim of one creditor, who was supposed to have some security, as much smaller than it was, and the creditor was not estopped to claim' the full amount, the false statement of financial condition was sufficient ground to deny the discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 733, 734.]</p>

In Bankruptcy. In the matter of Elbridge E. Sweetser, bankrupt. On petition for removal of assignees, and objections to petition of F. Joy to be subrogated to claim proved by Dolliver and others against the bankrupt estate.

<p>1. BANKRUPTCY <&wkey;368 — ASSIGNEES—DUTY.</p> <p>Where the assignees of a bankrupt under Bankr. Act March 2, 1867, c. 176, 14 Stat. 517, who had continued the estate for the purpose of acquiring the bankrupt’s interest in a trust fund subject to preceding life estates, refused,' after the death of the last of the life tenants, to consent to their being superseded by trustees, so that the power of administration would be almost completely under the control of the majority of the creditors, and, by contesting a petition for removal, protected the rights of other creditors, who were not parties to the petition, they were not guilty of any dereliction of duty, warranting denial of compensation.</p> <p>[Ed. Note. — For other: cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. i&wkey;368.]</p> <p>2. Bankruptcy &wkey;>272 — Proceedings—Duty oe Assignees.</p> <p>Under Bev. St. § 5100 (Bankr. Act 1867), declaring that, if at any time there is not in the assignee’s hands a sufficient amount of money to defray the expenses required for the further execution of his trust, he shall' not be obliged to proceed unless the necessary funds are advanced or 'satisfactorily secured to him„ an assignee in bankruptcy need not, for the protection of, the estate, advance money to defend a suit.,</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 572, 573; Dec. Dig. <&wkey;>272.]</p> <p>3. Bankruptcy &wkey;>368 — Assignees—Dereliction in Duty.</p> <p>Under Act June 22, 1874, e. 390, § 4, 18 Stat. 178, declaring that if any assignee in bankruptcy fails or neglects to well and faithfully discharge his duty to the estate he forfeits all fees and emoluments, and if he in any way wrongfully disposes of the property committed to his care he forfeits all fees or compensation for other services, an assignee in bankruptcy who had, for the protection of the estate, advanced considerable to defend a suit when not required to under the statute, and who had. acted as his own legal adviser, is not, in making a payment to himself for the purpose of discharging costs and satisfying his claim for legal services, guilty of such a dereliction in duty, where on order of the court he returned the same, as to preclude any right to compensation, for, had he engaged counsel to perform such services, they would have had a lien on the estate, and the assignee acted in good faith.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig.' § 571; Dec. Dig. <&wkey;368.]</p> <p>4. Bankruptcy &wkey;>368 — Assignees—Bight to Compensation.</p> <p>Though an assignee in bankruptcy asserted a claim against the estate which, after approval by the District Court, was denied on appeal, the assignee cannot, having acted in good faith, be denied all compensation under Act June 22, 1874, § 4, on the ground that he had hot faithfully executed his trust.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;368.]</p> <p>5. Bankruptcy &wkey;>368 — Assignees—Bight to Compensation.</p> <p>The assignees will not be denied compensation because,they assisted a stenographer, who performed services for the estate in litigation, in presenting a claim, though the claim was reduced by the register; it not appearing that the action of the assignees was in any way fraudulent.</p> <p>[Ed. Note. — For othér cases, sea Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;368.]</p> <p>6. Bankruptcy &wkey;?368 — Assignees—Compensation.</p> <p>In such case, compensation will not be denied because, one of the assignees, having made a payment to himself, the assignees appealed from the order for return; the conduct of the assignees not being litigious or amounting to a breach of trust. -</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. .§ 571; Dec. Dig. <&wkey;368.]</p> <p>7. Bankruptcy <&wkey;368 — Assignees—Compensation.</p> <p>Under Bankr. Act 1867 (Bev. St. §§ 5092, 5093), requiring the assignees to file an account every three months, the assignees of an estate which had been fully administered, save a claim against a fund held in trust for the lives of others, need not file any elaborate account, nor will their failure to file an elaborate account after receiving the fund preclude an award of compensation; it appearing that the accounts were rendered in good faith, and, though not perfect, the estate was in no wise injured.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;>368.]</p> <p>8. Bankruptcy <&wkey;>368 — Assignees—Fees op — Additional Compensation.</p> <p>Under Bankr. Act 1867, and General Orders thereunder, assignees in bankruptcy, who performed unusual services and beneficially continued 'the estate for a long time, are entitled to additional compensation; the act contemplating the summary conversion of the estate into money and distribution.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;>868.]</p> <p>9. Bankruptcy <&wkey;368 — Assignees—Compensation.</p> <p>Where the assignees of a bankrupt’s estate, for the purpose of realizing on his vested,’interest in a trust fund, subject to life estates, continued the proceedings for 20’years, during which time they performed considerable services in protecting the claim and at last realized upon it, they are, under amendment to General Order 30 under Bankr. Act 1867, entitled to additional compensation beyond that fixed; this being particularly true, as the course of the assignees was most advantageous to the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;>368.]</p> <p>10. Bankruptcy &wkey;>368 — Assignees—Compensation.</p> <p>In such case, where the assignees, having received the trust fund, successfully resisted an attempt by the majority creditors to remove them and secure the appointment of trustees, the services of the assignees in such particular, being for the protection of the estate generally, were great and unusual, and they were entitled to additional compensation therefor.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. &wkey;>368.]</p> <p>11. Bankruptcy &wkey;>368 — Assignees—Compensation.</p> <p>Where the assignees in good faith sought to secure the expunging of claims, repeated assignments during the long course of years having left the ownership of claims in doubt, they are entitled to additional compensation for services in the matter, though the claims were not expunged.</p> <p>[Ed. Note. — For other cases, see; Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;868.]</p> <p>12. Bankruptcy <&wkey;368 — Proceedings—District Court.</p> <p>In proceeding for the settlement of the accounts of assignees and disposition of their claim for additional compensation, the concurrence of the Circuit Judge in the allowance of extra compensation, provided for by amendment to General Order 30 under Bankr. Act 1867, may be waived by the parties, regardless of the abolition of that court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 571; Dec. Dig. <&wkey;308.]</p>

In Equity. Suit by Fenton E. Grigsby, administrator of the estate of Wana Miller Alexander Stuart, deceased, against Sarah E. Miller and J. O. Hayes.

<p>1. CORPORATIONS &wkey;>636 — Foreign Corporations — Power op State to Regulate.</p> <p>A state has power to prescribe conditions on which foreign corporations are permitted to do business within its limits.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2505-2509, 2571; Dec. Dig. &wkey;636.]</p> <p>2. Commerce &wkey;>69 — Excise Tax on Corporations — Validity op Statute.</p> <p>A state statute, enacted under authority given by-the state Constitution imposing a special excise tax on corporations, both foreign and domestic, for the privilege of doing business, based on their net income from business done within the state, is not unconstitutional, as imposing a burden on interstate commerce, or otherwise invalid because, in case of a corporation doing business and having capital invested within and also without the state, the measure of the tax may be determined partly from income derived from business of an interstate character.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 109, 113-119; Dec. Dig. <&wkey;69.]</p> <p>3. Constitutional Law &wkey;>126 — Obligation oe Contracts — State Law Imposing Excise Tax on Corporations.</p> <p>A corporation of West Virginia takes its charter subject to Code W. Va. 1913, c. 53, § 8 (sec. 2841), which reserves to the Legislature the right to alter or repeal the charter of any corporation, or, any law relating thereto, and the State Corporation Excise Law of May 24, 1915 (Acts 1915, c. 3), imposing a special excise tax upon all corporations for the' privilege of doing business in the state, is not in violation of the federal Constitution, as impairing the obligation of the contracts made with domestic corporations.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 325, 366-369; Dec. Dig. &wkey;126.]</p> <p>4. Constitutional Daw i&wkey;230(3) — Equal Protection or Daws — Excise Tax on Corporations.</p> <p>A state statute, imposing a special excise tax on corporations for the privilege of doing business in the state, is not unconstitutional, as depriving the corporations affected of the equal protection of the laws.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. § 687; Dec. Dig. <&wkey;230(3).]</p> <p>5. Taxation <&wkey;47(4) — Excise Tax on Corporations — Validity or Statute.</p> <p>A statute, imposing a special excise tax on corporations for the privilege of doing business in the state, is not invalid, as requiring payment of a double tax, because the corporations are also subject to a state license tax on their charters.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 108; Dec. Dig. &wkey;47(4).]</p> <p>6. Taxation &wkey;>605 — E'xcise Tax on Corporations — Validity or Statute.</p> <p>A state statute, imposing an excise tax upon corporations, is not invalid because of a provision requiring a corporation, as a condition precedent to the maintenance of a suit to enjoin collection of the tax as excessive, to pay into the treasury the amount of the tax admitted to be due.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1229; Dec. Dig. &wkey;>605.]</p> <p>7. Taxation &wkey;>608(9) — Restraining Enporcehent — Statutory Remedy.</p> <p>Where a state tax statute makes adequate provision for the testing in the courts of the validity of any tax imposed thereunder, claimed to be in violation of the federal or state Constitution, a federal court will not interfere by injunction to restrain its enforcement.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1238; Dec. Dig. &wkey;608(9).j</p>

Habeas Corpus. In the matter of the application of Harold E. Callow, otherwise known as H. E. Callow, for writ of habeas corpus to secure his release from restraint in deportation proceedings.

<p>In Equity. Bill by the United States against the Colorado Power Company, a corporation.</p>

<p>1. Touts &wkey;»12 — Inducing Anotheb to Bbeak Contbact.</p> <p>It is a tort for one person to induce another to break his contract with a third.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 13.]</p> <p>2. Injunction &wkey;>63 — Subject of Relief — Contbact—Inducing Bbeach.</p> <p>Where the defendant insurance company sought to induce another to break its contract with complainant and enter into a contract with it, defendant will be enjoined though the contract involves no distinctly personal relation.</p> <p>3. Injunction <&wkey;136(2) — Subjects of Pbotection — Contbacts—Bbeach.</p> <p>Defendant company, being engaged in the business of financing the sale at retail of automobiles by taking over notes for. deferred payments and advancing money thereon to the dealers who had effected the sales, entered into a contract with complainant to insure the machines for a period of three years, the contract providing that all new automobiles should be insured and that the provisions in the policies with respect to the right of cancellation should be waived. Before the end of the term, defendant repudiated its contract and sought to enter into an arrangement with another insurer to enable it to carry on the .same business. Under the policies issued pursuant to the contract, many adjustments would be necessary, and the second insurer might, if allowed to supplant complainant, adjust its los^ps on a different basis, so that the damages suffered would be almost impossible of ascertainment. Held, that in such case, though defendant would not be guilty of a tort in breaking its contract, a preliminary injunction may be issued to restrain the breach.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 306.]</p> <p>4. Insurance &wkey;>125(2) — Fire Policies — What Law Governs.</p> <p>The laws of the state in which an insurance company writes its policies govern the contracts.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 174.]</p> <p>5. Insurance <&wkey;125(l) — Fire Insurance — Statutes—Construction.</p> <p>Though a contract for the insuring of motor cars was entered into in Ohio, a provision therein waiving the provisions in the policies for cancellation is valid, the insured property not being located in that state; Gen. Code Ohio, § 9577, declaring that an insurance company doing business under the laws of Ohio, which issues policies covering property located therein and on such policies receives cash payments of premium, shall insert in every policy an obligation to cancel it upon the written request of the person insured, only preventing such waiver as to property located in Ohio.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 173.]</p> <p>6. Insurance <&wkey;385 — Fire Policies — Conditions.</p> <p>Gen. St. Conn. 1902, § 3497, filing standard form of policy containing a cancellation clause but authorizing the addition to the policy of separate slips or riders modifying the terms, permitted a Connecticut insurance company which entered into a contract to insure many automobiles, to waive lie cancellation clauses.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1020-1023.]</p> <p>7. Insurance <&wkey;385 — Fire Policies — Cancellation—Agreement.</p> <p>Insurance Law, N. X. (Consol. Laws, c. 28) § 122, declaring that any corporation or company transacting the businqss of fire insurance shall cancel any policy upon the request of the insured or his legal representative, does not prevent an' insurance company, insuring motor cars for the benefit of a company engaged in financing the retail sale* of such cars on credit which received notes for deferred payments, from entering into an agreement waiving the cancellation clauses of the policies; the section not affecting the provision save in so far as it allowed cancellation of the policies by the owners of the cars.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1020-1023.]</p>

<p>In Equity. Suit by the Nulomoline Company against Julius Stro-meyer. On motion for preliminary injunction.</p>

<p>At Law. Action by David Solomon against the Pemisylvahia Railroad Company. On motion to remand to the state court.</p>

<p>At Law. Proceeding by the United States for the deportation of Fong On.</p>

Information of libel by the United States against manufacturing apparatus, oleomargarine, and raw materials of the Western Oleomargarine Company. On demurrer to special plea.

<p>At Law. Action by the Yates Center National Bank against W. H. Lauber.</p>

<p>1. Ba&ks and Banking <&wkey;287(l) — Receivers—Rights of.</p> <p>A receiver of the assets of an insolvent bank has no greater right in obligations payable to the bank than the bank itself.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1126, 1127.]</p> <p>2. Bills and Notes <&wkey;106 — Actions—Illegal Transaction.</p> <p>A note, executed by defendant for accommodation and without consideration to enable bank officials to conceal their defalcations from depositors and governmental inspectors, is tainted with fraud; so, the rights of no innocent purchaser for value having intervened, it cannot be enforced by the bank or its receiver, though the transaction was such that defendant must have known that the purpose of the note was to conceal the bank’s financial condition.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 219, 225-232.]</p>

<p>At Eaw. Action by the Yates Center National Bank, by and to the use of its receiver, against Ferdinand Schaede.</p>

<p>In Error to the District Court of the United States for the District of Kansas.</p> <p>Action by the Yates Center National Bank, by and through and for the use and benefit of A. H. Gillis, as its receiver, against Ferdinand Schaede. There was a judgment for defendant (240 Fed. 240), and plaintiff brings error. Affirmed.</p>

McCall, Judge. Scire facias by the United States against Caruthers Ewing and another. There was a judgment for plaintiff, and tire named defendant brings error. A scire facias, issued to tbe marshal of tbe Western district of Tennessee, was executed by him on Caruthers Ewing, plaintiff in error; tbe other defendant thereto, C. A. Bonds, was not found within tbe district.

