Volume 241 — Federal Reporter

Booth, Judge. Action by the Old National Bank of Battle Creek, Mich., against the Security National Bank of Sioux City, Iowa. Judgment for plaintiff, and defendant brings error.

Appeal frpm the District Court of the United States for the District of Oregon; Chas. E. Wolverton, Judge. Suit in equity by the United States against the Southern Oregon Company. Decree for the United States, and defendant appeals.

IruError to the District Court of the United States for the Western District of New York. Criminal prosecution by the United States against the Northern Central Railway Company. From a judgment of conviction, defendant brings error. The plaintiff in error hereinafter is referred to as the defendant.

Action at law by the First National Bank of Central City, Colo., against the City of Port Townsend, Wash. Judgment for plaintiff, and defendant brings error. The defendant in error brought an action at law against the plaintiff in error on warrants issued by the latter, drawn on the Indebtedness fund of the city, to obtain a-judgment, preliminary to mandamus against the city officers to compel them to levy taxes for the indebtedness fund wherewith to pay the warrants.

In, Error to the District Court of the United States for the Eastern District of Tennessee; Edward T. Sanford, Judge. .Action by the General Electric Company against the Chattanooga Coal & Iron Corporation. Jtidgment for defendant, and plaintiff brings error.

T. Dooling, Judge. Suit in admiralty by V. J. B. Cheda against the Halvorsen Transportation Company, J. B. Arkison, Ii. C. Halvorsen, George W. Dornin, C. R. Codding, G. C. Codding, P. S. Colby, and A. M. De Vail, a certain barge, and the gasoline launch Seven Bells. Decree for libelant, and respondents appeal.

Fred Marhoefer and Thomas Walsh were convicted of violating the oleomargarine laws o-f the United States, and each defendant brings error. From a sentence upon conviction on nine eounts of an indictment charging violations of the oleomargarine laws of the United States, each defendant prosecutes his writ of error. Defendants were tried together, and but one record in this court is presented.

<p>1. Courts <§=5366(6) — Rules of Decision — Decisions of State Courts — Bien for Taxes.</p> <p>The question whether the lien of a mortgage on personal property is paramount to the lien for the personal property tax is a question of state law, governed by the state decisions.</p> <p>[Ed. Note. — -For other cases, see Courts, Cent. Dig. § 961.]</p> <p>2. Stipulations <§=53 — Question of Daw.</p> <p>A stipulation as to statute law of a state is not binding on the courts, if erroneous.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 2.]</p> <p>3. Receivers <S=»90(3) — Payment of Taxes — Lien.</p> <p>The federal court, whose receiver is in possession of the property of a corporation and conducting the business, thereby enjoying the protection and benefits of the state, county, and municipal governments, will order the receiver to pay the personal property taxes assessed on such property, which were levied against the corporation, but which might have been levied against the receiver under Comp. Baws Mich. § 3837 (C), regardless of whether such taxes are, under the state law, a. lien on the properly superior to the lien of the mortgage.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 186.]</p> <p>4. Receivers <§=599 (3) — Taxes—’Payment by Receiver.</p> <p>A decision by the state court that a receiver appointed by it need not pay personal property taxes assessed against the property does not prevent the federal court from directing its receiver to pay such taxes in due recognition of the benefits received.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 186.]</p> <p>5. Receivers <3=590(3) — Payment of Taxes — Interest.</p> <p>The collection Cees and interest on delinquent taxes are merged in an order directing the receiver to pay the taxes, whicli is in effect a judgment, and the interest rates so specified did not extend beyond the day of the order.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 186.]</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Connor, Judge. Suit in admiralty by the-Weller Coal Company against the steamer John W. Lawrence and others. From a decree (231 Fed. 507) distributing proceeds of the Lawrence to E. V. White & Co., Incorporated, and the Robert P. Voight Company, lien claimants, the Astor Trust Company, trustee under mortgage, and others, appeal.

Middleton Smith, Judge. Suit in admiralty by George E. Jones, master and part owner of the schooner William Thomas Moore, against the steamer Atlantic City; Thomas P. Hammer, claimant, and J. T. Jacobs, master and agent. Decree for libelant, and claimant appeals.

Middleton Smith, Judge. Suit in admiralty by William E. Wingate, owner of the gasoline launch Oakland, against the Anderson Dumber Company. Decree for libelant, and respondent appeals.’

Petition in admiralty of the R. G: Packard Company, owner of steam dredge No. 6, for limitation of liability. Held: That it had jurisdiction to entertain the proceeding, and (2) that the injury wrought had been inflicted without fault or negligence of petitioner; a conclusion -involving the finding (3) that there was no privity or knowledge on the part of the petitioner.

Cross-Appeals from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr.„ Judge. Suit in equity by the Benthall Machine Company, Incorporated, against the National Machine Corporation, Incorporated. From the decree, both parties appeal.

<p>1. 'Patents <®=»75 — Validity—Peiob Use.</p> <p>The prior public use of an invention for two years invalidates a later patent, even though the patentee had no knowledge of the same.</p> <p>[Ed. Note.- — For other cases, see Patents, Cent. Dig. §§ 92-97.]</p> <p>2. Patents <&=»328 — Priok Public Use — Peanut Stemming Machine.</p> <p>The Benthall patent, No. 890,401, for a peanut stemming machine, held void for prior public use for more than two years before the application of a machine invented and constructed by Ben Hicks which embodied all the principles of the patented machine.</p> <p>other cases see same topic & KEY-NUMBER in all Koy-Numbered Digests & Indexes</p> <p>3. Patents <@=>S7 — Abandonment of Invention — Burden and Measure op Proof.</p> <p>Where an invention has been embodied in a successfully operating machine, its abandonment will not be presumed, but must be established by clear and convincing evidence beyond doubt.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 112.]</p> <p>4. Patents <@=>30(1) — Invention—Mechanical Imperfections.</p> <p>Mechanical perfection in a machine is not necessary to sustain invention, provided it discloses the principles upon which it may be practically operated.</p> <p>[Ed. Note. — For other eases, see Patents, Cent. Dig. § 34.]</p> <p>5. Patents <@=>328 — Validity—Peanut Picking Machine — Anticipation.</p> <p>The Ferguson & Benthall patent, No. 808,442, for a peanut picking machine, held anticipated and void for prior public use for more than two years of a machine invented and constructed by Ben Hicks.</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

, Judge. Suit in equity by the Benthall Machine Company, Incorporated, against Thomas hi. Debnam and Walter C. Ferguson, otherwise known as the Ferguson Manufacturing Company. Decree for complainant, and defendants appeal.

<p>1. Patents <@=229 — Infringement—Process Patents.</p> <p>The rule applicable to mechanical patents for combinations also applies to process patents, and unless a defendant uses all the steps in the process, or an equivalent therefor, he does not infringe.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. §§ 366, 368.]</p> <p>2. Patents <@=165 — Infringement—Limitations in Claims.</p> <p>The patent is the measure of the monopoly, and the public has a right to act in reliance on any clear and expressed limitations contained in the grant, although, if the limitations are voluntary and unnecessary, the tendency of the courts is to interpret them, liberally in favor of the patentee.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 241.]</p> <p>3. Patents <@=328 — Infringement—Process of Devulcanizing Rubber Waste.</p> <p>The Marks patent, No. 635,141, for a process of reclaiming rubber from vulcanized rubber waste, construed, and held nót infringed.</p> <p><@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <5^328 — Infringement-- -Shuttle and Shuttle Eye.</p> <p>Tiie Daudelin patent, No. 737,711, for a shuttle and shuttle eye, conceding its validity, is limited to the precise construction of the device shown and described; as so construed, held not infringed.</p> <p><grxi>Kor other eases see,same topic & KJilY-NUMBRR in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Wm. C. Van Fleet, Judge.</p> <p>Suit in equity by the Kellar-Thomason Company against Frank P. Snow and Frank S. Livingston, partners as the Snow Manufacturing Company. Decree for complainant, and defendants appeal.</p>

<p>1. Courts <©c=3405(8) — Federal Courts — Appealable Decrees- -I Rsmtsral.</p> <p>While an appeal to the Circuit Court of Appeals does not lie from the taxation of costs by the clerk of a District Court, a decree permitting a complainant to dismiss at the costs of the defendant involves a broader question and is appealable.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1097, 1099.J</p> <p>2. Patents <3=»325 — Suits tor 1j\ eringe went — Costs on Dismissal.</p> <p>Where, pending a suit for Infringement by the owner of a pat suit against the manufacturer of infringing machines, he commenced numerous suits against customers of the defendant, which were stayed by the court, and on an accounting in the principal case he recovered full damages for all sales made by the manufacturer, on his subsequent dismissal of the suits against customers, he is not entitled to recover his costs.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 007-012.J</p> <p>®s»I'or other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <@=>328 — Infringement—Process of Treating Tobacco.</p> <p>The Hobson patent, No. 642,609, for a process of treating tobacco to flavor the same, held not infringed.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Equity. Suit by the Unit Construction Company against the Huskey Manufacturing Company. On motion by defendant to dismiss bill as to one cause of action alleged.</p>

<p>In Equity. Suit by Meccano, Limited, against John Wanamaker, New York. On motion for'preliminary injunction.</p>

In Bankruptcy. Action by Daniel W. Murphy, as trustee in bankruptcy of the K. E. Sentman Cut Leather Company, against the Ford Motor Company and Frank M. Bush and another, partners doing business under the firm name of the Hoosier Harness Company. On motion by the partners to quash the service, on the ground that the court.has not acquired jurisdiction over them.

<p>Irt Equity. Suit by the Mutual Export & Import Corporation against the Mutual Export & Import Corporation of America to restrain the defendant from the use of its name.</p>

Suit by Charles B. Shaffer against John H. Marks and McCartney, landowners, and Aggers, second lessee, to restrain said Aggers from drilling the land for oil and gas and to cancel Aggers’ lease as cloud on title of complainant.

In Equity. Suit by the Baltimore & Ohio Railroad Company against the Western Union Telegraph Company. On hearing on bill and answer. Held: that while said carriers may contract for an exchange of services. such services must lie exchanged upon the basis of the lawful rates of said railroad, as published and filed in accordance with the provisions of section 6 of the act. and of the reasonable charges of said telegraph company, regularly charged other customers for…

In Bankruptcy. In the matter of the Hunter-Rand Company, bankrupt. On petition by Armstrong, Cator & Co. to review the referee’s findings of fact and law on a petition to recover possession of goods alleged to have been procured by the bankrupt by fraud.

<p>In Admiralty. Suit by Eugene Higgins against the yacht Eros; Julien H. Evrard, master, claimant.</p>

In the matter of appeal from assessment of the property of the Mississippi River Power Company. On motion to remand to state court.

<p>In Admiralty. Suits by the Postal Telegraph-Cable Company against the Home Dredging Company and by the Home Telephone Company against the Home Dredging Company and dredge No. 4; Home Dredging Company, claimant.</p>

<p>1. Towage <S=j19 — Relation of Tug to Tow.</p> <p>The relation of tug to tow under ordinary circumstances is that of independent contractor, and not that of agent and principal, or employé and employer, and the tow is not responsible for the acts of the tug.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 41.]</p> <p>2. Collision <@=»59 — Towage <§=»19 — Vessel in Tow — Liability of Tow.</p> <p>If a tow collides' with another vessel, or any other object subject to admiralty jurisdiction, as a beacon or channel light, it is not liable for the damage caused thereby, unless some negligence contributing to the collision is proved against it.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 72; Towage, Cent. Dig. § 41.]</p> <p>3. Towage <®=»19 — Liability of Tug ob Tow.</p> <p>If a tow is on a hawser, the liability for a collision is upon the tug if the tow steered properly, but upon the tow if the proximate cause of the collision was wild steering on its part.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 41.]</p> <p>4. Towage @=»19 — Care Required of Tug.</p> <p>The care required of a tug with a tow is only ordinary care; but ordinary care of those engaged in towing is a high degree of care, because they hold themselves out as experts.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 41.]</p> <p><g=»For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>5. Towage <@=»19 — Doties oe Tug — Making up Tow.</p> <p>It is the duty oí the tug to see that the tow is properly made up, and that the lines are sufficient and securely fastened, whether she furnishes the lines to the tow or the tow to her.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 41'.]</p> <p>6. Towage <g=>19 — Injuby to Beacon by Tow — -Biabiuty oe Tug.</p> <p>A tug with a schooner in tow held liable for injury to a beacon, with which the tow came into collision, .and which was outside the channel where the tow should have been kept; no contributory fault being found in tbe navigation of the schooner.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 41.]</p> <p>i©c»For other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Petition of the Merritt & Chapman Derrick & Wrecking Company, owner of the wrecking pump boat Cascade, for limitation of liability. On application of the New Amsterdam Casualty Company for restraining order.</p>

S. Bean, Judge. Suit in admiralty for collision by Wilhelm Wilhelmsen, owner of the steamship Thode Fagelund, against the bark Thielbek, Knohr & Burchard, Nil., claimant, and the Port of Portland; also suit by Knohr & Burchard, Nil., owner of the Thielbek, against the Thode Fagelund and the Port of Portland. Decrees against the Fagelund and the Port of Portland, from which they appeal.

<p>1. Criminal Law <§=>1134(1) — Review—Case Submitted on Agreed Statement.</p> <p>When a case is submitted on an agreed statement of facts, the sufficiency of the facts so agreed on to sustain the judgment entered may be reviewed on writ of error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2986, 3050.1</p> <p>2. Criminal Law <§=758(3) — Trial—Questions for Jury — Case Submitted on Agreed Statement of Facts.</p> <p>The constitutional right of a person charged with crime to a trial by jury is the right to a trial by jury according to the course of the common law, which right cannot ho waived, and a court is without power in a criminal case to instruct the jury peremptorily to And the accused guilty, although the case is submitted on an agreed statement of facts, without other evidence.</p> <p>[Ed. Note. — For other cases, seo Criminal Law, Cent. Dig. § 1729.]</p> <p>8. Criminal Law <§=1111(3) — Agreed Statement of Facts — Construction.</p> <p>It is not permissible to import into an agreed statement ol facts, by inference, deduction, or otherwise, anything not expressly stated as a fact.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2894.]</p> <p>i©^For other cases see same toi>ic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dickinson, Judge. Suit in admiralty by John W. Field and others, trading as William Haskins & Son, against the Hafnia Steamship Company, owner of the steamship Canadia. Decree for libelants, and respondent appeals.

Suit in admiralty for collision by Abraham Silver, assignee of the Bowns-Pattison Transportation Company, owner of the boat Maggie, and of W. H. Toilette, owner of the boat Pickett, against the Morris & Cummings Dredging Company, with the Lehigh Valley Transportation Company, owner of the tug Mahanoy, impleaded. Decree for libelant against both respondents, and the Morris & Cummings Dredging Company appeals.