<p>Appeal from the District Court of the United States for the District of Porto Rico; Peter J. Hamilton, Judge.</p> <p>Suit in equity by the Fortuna Estates against Rafaela Castillo Veitia and others. From an order granting a preliminary injunction, defendants appeal.</p>

<p>1. Statutes i&wkey;159 — Implied Repeal — Presumptions.</p> <p>Repeal by implication-is not favored and may be lawfully inferred only when the later statute is so repugnant to or inconsistent with the earlier one that it is clear the legislative body must have intended to repeal the former.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 229.]</p> <p>2. Intoxicating Liquors <&wkey;lll — Statutes—Implied Repeal — Fictitious DELIVERIES.</p> <p>Pen. Code (Act March 4, 1909, c. 321, 35 Stat. 1136 [Comp. St. 1913, § 10408]) § 238, making it punishable for an agent of a common carrier to deliver intoxicating liquor shipped in interstate commerce to a fictitious person or to any person under a. fictitious name or to any person other than the consignee except upon the latter’s written order, was not impliedly repealed by Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (Comp. St. 1913, § 8739), which prohibited the shipment of intoxicating liquor in interstate commerce into any state, territory, or district wherever such liquor was intended by any person interested therein to be received, possessed, or sold or used in violation of any law of such state, territory, or district, since the later act contains no provision repugnant to the former act and no provision indicating any intention to repeal the former act.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 121.]</p> <p>3. Statutes <&wkey;162 — Implied Repeal — Special and General Laws.</p> <p>Specific legislation on a particular phase of a subject is not affected by a subsequent law relating to the general subject which neither refers to the earlier law nor is repugnant to nor inconsistent with it.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 235-237.]</p> <p>4. Intoxicating Liquors <&wkey;lll — Statutes—Suspension—Fictitious Delivery.</p> <p>The Webb-Kenyon Act, prohibiting^ shipment of intoxicating liquor in interstate commerce into a state to bá received, sold, or used in violation of a law of the state, did not suspend Pen. Code, § 238, prohibiting agents of a carrier from delivering interstate shipments of liquor to fictitious persons even as to shipments into the state intended to be used contrary to a state statute prohibiting the delivery of liquor intended for sale, since the state statute does not prohibit the fictitious delivery which is the gist of the offense under section 238, and there is no concurrent federal and state jurisdiction over that offense, even if it be conceded that the state could enact a statute covering the offense; and therefore it was not error to exclude evidence offered by one charged with conspiracy to violate section 238 that the liquor intended to be delivered to the fictitious person was intended for sale contrary to the state statute.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 121.]</p> <p>5. Conspiracy <&wkey;27 — Overt Act — Innocent Act.</p> <p>Where a conspiracy had been formed to violate Pen. Code, § 238, by causing an interstate shipment to be made for the purpose of having the agent of the carrier deliver it to a fictitious person, telegraphic orders by one of the conspirators to another directing the shipments to be made are overt acts to effect the objects of the conspiracy within Pen. Code, § 37 (Comp. St.'1913, § 10201), though it was physically impossible-for the agent to make the fictitious delivery until after the shipment had been made, and though such acts would have been innocent apart from the conspiracy.</p> <p>[Ed. Note. — (For other cases, see Conspiracy, Cent. Dig. §§ 38, 39.]</p> <p>6. Habeas Corpus &wkey;>85(l) — Evidence—Presumption—Deportation por Trial — Hearing—Indictment.</p> <p>In habeas corpus proceedings to procure discharge from an order directing petitioners to be taken to another district for trial, allegations of the indictment against petitioners that the overt acts were committed in furtherance of the object of the conspiracy cannot be presumed to be false, in the absence of conclusive evidence in conflict therewith.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78.]</p> <p>7. Habeas Corpus i&wkey;85(l) — Evidence—Sufficiency—Deportation for Trial.</p> <p>Evidence at the hearing before a commissioner who ordered petitioner for habeas corpus to be taken to another district for trial held sufficient to show probable cause that defendant was guilty of the offense charged in the indictment, a conspiracy to causé an agent of an interstate carrier to deliver intoxicating liquors to a fictitious person, so as to justify the refusal of petitioner’s discharge from custody under the mittimus.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78.]</p> <p>8. Habeas Corpus &wkey;>85(l) — Presumptions—Correctness of Findings.</p> <p>On petition for habeas corpus to procure discharge from a commissioner’s order of removal to another district for trial, the commissioner’s finding of probable cause is presumed correct, unless there was no substantial evidence to sustain it.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78.]</p> <p>9. Criminal Law <&wkey;242(5) — Removal for Trial — ^Evidence—Indictment.</p> <p>An indictment charging a criminal conspiracy, introduced in evidence in proceedings before a United States commissioner for removal of defendant to another district for trial, is itself prima facie evidence of probable cause.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 509, 510.]</p>

Suit by the Republic Iron & Steel Company against Benjamin F. Nelson and others. From a judgment for plaintiff, the named defendant appeals. March 18, 1893, the appellant, with others, made to one Azro T. Crossley and others a mining lease on 40 acres of land in Itasca county, Minn., for the term of 50 years from and after the 1st day of April, 1893.

<p>1. Navigable Waters <&wkey;22(l) — Obstruction—Dams.</p> <p>The franchise or privilege of damming hack the waters of a navigable' stream can be granted only by the state.</p> <p>[Ed. Note. — Eor other cases, see Navigable Waters, Cent. Dig. §§ 100-102, 10S-113, 115.]</p> <p>2. Evidence <&wkey;29 — Judicial Notice — Legislative Acts of States.</p> <p>The federal court will take .judicial notice of state legislative .'action making a river within the state a public navigable stream and authorizing the damming of one of its branches.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 43-46, 48.]</p> <p>3. Corporations <&wkey;613(l) — Forfeiture of Eíranchise by Nonuser — Collateral Inquiry.</p> <p>A boom company, incorporated under Act Pa. March 26, 1846 (P. L. 190), constructed a dam across a navigable river under the authority of the supplemental act of December 11, 1866 (P. L. 1867, p. 1535). The latter act required the filing of a bond conditioned to indemnify riparian owners for the flooding of their lands. Long after the construction of the dam, the boom company ceased to conduct the business for which it was incorporated; the company being incorporated to facilitate the rafting of logs from lands reached by the river on which its dam) was located. While the timber of the district was largely exhausted, reforesting was in process. A riparian owner sued for damages for the flooding 0⅞ his land; the state having refused to institute proceedings for the forfeiture of the company’s franchise. Held that, as it must be presumed that riparian owners were indemnified for the flooding of their lands, no recovery could be had, for it could only be based on a theory of the forfeiture of the boom company’s franchise, which question could not be collaterally raised by private individuals.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2431-2434.]</p> <p>4. Courts <&wkey;365 — Federal Courts — Precedence.</p> <p>While the federal court having jurisdiction in a particular state is an independent forum, and distinct from' that of the state, yet it administers no different law than that administered by the state courts, and in a question involving state public policy should defer to the decisions of the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 969-971.]</p>

Boyd, Judge. Action by the Standard Trust Company of New York and another against the Commercial National Bank and another. Judgment for the defendants, and plaintiffs bring error.

<p>Petition to review and revise an order of the District Court of the United States for the Western District of Wisconsin.</p> <p>In the matter of the bankruptcy proceedings of the Valecia Condensed Milk Company and of the Footville Condensed Milk Company. Petition by A. J. Myrland against Paul S. Warner, as trustee, and others, to review an order of the District Court committing petitioner for contempt for refusing to produce certain documents in response to a subpoena duces tecum.</p> <p>In the bankruptcy proceedings of two bankrupt corporations, petitioner, the secretary of the Wisconsin tax commission, was served with a subpcena to appear before the referee to testify, and there to produce all reports, correspondence, certificates, and documents in possession of the commission relating to the bankrupts, and of another corporation, also a bankrupt. He appeared and testified that the only papers of the kind mentioned in the sub-pcena in the possession of the commission were the income tax returns of such respective corporations, as were made ahd returned to the state tax commission in pursuance of the statute of the state, and that the statute prohibited him from permitting such income tax returns to be examined by any person, and he refused to produce them. Thereupon his refusal was reported to the court, and a rule was entered requiring him to show cause why he should not he held in contempt. In his answer to the rule he again set up' the inhibition of the Wisconsin statutes against producing such income returns, and asked to be excused from producing same. The court held him guilty of contempt, and ordered him committed until he should produce the returns. The petition to review and revise the order of the District Court raises the question whether the court has power to compel the production of such income returns.</p> <p>The Wisconsin statute (section 1087ml et seq.) requires corporations annually to make out and present to the tax commission a return under oath, answering all questions propounded by the commission with reference to the corporate affairs for the year preceding, for the purpose of enabling the commission to assess (he annual income tax which the corporation is by statute required to pay. The act1 (set out in the margin), under which the particular question here arises, provides that no commissioner or clerk or agent shall divulge or make known to any person “in any manner except as provided by law” any information obtained in the discharge of official duties, or permit any income return to be seen or examined “except as provided by lawand that any such officer, etc., violating such provision shall be fined from $100 to $500, or imprisoned not exceeding 2 years, and shall forfeit his employment, and for 3 years thereafter be incapable of holding public office.</p>

<p>Master and Servant &wkey;>13 — Hours or Service — “Permit.”</p> <p>Hours of Service Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (Comp. St. 1913, § 8678), declares that it shall be unlawful for any common carrier, its officers or agents, subject to the act, to require or permit any employs subject to the act to be or remain on duty for a longer period than 16 consecutive hours, while section 3 (Comp. St. 1913, § 8679) provides that in all prosecutions under this act the common carrier shall he deemed to Rave Rad knowledge of all tRe acts of its officers and agents. TRe legislative history of tRe act sRowed tRat Congress defeated proposed amendments to insert the word “knowingly” before “permit,” and in tRe provision that tRe common carrier should be deemed to Rave knowledge of all tRe acts of its officers and agents inserted tRe words “officers and” in lieu of tRe words “duly authorized,” which on the first draft preceded “agents.” An engineer and fireman whose train Rad broken in two and who took the first part of the train into a station, from whence another engineer and fireman with another engine were sent to bring in the remaining part of the train, delayed for several hours in placing their engine in the roundhouse and going off duty, although their duties were at an end and the rules of the railroad company required them to see that they did not exceed the hours of service prescribed. Had such engineer and firem'an promptly placed their engine in the roundhouse and gone off duty, they would not have been on duty more than 16 hours. Held, that, in view of the history of the passage of the act and the fact that the railroad company was charged with the knowledge of the engineer and fireman who neglected to place their engine in the roundhouse and go off duty, the railroad company must be deemed to have violated the Hours of Service Act by permitting such employés to remain on duty beyond the time prescribed; the word “permit,” while ordinarily implying knowledge and consent, being also synonymous with “suffer” or “allow” (citing Words and Phrases, First and Second Series, Permit).</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 14.]</p>

<p>In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.</p> <p>J. Knox Greer was convicted of carrying liquors into what was formerly Indian Territory from without the state of Oklahoma, in violation of Act March 1, 1895, and he brings error.</p>

<p>1. Courts &wkey;>493(3) — Federal and State Courts — Priority oe Jurisdiction.</p> <p>Where plaintiff had first instituted a suit in the state court in which judgment had been given to defendant, but findings had not yet been filed or judgment entered, the trial of a subsequent suit in the federal court for the same relief was properly postponed until after the judgment should be entered in the state court, and mandamus will not issue to compel the lower federal court to proceed to trial in that suit; since, where a. state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. §§ 1349-1352.]</p> <p>2. Courts <&wkey;493(3) — Federal and State Courts — Priority oe Jurisdiction —Eeeect oe Pendino Suit.</p> <p>The pendency of a prior suit in another jurisdiction is not a bar to a suit for the same cause of action in a federal court, but its pendency is pleadable in abatement, to a second action, if the actions are in courts of the same state.</p> <p>[Ed; Note. — For other cases, see Courts, Cent. Dig. §§ 1349-1352.]</p> <p>3. Courts <&wkey;500 — 'Federal and State Courts — Priority oe Jurisdiction— —Appointment op Receiver.</p> <p>Where the state court in a suit to quiet title had appointed a receiver who was in possession of the property, the validity of that appointment cannot be collaterally attacked, and the possession of the property vests in the state court jurisdiction to determine the issues relating thereto,- and prevents the exercise of like jurisdiction by the federal court in a subsequent suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1407, 1408.]</p>

<p>1. Master and Servant <&wkey;276(3) — Injuries to Servant — Question for Jury —Proximate Cause oe Accident.</p> <p>In an action for injuries to a mine employé, caused by a collision between the car on which he was riding and a car which had become uncoupled from it and derailed, evidence held sufficient to warrant the jury in finding that the uncoupling of the car was the proximate cause of the derailment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959.]</p> <p>2. Master and Servant <&wkey;278(10) — Injuries to Servant — Evidence—Negligence — Defective Appliances.</p> <p>In an action for injuries to a mine employé, evidence held sufficient to warrant the jury in finding that the coupling hook on a car was defective, and had been so long enough to raise a duty on the part of the employer to repair it, though there was no direct evidence of such defect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 964.]</p> <p>3. Master and Servant <&wkey;2S9(22) — Injuries to Servant — Evidence—Con- ' tributory Negligence.</p> <p>In an action for injuries to a mine employé, working as brakeman on 'tbe mine cars, evidence held not to show as a matter of law that plaintiff was contributorily negligent in failing to discover a defective coupling book on one of tbe cars.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1113.] On Motion for Rehearing.</p> <p>4. Courts &wkey;5280 — Jurisdiction—Proof—Admitted Allegations.</p> <p>Where tbe allegations of the declaration, not put in issue by answer, are sufficient to show jurisdiction of the federal court, no proof to establish such jurisdiction is necessary.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 816-818.]</p> <p>5. Removal of Causes <&wkey;86(3) — Diversity of Citizenship — Petition—Citizenship oe Corporation.</p> <p>An allegation that defendant corporation was a citizen' of a state other than the state of plaintiff’s citizenship, residing in that state, with no allegation that it was organized under the laws of that state, is insufficient to sustain the federal court’s jurisdiction after removal.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. § 171.]</p> <p>6. Removal of Causes &wkey;jl03 — Remand — Amendment — Amendment by Plaintiff.</p> <p>Where an action against a corporation was removed to the federal court by defendant, but the petition was defective for failing to allege that the corporation was organized under the laws of the state of which it claimed to be a citizen, which objection was raised by defendant after judgment for plaintiff had been rendered, the defect may be cured by amendment, and the judgment, but not the verdict, will be reversed, and the cause remanded, with directions to re-enter the judgment, if the plaintiff amends his declaration and establishes the organization of the corporation.</p> <p>[Ed. Note. — Eor other cases, see Removal of Causes, Cent. Dig. § 221.]</p>

Josiah T. Hair and another were convicted for use of the mails in the execution of a scheme and artifice to defraud, and they bring, error. Defendants (plaintiffs in error) were each sentenced to three months’ imprisonment and to pay a fine of $2,500 upon conviction for use of the mails in execution of an alleged scheme and artifice to defraud.

<p>1. Corporations- <&wkey;>474 — Bonds—Consideration—Pledge por Loan.</p> <p>Bonds of a corporation, pledged by it as collateral security for a loan equal to the par value of the bonds, are issued for more than 75 per cent, of their face value, so as not to be void under St. Wis. 1915, § 1753, providing that no corporation shall issue any bonds, except for money or labor or property, estimated at its true money value, equal to 75 per cent, of the par value thereof.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1854.]</p> <p>2. Corporations &wkey;s474 — Bonds—Consideration—Pledge—Power op Sale.</p> <p>The fact that a pledge of corporate bonds to a bank as security for a loan to the corporation equal to the face value of the bonds authorized the bank to sell the bonds, without expressly stipulating that they should not be sold for less than 75 per cent, of their face value, does not make the bonds void under St. Wis. 1915, § 1753, forbidding a corporation to issue bonds for less than 75 per cent, of the par value thereof, though none of the bonds were returned when payments were made on the loan, where the bank made no attempt to take advantage of its possession of the bonds before the bankruptcy of the corporation, and thereafter offered to return to the trustee all except an amount which at 75 per cent, of their par value equaled the amount still due on the loan, since it will not be presumed that the bank intended to violate the law, and an agreement to deal with the bonds in a legal manner will be Implied.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1854.]</p>

Appeals from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Four separate deportation proceedings by the United States against Chin Hung, against Young Sing Hong, against Yuen Yuen, and against Young Toy. From orders of the District Court for deportation of the defendants, they appeal.