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.</p> <p>Bill by the Fisenstadt Manufacturing Company against the J. M. Fisher Company. From a decree dismissing the bill (232 Fed. 957), complainant appeals.</p>

<p>1. Bankruptcy <§=3267 — Sauk by Trustee — Rights of Mortgagee.</p> <p>A mortgagee, who, without objection or demand for the property, permits the mortgaged iuoperty to be sold by a trustee in bankruptcy under a court order for less than the secured debt, is limited in his preferred claim to the proceeds of the sale, if he knew of the order for sale.</p> <p>[Ed. Note. — 'For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380.J</p> <p>2. Bankruptcy <§=»267 — Sale by Trustee — Rights of Mortgagee — Value of Property.</p> <p>Where mortgaged property is sold by the trustee in bankruptcy under orders of the court, preferred claim of the mortgagee is limited to the actual value of the property sold, even though he knew nothing of the bankruptcy or the order for sale.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380.1</p> <p>8. Bankruptcy <§=3267 — Sale by Trustee — Mortgaged Property — Order.</p> <p>Whore the receiver in bankruptcy, authorized to continue the business, secured an order authorizing it to solicit bids for the sale of the assets free and clear of liens, the liens, if any, to attach to the proceeds of the sale, and a notice advised the creditors that, if bids were obtained in accordance with an attached circular and approved, the assets would be sold without further notice, the liens to attach to the proceeds, and the circular stated that tile sale would be effected as a going concern, an order for sale, made under the circumstances recited and before determination of the validity of liens contested by the receiver and trustee, reciting that a firm of auctioneers was willing to guarantee to realize a sum net to the estate which exceeded the liens claimed, and directing the receiver to proceed to sell the assets under the guaranty without further notice, should be construed as shifting the lieu, if any, of a chattel mortgage on part of the property to the proceeds of the sale of all the assets, not merely to those of the mortgaged assets, since under the order the assets might have been sold as a going concern, and the mortgagee could not, therefore, have ‘bid in the mortgaged assets and protected his lien.</p> <p>[Ed, Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 371, 380.1</p> <p><g£5>For other cases see same topic & KEY-NUMBJER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge.</p> <p>Action by Anastasia Rjasko against the Pennsylvania Coal & Coke Corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>Railroads <@=222(1) — Injuries from Operation — Liability.</p> <p>Where a railroad company, which elevated its tracks, placed the foundation of such elevated tracks against the foundation of plaintiff’s house, and by reason thereof the vibrations made by the trains caused the walls of plaintiff’s premises to crack open, the railroad company is not liable; it not appearing that its foundations - were improperly constructed or extended beyond its right of way, or that its trains were carelessly operated.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 720.]</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p>

Toulmin, Judge. Suit in admiralty by the Home Telephone Company against the Home Dredging Company and dredge No. 4; Home Dredging Company, claimant.' Decree for respondents (241 Ted. 201), and libelant appeals.

<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 Powell Evans against the Associated Automatic Sprinkler Company. Decree for defendant, and complainant appeals.</p>

<p>1. Patents <S=j328 — Infringement—Process of Making Roadways.</p> <p>The Ward patent, No. 991,043. for a process of making roadways, which consists in atomizing oil in contact with the air before it falis on the surface of the roadway, construed, and hold not infringed.</p> <p>2. Patents <§^>157(1) — Construction—Excluding Prior Pevices.</p> <p>A patentee is to be held to that construction of his patent which does not include anything disclosed by prior patents or devices in public use, or known to the public.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. §§ 229, 230.]</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Wolverton, Judge. Suit in equity by Elbert G. Chandler and the Northwestern Equipment Company against the Columbia & Nehalem River Railroad Company and A. S. Kerry. Decree for complainants, and defendants appeal. The patent involved in the present suit was issued to Elbert G. Chandler on May 25, 1915, letters patent No. 1,140,875, and was for an improvement in logging trucks.

<p>1. Patents @=>328 — Validity and Infringement — Electric Lamp.</p> <p>The Guth patent, No. 1,076,418, for an. improved electric lamp for semi-indirect illumination, is for a new and very useful combination of old elements, and, while narrow, was not anticipated, and discloses invention ; also hold infringed.</p> <p>2. Patents @=>328 — Validity and Infringement — Electric Lamp.</p> <p>The Guth patent, No. 1,082,322, for an electric lamp, held narrowly valid in the precise form of device shown, but not infringed.</p> <p>3. Trade-Marks and Trade-Names @=>68 — Unfair Competition — Nature of</p> <p>Wrong.</p> <p>The gist of the legal wrong of unfair competition is the invading by one of the right of another by procuring the sale of his own goods through express or implied misrepresentation that they are those of his competitor.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 79.]</p> <p>4. Trade-Marks and Trade-Names @=>70(1) — Unfair Competition.</p> <p>The adoption of necessary elements of mechanical construction, essential to the practical operation of a device, and which cannot be changed without lessening its effectiveness or materially increasing its cost, affords no presumption of an intent to compete unfairly; but one is not permitted to copy immaterial features of another’s product, when to do so involves misrepresentation as to origin.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 81.]</p> <p>5. Trade-Marks and Trade-Names @=>70(1) — Unfair Competition.</p> <p>A defendant helé chargeable with unfair competition in unnecessarily imitating the appearances of electric lamps ma.de and sold by complainant.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Marie E. Scheuerle, administratrix of the estate of Henry A. Scheuerle, deceased, against the Onepiece Bifocal Lens Company, John Rau, president of said company, Wall & Ochs, a corporation, and Charles E. Wall, William L. Wall, and J. Harry Bowers, individually and as .officers of Wall & Ochs. On motions by defendants to set aside service and to dismiss.

<p>In Equity. Suit by the American Pneumatic Service Company and another against William G. Snyder and others. On exceptions by defendants to master’s report.</p>

<p>At Law. Action by Ellen Louise Howes against the Iowa State Traveling Men’s Association.</p>

<p>In Admiralty. Suit by the Pompeian Company against the steamship Arpillao; Jose Taya Sons & Co., claimants.</p>

<p>In Admiralty. Suit for collision by Ezequiel Echevarria, master of the steamship Begona II, against the tug Mary P. Riehl and car float I.</p>

<p>Petition of the New York & Porto Rico Steamship Company, owner of the Steamship San Juan, for a writ of mandamus.</p>

In Bankruptcy. In the matter of John H. Dialogue, trading as John H. Dialogue & Son, bankrupt. On petition by Sarah G. Dialogue to review an order of the referee overruling petitioner’s exceptions to the jurisdiction of the court to determine the amount to which petitioner was entitled under her agreement with the trustee for the release of her inchoate right of dower.

In Bankruptcy. In the matter of New Era Novelty Company, a corporation. On motion to confirm the report of the special master retaining jurisdiction in bankruptcy on the ground that the principal place of business was within the district, though the domicile was in another district. Jurisdiction relinquished, unless the district of domicile transfers jurisdiction because of convenience of the parties.

Action by the United States against the Missouri, Oklahoma ■& Gulf Railway Company of Texas to recover a penalty for a breach of the Railway Hours of Service Act. On hearing on agreed statement of facts.

<p>Aliens <§=>68 — Naturalization—Alien Enemies — “Time oe His Application.”</p> <p>- Bev. St. § 2171 (Comp. St. 1916, § 4362), originally adopted at a time when the only application for naturalization was made in open court, provides that no subject of any country with which the United States are at war at the time of his application shall be admitted to citizenship. Act June 29, 1906, c. 3592, § 4, 34 Stat. 596 (Comp. St. 1916, § 4352), requires the applicant to make and file a petition in writing, and section 6-(Comp. St. 1916, § 4354) provides that final action thereon shall not be had until at least 90 days have elapsed after filing and posting the notice of such petition. 41 eld, that the application is complete when the petition is filed, and the time of filing the petition is the “time of his application,” especially as section 2171 contains a further provision, now obsolete, for the naturalization of alien enemies entitled to naturalization on June 18, 1812, and hence a' German subject filing his petition in January, 1917, was entitled to naturalization, though the hearing was not had until April 6th, at which time a state of war existed.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 138-145.]</p> <p>Hough, Circuit Judge, dissenting.</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Appeal and Cross-Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg; Alston G. Dayton, Judge. Suit by John J. Gillespie against Caleb B. Riggs and others to restrain the defendants from asserting as a defense to an action at law a release given by plaintiff to one of them.

Action by the Farmers’ Loan & Trust Company against Charles W. Anderson, late collector of Internal Revenue, Second District of New York. There was a judgment for plaintiff, and defendant brings error. The Farmers’ Loan & Trust Company brought an action in the District Court for the Southern District of New York, against the former collector of internal revenue, to recover i?4,8t)i>.84, the amount of taxes paid under protest.

Petition to Revise an Order of the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. In the matter of the bankruptcy of the Ohio Motor Car Company. Petition of the National Carbon Company and others to revise an order of the District Court dismissing the proceeding and awarding costs.

Burns, Judge. E. T. Thurston and J. D. Moore were convicted of conspiring to violate the Harrison Act, relating to the sale of narcotics, and of violating that act, and they separately bring error.

<p>In Error to the District Court of the United States for the San Antonio Division of the Western District of Texas; Gordon Russell, Judge.</p> <p>Aurelia P. Bernal was convicted of peonage, and she brings error.</p>

<p>In Error to the District Court of the United States for the District of New Jersey; J. Warren Davis, Judge.</p> <p>Action by Daisy B. James against the Delaware, Lackawanna & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

Joseph B. Schwartzberg and others were convicted, under Criminal Code, § 37, of conspiracy to devise a scheme and artifice to defraud, and under section 215, of using the mails in connection with a scheme to defraud, and Joseph B. Schwartzberg, Joseph Herzberg, Henri P. Alexander, Benedict Radus, and Harry S. Goldman bring error.

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; John M. Killits, Judge.</p> <p>Bill by Charles W. Eberhard and others against the Northwestern Mutual Eife Insurance Company. From a judgment dismissing the bill, complainants appeal.</p>

Appeals from the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Suit by the United States Fidelity & Guaranty Company against Laura Fichel and others, to have determined in one suit complainant’s liability on various claims held by defendants. From a decree determining the liability, both parties appeal.

<p>1. Copyrights <§=50 — License—Component Parts — Statute.</p> <p>Under Copyright Act March 4, 1909, c. 320, § 3, 35 Stat. 1076 (Comp. St. 1916, § 9519), providing that the copyright shall protect all copyrightable component parts of the work, and that the copyright on composite works shall give the proprietor all the rights in respect thereto which he would have if each part were individually copyrighted, the copyright of a musical composition protects both the words and music, and entitles the owner to limit the use of the copyright either to Words or music, or to allow both to be used.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 47, 49.]</p> <p>2. Copyrights <@=>48 — License—Construction—Words of Song.</p> <p>■ A license to use a copyrighted musical composition, which gave the licensee the right to use the composition in,the manufacture of its sound records in any form whatsoever, extended the original copyright of the composition to the instruments serving to reproduce mechanically the musical work, and required the licensee to pay 2 cents for every record and copy of record manufactured by it to reproduce mechanically the musical work, licenses the use of only the music, so that the inclusion of the words on a printed slip in fee box with the rolls for mechánically reproducing the music was an infringement of the copyright.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 46.]</p> <p>3. Copyrights <@=75. — License—Failure to File Notice — Effect.</p> <p>Under Copyright Act, § le (Comp. St. 1916, § 9517), giving the right to make any arrangement of a musical composition in any form of record In which the thought of the author may be recorded, or from which it may be read or reproduced, but requiring that permission be given to all producers of mechanical records the right to reproduce the composition, if such right is given to any, and requiring notice of the license to reproduce mechanically to be filed, failure to file such notice being a complete defense to any suit or proceeding for infringement of such copyright, the failure to file notice of license to use the music only of a song for mechanical reproduction is no defense to a suit for infringement of copyright of the words.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 65.]</p> <p><S=For other cases see same topic & KEY-NUMBER in-all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge.</p> <p>Suit by I’. A. Mills, Incorporated, against the Standard Music Roll Company, for infringement of copyright. Decree for plaintiff (223 Fed. 849), and defendant ai>peals.</p>

D. Elliott, Judge. Action by the United States against Carl Pitan and- Bertha E. Henry. Judgment (224 Fed. .604) for the United States and Paul Pitan, administrator of Carl Pitan, deceased, and others, bring error.