<p>1. Prostitution <&wkey;4 — White Slave Act — Evidence—Procuring Transportation.</p> <p>Where a girl, who had become pregnant by defendant, requested him to procure a place where she could go and await confinement, and he made arrangements for her to go to a place in another state, and gave her more than enough money for her ticket, and thereafter met her on the train and accompanied her to her destination, purchasing her ticket from Washington to her destination, though she had purchased her own ticket to Washington, the jury could find that defendant procured her transportation, within White Slave Act June 25, 1910, c. 395, 36 Stat. S25.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4.]</p> <p>2. Prostitution <§=»1 — Interstate Transportation — “Debauchery.”</p> <p>In the White Slave Act, making it an offense to. procure the interstate transportation of a girl for the purpose of prostitution and debauchery,1 “debauchery” is not limited to the meaning of seduction, which would require proof that defendant procured the transportation in order that he might more surely, more readily, or inore safely induce her to yield to his wishes, but includes a purpose to expose her to such influence as will naturally and inevitably so corrupt her character as to lead her to acts of sexual immorality, or, if she is already a sexually corrupt woman, a purpose that she shall engage or continue more or less habitually in sexually immoral practices.</p> <p>[Ed. Note. — For otter cases, see Prostitution, Cent. Dig. §§ 1, 2.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Debauch.]</p> <p>3. Ceiminal Law <&wkey;115&(2) — Review—Verdict of Jury.</p> <p>An appellate court cannot, at the instance of a convicted person, substitute its judgment for that of the jury, when there is anything in the evidence upon which a rational mind might arrive at the conclusion the jury did.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3075.]</p> <p>4. Prostitution <&wkey;l — Transportation—Purpose.</p> <p>A man who procured the interstate transportation of a girl, with whom-he had had intercourse whenever he sought it during the past three years, for the purpose of procuring a place where she could remain until after her confinement, cannot be convicted under the White Slave Act, though he accompanied her and anticipated that he would have intercourse with her after she left the state, if such anticipation played no part in inducing him to procure the transportation.</p> <p>[Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2.]</p> <p>Woods, Circuit Judge, dissenting.</p>

<p>1. Post Office <&wkey;>4, 44 — Order op Department — Private Boses — Criminal Oeeense.</p> <p>Criminal Code (Act March 4, 1909, c. 321, § 194, 35 Stat. 1125 [Comp. St. 1913, § 10364]), imposes a punishment on any one who buys or receives any article, knowing it to have been taken from a letter stolen from an authorized depository for mail matter. Rev. St. § 161 (Comp. St. 1913, § 235), authorizes the head of each department to prescribe requirements not inconsistent with law for the government of his department, and the preservation of the records, papers, and property appertaining to it. An order of the Post Office Department provides that any letter box or other receptacle intended for the receipt or delivery of mail matter on any delivery route is designated a letter box for the receipt or delivery of mail matter, within the meaning of the Criminal Code. Held,, that the order was within the authority given the Postmaster General, and was not invalid as an attempt to enact a criminal law, so that a person may be convicted for receiving checks, knowing them to have been taken from letters stolen from private boxes attached to residences and apartment houses for the receipt of mail.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §.§ 3, 60, 61.]</p> <p>2. Post Office <&wkey;19 — Mail—Rights oe United States — “Property.”</p> <p>Mail is “property” within Rev. St. § 161 (Comp. St. 1913, § 235), authorizing the head of each department to^prescribe regulations for the preservation of the property appertaining to the department, and belongs for certain purposes to the United States.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 25.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Property.]</p> <p>3. Post Oepice &wkey;>l — Mail—Powers of Congress.</p> <p>Congress has full power to legislate concerning the mail, under its constitutional power to establish post offices and post roads.</p> <p>[Ed. Noté. — For other cases, see Post Office, Cent. Dig. § 1.]</p> <p>4. Witnesses &wkey;>48(l) — Competency—Previous Conviction.</p> <p>In a prosecution in the federal courts for crime, one who had been previously convicted in the state court of an infamous crime is a competent witness, though he would not have been at common law, and there is no act of Congress changing that rule.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1091, 110, 113.]</p>

<p>Appeal from the District Court of the United States for the Western District of Texas; William B. Sheppard, Judge.</p> <p>In the matter of the estate of Joseph De Bona, bankrupt. From a decree of the District Court, sustaining an order of the referee which denied the claim of the Border National Bank against C. C. Coupland, as trustee, for a secured claim, the claimant appeals.</p> <p>The petition to have Joseph De Bona adjudged a bankrupt was filed April 1, 1916. The Border National Bank (which will be called the Bank) presented, and prayed to have allowed as a secured claim, a mortgage, dated and executed February 17, 1916, and recorded the next day, by De Bona to it of seven described automobiles, which was given to secure a note of the same date for $5,500 and interest, payable May 17, 1916. The averments of the petition presenting the claim! and the evidence in support thereof showed that the $5,500 for which the note and mortgage were given was the balance then owing on an indebtedness of De Bona to the Bank, created in the following manner: On October 12, 1915, De Bona borrowed from the Bank $3,000, giving as security a mortgage on four automobiles. This mortgage was duly recorded. In November, 1915, one of the mortgaged automobiles was sold for $695, and that amount was applied as a credit on the secured note, reducing that indebtedness ^to $2,305. On December 1, 1915, four automobiles were shipped to De Bona, and a draft with a bill of lading attached for their price, $3,095.-16, was sent to the Bank for collection. To secure the money to pay the draft, so that he could get the bill of lading and the cars, De Bona borrowed the amount of the draft from the Bank, giving his note due in 60 days, and agreeing that the four cars called for by the bill of lading and also the three unsold cars covered by the mortgage of October 12, 1915, stand as security, and that a lien exist thereon for the indebtedness created October 12th and that created December 1st. One of the automobiles so acquired on December 1st was sold on December 6, 1915, and the amount received for it was applied on the last-mentioned note. There was a similar transaction between De Bona and the Bank on January 4, 1916, when another automobile was shipped to De Bona, and a draft for its price with bill of lading attached was drawn on him.</p> <p>The trustee excepted to so much of the Bank’s petition as set out the verbal agreements and understandings accompanying the transactions of December 1, 1915, and January 4, 1916, and objected to the evidence .offered to prove such agreements and understandings, upon the following grounds:</p> <p>“First. Because to allow verbal testimony of such detailed account of past transactions or declarations would, in effect, tend to vary and change and add to the terms of the chattel mortgage of February 17, 1916, under which petitioner seeks to have his claim allowed as a valid secured claim.</p> <p>“Second. Because under the provisions of the Bankruptcy Act the trustee occupies, as to all the property coming into his possession, the position of a lien creditor, and any prior verbal understandings or agreements had with th,e bankrupt or any declarations made by him would not be binding upon this trustee, nor would any such testimony be admissible against him for the purpose of affecting his title to such property.</p> <p>“Third. Such testimony is wholly irrelevant and immaterial, to any issue in the case.”</p> <p>These exceptions and objections were sustained by the referee. The trustee objected to the allowance of the Bank’s claim as a secured claim on the grounds that the mortgage constitutes a preference prohibited by the Bankruptcy Act and that it was void under article 3970 of the Revised Civil Statutes of Texas. Evidence adduced before the referee was to the following effect:</p> <p>As De Bona acquired the automobiles covered by his written and verbal mortgages to the Bank, he placed them in the front part of his store in Eagle Pass,, in which he conducted a general brokerage business, handling automobiles, automobile accessories and parts, automobile tires, buggies, etc. None of the automobiles mortgaged to the Bank were sold by De Bona or any of his assistants without De Bona first consulting the Bank and getting special authority from it to sell that car. He was permitted to demonstrate the cars whenever he had a prospective purchaser, but he had no authority from the Bank to make sales which would confer on the purchasers title unincumbered by the Bank’s lien. The sales which were made were specially .authorized by the Bank, and the amounts realized on such sales were paid to the Bank and applied on the secured debt The referee held that the mortgage of February 17, 1916, was void under article 3970 of the Revised Civil Statutes of Texas, disallowed the Bank’s claim! as a secured claim, and allowed it as an unsecured claim.</p> <p>The Bank appeals from a decree of the District Court which affirmed the order of the referee.</p>

<p>On application of Dora Finley, formerly Dora Patterson, to modify the court’s opinion and decree.</p>

<p>1. Appeal and Error <&wkey;209(l) — Review—Questions Presented.</p> <p>Rev. St. §§ 649, 700 (Comp. St. 1913, §§ 1587, 1668), made applicable to District Courts by Judicial Code (Act March, 3, 1911, c. 231) §§ 289-291, 36 Stat. 1167 (Comp. St. 1913, §§ 1266-1268), declaré that issues of fact in civil cases may be tried and determined by the court without the intervention of jury, whenever the parties or their attorneys of record file with the clerk a written stipulation waiving a jury, the finding of the court, which may be either general or special, having the same effect as the verdict of the jury, and that, when an issue of fact in any civil cause is tried and determined by the court without the intervention of a jury, the rulings of the court in the progressi of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, m'ay be reviewed upon writ of error or upon appeal, and when the finding is spe^ cial the review may extend to the determination of the sufficiency of the facts found to support the judgment. In an action tried to the District Court without a jury, plaintiff in error, the defendant below, made no objections and reserved no exceptions to- the introduction of evidence, and made no motion or request for special findings of fact. Helé, that assign- • ments of error that the court did not make findings of fact and conclusions of law covering the issues presented by the pleadings that there was no evidence and insufficient evidence to justify the findings of fact cannot be reviewed, for where a-jury is waived, and the court chooses to find generally for one side or the other, the losing party has no redress on error, except for the wrongful admission or rejection of evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1290.]</p> <p>2. Appeal and Error <5&wkey;977(l) — New Trial <S&wkey;6 — Circuit Court or Appeals — Review.</p> <p>A m'otion for new trial is addressed to the sound discretion of the lower court, and cannot be reviewed by the Circuit Court of Appeals on writ of error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3860; New Trial, Cent. Dig. §§ 9, 10.]</p> <p>3. Courts <&wkey;405(17) — Circuit Court of Appeals — Review—Assignments or Error.</p> <p>Rules 11 and 24 for the Circuit Courts of Appeals (150 Fed. xxvii, xxxiii, 79 C. C. A. xxvii, xxxiii), both providing that errors not specified according to the rules will be disregarded, but thát the court at its option may notice a plain error not assigned or specified, apply to the assignment of errors in the Circuit Court of Appeals, and do not warrant the review in an action tried to the court of matters not reviewable under Rev. St. § 700, because not presented below.</p>

Foster, Judge. Application by Lee Wong Hin against John P. Mayo, Commissioner of Immigration, Port of New Orleans, for a writ of habeas corpus. From an order of the District Court dismissing the petition, petitioner appeals. Reversed and remanded, with directions.

<p>In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.</p> <p>Action by the Atlantic Coast Realty Company against Wirt Robertson. Judgment for defendant on demurrer to plaintiff’s bill, and plaintiff brings error.</p>

Munger, Judge. Action by Morris W. Folsom, as administrator of the estate of Harry D. Pettengill, against Miller & Paine, a corporation, to have determined compensation due to dependents of deceased, in which the Otis Elevator Company was made a party defendant on the cross-petition of Miller & Paine.

Booth, Judge. Action by George A. Hormel & Co. against the Chicago, Milwaukee & St. Paul Railway Company to enforce an award of reparation made by the Interstate Commerce Commission. Judgment for the plaintiff, and defendant brings error.

Booth, Judge. Separate suits by George A. Hormel & Co. against the Chicago, Milwaukee & St. Paul Railway Company and another to enforce awards of reparation made by the Interstate Commerce Commission. Separate judgments were rendered in favor of plaintiff against each defendant, and a joint judgment was rendered against both for attorney’s fees, and defendants bring error.

<p>In Error to the District Court of the United States for the District of Minnesota; Wilbur F. Booth, Judge.</p> <p>Suit by George A. Hormel & Co. against the Chicago Great Western Railroad Company. Judgment for the plaintiff, and defendant brings error.</p>

<p>1. Master and Servant &wkey;>315 — Liability to Third Persons — Duty to Keep Premises Safe.</p> <p>The general rule that a person is not liable for injury caused by another’s negligence unless the relation of master and servant existed between them, the negligence of an independent contractor not rendering the contractee liable, does not apply where the law imposes upon the employer or contractee the duty to keep the subject of the work in a safe condition.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244^-1253, 1255, 1256.]</p> <p>2. Words and Phrases — “Independent Contractor.”</p> <p>An “independent contractor” is one who has the general control of the work with the right to determine what shall be done and the manner of doing it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.]</p> <p>3. Master and Servant &wkey;>315 — Liability to Third Persons — Owner of Building — Delegation of Duty.</p> <p>The ownership of a building imposes on the owner the duty of preventing its injuring another person or his property rightfully upon or near to it so far as the exercise of ordinary care will enable it to be done,-and his liability for failure to perforin the duty cannot be escaped by his intrusting the performance of it to another, though he was free from negligence in selecting the persons to perform it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1241, 1244r-1253, 1255, 1256.]</p> <p>4. Negligence <&wkey;44 — Owner of Building — Lightning.</p> <p>The owner of a building which had been injured by fire leaving a dangerous wall standing is liable for injuries to an adjoining owner caused by a fall of the wall when struck by the lightning, if a reasonably prudent person would have anticipated that the wall, in the condition it was was liable to fall as the result of a stroke of lightning.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig..§ 59.]</p>

<p>Aliens <@=351 — Grounds for Deportation — Practicing Prostitution — Construction of Statute.</p> <p>In the provision of Immigration Act Feb. 20, 1907, c. 1134, § 3, 34 Stat. 899, as amended by Act March 26, 1910, c, 128, § 2, 36 Stat. 264 (Comp. St. 1913, § 4247), for the deportation of “any alien who shall be found * * * practicing prostitution after such alien shall have entered the United States,” the words “after such alien shall have entered the United States” should be construed as though they read “while such alien is in the United States,” and the provision applies to all alien women whether they came into the United States at a port of entry, or by the annexation of the land in which they lived, as in case of alien residents of Hawaii at the time of its annexation.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 111.]</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii; S. B. Dole, Judge.</p> <p>Habeas corpus by Sui Joy, by Wong Yuen, and by Ching Turn. From orders discharging petitioners, the United States appeals.</p>

Boyd, Judge. In the matter of the Worth Manufacturing Company, bankrupt. From a decree of the District Court permitting Marshall Field & Co. to recover from the estate interest on certain bonds pledged as security, Hal M. Worth and others appeal, and also file a petition to superintend and revise.

Action by Helen Adelaide Wicker against the TEÍtna Life Insurance Company. Judgment for’ the plaintiff, and defendant brings error.

Petition for Revision of Proceedings of the District Court In the matter of P. McGarry & Son, bankrupts. From an order of the District Court sustaining the demurrer of the Central Trust Company of Illinois, trustee in bankruptcy, to the'petition of the American Bonding Company of Baltimore and others, asserting their right to have their claims paid out of a fund in the hands of the trustee prior to all other creditors, the petitioners appeal.

Bean, Judge. O. E. Gernert was convicted of conspiring with other persons to use the mail in furtherance of a fraudulent scheme, and he brings error.