<p>Appeal from the District Court of the United States for tire First Division of tire Northern District of California; Maurice T. Dooling, Judge.</p> <p>Involuntary proceedings in bankruptcy by the Decker Electrical Construction Company and others for the adjudication of the Sutter Hotel Company as a bankrupt. From an order denying the alleged bankrupt’s motion to set aside tire adjudication entered on 'default and to quash the service, except on condition that alleged bankrupt enter its appearance and plead to the petition, the alleged bankrupt appeals.</p> <p>The record in this case shows that on the petition of three of its corporation creditors, namely, Decker Electrical Construction Company, Home Laundry Company, and Eathjen Mercantile Company, filed in the court below September 4, 1916, the appellant company was, on the 13th day of October, 1916, adjudged bankrupt and the appropriate reference ordered — the court reciting in its order “that service of said petition with a writ of subpoena has been duly served on the alleged bankrupt, and that the last day upon which pleadings may be filed has expired, and no such pleadings have been filed by any parties hereto.” Thereafter, and on the 30th day of the same month of October, the Hotel Company, by its attorney, gave notice that on the 4th of November, following, or as soon thereafter as he could be heard, motion would be made to the court for an order “quashing the service of subpoena on Thomas P. Woodward, the alleged president of the 'said Sutter Hotel Company,” on the ground that, at the time the creditors’ petition and the subpoena were served upon him as president of the Hotel Company, he was not an officer or director thereof — basing the motion upon .an affidavit of one Easton, which stated, among other things, that he then was, and ever since May 13, 1916, had been, secretary of the Sutter Hotel Company, and “that said affiant, as secretary of said corporation, on the 13th day of May, 1916, received in writing the resignation of one Thomas P. Woodward, as director and president of said Sutter Hotel Company, a corporation, which said resignation of Thomas P. Woodward as director and president of said Sutter Hotel Company was accepted by the board of directors on said 13th day of May, 1916; that since the said 13th day of May, 1916, the said Thomas P. Woodward has not been a director nor officer of said Sutter Hotel Company; that affiant is informed and believes, and therefore alleges, that a subpoena was served on said Thomas P. Woodward by Lawrence J. Conlon, deputy United States marshal, .on the 21st day of September, 1916; that said subpoena was served on said Thomas P. Woodward as president of- said Sutter Hotel Company, a corporation, and affiant alleges that at said time of service of said subpoena on said Thomas P. Woodward, he was not a director or officer of said corporation.”</p> <p>On the coming on of the motion for hearing, the attorney for the petitioning creditors filed his own affidavit, reading, in part, as follows: “Affiant is informed and believes, and upon such information and belief alleges, that Charles A. Christin, Esq., who appears herein as attorney for said Sutter Hotel Company, has ever*since the 13th day of May, A. D. 1916, been the attorney for the said Sutter Hotel Company, and that on said last-named date he was the attorney for the Jacob Z. Davis Estate Company, designated in said petitioning creditors’ petition herein as the Davis Estate Company, and that on said date the said Charles A. Christin, as a part of the transactions with the Enterprise Brewing Company and the Davis Estate Company set forth in these creditors’ petition on file herein, received from the said Sutter Hotel Company, for said Davis Estate Company, all shares of stock issued by said Sutter Hotel Company, properly indorsed, except 1 share issued to E. S. Woodward, 1 share issued to L. S. Melsted, and 1 certificate for 3,500 shares issued to Thomas P. Woodward, said shares so received by him constituting a majority of all the issued shares of the capital stock of said corporation; that upon the filing of these creditors’ petition herein and the making of the order of said court therefor a writ of subpoena, directed to said Sutter Hotel Company, was on the 7th day of September, A. D. 1916, issued out of said court, and thereupon placed in the hands of the United States marshal of said district for service, and that on, said 7th day of September, A. D. 1916, this affiant informed said Charles A. Ghristin, by telephone to him personally, of the filing of said petition and the issuance of said writ, and inquired of said Christin whether Thomas P. Woodward was still president of said Sutter Hotel Company, to which the said Christin replied that one R. O. Hoskins was president of said Sutter Hotel Company; that on the same day affiant wrote and sent by mail a letter to said Christin requesting said and other information concerning said Sutter Hotel Company, but has never received a reply to said letter; that affiant thereupon directed said marshal to serve said writ upon said Hoskins, who, as affiant was then informed by .said Christin, was then and at all said times connected with the law office of said Christin and there employed, and said marshal thereupon repeatedly made efforts to make such service .upon him at said office, but was there informed, as affiant is by Min informed and verily believes, that said Hoskins was absent from said city and county, and that it was uncertain as to when ho would return, and said marshal reported such inability to serve said writ to this affiant on the 12th day of September, A. D. 1916; that on said last-named day affiant reported such inability to said Christin and requested him to enter the appearance of said Sutter Hotel Company in said proceeding, but he declined to do so, and he at the same time stated toaffiant that he (had) gone to the office of the clerk of said court and there read the said petition of said creditors; that said last-named day the said Christin also told this affiant that he, said Christin, had been mistaken when he had informed this affiant of the aforesaid change in the office of president of said Sutter Hotel Company, and that said Hoskins was president thereof, and he then further told affiant that no one had been elected president of said Sutter Hotel Company in the place or stead of said Woodward: that the said Woodward has been president of said Sutter Hotel Company for several years; that said petitioning creditors, and this affiant, on their information and belief, deny that Erwin C. Easton, a,s secretary of said corporation or otherwise, on the 13th day of May, 1916, or any other time, received in writing or otherwise the resignation of said Tilomas P. Woodward as director or president of said Sutter Hotel Company, or that said resignation was accepted by the board of directors or at all on said 13th day of May, 1916, or at any other time, or that since said time said Thomas P. Woodward has not been a director nor officer of said Sutter Hotel Company; on the contrary, on their information and belief, they allege that said Thomas P. Woodward at all said times was and still is president of said Sutter Hotel Company, therefore, upon the issuance of an additional writ of subpoena herein after the original writ had been returned unserved, affiant requested said marshal to serve said writ upon said Thomas P. Woodward as president of said Sutter Hotel Company, which service was accordingly made on the 21st day of September, A. D. 1916, as shown by said marshal’s return on file herein, to which reference is hereby made.”</p> <p>Upon the showing thus made the court below, after argument by the counsel of the respective parties, “ordered that if the Sutter Hotel Company shall within five days appear and plead to the petition herein, the order adjudicat ing it a bankrupt will he set aside and the motion to quash service of the subpoena will be granted; otherwise, the motion will be denied, and the order of adjudication will stand as entered.” It is from the order thus entered that the present appeal was taken.</p>

<p>1. Municipal Corporations @=>116 — Ordinances—Implied Repeal — Contract Ordinance.</p> <p>Implied repeals of ordinances creating contracts are to be found only where there is such utter repugnancy between the earlier ordinance and the later ordinance that the two cannot be reconciled and stand together.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 268-271.]</p> <p>2. Municipal Corporations @=>116 — Ordinances—Elevated Railroad Franchise — Implied Repeal.</p> <p>A contract ordinance granting an elevated railroad company the right to operate along a certain street is not impliedly repealed by a subsequent contract ordinance requiring trains to be operated along other streets, where such trains, after having been operated as required by the later ordinance, could still be operated over the streets covered by the earlier ordinance.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 268-271.]</p> <p><©sx»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by Alphonzo B. Bowers against Henry Steers, Incorporated. There was a judgment for defendant, and plaintiff brings error.</p>

Toulmin, Judge. Suit in admiralty by the United States against the schooner C. W. Mills, the tug Mary Wittich, Mobile Towing & Wrecking Company, claimant, and Thomas R. Cook, pilot. Decree for libelant against the tug Wittich (241 Eed. 204), and her claimant appeals.

Suit in equity by the Deister Concentrator Company against the Deister Machine Company, Emil Deister, president, and William F. Deister, vice president. Decree for defendants, and complainant appeals.

In Bankruptcy. In the matter of Aaron Goldman and another, individually and as copartners trading as Goldman Bros., bankrupts. On petition by J. Blumenthal, a creditor, to review an order of the referee authorizing the trustee to compromise a certain claim, due to him from the bankrupts.

In Admiralty. Suit by William A. Jamison against the New York & Porto Rico Steamship Company, with cross-libel. This is a libel for damage to part of a cargo of sugar ex steamship Berwind from San Juan to New York. The ship arrived in New York on June 23d and the sugar began to be discharged at 7:30 on the morning of the 24th. It was discovered thereupon that the lowest tiers of sugar in hatch No. 3 had been injured by seawater.

In Bankruptcy. In the matter of the Eagle Ice & Coal Company, Incorporated, bankrupt. Petitions by Lawrence A. Lacey and others for the review of certain orders of the referee denying claims of the petitioners to preference and for reclamation of property.

At Law. Action by Allen H. Walker against the Iowa Central Railway Company and others. On demurrer to the amended petition. The action was originally commenced in the state court August 30, 1909, and later removed by the railway company to the United States Circuit Court for this district.

In Equity. Suit by Charles Gerard Eichel and another against Max Marcin and others for the infringement of a copyright. On motion for injunction pendente lite.