Elliott, Judge. In the matter of the Dakota Plow & Wagon Company, bankrupt. From a' decree of foreclosure of a mortgage upon the property of the bankrupt given to secure its bonds, in which decree the bonds held by W. H. Uyon were declared void. On the objection of John P. Bleeg, trustee in bankruptcy, the bondholder appeals.

Dyer, Judge. Lee Mow Lin and others were convicted of violating Act Jan. 17, 1914, by engaging in the business of manufacturing opium for smoking purposes without having given the bond required by law of manufacturers of opium for smoking purposes, and they bring error. Reversed, and new trial awarded. 4

Petition to Superintend and Revise, in Matter of Raw, Proceedings of the District Court of the United States for the Western District of Virginia, at Roanoke, in Bankruptcy; Henry Clay McDowell, Judge. In .the matter of the Hobbie Company, bankrupt; F. J. Pleazel,. trustee. On petition by the American Piano Company to superintend and revise in matter of law an order of the District Court permitting.

<p>Iri Error to the District Court of the United States ‘for the Northern District of West Virginia, at Wheeling; Alston G. Dayton, Judge.</p>

<p>1. Cbiminal Law <&wkey;265 — Indictment and Information <&wkey;139 — Plea in Abatement — Motion to Quash — Delay in Filing.</p> <p>Objections made on the day the case was called for trial by motions to abate the prosecution and to guasb the indictment, which stated facts ■ sufficient to constitute the offense, were properly overruled ¿s not having been made with due promptness.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 616, 617; Indictment and Information, Cent. Dig. § 473.]</p> <p>2. Criminal Law &wkey;>1036(8) — Appeal—Presenting Questions 'Below — Exceptions' — SUETTCIENCY OP EVIDENCE.</p> <p>The question of the sufficiency of the evidence to support the charge made by the indictment is not presented for review, where no exception -was reserved to a ruling of the court thereon.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2641.]</p>

A. Youmans, Judge. In the matter of A. A. Gregory, bankrupt. From an order of the District Court, reversing tire referee’s order in setting off a homestead claimed by the bankrupt as exempt, over the objections of L. H. Pritchard, trustee in bankruptcy, and others, the bankrupt appeals.

<p>1. Patents <&wkey;328 — Invention—Automobile Doob.</p> <p>• The England patent, No. 1,008,805, for a door for automobiles, held void for lack of invention.</p> <p>2. Patents &wkey;>17 — Invention—Peoduct Made by New Method.</p> <p>A product, the making of which by manual operations involved only the ordinary skill of the artisan, is not patentable because invention was involved in making it by machinery.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §,§ 16, 17.]</p>

<p>Patents <&wkey;328 — Validity—Window Cooling Box.</p> <p>The Morse & Lucas patent, No. 906,545, for improvements in adjustable cooling boxes, intended for use in windows, is void for lack of novelty and invention.</p>

<p>L Patents <&wkey;328 — Invention—Ice Cbeam Fbeezeb.</p> <p>The Boeder and Schantz patent, No. 921,837, for an ice cream freezer, held void for lack of patentable invention.</p> <p>2. Patents <&wkey;26(2) — Invention—Combination of Old Elements.</p> <p>While a combination of old elements may be patentable, it is only so if the old elements have been so combined as to operate in a new way or to produce a new and useful result.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 29.]</p>

<p>In Equity. Suit by the Corona Chemical Company against the Eatimer Chemical Company.</p>

<p>1. Chattel Mortgages <S&wkey;92 — Validity-—Creditors.</p> <p>A chattel mortgage, though invalid as to the mortgagor’s creditors under the New Jersey Chattel Mortgage Act (1 Comp. St. 1910, p. 463), is valid as between the immediate parties to the mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 152.]</p> <p>2. Insurance &wkey;>581 — Fire Policies — Proceeds—Right to.'</p> <p>A chattel mortgagee, whose mortgage was invalid as to creditors of the mortgagor, insured his interest in the mortgaged property against fire; the policy providing that the loss, if any, should be payable to the mortgagee. A fire occurred within less than four months of the bankruptcy of the mortgagor and the mortgagor’s trustee in bankruptcy claimed the proceeds of the policy. Held that, as an insurance policy is a personal contract of indemnity between the insurer and -the insured, and in the absence of any equitable lien, the proceeds will pass only to those for whom provision is made in the contract or their assignees, the trustee in bankruptcy was not entitled to the proceeds of the policy, though the chattel mortgage was invalid as to the bankrupt’s creditors, and so was subject to attack by the trustee, for the mortgage was valid as between the mortgagee and mortgagor, and the policy only, insured the mortgagee’s interest.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1444-1447J</p> <p>3. Bankruptcy &wkey;>143(ll) — Fire Policies — Insurable Interest.</p> <p>In such case, the trustee in bankruptcy could not obtain the proceeds of the policy on the ground that the invalidity of the mortgage deprived the mortgagee of an insurable interest, for that defense could be raised only by the insurance company.</p> <p>4. Bankruptcy <i&wkey;143(ll> — Right to Proceeds — Mortgagee. ,</p> <p>Where a chattel mortgage was taken in the name of another for the benefit of the actual mortgagee, and the nominal mortgagee admitted that he was only a trustee, the mortgagor’s trustee in bankruptcy is not entitled to the proceeds of the policy on that ground.</p> <p>5. Payment <&wkey;>39(6) — Application.</p> <p>The bankrupt, after giving a bank a chattel mortgage as collateral security, incurred further indebtedness to the bank. Thereafter a portion of the bankrupt’s property was destroyed by fire, and it assigned to the bank all sums to be due on fire policies. There was no direction that the bank should apply such sum on the indebtedness secured by the chattel mortgage, and it applied the recovery to the unsecured indebtedness; the parties treating the mortgage as still existent. Held, that the indebtedness secured by the chattel mortgage could not be treated as satisfied, so that the trustee of the bankrupt would, the bank having subsequently insured its interest in the mortgaged property and another fire having occurred, become entitled to the proceeds under the second policy.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 111.]</p> <p>6. Bankruptcy <&wkey;228 — Pboceedings—Review.</p> <p>On petition to review an order of the referee in bankruptcy, a matter not disposed of by him1 cannot be considered.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 387.]</p>

■ In Bankruptcy. In the matter of the Copiag-Lindenhurst Company, bankrupt. On return of order to show cause, on petition of the trustee in bankruptcy, why the trustee should not be authorized and directed to sell, free and clear of all liens, claims, and incumbrances whatever, the real property of the said bankrupt, known as Copiag farm,' situate in the town of Babylon, Suffolk county, N. Y., notwithstanding a prior sale by the now bankrupt corporation.

<p>1. Bankruptcy &wkey;>76(3) — Petition—Right of Creditor.</p> <p>A creditor, who has assented to an assignment by his debtor, may not thereafter file an involuntary petition in bankruptcy against the debtor, based on such assignment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 97.]</p> <p>2. Bankruptcy <&wkey;76(3) — Involuntary Petition — Right of Creditors.</p> <p>Where a creditor assented to an assignment by his debtor, which made no attempt to follow the sta^e law relating to assignments for Benefit of creditors, the creditor cannot, on the ground that the assignment was not recorded and no inventory filed in accordance with the state law, escape tlie effects of Ms assent, and file a petition in involuntary bankruptcy against tbe debtor, based on tbe assignment.</p> <p>[Ed, Note. — For other cases, see Bankruptcy, Cent. Dig. § 97.]</p>

<p>1. Shipping <&wkey;41 — Charter—Demise of Vessel.</p> <p>A. time charter of a tug,, by which the charterer acquires the exclusive possession, command, control, and navigation of her, is a demise, which mates the charterer owner pro hac vice during the charter term.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 149-155.]</p> <p>2. Salvage <&wkey;38 — Services Rendereb by Chartered Vessel — Apportionment of Award.</p> <p>As between charterer and owner, even when the charterer was owner pro hac vice under a demise, the determination of the question as to who is entitled to the owner’s share of salvage money, awarded for the risk to the vessel, depends both upon who is entitled to the vessel’s services and earnings, and upon whom the loss would fall if the- vessel had been injured or lost in the salvage operations.</p> <p>[Ed. Note. — For other eases, see Salvage, Cent. Dig. §§ 93-102.]</p> <p>3. Shipping &wkey;>54 — Demise by Charter — Liability of Charterer for Injury to Vessel.</p> <p>A charterer under a charter which is a demise, in the absence of provisions in the charter party to the contrary, is only responsible for loss of or injury to the chartered vessel in the event that the injury or loss was due to the failure to exercise ordinary care on his part or that of his servants.</p> <p>[Ed. Noté. — For other cases, see Shipping, Cent Dig. §§ 219-221.]</p> <p>4. Shipping <&wkey;54 — Charter—Liability roe Injury to Vessel.</p> <p>If a vessel under charter is lost or injured when being used by the charterer for a purpose other than that for which she was chartered, the charterer is liable.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 219-221.]</p> <p>5. Salvage <&wkey;38 — Services Rendered by Chartered Vessel — Distribution oe Award.</p> <p>A time charter of a tug, which was a demise, contained no provision ''requiring redelivery of the tug in as good condition as when received, but provided that in case it was used for trips to a named port outside of New York Harbor the charterer should procure insurance, or if that could not be obtained should give a bond to protect the owner from loss or damage to the boat “while on this work.” Held, that the charter did not preclude the use of the tug for any ordinary purpose, including use for a salvage service, in New York Harbor, nor was the rendition of such a service a failure to exercise ordinary care, which cast upon the charterer all the risk of injury to the tug, but that such risk rested upon the owner, which was therefore entitled to some part of the salvage money awarded for risk to th'e boat while engaged in such service, while the charterer, having the right to the service and earnings of the tug, was also entitled to a part.</p> <p>[Ed. Note. — For other eases, see Salvage, Cent. Dig. §§ 93-102.]</p> <p>6. Salvage <&wkey;38 — Apportionment op Award — Share op Crew.</p> <p>The crew of a tug which salved the cargo of a scow, consisting of large caliber ammunition and high explosives, which rendered the service extrahazardous, held entitled to one-third of the salvage award.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102.]</p> <p>7. Salvage &wkey;>38 — Apportionment op Award — Crew’s Share.</p> <p>The fact that the captain of a tug demised to a charterer was entitled to a share of the charterer’s part of a salvage award held) not to deprive him of the right to share also in the award to the crew.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102.]</p> <p>8. Salvage <&wkey;38 — Apportionment op Award — Passenger.</p> <p>One who at the invitation of the captain was on board a tug at the time of the rendition of salvage services, but who was not a member of the crew and performed no service, held not entitled to any part of the crew’s share of the salvage award.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 93-102.]</p> <p>9. Attorney and Client <®=o150 — Discharge op Attorney — Contract por Division op Recovery.</p> <p>Under the law of New York, which prevails in the federal courts sitting in that state, an attorney, although having a contract to conduct 'a case to an end for a certain share of any amount which he may recover, may be discharged by his client at any time without cause, and in such case is entitled only to the reasonable value of the services rendered.</p> <p>. [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 364r-357.]</p>

In Bankruptcy. In the matter of J. A. Elias, bankrupt. Proceeding in contempt against the bankrupt for failure to obey an order of the referee to deliver to the trustee property found by the referee to be in the possession or under the control of the bankrupt.

At Law. -Action by Dr. Wayne L. Stillman against the .¿Etna Lift Insurance Company. Judgment for plaintiff.

<p>In Bankruptcy. In the matter of the Georgia Steel Company, bankrupt. On petition of the Georgia Iron & Coal Company and others-against O. T. Peoples, as trustee in bankruptcy, to review an order of the' referee disallowing petitioner’s claim against the estate.</p>

In Equity. Separate suits by the Nevada-California Power Company against Joseph Hamilton, as Treasurer and ex officio Tax Receiver of the County of Esmeralda, in the state of Nevada, and others, and against Nathaniel K. Franklin, as Treasurer and ex offic.io Tax Receiver of the County of Nye, in the state of Nevada, and others. On final hearing.

In Bankruptcy. In the matter of the bankruptcy of the Amsdell-Kirchner Brewing Company. Petition by Bona F." Crounse and another to. review an order of Edwin A. King, Referee in Bankruptcy, disallowing their claim and expunging it from the record of claims.

<p>Salvage <&wkey;ll — Right to Compensation — Incidental Salving of Cargo.</p> <p>Libelants, under a contract with tbe owner of a, lumber laden schooner, which had been turned over and sunk in a storm and was lying upside down on the bottom, righted the vessel and raised her, together with such of the lumber as was below the deck or was still fastened upon the deck, which was saved to the insurer, to which it had been surrendered. Held, that the saving of the cargo was a salvage service, for which libel-ants were entitled to compensation, but as a service of a low order, since it was incidental to the salving of the vessel.</p> <p>[Ed. Note. — For other cases, see Salvage, Cent. Dig. § 21.]</p>

<p>At Daw. Alexander D. A. Klauder was indicted for violating Cr. Code, § 211, as amended by Act March 4, 1911, § 2 (Comp. St. 1913, § 10381), in sending through the mails nonmailable matter. On demurrer to the indictment.</p> <p>Demurrer to indictment charging that the defendant deposited in the mails of tire United States knowingly for mailing a certain printed paper or publication alleged to be obscene and lewd. The defendant demurs on the ground the articles contained in such printed paper or publication alleged to have been sent through the mails and filed with and as a part of the indictment are not obscene or lewd and fails to show the commission of the crime charged, or any crime.</p>

In Equity. Suit by the United States & Mexican Trust Company and others against the Kansas City, Mexico & Orient Railway Company and others, in which the Corporation Commission of Oklahoma intervened. On petition by the intervener to have the amounts collected by the railroad company before and after receivership in excess of the rates fixed by the Commission repaid to it for the benefit of the shippers.

In Equity. Suit by the United States & Mexican Tru'st Company and others against the Kansas City, Mexico & Orient Railway Company and others to foreclose a mortgage given to secure corporate bonds in which a receiver was appointed and a decree of foreclosure and sale entered.

In Equity. Suit by the United States & Mexican Trust Company and others against the Kansas City, Mexico & Orient Railway Company and others, for the appointment of a receiver and the foreclosure of mortgage given to secure the bonds of the railway company. On application by William Volker as a bondholder for an order to require the purchaser of the property to pay interest on the unpaid purchase price..

<p>In Equity. Suit by the Genesee Valley Trust Company and another against the Kansas City, Mexico '& Orient Railway Company and •others, begun in the state court and removed by one defendant into the United States District Court. On plaintiff’s motion to remand.</p>

In Equity. Suit by F. C. Downey against C. B. Gooch and others. On complainant’s application for temporary injunction against the defendants. Application granted.