<p>1. Aliens <@=>71%, New, vol. 7 Key-No. Series — Naturalization—Cancellation of Certificate.</p> <p>A proceeding to cancel a certificate of naturalization is an equitable proceeding, and formal irregularities, erroneous reasoning as to the facts or the adoption of an incorrect theory of law by the court issuing the certificate, will not authorize its cancellation, if the applicant, on the facts truthfully stated by him and his witnesses, was entitled to the certificate.</p> <p>2. Aliens <@=>60 — Naturalization—Right to Naturalization.</p> <p>While the admission of an alien to citizenship is a privilege and not a right, yet, when the terms and conditions prescribed and imposed by Congress have been complied with, the privilege ripens into a right which cannot be denied.</p> <p>[Ed. Note. — Eor other eases, see Aliens, Cent. Dig. §§ 117, 118.1</p> <p>3. Aliens <@=>62 — Naturalization—Continuity of Residence.</p> <p>When actual residence within the United States is established, the continuity of such residence within the naturalization statute is not interrupted by temporary absences for business or pleasure, providing there is no intention to change or abandon the domicile.</p> <p>[Ed. Note. — Eor other cases, see Aliens, Cent. Dig. §§ 123-125.]</p> <p>4. Aliens <@=>62 — Naturalization Proceedings — Questions of Fact.</p> <p>Whether an alien has resided continuously in the United States for five years immediately preceding the filing of a petition for citizenship is one of fact to be determined from all the facts and circumstances in each case.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 123-125.]</p> <p>5. Aliens <@=>62 — Naturalization—Continuity of Residence.</p> <p>In a proceeding to cancel a certificate of naturalization, facts held to show that an alien whose residence in the United States commenced in 1900, but who subsequently spent some time in the canal zone in the employ of the Isthmian Canal Commission, did not intend to change or abandon his domicile in the United States, and was entitled to naturalization.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 123-125.]</p> <p>^=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Neutrality Daws <@c=s3~=Violation — “Military Enterprise.”</p> <p>Under Criminal Code (Act March 4, 1909, c. 321) § 13, 35 Stat. 1090 (Comp. St. 1916, § 10177), declaring that whoever, within the territory or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for, any military expedition or enterprise to be carried on against the territory or dominion of any foreign prince or state, or any colony, district, or people with whom the United States are at peace, shall be punished, defendants, who sent from the United States a spy into the dominions of the United Kingdom of Great Britain a,nd Ireland, with which the United States was a.t peace, for the purpose of eliciting military information for the benefit of Germany, which was at war with the United Kingdom, are guilty of a violation of the section, though only one spy was sent, the transaction constituting a “military enterprise,” as distinguished from a “military expedition,” which must be of a more substantial military character; and hence an indictment charging such acts is not subject to demurrer, as failing to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Neutrality Daws, Cent. Dig. §§ 3=8.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suit by the Cuneo Importing Company against the American Importing & Transportation Company, with Daniel Bacon, impleaded. On exception by respondent to answer of the impleaded respondent.</p>

In Equity. Suit by the United States against the D'ominion Oil Company and others. On motion by complainant for preliminary injunction and receiver.

<p>Charities <@=345(2) — Hospitals—Actions foe Death — Sufficiency of Evidence.</p> <p>Evidence held insufficient, as matter of law, to sustain allegations ot negligence against a hospital association in an action to recover l'or the death of a patient which resulted from poison given to him by a nurse through mistake, under the rule that in case of the negligence of a servant while engaged in administering a charity the doctrine of respondeat superior does not apply.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. § 103.1</p> <p><§=3l<'or other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit by the Iroquois Iron Company against Henry J. Kriuse and others, in which the Pine Tree Manufacturing Company and another filed a crossrbill. From a decree in favor of Kruse, plaintiff and the cross-complainants bring separate appeals.

Foster, Judge. Action by the Illinois Central Railroad Company against the BrooksScanlon Company and another. There was a judgment for defendants, and plaintiff brings error.

<p>In Error to the District Court of the United States for the District of South Dakota; Janies D. Elliott, Judge.</p> <p>Action by Henry Hornblower and another against the City of Pierre. Judgment for defendant (231 Fed. 496), and plaintiffs bring error.</p>

<p>1. Negligence <@=>2 — Elements—Duty.</p> <p>Where there is no duty of protection against an injury, the omission to furnish such protection is not negligence.</p> <p>[Ed. Note. — For other' cases, see Negligence, Cent. Dig. §§ 3, 4.]</p> <p>2. Railroads <©=>276(4) — Liability eok Injuries — Trespassers.</p> <p>A boy 11 years old, permitted by railroad employes, without the consent of the company, to ride upon an engine that was being tested, was not a passenger, but in law an intruder and trespasser, to whom the company owed no duty, except the negative one of not maliciously, wantonly, or with gross and reckless carelessness Injuring him.</p> <p><@¿»For other cases see samo topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, seo Railroads, Cent. Dig. §§ 884, 885.]</p> <p>8. Negligence <©=>7 — Elements—Duty.</p> <p>While children can recover for Injuries in circumstances in which adults cannot, there can be no recovery, even in the ca.se of a child, unless there is a breach of duty. •</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 9.]</p> <p>4. Railroads <§=>276(4) — Liability for Injuries --Trespassers.</p> <p>Where railroad employés, without the consent of the company, permitted a boy to ride on an engine that was being tested, the company owed him no duty to protect him from injury, by derailment of the engine or otherwise, unless due to wanton, willful, or intentional acts or negligence of the railroad employés.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 884, 885.]</p> <p>5. Mastfji and Servant <3=302(1) — Injuries to Third Persons — -Liability.</p> <p>Authority, express or implied, to do a,n act, is always the test of a master’s liability for an act of his servant, and when an employé exceeds that authority, and does an act resulting in injury to another, he is not, in the doing of that act, the agent of his employer.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1217, 1225.]</p> <p>6. Railroads <§=>282(8)- — Actions for Injuries — Presumptions.</p> <p>Where railroad employés permitted a boy to ride on an engine which was being tested, the derailment of the engine, causing the death of the boy. raised no presumption of negligence for which the railroad company was chargeable.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 912.]</p> <p>7. Railroads <§=>282(8) — Actions for Injuries — Presumptions.</p> <p>Where a hoy riding on an engine was killed by a derailment, there could be no presumption of any willful or intentional disregard of duty-on the part of the engineer; the boy being exposed to no risk to which the engineer and fireman were not exposed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 912.]</p> <p>8. Railroads <§=>278(6) — Liability for Injuries — Last Clear Chance Doctrine.</p> <p>The doctrine of last clear chance had no application to the death of a boy, riding on an engine with permission of railroad employés and killed by its derailment.</p> <p>«g^xoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Witmer, Judge. In the matter of the bankruptcy of Kaplan & Myers. Reclamation proceedings by Frederick, Vietor & Achelis, opposed by E., C. Amerman, trustee. From an order of the District Court dismissing the petition (236 Fed. 260), petitioners appeal.

Foster, Judge. Suit in admiralty for collision by the Société Napthés Transports against the towboat W. A. Bisso, the Bisso Towboat Company, claimant, and the steamship Crown of Galicia, the Crown Steamship Company, Limited/ claimant. From a decree canceling bond given for release of the Bisso, libelant appeals.

Dickinson, Judge. Action by Charles P. Gruppe against Joseph T. Kinsley. Judgment for plaintiff, and motion for new trial was denied (227 Fed. 933), and defendant brings error.

<p>Appeal from the District Court of the United States for the District of Massachusetts; Jas. M. Morton, Jr., Judge.</p> <p>. Petition by G. Wallace Tibbetts, as trustee in bankruptcy, against the Edison Electric Illuminating Company, of Boston, to recover the amount of a check given by the bankrupt to respondent and cashed by it after the adjudication. Decree for petitioner, and respondent appeals.</p>