<p>In Bankruptcy. In the matter of Abe Weintrob, bankrupt. On exceptions to the referee’s report on petition for confirmation of composition.</p>

<p>1. Equity <&wkey;66 — Maxims.</p> <p>The maxims, that he who goes into a court of equity must go with clean hands, and that he who has not done equity cannot have equity, •have given rise to the rule that a court of equity will refuse to grant relief to one who, in the matter or transaction concerning which he seeks aid, has been wanting in góod faith, honesty, or righteous dealing; a court of equity being a court of conscience.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 188-190.]</p> <p>2. Specific Performance <&wkey;32(3) — Unilateral Contract — Employment of Actor.</p> <p>A contract providing for defendant’s employment as a motion picture actor, which entitled plaintiff to defendant’s services for a period of five years, which gave defendant no right to compel plaintiff to "perform, plaintiff being entitled to assign the contract or dismiss defendant at his pleasure, and providing that defendant should receive no compensation when not acting, without fixing any period for which employment should be furnished, is lacking in mutuality, and specific performance will not be enforced by injunction.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 92-98.]</p> <p>3. Specific Performance <&wkey;32(3) — Mutuality of Contract — Employment—■ Option of Employer.</p> <p>Specific performance of a contract will be refused, where the othei party at its option may decline to carry out its provisions. Therefore, where the contract of employment authorized the employer at his option to dispense with the services of the employs, specific performance will not be enforced at the suit of the employer.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 92-98.]</p> <p>4 Specific Performance <@=51 — Mutuality of Contract.</p> <p>Where a contract of employment allowed the employer to assign the contract, and thus to relieve himself of financial liability, regardless of the assignee’s responsibility, the contract is unfair and unjust, and equity will not aid in its enforcement.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 153, 154.]</p>

<p>At I/aw. Actions by the Butterick Company and by the Federal Publishing Company against the United States. Judgments for plaintiffs.</p>

<p>Courts <&wkey;303(l) — FfeDERAi. Courts^-Acbions Against State — Immunity from Suit — Waiver.</p> <p>Laws N. Y. 1900, c. 170, creating a commission to select lands in tike Palisades on the Hudson river to establish a state park, section 2 (as amended by Laws N. Y. 1915, c. 562) of which provides that the board of commissioners and their successors are thereby created a body politic, with power to sue and be sued, to use a common seal, and to make and adopt by-laws to regulate its proceedings, and authorized to choose its officers and employes, and section 5 of which empowers the board to take in fee or otherwise by gift, devise, or eminent domain, and that deeds of conveyance for such land shall be made to the board of commissioners by its corporate name, created a corporation, and thereby the state waived its immunity from suit against the commission by a citizen of another state given it by Const. Amend. 11.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 844.]</p>

<p>1. BANKRUPTCY &wkey;>198 — PREFERENCES—LANDLORD’S LIEN.</p> <p>A landlord’s lien, perfected less than four months before the tenant’s bankruptcy by distress warrant proceedings under Code Ya. 1904, §§ 2787, 2790-2792, which are declaratory of the common-law right of distress for rent, is not a levy or a lien obtained through legal proceedings, within Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 564 (Comp. St. 1913, § 9651), providing that all levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent within four months prior to the filing of a petition against him, shall be deemed null and void in case he is adjudged a bankrupt, since it is an inchoate right, which dates from the time the tenant places the goods on the premises and may be perfected at any time by summary proceedings, and its effect is not to permit one general creditor to obtain a preference over another merely as the result of a race of diligence.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. §§ 289, 296-316.]</p> <p>2. Bankruptcy <&wkey;346 — Payment of Claims — Priority—Taxes—“Dividends.” '</p> <p>Bankr. Act, § 64b (Comp. St. 1913, § 9648), providing that the court shall order the trustee to pay all taxes in advance of the payment of dividends to creditors, does not authorize the payment of taxes out of the fund derived from the sale of goods subject to a landlord’s lien, under a distress warrant, in view of section 67d, providing that liens given in good faith for a present consideration shall to the extent of such consideration not be affected by the act, since “dividends,” as used in the Bankruptcy Act, applies only to claims of general unsecured creditors, and not to secured creditors, except as to the amount of the claim in excess of the security (quoting Words and Phrases, Second Series, Dividend).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 535.]</p> <p>3. Municipal Corporations <&wkey;978(3) — Taxation—Lien—Perso'nal Proper- . ty Taxes — Charter Provision.</p> <p>Within Richmond City Charter, § • 73, providing that all goods and chattels may be distrained and sold for taxes assessed and due thereon, and no deed or trust or mortgage thereon shall prevent the distress and sale, the expression “taxes due and assessed thereon” limits the lien for a personal property tax to the particular property on which the assessment was made for the current year, so that the city cannot distrain for taxes for previous years on a stock of carriages and materials which is constantly changing, and thereby displace a landlord’s lien thereon, without proof that the goods were the same as those on which the taxes for those previous years had been assessed.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2108.]</p> <p>4. Courts <&wkey;366(6) — Rules of Decision — Decision of State Court — Construction of Taxation.</p> <p>The decision of the highest court of the state construing statutes authorizing distress for personal property taxes is conclusive on the federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 961.]</p> <p>Woods, Circuit Judge, dissenting.</p>

the Western District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge. , . , Suit by the Clinchfield Coal Corporation against A. J.'Steinman for specific performance of an oral agreement to convey land. Decree for compláinant, and defendant appeals.

Action by the Attleboro Manufacturing Company against the Frankfort Marine, Accident & Plate Glass Insurance Company. Judgment for the plaintiff for part of the amount claimed, and both parties bring error.

Action at law by the Maine Northwestern Development Company , against the Northwestern Commercial Company. Judgment for defendant, and plaintiff appeals. The agreed statement of the case, made by the parties and certified as correct by the trial judge, shows, among other things, that the original complaint was filed in the court below March 2!), 1912, to which an amended answer was filed March 17, 1913, and a third amended answer September 24, 1914.

Pollock, Judge. Suit by the United States & Mexican Trust Company and others against the Kansas City, Mexico & Orient Railway Company and others, in which W. E. Beaty and another, as receivers of the Sans 'Bois Coal Company, intervened and claimed a preference right to the payment by the receivers of the railway company o'f interveners’ claim for coal furnished the railway company in preference to the bonds secured by mortgage to tire complainant.

Action by William J. McCarthy, as administrator of William E. McCarthy, deceased, against the New York, New Haven & Hartford Railroad Company. Judgment for the defendant on directed verdict, and plaintiff brings error. The plaintiff is the duly appointed administrator of William F. McCarthy, deceased, and resides in the village of Port Chester, county of Westchester, state of New York.

<p>1. Indians <&wkey;14 — Patent to Lands — Effect—Omission of Restriction.</p> <p>Under Act July 4, 1884, c. 180, 23 Stat. 96 (Comp. St. Ann. 1916, § 4612), providing that patent issued thereunder for homesteads to Indians shall be of the legal effect and declare that the government shall hold the property in trust, the absence of the declaration in the patent does not defeat the trust. *</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 2, 31-36, 46.]</p> <p>2. Indians <&wkey;27(4) — Patent to Lands — Limitation of Actions — Suit to Enforce Restriction.</p> <p>Act March 3, 1891, c. 561, § 8, 26 Stat. 1099, as amended by Act March 3, 1891, e. 559, 26 Stat. 1093 (Comp. St. 1913, § 4992), requiring suits to vacate and annul patents to be brought within six years after the issuance of the patent, does not apply to a suit by the United States for a decree declaring that defendants, who purchased land patented to an Indian as a homestead, had no estate or interest therein, and that the title of the United States to the land was valid, except as to the rights of the patentee.</p> <p>3. Indians <&wkey;14 — Homestead Entry — Law Governing — Recitals in Proceedings.</p> <p>Where the original application for homestead entry was headed “Indian,” and the application on its face was to enter under Act July 4, 1884, permitting homestead entry by Indians under certain restrictions, the government farmer gave a certificate to the register that the applicant was an Indian, and the receiver issued a receipt referring to the application, and a final receipt containing the words “Indian homestead” immediately after the signature, it was apparent that the entry was made' under Act July 4, 1884, amending Act May 20, 1862, c. 75, 12 Stat. 392.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 2, 31-36, 46.]</p> <p>4. Indians &wkey;14 — Homestead Entry — Restrictions—Omission from Patent.</p> <p>Tlie omission from a patent of a homestead to an Indian of the restrictions imposed by Act July 4, 1884, does not relieve the land from the restrictions, and all persons are charged with notice thereof.</p> <p>[Ed. Note. — -For other cases, see Indians, Cent. Dig. §§ 2, 31-86, 46.]</p> <p>5. Indians &wkey;>27(6) — Homestead—Restriction on Alienation — Bona Fide Purchaser.</p> <p>Am answer alleging that defendant purchased part of an Indian homestead from the Indian’s administrator, without knowledge of the error of the land agents in omitting from the patent the restrictions on the right to convey, is not sufficient to raise the defense that she was a hona fide purchaser, since it does not allege the consideration paid, or that when it was paid it was bona fide, nor does it allege that defendant had no notice that the patentee was an Indian, and that he had paid no fees on making the entry.</p>

<p>Appeal from the District Court of the United States for the District of Minnesota; Page Morris, Judge.</p> <p>Suit by the United States against Joseph R. Cass. Decree for defendant, and complainant appeals.</p>

B. Witmer, Judge. Action by William S. Birdsall and others against the Delaware & Hudson Company. There was a judgment for plaintiff, and both plaintiffs and defendants bring error.

C. Van Fleet, Judge. Action by Bank of Bandon against the American National -Bank. Judgment for the plaintiff, and defendant brings error. The Bank of Bandon, an Oregon bank, brought action against the American National Bank in San Francisco to recov.er $5,887.78 and interest arising out of failure of the American Bank to notify the Bandon Bank promptly of the refusal of the drawee of a draft that the draft was dishonored.

<p>1. Pledges <&wkey;56(5) — Sales oe Collateral — Inadequacy oe Price.</p> <p>Where a note of the face value of nearly $17,000 was sold by the pledgee for $10,000, the inadequacy of price is not so great as to justify setting aside the sale, if it was fairly conducted.</p> <p>2. Pledges <&wkey;36 — Sale oe Collateral — Good Faith oe Pledgee.</p> <p>A creditor of a corporation, holding a note for nearly $17,000 as collateral, offered the note for sale at auction. Others interested in the corporation directed a bank to bid on the note for them up to 99 per cent, of its face value, with interest. Representatives of the bank, who attended the sale to bid for the note and other collateral offered for sale, were prevented from bidding on the note because the creditor insisted that the auctioneer enforce the rule requiring a deposit from unknown persons. Such representatives of the bank were unknown to the auctioneer, but they could in a short time have established their identity, and deposits from banks in good standing were not required; but the creditor insisted that the sale be not postponed, and so the representatives were given no opportunity to bid on the note, which was bought in by the creditor for $10,000. Held that, as a pledgee must sell collateral fairly, and a sacrifice is a fraud upon the pledgor, the creditor is under such circumstances liable to the corporation for the sacrifice of the note.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 92-94.]</p> <p>3. Pledges &wkey;>36 — Collateral—Sale oe.</p> <p>Where the conduct of the pledgee in conducting a sale prevented another, whose representatives were present and were authorized to bid up to 99 per cent, of a note’s face value, from bidding, and the note, which was bought in by the pledgee, was sold for only slightly more than half of its face value, the pledgee is, it not appearing whether he had disposed of the note, or at what price, liable for the difference between the price obtained and that which might have been obtained.</p> <p>[Ed. Note. — For other eases, see Pledges, Cent. Dig. §§ 92-94.]</p>

<p>1. Mortgages <&wkey;151(3) — Priorities—Statutes.</p> <p>Civ. Code La. art. 2775, declares that no agreement or undertaking for work exceeding $500, which has not been reduced to writing and registered with the recorder of mortgages, shall enjoy a lien. Article 3272 declares that contractors, workmen, materialmen, architects, undertakers, bricklayers, and others furnishing materials for the construction or repair of buildings, preserve their privileges only in so far as they have recorded, with the recorder of mortgages in the parish where the property is situated, the act containing the bargains they have made or a de- . tailed statement of the amount due. Respondent furnished to a sugar company materials for its sugar house, under a contract entered into by . the sugar company’s acceptance of two written^ proposals of respondent, each of which, and the acceptance thereof, bore the date September 4th. The first of these proposals was a quotation of the prices of the various materials, and the second contained a provision allowing the sugar company to return designated appliances. The first proposal was filed for record on September 11th. The other proposal was never filed with the recorder of mortgages or recorded, though in November there was filed a list of invoices of materials sold and an affidavit of the correctness of the list. The price of the materials exceeded $500, and respondent asserted that its privilege as furnisher of materials was superior to that of an existing mortgage creditor, and that it had a vendor’s privilege on movables sold, but not incorporated by the sugar company in its building. SélA, that article 2775 applied, and respondent having failed to properly record the agreement or undertaking, though it must have known the materials would exceed $500, its privilege is not superior to that of an existing mortgage creditor.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig; §§ 332-336.1</p> <p>2. Mechanics’ Liens &wkey;sl2T — Right to — Recordation.</p> <p>In such case, the recordation of only one of the two proposals, both of which constituted the contract, was not a compliance with either section.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 174-176.]</p> <p>3. Mechanics’ Liens <&wkey;127r — Right to — Recordation.</p> <p>In such case, though the recording of part of the contract be regarded as sufficient, the registration was not within the time prescribed by Civ. Code La. art. 3274, declaring that no privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated, and that it shall confer no preference on creditor who holds it over others who have acquired a mortgage, .unless the act or other evidence of the debt is recorded within 7 days from the date of the act or obligations of indebtedness when the registry is required to be made in the parish where the act is passed, or within 15 days if the registry is required to be made in any other parish.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 174-176.]</p> <p>4. Mechanics’ Liens &wkey;>136(l) — Right to — Recordation.</p> <p>In such ease, the recording, after the time prescribed for the recording, of the agreement or contract of the description of the property claimed to be subject to lien or privilege asserted, is not a compliance with the provisions of Civ. Code La. art. 3348, that in all cases of special privileges the property subject to such privileges must also be described.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 213.]</p> <p>5. Courts <&wkey;347 — Pleading—Amendments.</p> <p>Where the evidence showed that an intervening petitioner was entitled to a vendor’s lien on certain movables, but the decree according a lien on other property was reversed, and that portion giving a lien on movables was attacked on the ground that the petition did not allege facts showing the existence of the privilege, petitioner should, under equity rules 19 and 20 (198 Fed. xxiii, xxiv, 115 C. C. A. xxiii, xxiv),, declaring that the court may at any time, in the furtherance of justice, permit any pleading to be amended, and that a further and better statement of the nature of the claim may in any-case be ordered upon such terms as are just, be permitted to amend the petition.</p> <p>[Ed. Note. — For other eases, seei Courts, Cent. Dig. § 921.]</p>

Clarke, Judge. _ _ Petition for involuntary bankruptcy by W. W. Zimmerman and othr-ers against the Greenwood Gum Company. From a decree adjudging the company to be bankrupt, it appeals.

Boyd, Judge. Action by Adeline Mendenhall, administratrix of Grady E. Menden-hall, deceased, against the R. D. Cole Manufacturing Company. There was a judgment for'plaintiff, and defendant brings error. On motion to dismiss. Writ dismissed.