<p>In Error to the District Court of the United States for the District of Nebraska; Joseph W. Wooclrough, Judge.</p> <p>Action by Eouis Miller against John C. Mardis. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Patents <§=>328 — Validity and Infringement — Portable Savings Bank. The Fisher patent, No. 793,779, for a portable savings bank, held not anticipated and valid, claims 1, 5, 6, 7, and 8 held) infringed, and claims 2,. 3, and 4 not infringed.</p> <p><§=5>For other eases see same topic & KEY-NUMBER In all Key-Numüered Digests & Indexes.</p> <p>:2. Patents <@=328 — Validity and Infringement — Savings Bank.</p> <p>, The Fisher patent, No. 990,534, for a savings bank, held valid, and claims 2 and 6 held infringed, and claims 5 and 7 not infringed.</p> <p>3. Patents <3=828- — Validity and Infringement — Savings Bank.</p> <p>The Fisher patent, No. 990,535, for a savings bank, claim 6, held not infringed.</p> <p>4. Patents <3=328 — Validity and Infringement — Savings Bank.</p> <p>The Fisher patent, No. 1,072,709, for a savings bank, held valid, and claims 1, 2, 3, and 5 infringed.</p> <p>5. Patents <3=328--Validity and Infringement — Savings Bank.</p> <p>The Fisher patent, No. 1,073,847, for a savings bank, held valid, and claims 1, 2, and 5 infringed.</p> <p>8. Patents <3=328 — Infringement—Savings Bank.</p> <p>The Thompson patent, No. 758,340, for a savings bank, claim 4, held not infringed.</p> <p>7. Courts <3=290 — J ubisdiction of Federal Courts — Suit for Unfair Competition.</p> <p>A federal court is without jurisdiction of a cause of action for unfair competition, where there is no diversity of citizenship between the parties, although joined with a cause of action for infringement of patent.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 832.]</p> <p>■8. Patents <3=319(1) — Suit for Infringement — Damages.</p> <p>If a defendant, in, the sale of infringing articles, has aggravated the damages by unfair competition, or by infringing complainant’s trademark, by using it on the articles, any damages thus caused may be awarded in the accounting.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 577, 578, 580, 58Í, 583, 584, 586.]</p> <p>9. Trade-Marks and Trade-Names <3=7 — -Words Subject of Appropriation - 'Tellur.</p> <p>The word “Teller,” as a designation of a portable savings bank, held appropriate as a trade-mark, and complainant, by its use,1 either alone or in connection with other words, held to have acquired an exclusive right thereto, in which it was entitled to protection.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 11.]</p> <p>other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>On petition for rehearing.</p>

<p>1. Patents <3=215 — Agreements—Unfair Competition.</p> <p>A contract between a manufacturing company and an inventor in its employ, whereby the company agreed to pay the expenses of an application for a patent upon a device.invented by its employe, so as to avail itself of the protection of the patent against competition, or to prevent a competitor from securing a similar patent, is a proper subject of agreement.</p> <p>(Ed. Note. — For other cases, see Patents, Cent. Dig. § 328.]</p> <p>2. Specific Performance ¡3=71 — Agreements—Enforceability.</p> <p>Where both parties knew that the invention for which patent was applied for had been publicly used more than two years prior to the application, an agreement for assignment of the patent cannot be specifically enforced.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 204.]</p> <p>3. Specific Performance ¡3=121(1) — Evidence—Sufficiency.</p> <p>A decree for specific performance must be based upon evidence clearly - disclosing an agreement to transfer.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent.- Dig. §§ 387, 388.)</p> <p>4. Specific Performance ¡§=121(4) — -Evidence—-Sufficiency.</p> <p>In a suit to specifically enforce an alleged agreement for the transfer of a patent when issued, evidence held insufficient to establish the agreement asserted.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 391-393.]</p> <p><£=»For other cases see same topic & KEY-NUMBKR in all Key-Numbered Digests & Indexes</p>

In Equity. Suit by Tester G. Wilson against J. G. Wilson Corporation, with cross-bill. Decree for defendant on original bill, and for complainant on the cross-bill.

<p>Patents <®=»32S — Validity and Infringement — Mill Refuse Cutter.</p> <p>Tlie Dittbenner patent, No. 777,779, for a'mill refuse cutter, or “mill-hog” for cutting up slabs, edgings, and other refuse from mills and furniture factories into fine wood for burning, covers a patentable combination and is valid; also, held, infringed as to claims 3, 4, and 6, and not infringed as to claim 2.</p> <p><@E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Law. Action by the United States for the condemnation and destruction of nine barrels of butter claimed by the New York Butter Packing Company. This is an action at law for the destruction of nine barrels of No. 2 grade packing butter shipped from Nashville, Tenn., to New York, and consigned to the claimant, New York Butter Packing Company. The butter' was packed in nine barrels, stout and double-beaded, except two, which were covered on one end with burlap.

<p>Suit by Samuel Bailey, Jr., and another, Receivers of the Federal National Bank of Pittsburgh, against Frederick R. Babcock and others.</p>

In Bankruptcy. In the matter of Morris Weissbord, an alleged bankrupt. On exceptions to the report of the special master, to whom was referred the fixing "and allowance of the costs, counsel fees, expenses, and damages occasioned through the seizure of the alleged bankrupt’s property by a receiver.

<p>.1. Contempt <®=°9 — Statute—Newspaper Publication.</p> <p>The publication by a newspaper of the city in which a court is sitting of an article tending to obstruct the administration of justice in pending proceedings is within Judicial Code (Act March 3, 1911, c. 231) § 268, 36 Stat 1163 (Comp. St. 1916, § 1245), giving courts power to punish contempt in case of misbehavior of any person in their presence or so near thereto as to obstruct the administration of justice,</p> <p>[Ed. Note. — Eor other cases, see Contempt, Cent. Dig. §§ 8, 15-18.]</p> <p>2. Contempt <$=>14 — Interference with Grand Jury.</p> <p>Interference with the proceedings of a grand jury in the performance of its functions is as truly a contempt of court as is interference with the proceedings of a petit jury.</p> <p>[Ed. Note. — Eor other cases, see Contempt, Cent. Dig. §§ 36-41.]</p> <p>3. Contempt <$=>9 — Interference with Grand-Jury — Publication of Proceedings.</p> <p>Since secrecy is essential to proceedings of a grand jury, to prevent warning to offenders that their conduct is under .investigation, to prevent tampering with witnesses, to protect the reputations of innocent persons whose conduct is or may be under investigation, and to protect witnesses before the grand jury, conspicuous publication in a newspaper of large circulation that the conduct of certain offenders is under investigation, and that certain witnesses or documentary evidence are or will he before the grand jury, is an interference with grand jury proceedings, which is a contempt.</p> <p>[Ed. Note. — Eor other eases, see Contempt, Gent. Dig. §§ 8, 15-18.]</p> <p>4. Contempt <$=>9 — Newspaper -Publication — Witnesses Appearing Before Grand Jury.</p> <p>An article stating that certain named witnesses were taken before the grand jury" and that it was believed they had given the authorities much valuable evidence, and that prescriptions had been found in their possession which would play a prominent part in the future, was sufficient interference with the grand jury proceedings to constitute contempt.</p> <p>[Ed. Note. — Eor other cases, see Contempt, Cent. Dig. §§ 8, 15-18.]</p> <p>5. Contempt <$=>9 — Newspaper Publication — Facts Obtained by Observation.</p> <p>That' witnesses could state that they had been before the grand jury,- and that persons could observe their entrance into the grand jury room, does not entitle a newspaper to publish such information conspicuously.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. §§ 8, 15-18.]</p> <p><$=5For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In Admiralty. Suit for collision by George Basil Mandabas, owner of the steamship Mina and by the master of the Mina as bailee of her cargo, against the steamship Attuaiita; the Societi Anónima Lloyd Del Pacifico, claimant.

At Taw. Action by the United States against the Chase National Bank. This is an action at law to recover from the defendant, a bank, the amount of a check or sight draft drawn under the following circumstances: Lieutenant Sumner was an officer in the United States army, detailed to the Quartermaster’s Department and authorized as such to draw upon funds placed by the Treasury Department at his disposal.

In Bankruptcy. In the matter of G. W. Majors, bankrupt. The referee entered an order disallowing certain exceptions claimed by the bankrupt and determining that the trustee took no interest in a certain life insurance policy, and both the trustee and the bankrupt seek a review thereof.