<p>1. Appeal and Error <&wkey;362(l) — Record—Filing op Assignment op Error.</p> <p>Rule 16 for the Circuit Court of Appeals (150 Fed. xxix, 79 C. C. A. xxix) declares that it shall be the duty of the plaintiff in error or appellant to docket the case and file the record thereof with the clerk by or before the return day, whether in vacation or in term time, but for good cause shown the time may be enlarged. Counsel for plaintiff in error, after being served with notice of a motion to dismiss on the ground the petition in error was not accompánied by an assignment of errors, procured a certificate from the clerk of the District Court that the assignment of errors was properly filed in the court below, but by inadvertence was omitted from the record. Such certificate was filed in the Circuit Court of Appeals before the date on which the motion to dismiss was set for hearing. Held- that, under the circumstances, it was the duty of counsel for plaintiff in error, if desiring to have the assignment of errors made a part of the record, to suggest a diminution of the record and request the Circuit Court of Appeals to grant an order directing the clerk of the District Court to transmit that portion of the record omitted, and, having failed to do so, the writ of error will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1960, 3282-3284.]</p> <p>2. Appeal and Error <&wkey;728(2) — Assignments op Error — Sufficiency.</p> <p>An assignment of error complaining of the admission of evidence, which does not quote the full substance of the evidence admitted, is insufficient under rule 11 for the Circuit Court of Appeals (150 Fed. xxvii, 79 C. C. A. xxvii), declaring that, when the error is to the admission of evidence, the assignment of errors shall quote the full substance of the evidence admitted.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § SOU.]</p> <p>3. Appeal and Error <&wkey;977(l) — New Trial <&wkey;6 — Review—Matters Reviewable.</p> <p>The granting or refusing of a motion for new trial is in the discretion of the lower court, which cannot be reviewed on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3860; New Trial, Cent. Dig. §§ 9, 10.]</p>

In Erjror to the District Court of the United States for the Eastern District of Virginia, at Alexandria; Edmund Waddill, Jr., Judge. Action by Virginia McGuin, as administratrix of Charles McGuin, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. Insurance <&wkey;668(14) — Life Insurance — Actions—Proofs or Loss — Sus-etciency — Question for Court.</p> <p>Where life policies required proofs of death as a condition precedent to recovery, the question of the sufficiency of the proofs is for the court alone, and if sufficient the case then should be submitted to the jury, and if insufficient there is no basis for action. ,</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1747, 1749, 1750, 1766, 1768.]</p> <p>2. Insurance &wkey;>659(l) — Life Insurance — Actions—Evidence.</p> <p>In an action on a life policy, where insured’s death was denied, the admission in evidence generally of proofs of death is reversible error; the proofs being self-serving declarations as to the matter in controversy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1601, 1693.]</p> <p>' 3. Insurance <&wkey;665(5) — Life Insurance — Actions—Evidence—Sufficiency.</p> <p>In actions on life policies, evidence held, to warrant findings that insured was dead, having met his death through accidental drowning.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1719, 1721, 1722.]</p> <p>4. Death <&wkey;l — Presumptions—Effect of.</p> <p>Though there is, until the expiration of seven years, a presumption of continuity of life, in case of disappearance such presumption may be overcome by the circumstances surrounding the disappearance.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3.]</p> <p>5. Evidence <&wkey;141 — 'Similar Facts — Other Injuries.</p> <p>In action on a life policy, where recovery was sought for.the death of insured, who, having entered the surf in the early evening, disappeared in a short space of time, evidence of other disappearances at the same beach was inadmissible.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 406, 408-413.}</p>

<p>In Error to the District Court of the United States for the District of Utah; Wm. H. Pope, Judge.</p> <p>Action by Frank Towey against the Daly Judge Mining Company. Judgment for the plaintiff, and defendant brings error.</p>

<p>Bills and Notes <&wkey;>426 — Payment.</p> <p>The holder of notes secured 'by a mortgage on land acquired by a bankrupt corporation, which assumed payment, demanded payment from an officer of the corporation, who was a son of the original maker. On suggestion of the officer, appellant agreed' to carry such notes, whereupon the corporation paid to the holder the amount due on the notes, obtaining the money on demand notes. The notes were then delivered to appellant, and the demand notes taken up with funds paid by him. Held that, as the corporation merely acted as intermediary, the notes were not extinguished, the original maker never acquiring possession, under the rule that the legal result of a debtor’s payment of his debt is to extinguish it, and Ms reissue of the instrument evidencing the obligation does not revive it, or a mortgage which secured it.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1223-1232.]</p>

Action by Nicholas F. Brady and others, executors of the last will and testament of Anthony N. Brady, deceased, against Charles W. Anderson, late Collector of Internal Revenue, Second District of New York. There was a for defendant, and error.

Johnson, Judge. In the matter of the bankruptcy of W. C. Babb. Suit by Albert S. Johnstone, trustee in bankruptcy, against V. M. Babb. From a decree for defendant, complainant appeals.

Action by the Earbwerke-Hoechst Company against John Z. Lowe, Jr., as Collector of Internal Revenue for the Second District of New York. There was a for and defendant error. The plaintiff below, hereinafter called the Farbwerke, is an importer and dealer, if not a manufacturer, of many drugs.

Maxey, Judge. Proceedings by the United States against Wong Woo for the deportation of defendant as a Chinese person unlawfully within the United States. From an order of the District Court, affirming the United States Commissioner’s order for deportation, defendant appeals.

A. Woods, Judge. Libel by Henry G. Harrison against the cargo of the steamship Ap-pam. From a decree setting aside a sale of cargo to Middleton & Co., it appeals.

<p>1. Appeal and Error <&wkey;1001(2) — Review—Evidence—Sufficiency.</p> <p>The credibility of evidence is for the jury, and where plaintiff’s testimony as to an accident was not impossible, the Appellate Court cannot set aside a verdict based on his version, because it would have reached another conclusion.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3922.]</p> <p>2. Master and Servant >&wkey;276(10) — Scope op Servant’s Employment — Evidence.</p> <p>In an action by plaintiff, run over by a train, who claimed that he was injured when a man on the train struck him with a lump of coal, testimony that plaintiff had seen the. same man giving signals to the engineer warrants a finding that such person was a railroad employs, and acting within the scope of his employment when he struck plaintiff.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 952, 959.]</p> <p>3. Trial <&wkey;194(l)' — Province op Court and Jury.</p> <p>Plaintiff, whose legs were crushed by a train, contended that one of the operatives of the train struck him with a piece of coal and that he fell from ffie train, lighting on his left shoulder, whereupon the train passed over Mm. There was no evidence that plaintiff: was treated for any injuries, hut to his legs. Reid, that the action of the court in denying a requested charge that, if the jury should fmd^the effects on plaintiff’s body of the fall were contrary to well-known physical laws, they must find that the testimony in such regard is incredible, and render verdict for defendant, was not error; the court expressly leaving all questions of fact and inferences to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439, 440, 450.]</p>

<p>1. Appeal and Error <&wkey;1048(6) — Review—Discretion op Court — Cross-Examination op Witnesses.</p> <p>The range of cross-examination is committed in large measure to the discretion of the trial judge, and error in the exercise thereof must be plain and harmful before an appellate court will reverse.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145.1</p> <p>2. Appeal and Error &wkey;>1048(6) — Harmless Error — Limiting Cross-Examination — Subsequent Admission op Evidence.</p> <p>Error in limiting the cross-examination of plaintiff’s witness is not ' prejudicial to defendant, where defendant was permitted in the course of his own case to introduce the same evidence he sought to bring out from plaintiff’s witness.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145.1</p> <p>3. Sales <&wkey;422 — Action by Buyer — Verdict—Evidence.</p> <p>In an action for breach of contract for the sale of a large quantity of cotton pickings, where the jury were correctly instructed that the meas•ure of damages was the difference between the price plaintiff was compelled to pay for pickings of the same quality in the market, and the contract price, and there was evidence on behalf of plaintiff as to numerous purchases at varying prices to take the place of the cotton contracted for, some of which purchases were of a different grade from! that specified in the contract, but were claimed by plaintiff’s witnesses to be the nearest to the contract grade which could he obtained at the time, defendant cannot have set aside a verdict for plaintiff for less than the total of the amounts paid by plaintiff, on the theory that the verdict was contrary to the evidence and the instruction, and the result of compromise, since the jury could have disregarded the testimony as to some purchases being the nearest to the quality contracted for that could be obtained, and could have based their verdict as to such purchases on other evidence, and the trial court cannot inquire into the method by which they did arrive at the verdict.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 120-1.]</p>

<p>Bankruptcy <&wkey;407(5) — Denial op Discharge — Grounds—Credit by False Statement.</p> <p>A letter by the bankrupt to a creditor, written five months before bankruptcy, in which he stated that he was perfectly solvent, but that the extra dullness of business had put¡ him behind, in fact there had been no ' business at all, and added that he was not in need of the goods previously ordered just then, and the creditor could hold, them for a while, is not ground for denying discharge to the bankrupt, under Bankr. Act July 1, 1898, c. 541, § 14b, cl. 3, 30 Stat. 550 (Comp. St. 1913, § 9598), authorizing discharge unless the bankrupt has obtained money or property on credit upon a materially false statement in writing, made for the purpose of obtaining credit, even though the bankrupt was actually insolvent when he wrote the letter, since it clearly shows that it was not written for the purpose of obtaining credit, and stated facts which qualified the statement that he was solvent, and especially if the creditor did not attempt to prove that it parted with its property on the faith of the letter.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 760, 761.]</p>

Suit by Edward A. Shedd and another against the Guardian Trust Company and others. From orders appointing a receiver for defendant corporations, and denying a motion to vacate the order of appointment and to dissolve the injunctions and mandatory orders in connection therewith, defendants appeal.

<p>1. Specific Performance &wkey;>53 — Right to — Nature op Remedy.</p> <p>Specific performance of a contract is not of absolute right, but rests in sound judicial discretion, exercised in the light of equity and good conscience, and where, through misrepresentations of the broker that he was financially responsible and would at any time within a year relieve him of his purchase, defendant was induced to contract to purchase land, specific performance of the contract will not be decreed.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 160-171½.]</p> <p>2. Specific Performance &wkey;>53 — Right to — Fraud in Contract.</p> <p>Where a real estate broker, with whom land had been listed for sale, misrepresented his financial responsibility, and by agreeing to relieve defendant of his purchase at any time within a year induced him to contract to purchase land, the fraud of the broker cannot be isolated from the principal contract, so as to authorize specific performance at suit of the owner.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 160-171 ½.]</p>

Johnson, Judge. In the matter of John W. Wix, bankrupt. From a decree of the District Court granting a discharge to the bankrupt over the objection of Sherwood Shoe Company and another (236 Fed. 262), the objecting creditors appeal.

<p>1. Bankruptcy <&wkey;299< — Jurisdiction—Federal Courts — Intervention.</p> <p>Where the trustee in bankruptcy, appointed by the federal District Court for the Eastern Division of the Eastern District of Missouri, instituted an action on behalf of the bankrupt estate "in the District Court for New York, the District Court for Missouri, which is charged with the duty of collecting and distributing the bankrupt’s estate, alone has jurisdiction to allow other persons to intervene as parties and prosecute the action.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 448.]</p> <p>2. Bankruptcy &wkey;>467 — Matters Appealable — Discretion.</p> <p>Where a trustee in bankruptcy, suing on behalf of the bankrupt’s estate was defeated, not only in the District Court, but in the Circuit Court of Appeals, the denial by the District Court of a petition to allow a creditor to intervene to apply for certiorari to the Supreme Court is not reviewable, being a matter of discretion; there being no contention that the trustee had not efficiently prosecuted the claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929.]</p>

<p>1. Jury <&wkey;28(17) — Waiver of Jury — Motion to Vacate.</p> <p>A motion to vacate waiver of a jury and award a trial by jury, made after hearing and submission of the case on the merits, comes too late.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 194-196.]</p> <p>2. Appeal and Error <&wkey;846(5) — Review—Action 'Pried to Court.</p> <p>When a cause is submitted to the court without a jury, under Rev. St. § 649 (Comp. St. 1913, § 1587), and only a general finding is made, no special findings being requested, the facts are not reviewable by the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3351-3355.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in equity by tire Warren Bros. Company against W. C. Evans. Decree for complainant, and defendant appeals.</p>

F. Bledsoe, Judge. _ _ , _ _ Suit in equity .by Fred Stebler against the Riverside Heights Orange Growers’ Association and George D. Parker. Decree for complainant, and both parties appeal. Suit to restrain infringement of plaintiff’s patent for a combination of certain elements in a fruit-grading machine and to recover damages for the infringement thereof.

Suit by Samuel M. Kintner and another, as receivers, against the Atlantic Communication Company and others, for infringement of a patent. From a decree dismissing the bill (230 Fed. 829), complainants appeal. Plaintiffs appeal from a final decree in equity, entered in the District Court, dismissing a bill brought for alleged infringement of claims 1 and 3 of patent No. 918,306, issued April 13,' 1909, to Reginald A. Fessenden, upon an application filed July 1, 1907.

Suit in equity by William Barber against the Otis Motor Sales Company. Decree for complainant, and defendant appeals. This cause comes here on an appeal from ah interlocutory decree entered in the United States District Court for the Northern District of New York on April 8, 1916. The complainant is a citizen of the United States and a resident of the borough of Brooklyn in the state of New York.

Suit in equity by the Irving-Pitt Manufacturing Company against the Trussell Manufacturing Qompany. Decree for complainant, and defendant appeals. Held: for the reasons given by this court, that McMillan infringed. Take off McMillan’s covering plate and throw it away, and the device will operate just as well without it. The O-springs are an unnecessary addition; the covering plate was only useful to disguise the rawness and cover the rough edges of the machinery.

Clarke, Judge. Suit by the Wise Soda Apparatus Company against the Bishop-BaB-■cock-Becker Company for infringement of a patent. From a decree adjudging the patent void and dismissing the bill of complaint, complainant appeals.

<p>1. Patents &wkey;>328 — Validity and Infringement — Store Front Construction.</p> <p>The Plym patent, No. 852,460, for a structure for holding heavy plate glass in position for store windows, held, infringed.</p> <p>2. Patents <&wkey;234 — Infringement—Impairment op Functions of Device.</p> <p>Infringement is not avoided by impairment of the functions of an element of a patented device in degree, if the distinguishing feature is retained.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. §§ 370, 381.]</p> <p>3. Patents <&wkey;328 — Validity and Infringement — Store Front Construction.</p> <p>The Plym patent, No. 860,150, for store front construction, held infringed.</p> <p>4. Patents @=>236 — Infringement—Uniting Two Parts in One. -</p> <p>Infringement is not avoided by forming in one part two elements of a patented device, if the part thus formed secures the same results in substantially the same way as the two elements.</p> <p>[Ed. Nofe. — For other cases, see Patents, Cent. Dig. §§ 372, 373.]</p> <p>5. Trade-Marks and Trade-Names <&wkey;70(l) — “Unfair Competition.”</p> <p>It is “unfair competition” to manufacture an article and sell it for resale to ordinary people, if it is so similar to the article made by a paten-tee or original manufacturer that the ordinary man who buys and uses it cannot tell it from the genuine, even though the actual sale to the jobber, wholesaler, or middleman is without misrepresentation.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Unfair Competition.]</p> <p>6. Trade-Marks and Trade-Names &wkey;>70(l) — Unfair Competition.</p> <p>A defendant held chargeable with unfair competition in constructing store fronts which were not only an infringement of complainant’s patents, but were so like complainant’s structures in appearance that the ordinary observer could not tell one from the other.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81.]</p>

<p>In Equity. Suit by the Searchlight Horn Company against the American Graphophone Company. On rule by defendant for injunction.</p>

<p>1. Patents <&wkey;202(l) — Assignment—Passing oe Title.</p> <p>An assignment of patents for a temporary purpose, which had been fulfilled, and expressly providing that it was not the intention to interfere with the right of disposition of the patents by the assignors, helll to leave the legal as well as the equitable title in them.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 281-288.]</p> <p>2. Patents <&wkey;328 — Validity and Infringement — Paving Material.</p> <p>The Culmer patents, Nos. 635,429 and 635,430, the former for a process of making an asphaltic paving material and the latter for the product, held not anticipated, valid, and infringed.</p>

<p>1. Specific Performance <&wkey; 121(5) — Right to — Evidence— Sufficiency.</p> <p>On a bill for specific performance of a parol contract for the sale of land, evidence held to show that complainant had made partial payments and had been admitted into possession, and also improved the land, and hence was entitled to specific performance under Park’s Ann. Civ. Code Ga. § 4634, declaring that specific performance of parol contract to convey land may be decreed, where there has been a full payment alone, or a partial payment accompanied by possession, or possession alone with valuable improvements.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 388.]</p> <p>2. Judgment <&wkey;739 — Conclusiveness—Matters Concluded.</p> <p>A judgment of the city court on a distress warrant for rent, rendered against complainant, who under a parol contract for the purchase of land was admitted into possession and paid most of the purchase price, does not, the proceeding being collusive, estop complainant from obtaining spe-ciflc performance of the contract; the city court having no Jurisdiction, under Park’s Ann. Civ. Code Ga. § 6510, to pass on title to land, for a judgment of a court of law or decree in chancery is an estoppel only as to matters directly decided, and not as to those incidentally considered.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1105, 1267.]</p>

In Equity. Suit by the Postal Telegraph Cable Company of Montana against Joseph P. Nolan and others to enjoin defendants from destroying plaintiff’s telegraph lines on a railroad right of way. On defendants’ motion to dismiss.

W. W. Smith and others were convicted of illicit distilling, and sentenced to be imprisoned and to pay a fine and one-third of the costs of the cause. On motion by the United States to retax the costs.

<p>Courts <&wkey;489(l) — Federal Courts — Jurisdiction—Habeas Corpus.</p> <p>A resident of Nevada petitioned in the District Court of California for a writ of habeas corpus to secure the custody of a minor child, alleged to have been kidnapped by defendants, residents of California, and brought into that state. Under the adoption pro,$teedings had in Nevada, petitioner was entitled to the custody of the infant. Held, that the federal court was without jurisdiction to entertain the habeas corpus pro- • ceeding, notwithstanding the diversity of citizenship and the Nevada adoption proceedings.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1324.]</p>

- In Equity. Separate suits by A. C. Stephens and others and by the Home Telephone Company against the Ohio State Telephone Company, in which Bert Hoffman was' allowed to intervene on behalf of Local 245, International Brotherhood of Electrical Workers, and its members. On motion by the intervener and other members of the union, attacking informations charging violation of the injunction issued by the court.

In Bankruptcy. In the matter of the Webster Loose Leaf Filing Company, bankrupt. On review of an order of the referee sustaining in part the validity of a chattel mortgage executed by the bankrupt corporation to one of its directors. Order reversed, and mortgage held invalid:

In Bankruptcy. In the matter of the bankruptcy of Norman Williams. On question certified by referee. Question answered, and trustee in bankruptcy held entitled to receive all funds in possession of the receiver in the state court at the time of the filing of the petition in bankruptcy.

In Bankruptcy. In the matter of the bankruptcy of Leo D. Wege and J. H. McPhail, copartners doing business as the Nashville Laundry Company. Exceptions by Lewis Tillman, trustee, to the claim of Frank/Frei against the firm assets, were sustained, and claimant petitions to review the order.

<p>At L,aw. Assumpsit by Orín S.- Wilson against the Studebaker Corporation of America. There was a verdict for plaintiff. Sur motion of defendant for new trial.</p>

In Bankruptcy. In the matter of the bankruptcy of the Progressive Wallpaper Corporation. Application by the Lotbiniere Lumber Company for confirmation of the special master’s report in bankruptcy, holding that the claim of the bankrupt estate against the Lotbiniere Lumber Company, secured by a lien on property of the company, might be set off against the claim of the company on notes of the bankrupt, and extinguished.

In Equity. Suit by the Royal Exchange Assurance of London against Marvin L. Thrower. Decree entered allowing defendant his claim for set-off-against the mortgage held by complainant. •

<p>1. Shipping <&wkey;16 — Licensing op Steamboat Officers — Appeal from Action op Board of Inspectors.</p> <p>The right of appeal to the supervising inspector from the decision of a board of local steamboat inspectors refusing to grant a license, or suspending or revoking a license, given to “any person deeming himseif wronged by such refusal, suspension, or revocation,” by Rev. St. § 4452 (Comp. St. 1913, § 8214), is given only to an interested party, and an appeal by a stranger to the proceeding is a nullity, and confers no jurisdiction on the supervising inspector.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. §§ 30-44.]</p> <p>2. Shipping <&wkey;14 — License of Officers of Steam Vessels — Revocation or Suspension.</p> <p>A license granted to an officer of a steam vessel can be revoked by the board of local inspectors only on the grounds stated in Rev. St. § 4450 (Comp. St. 1913, § 8212), and after notice and hearing as therein provided. [Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 28, 29.]</p>

<p>In Equity. ' Suit by John H. Fredenberg and the Kingston Transportation Company against Bion B. Whitney and Henry C. Lord, as Local Inspectors at Seattle, Wash., in the Steamboat Inspection Service, Department of Commerce of the United States, and John K. Bul-ger, Supervising Inspector for the First District, and R'oscoe M. Drum-heller, Collector of Customs, District No. 30, United States Customs Service. On motion to dismiss bill.</p>

<p>Waters and Water Courses <&wkey;231 — Irrigation Districts — Power of Assessment — District Ronds.</p> <p>Irrigation Act May 3, 1905 (Sess. Laws Colo. 1905, p. 246), providing for tbe organization of irrigation districts, bas for its object the authorization of local improvements, to be paid for by special assessments on the lands to be benefited, on the basis of the acre unit. It provides that lands which will not be benefited by the improvement shall be excluded from the district, and that those included shall be subject to an annual assessment for the payment of the district bonds and interest, and that for the purpose of such assessment they shall be valued at the same rate per acre, and in case of a shortage of water it shall be prorated on the acre basis; that the fund produced by the assessments shall be kept separate from all other funds. Held, that land subject to assessment under such a.ct can be required to bear only its proportionate share of the cost of the improvement; that when an assessment has been levied by a county board on the lands of a district to pay the annual interest on the district bonds, and sufficient in amount, the board has no power to reassess lands which have paid the assessment to make up a deficiency caused by the failure of other lands to pay.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent: Dig. § 320.]</p>

<p>1,. Seamen <&wkey;24 — Wages—Part Payment at Intermediate Ports — Foreign Yessees.</p> <p>Seamen’s Act March 4, 1015, c. 153, § 4, 38 Stat. 1165, amending Rev. St. § 4530, and providing for part payment of seamen’s wages at intermediate ports,-by its terms applies to seamen on foreign vessels while in ports of the United States, and, when invoked, must be enforced by the courts.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 123-128.]</p> <p>2. Seamen <&wkey;23 — Suit to Recover Part Wages — Construction of Statute.</p> <p>Dingley Act June 26, 1884, c. 121, § 10, 23 Stat. 55 (Comp. St. 1913, § 8323), as amended by Seamen’s Act March 4, 1915, c. 153, § 11, 38 Stat. 1168, makes it unlawful to pay any wages to a seaman in advance'of their having been earned, and provides that “the payment .of such advance wages * * * shall in no case except as herein provided absolve the vessel or the master or the owner thereof from the full payment of wages after the same shall have been actually earned, and shall be no defense to a libel suit or action for the recovery of such wages.” It further provides that “this section shall apply as well to foreign vessels while in waters of the United States- as to vessels of the United States.” Held that, in a suit by seamen to recover one-half the wages earned on arrival in a port of the United States, under Rev. St. § 4530, as amended by section 4 of said Seamen’s Act, the court cannot deduct from the wages earned the amount of advances made to them when they shipped, although they are aliens, serving on a foreign vessel, and ’the advances were made in a foreign country, where they were not unlawful.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 118-122.]</p>

In Bankruptcy. In the matter of the bankruptcy of the Fairburn Oil & Fertilizer Company. On intervention by the Fairburn Banking Company. Report of referee striking the claim of the intervener from the files, but allowing it to retain a preferential payment, on payment of the difference between the dividends it would have received and the payment, confirmed.

In Equity. Suit by John D. Tompkins against the St. Regis Paper Company. A decree for defendant was affirmed on appeal, and complainant petitions for reduction of the costs taxed by the clerk in favor of the defendant.

<p>Dismissal and Nonsuit <&wkey;19(2) — Discontinuance—Right to Discontinua</p> <p>In an action in the federal District Court of Pennsylvania based on diversity of citizenship and the sum. in controversy, defendant filed a counterclaim under plea of set-off, the sum of which was less than $8,000. Thereupon plaintiff discontinued the action, instituting another in the state court, while defendant moved for rule to strike off the discontinuance. Held that, despite the Practice Act (Act May 14, 1915 [P. L. p. 483]), plaintiff's discontinuance will be stricken off, for, though the court would retain jurisdiction of the action for the purpose of disposing of defendant’s counterclaim, nevertheless if an amount in controversy was less than $3,000, and the court would not have jurisdiction had suit been brought for the same, such proceeding was open to attack on the ground of want of jurisdiction, and plaintiff by successive discontinuances might prejudice defendant.</p> <p>[ltd. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 34, 35.]</p>

<p>Collision &wkey;>102 — Steam Vessels in Harbor — Negligent Navigation-Mutual Faults.</p> <p>A ferryboat, passing out of her slip in Norfolk harbor, and a tug, which had just passed the end of the slip, but backed to avoid a crossing vessel, and came into collision with the ferryboat, both held in fault and liable for injury to a passenger on the ferryboat; the tug being.in fault for not keeping a proper lookout and failing to give a backing signal, and the ferryboat for failure to exercise proper care in observing the movements of other vessels, including those of the tug, in time to have avoided the collision.</p>

Application by Benjamin Denny for naturalization. Applicant admitted to citizenship. The applicant, being born in Russia, lived in Natal, South Africa, and was naturalized as a subject of George V, king of Great Britain, on his own petition. His declaration of citizenship and his petition each asserted his intention to abjure his allegiance to the emperor of Russia.

<p>1. Bankruptcy <&wkey;116 — Claims—Adverse Claims.</p> <p>Where a sheriff has made a levy, and is in possession of property of an alleged bankrupt, he is, until adjudication, to be deemed an adverse claimant, and cannot be compelled, on motion, to deliver to a receiver possession of such property.</p> <p>2. Bankruptcy <&wkey;116 — Claims—Adverse Claims.</p> <p>After adjudication in bankruptcy, a sheriff, who levied on property prior to bankruptcy, must, on motion, deliver possession to the receiver or trustee, on payment of his lawful fees.</p>

M. Bourquin, Judge. Proceeding for criminal contempt against the Independent Publishing Company ánd Will A. Campbell. From the judgment respondents bring error. Information charging the Independent Publishing Company and Will A. Campbell, its managing editor, with misbehavior in obstructing the administration of justice in publishing matter concerning and prejudicial to the defendant then on trial.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by John M. Enright, as trustee in bankruptcy of the Newfoundland Syndicate, a corporation, against August Heckscher. Judgment for plaintiff for part only of the amount sued for, and both parties bring error.</p> <p>This cause comes hére on cross-writs of error to the United States District Court for the Southern District of New York on a judgment for $105,979.35. The plaintiff is a citizen of the state.of New Jersey. The defendant is a citizen of the state of New York, and resides in the Southern district of New York. The Newfoundland Syndicate is a corporation incorporated in 1904 under the laws of the state of New Jersey. It will be hereinafter referred to as the Syndicate. The objects for which the Syndicate was formed were, inter alia, to purchase, acquire, or lease mines or- mineral lands of every kind, nature, and description, to work, prospect, explore, and develop mines and mineral lands, and to engage in and operate in mining of all kinds.</p>

Suit by Edward H. Titus and others, as executors, and others, against the United States Smelting, Refining & Mining Exploration Company and others. From the decree (231 Fed. 205), complainants appeal. The United States Smelting, Refining & Mining Exploration Company is a corporation organized and existing under the laws of the state of Maine and had an office for the transaction of business in the Southern district of New York.

Appeals from the District Court of the United States for the Southern District of New York. In the matter of G. Franklin Stringer, individually and as sole surviving partner of Stringer & Co., bankrupt.

<p>1. Evidence <&wkey;333(7) — Admissibility—Documentary Evidence.</p> <p>In an action by the United States to recover dividends on corporate stock owned by it, where in the natural course the dividends would, if paid, have been received in the treasury, books prepared by treasury officials pursuant to statute, showing receipts and disbursements, though not books of original entry, are admissible as public records to show that no payments were received.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 1256.]</p> <p>2. Payment <&wkey;66(5) — Presumptions—Payment.</p> <p>A delay of over 20 years raises a presumption of the payment of dividends declared on corporate stock, where action is not barred by limitations, and plaintiff, whether the state or an individual, has the burden of rebutting the presumption, which can be done either by evidence of nonpayment or explanation for the delay.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 188.]</p> <p>3. Payment <&wkey;66(5) — Dividends—Actions to Recover.</p> <p>In an action by the United States to recover dividends on corporate stock owned by it, declared more than 20 years before action, evidence held sufficient to rebut the presumption of payment.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 188.]</p>

Max M. Hart and another were convicted of using mails in furtherance of a scheme to defraud, contrary to Criminal Code, § 215 (Comp. St. 1913, § 10385), and they bring error. Hart and Wupperman were jointly indicted with Andrew S. Work and Frank W. Fowler for a conspiracy under Criminal Code, § 37, to commit an offense against the United States, viz. to devise a “scheme to defraud,” etc., under section 215, and fori actual violation of section 215.

. In Error to the District Court of the United States for the Western District of Kentucky; Walter Evans, Judge. Action by D. H. Watjen & Co. against the Kouisville Tobacco Warehouse Company. Th(ere was a judgment for defendant, and plaintiff brings error. The purpose of plaintiffs, aliens and subjects of the Empire of Germany, is to obtain, if possible, a reversal of the adverse judgment rendered below against them on a directed verdict.

Petition of Hammond Lumber Company for writ of prohibition to the United States District Court for the District of Oregon and Charles E. Wolverton and Robert S. Bean, Judges thereof. The Hammond Lumber Company filed in this court its petition for a writ of prohibition to the judges of the District Court of the United States for the District of Oregon, and thereon an order was made to show cause.

Roster, Judge. Suit in admiralty by the Board of Commissioners of the Port of New Orleans against Erederick Eeyland & Co., Limited, claimant of the steamship Cestrian, and others. Decree for respondents, and li-belant appeals.

Criminal prosecution by the United States against Pierre M. Doolcer. From a judgment of conviction, defendant brings error. Looker was found guilty of a “scheme to defraud,” toward the execution of which the mail was used; the indictment being under section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1103 [Comp. St. 1913, ,§ 10385]).

Middleton Smith, Judge. Action by C. H. Cozart and another, partners under the firm name and style of the Cozart & Meadows Company, against J. W. Barnes and another, to recover possession of personal property. Judgment for defendants, and plaintiffs bring error.

Petition to Superintend and Revise Proceedings of the District Court of the United States for the Southern District of Florida; Khydon M. Call, Judge. In the matter of the Wauchula Manufacturing & Timber Company, bankrupt. Petition by William T. Abbott to revise an order of the District Court denying petitioner’s motion to set aside the adjudication and to permit him to come in and defend.

Action by Esther A. Hughes, as administratrix, against the Delaware, Eackawanna & Western Railroad Company. Judgment for plaintiff, and defendant’s motion for new trial denied (233 Fed. 118), and defendant brings error.

Petition to Revise Order of the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge. In the matter of the bankruptcy of Eli Brooks. Petition by the Wm. R. Moore Dry Goods Company, Incorporated, to revise an order of the District Court, affirming an order of the referee overruling exceptions to the setting apart to the bankrupt by J. M. Jarman, trustee, of real estate as a homestead.

<p>Injunction <S=^175 — Relief Awabded — Dismissal—Liability on Bond.</p> <p>Where, in an action to restrain defendant from transacting certain business during a period of one year, in which no damages were claimed, a temporary injunction had been granted on complainant’s executing a bond conditioned on indemnifying defendant for all costs and damages, if it should be finally determined that complainant was not entitled to the relief demanded, it was error for the court, on defendant’s motion, after the expiration of the year, to dismiss the suit, without determining whether complainant had been entitled to the temporary injunction, since complainant should not be exposed to liability on his bond, in ease the doubtful question whether the dismissal of the suit was res judicata as to his liability in an action on the bond was decided against him.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 388.]</p>

Petition to Revise Order of the District Court of the United States for the Southern District of New York. In the matter of the bankruptcy of Louis Neuburger, Incorporated. Petition by Walter B. Milkman, as assignee of the bankrupt, to revise dn order of the District Court (233 Fed. 701), affirming an order of the referee directing the assignee to account to the District Court.

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Daniel Green was convicted under Bankr. Act, ,§ 29b, of knowingly and fraudulently concealing from his trustee in bankruptcy property belonging to his estate in bankruptcy, and he brings error.</p> <p>This case comes here on writ of error to review a judgment of conviction based upon the verdict of a jury finding Daniel Green guilty of an offense under section 29b of the Bankruptcy Act. The specific offense charged against Green was that he knowingly and fraudulently concealed from his trustee in bankruptcy' money belonging to his estate in bankruptcy amounting to $8,000 together with certain other moneys and property to the grand jurors unknown. The jury found the defendant guilty and he was sentenced for one year and a day in the Atlanta Penitentiary.</p> <p>The parties will be referred to hereafter as they appeared in the court below, as plaintiff and defendant.</p>

Suit in admiralty for collision by William G. Beach against the steam tug James McWilliams; the James McWilliams Towing Line, claimant. Decree for libelant, and claimant appeals.

, Suit in admiralty by Robert M. Woodburn against Michael J. Sheehy and Frank M. Bedell. Decree for respondents, and libelant appeals. This was a libel filed to recover damages caused to a coal scow by reason of the unsafe condition of the bottom of a slip adjacent to a pier on the North River. The respondents leased 160 feet of the inner portion of the pier.

Suit in equity by the E. N. Rowell Company against the William Koehl Company. Decree for defendant; and complainant appeals. The E. N. Rowell Company is a corporation organized and existing under the laws of the state of New York and will be, referred to as complainant. It is engaged in the manufacture of paper pill boxes at Batavia, in the county of Genesee, in the state of New York.

Suit in equity by the Weber Electric Company against the National Gas & Electric Fixture Company. Decree for defendant, and complainant appeals. The Weber Electric Company is a corporation organized under the laws of the state of New York. It has its principal place of business in the city of Schenectady, in the said state.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the American Graphophone Company against Gim-bel Bros. Decree for defendant (234 Fed. 361), and complainant appeals.</p> <p>Appeal by plaintiff from decree in equity, entered in the District Court, dismissing bill on sundry patents below set forth:</p> <p>(1) No. 777,615, dated December 13, 1904, to Victor H. Emerson, for a “convertible sound box.” Claims relied on are as follows:</p> <p>“3. The combination of a sound box and means for supporting it interchangeably with its diaphragm either parallel to or at right angles to the surface of the sound record.”</p> <p>“5. The combination with a sound box and its diaphragm of supporting means therefor that hold said diaphragm in operative position for a laterally vibrating stylus, said means being adjustable to present said diaphragm in another position operative for a vertically vibrating stylus.”</p> <p>(2) No. 899,874, dated September 29, 1908, to Thomas Kraemer, for a “talking machine.” All the claims were relied on. Those numbered 1, 2, 3, and'6 describe the apparatus in one method, and 4, 5, and 7 in another. The two forms below given are sufficient for illustration:</p> <p>“1. In a talking machine, a sound box having a, diaphragm, and a tubular connection thereto for carrying sound, said connection having a joint therein permitting movement of the sound box to either of two operative positions; a single stylus being adapted to vibrate the diaphragm in either of said positions and said.stylus projecting in substantially the same direction from the sound box in both of said positions, substantially as set forth.”</p> <p>“4. In a talking machine, a sound-conveying tube, a sound box having a single stylus, and two telescoping tubular pieces, one on said tube and the other on said box, permitting movement of the sound box relatively to the tube to either of two operative positions in both of which said stylus projects in substantially the same direction from the sound box, substantially as set forth.”</p> <p>(3) No. 957,694, dated May 10, 1910, to Thomas H. Macdonald for a “disk sound-reproducing machine”; claims relied on, 3, 9, and 12, of which the most general is:</p> <p>“3. The combination of a swinging arm carrying the reproducer at one end, a stationary arm, a ring mounted on said stationary arm to turn in a horizontal plane and trunnions connecting the ring to the swinging arm to permit said arm to turn in a vertical plane.”</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Suit in equity by the American Graphophone Company against Gim-bel Bros. Decree for defendants, and complainant appeals.</p> <p>Appeal from so much of a decree in equity, entered in the District Court, as dismissed a bill for alleged infringement of claim 6 of Mac-donald patent, No. 714,651. The patent in suit relates to “recording and reproducing sounds,” and the sixth claim is as follows:</p> <p>'“A sound record consisting of a tablet having a sound groove with undulations of varying depths, said undulations being of such lengths that sounds occupying one minute in their production form a record approximately 44 meters in length.”</p>

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>Suit in equity by the Waterloo Cement Machinery Corporation against George Engel. Decree for complainant, and defendant appeals.</p>

<p>In Equity. Suit by Frank M. Ashley and another against the Samuel C. Tatum Company for infringement of a patent for design.</p>

<p>1. LiteraRY Property <&wkey;9 — Piracy—Evidence.</p> <p>In a suit between rival news agencies, where complainant moved for a preliminary injunction to restrain defendant from appropriating news gathered by it, affidavits and moving papers held, to warrant finding that defendant arranged with employés of newspapers served by complainant to deliver such news to defendant for a consideration before publication.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. .§ 8.]</p> <p>2. Literary Property <&wkey;9 — Piracy—Evidence.</p> <p>In a suit between rival news agencies, where complainant sought a preliminary injunction to restrain defendant from appropriating news gathered by it, evidence held to warrant a finding that defendant induced .a newspaper served by complainant to permit defendant to obtain news furnished by complainant before publication, by allowing defendant’s employés to read such news sheets in the editorial room of a newspaper.</p> <p>[Ed. Note. — For other eases, see Literary Property, Cfent. Dig. § 8.]</p> <p>8. Literary Property &wkey;>8 — Piracy—What Constitutes.</p> <p>Where complainant newsgathering agency furnished news to so-called members, who were under an obligation to use it only for their own publi cations, complainant is entitled to be protected against defendant’s method of procuring such news before publication by hiring employés of the members to give information as to news, or securing information directly from news sheets furnished members;' such acts constituting a tortious invasion of complainant’s rights.</p> <p>[Ed. Note. — For other cases, see Literary Property,'Cent. Dig.§ 7.]</p> <p>4. Principal and Agent &wkey;>116(l)--LiABiLiTY of Principal for Acts of Agent.</p> <p>A principal is liable for the acts of agents within the general scope of their employment, even though contrary to its directions.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. § 377.1</p> <p>5. Equity <&wkey;65(2) — Injunction—Clean Hands.</p> <p>Complainant conducted a news service agency, serving members who were under obligation to use such news only in their own publications. Defendant, a rival newsgathering agency, hired employés of members to inform it of news gathered by complainant before publication, and in some cases secured news direct from members. Occasionally complainant received tips as to stories from an employé of a member, who was in the pay of the defendant. Held that, though complainant sporadically obtained news from defendant contrary to the directions of its officers and managers, complainant cannot be denied relief, on the ground that he who comes into equity must do so with clean hands, for such doctrine cannot be based on technical theories of agency.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 186.]</p> <p>6. Literary Property &wkey;>9 — Protection—Piracy.</p> <p>Complainant news service company served various newspapers, which were its members. Defendant took news published in early editions by members and disseminated it to its own customers, although in some instances verifying the stories. Held that, in view of the analogy of common-law copyrights and stock and grain quotations, complainant was for a reasonable time entitled to protection from the piracy of its news, and defendant could not take news from such early editions.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 8.]</p> <p>7. LITERARY PROPERTY &wkey;>5 — NEWS-PUBLIC POLICY.</p> <p>In such case, as complainant might withhold news gathered, defendant cannot justify,its piracy on the ground that public policy required the dissemination of news.</p> <p>[Ed. Note. — For other pasés, see Literary Property, Gent. Dig. § 4.]</p> <p>8. Literary Property <&wkey;9 — Bight to Protection — Injunction.</p> <p>Where complainant gathered news, which was disseminated to members, who were entitled to use it only in their own publications, a preliminary injunction will be issued to prevent defendant from obtaining such news by hiring employés of members to furnish it with such news before publication, where such piracy was systematic, and defendant claimed to be 'entitled to continue, though it also claimed that its managing officers did not know of the practice,</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 8.]</p> <p>9. Literary Property <&wkey;9 — Preliminary Injunction — Bight to.</p> <p>Complainant news service company gathered news, which was disseminated to newspapers that were members of complainant. Defendant pirated such news, by taking it from early editions issued by complainant’s members, and then disposing of it to others. Selll that, while complainant was entitled to protection, nevertheless, as the matter was one of first impression, and not free from doubt, a preliminary injunction will not be granted.</p> <p>[Ed. Note. — For other cases, see Literary Property, Cent. Dig. § 8.]</p>

<p>1. Mines and Minerals &wkey;17(l) — Location—'Validity.</p> <p>A location of a mining claim is not valid until there is a discovery, in case of a lode claim, of a vein or lode containing mineral, or, in case of a placer claim, a discovery of petroleum or other mineral within its limits.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 24, 27, 28.1</p> <p>2. Mines and Minerals <&wkey;17(l) — Location—Validity.</p> <p>Upon discovery of minerals within the claim, the location becomes valid, although in case of a lode claim the finding of float rock, or in case of a placer claim the mere indications of mineral or oil,' is insufficient.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. §§ 24, 27, 28.]</p> <p>3. Mines and Minerals <&wkey;38(22) — Location—Discovery.</p> <p>Whether there has been a discovery of minerals within a claim, so as to perfect the location, is a question of fact, depending on thé circumstances of the particular case.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 10S.J</p> <p>4. Mines and Minerals <@=>17(1) — Location—Validity.</p> <p>A discovery of minerals sufficient to perfect location of a claim must he such a discovery that a person of ordinary prudence would he justified in further expenditure of his labor and means with a reasonable prospect of success,, either in developing a valuable mine, or, in case of an oil claim, of securing oil in paying quantities, and the question cannot be left to the mere arbitrary will of the locator.</p> <p>[Ed. Note. — -For other cases, see Mines and Minerals, Cent. Dig, §§ 24, 27, 28.] .</p> <p>5. Mines and Minerals <&wkey;16 — “Placer Claim” — “Lode Claim.”</p> <p>The term “placer claim’” means ground within definite boundaries which contains mineral or valuable mineral deposits not in place, while the term “lode” or “vein,” used in the statute relating to lode claims, means lines or aggregations of mineral imbedded in quartz or other rock in place.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 21-23.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Placer Location; Second Series, Lode Location.]</p> <p>6. Mines and Minerals @=^38(17) — 'Location—Discovery—Evidence—Strir-JTCIENCY. '</p> <p>In a suit to withdraw mineral lands from appropriation, evidence held to warrant a finding that the locator of claims on such land had made a discovery of oil previous to the withdrawal order sufficient to validate the claim, because justifying a person of ordinary prudence in further expenditure of labor with prospects of success in securing oil in commercial quantities.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. § 103.]</p> <p>7. Mines and Minerals <&wkey;36 — Location—Withdrawal.</p> <p>Under Act June 25, 1910, c. 421, § 2, 36 Stat. 847, as amended by Act Aug. 24, 1912, c. 369, 37 Stat. 497 (Comp. St. 1913, § 4524), declaring that all lands withdrawn from appropriation shall be open to exploration, discovery, and occupation under the mining laws, so far as the same apply to metalliferous minerals, but that the rights of any person who at the date of any order of withdrawal is a bona fide occupant or claimant of oil or gas bearing lands, and who at such date is in the diligent prosecution of work leading to the discovery of oil and gas, shall not be affected or impaired, so long as such occupant shall continue in such diligent prosecution, labor performed or improvements made at a distance from a claim on oil-bearing lands, intended to facilitate work on the claim, such ' as the construction of a camp or the building of roads, falls within the statute.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. § 87.]</p> <p>8. Mines and Minerals <&wkey;38(20) — Location—Labor—Performance.</p> <p>In a proceeding to forfeit locations on mineral land withdrawn from appropriation, evidence held to show the performance of labor and the making of improvements sufficient, within Act June 25, 1910, c. 421, § 2, as amended by Act Aug. 24, 1912, c. 369, to hold the claim.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 106.}</p>

<p>In Equity. Suit by the United States against the Stockton Midway Oil Company and others. On application for injunction and for receiver.</p>

At I,aw. Separate actions, by Joseph Woren and by Branislaw Kuzman against Witherbee, Sherman & Co. On motions by the defendants to stay the further prosecution of the actions until the trial and determination of actions by the same plaintiffs, respectively, against the same defendants, for the same cause, pending in the state court.

<p>In Admiralty. Suit by the Albion Dumber Company against the Inter-Ocean Transportation Company and B. W. Olson. On exceptions to libel.</p>

<p>1. ADMIRALTY <&wkey;124 — DOCKET FEE-PROCTOR-“FINAL HEARING.”</p> <p>The dismissal of a suit in admiralty without prejudice on the unopposed motion of lihelant is not a “final hearing,” within the meaning of ReV. St. § 824 (Comp. St. 1913, §T378), which entitles the proctor for respondent to a docket fee of $20.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 836-857.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Final Hearing.]</p> <p>■ 2. Admiralty <&wkey;124 — Docket Fee of Proctor — Final Hearing.</p> <p>The submission of a cause to the court on exceptions to the libel, which are sustained, is, however, a “final hearing,” and respondent’s proctor is not 'deprived of the right to a docket fee by the filing of an amended libel, alleging facts which libelant is unable to prove, and which is therefore voluntarily dismissed without hearing.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §1 836-857.]</p>

<p>In Error to 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 Southern District of New York.</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge. Suit by the Armstrong Cork Company and others against the Ringwalt Linoleum Works. From a decree dismissing plaintiffs’ appeal (235 Fed. 458),' plaintiffs appeal.</p>

<p>Appeal from the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge. Suit by Harwell G. Davis, as trustee in bankruptcy of Thomas M. Cassels, against Thomas M. Cassels and others. Decree for complainant (220 Fed. 958), and defendants appeal.</p>

<p>In Error to 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 Middle District of Pennsylvania; Chas. B. Witmer, Judge.</p>

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