<p>1. Criminal Law <@=3304(1) — '“Judicial Notice.”</p> <p>“Judicial notice” ruay be defined as tbe cognizance of certain facts wliicbi judges and jurors may properly take and act upon without proof, because they already know them.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700, 701, 704, 715, 2951%.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Judicial Notice.]</p> <p>2. Criminal Law <§=>304(1) — Poisons <§=>9 — Judicial Notice — Indictment —Sufficiency.</p> <p>Harrison Anti-Narcotie Act Dec. 17, 1914, c. 1, § 1, 38 Stat. 785 (Comp. St. 1916, § 6287g), provides that dealers, etc., in opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, shall register. Indictments charging defendants with a conspiracy to violate the act, and with violations thereof, alleged sales of cocaine, morphine, and morphine sulphate, but did not allege that cocaine is a courpound, salt, derivative, manufacture, or prexiaration of coca leaves, or that morphiné sulphate-and morphine are preparations of opium. Held, that the court would not take judicial notice that such drugs were derivatives of opium and coca leaves, and hence the indictments were defective for failure to allege such fact, for an accused should be apprised of the charge against him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700, 701, 704, 715, 2951%; Poisons, Cent. Dig. § 6.]</p> <p>3. Indictment and Information <@=>11.1(1) — Negativing Excretions.</p> <p>The Harrison Anti-Narcotic Act, § 2a (Comp. St. 1916, § 6287h), declares that nothing in the section shall axiply to the dispensing or distribution of any of the excelled drugs by a physician, dentist, or veterinary surgeon registered- under the act in the course of his professional practice only, provided that such physician, dentist, or veterinary surgeon shall keep a record of all drugs dispensed or distributed, showing the amount dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, etc., shall personally attend. An indictment charging physicians who had been duly registered by the collector of internal revenue, and who had paid the tax required. •with a violation of the act in distributing narcotics, failed to negative the exception in favor of physicians dispensing drugs to patients on. whom they personally attend. HeU, that the indictment was defective, for, as the exception was part of the essential of the offense, the burden was on the state to negative it.</p> <p><§E»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 295.]</p>

<p>1. Contracts <3=»303(4) — Performance —Discharge by Other Party’s Breach.</p> <p>Where a, building subcontract required the completion of the work within 800 days, but provided that, if the subcontractor was delayed by the default of the general contractors or others, the time should he extended for a period equivalent to the time lost, delays by the general confiadora, interfering with the progress of the work by the snbeon- ' tractor, did not justify it in declining to complete the work, though under another provision of the contract it was entitled to damages for such delay.</p> <p>I IScl. Note. — For other cases, see Contracts, Cent. Dig. §§ 1424-1433.]</p> <p>2. Damages <§p=>30 — Elements.—-Breach of Contract.</p> <p>Where a building subcontractor, because of breaches of the contract by the general contractors, refused to complete the work and sued for damages, the conversion by the general contractors to their own use or materials, tools, and machinery' of the subcontractor, left on the premises when it ceased work, was not an element of damages, and evidence thereof should not have been admitted.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 222.]</p> <p>3. Contracts <Sí=>201(3) — Performance—Discharge by Other Pasty’s Breach.</p> <p>Where a building subcontract, culling for the performance of labor and the furnishing of materials over a long period of time and involving large expenditures, in addition to stipulating for monthly payments in advance' of 85 per cent, of the cost of the work actually erected, contained a provision that the general contractors thereby contracted to pay at the time, in the maimer. a.nd upon the conditions therein set forth, the stipulation as to the time of payment was material and of the essence of the contract, and its breach justified the contractor in declining to complete the work.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1176.]</p> <p>4. Contracts <g=>17(i(t) — Construction—Questions for Court.</p> <p>The ascertainment from the language of a building contract, its subject-matter, and the surrounding circumstances of the intention of the parties as to whether the time of payment is a material obligation, the breach of which will justify the contractor in declining to complete the work, involves the construction of a written contract, and is a question for the court, though it calls for the determination of a question of fact.</p> <p>[Ed. Note. — For other cases, see Contracts, Gent. Dig. §§ 767, 1041; Trial, Cent. Dig. § 326.]</p> <p>5. Contract's <S=»30Í¡(5) — Performance—Discharge by Other Party’s Breach.</p> <p>A building subcontract required the subcontractor to furnish and set in position, including the concrete backing, all imitation of sandstone, and to construct interior concrete walls, etc., and provided for payment therefor of $64,750, in monthly payments on account not exceeding 85 per cent, of the cost of the work actually erected, on requisitions on a form to be supplied by the general contractors. A subsequent paragraph required a subcontractor, at the option of the general contractors, to also set all granite walls, etc., for 40 cents a square foot surface. Hold, that as the monthly payments to be made in advance were for the concrete work and to come out of the $64,750, and as there was no provision for monthly payment for sotting the granite, the general contractors were not guilty of a breach of contract, justifying the subcontractor in refusing to complete the work, because they failed to honor requisitions which included advance payment for the granite work in the amount demanded.</p> <p>£=»For other eases see same topic & KKY-NCMBEE in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — .For other cases, see Contracts, Cent. Dig. §§ 1434 — 1439%.]</p> <p>6. Contracts <@=346(3) — Actions for Breach — Evidence Admissible Under Pleadings.</p> <p>In a building subcontractor’s action for breach of a contract requiring monthly payments of 85 per cent, of the actual cost of the work erected, the bill of complaint alleged that the subcontractor’s requisitions for payments demanded payment in accordance with the terms of the contract of the sums due for work performed. Held, that, without an amendment of the complaint to allege a modification of the contract, evidence should not have been admitted that the parties had agreed upon a unit basis of $1.07 per cubic foot as a basis for determining the amount to be paid, and that the requisitions were in accordance with that agreement.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1719.]</p> <p>7. Contracts <@=274 — Actions for Breach — Nature of Remedy — “Terminate.”</p> <p>Where, because of general contractors’ breach of the contract, a subcontractor notified them that it terminated the contract and would proceed no further with the work, but would hold the general contractors liable for damages for the breach, ,the word “terminate” simply meant that the subcontractor declined to go on and complete the work, and did not prevent the subcontractor from suing on the special contract on the theory that it had been rescinded.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1202-1206.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Terminate — Termination.]</p> <p>8. Damages <§=124(1) — Measure of Damages — Breach of Contract.</p> <p>Because of general contractors’ alleged breach of a contract, a subcontractor refused to complete the work and sued for damages. A provision of the contract required the general contractors to reimburse the subcontractor for any loss caused by delay on the part of the general contractors, and there had been such delay. Held\ that the subcontractor was entitled to recover, if at all, the reasonable expenditures incurred in the performance of the contract, less payments made and materials on hand, damages due to the delays not included in the expenditures and attributable to the general contractors, and the profits that would have been realized from performing the contract.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 326-329, 336.]</p> <p>9. Damages <@=218 — Measure of Damages — Instructions.</p> <p>In such action, an instruction that the jury could consider the reasonable expenditures incurred by the subcontractor, the unavoidable losses incident to stoppage of the work, the amount of work actually performed, the amount the subcontractor was actually entitled to by reason of such work at the contract price, and the profits which it could have made; that the items to be taken into account were the outlays, less the material on hand, the amount of work actually performed, and the profits, if any, which were not speculative; and that the measure of profits -was the contract price, less the expense of carrying out the contract — embodied a duplication of 'elements, and was misleading.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 500-562.]</p> <p>c@^>For other cases see same topic & KBY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Western District of Oklahoma.</p> <p>Johnston Butterfield and another were convicted of an offense, and they bring error.</p>

Whitaker Thompson, Judge. Action by the Alabama Great Southern Railroad Company against George H. McFadden and others, formerly copartners trading as George McFadden & Bros. Judgment for plaintiff (232 Fed. 1000), and defendants bring error.

<p>1. Assignments <§=»19 — -Assignabjt.ity of Contract' — Necessity of Consent.</p> <p>While it Is a general rule that a contract which can be as well performed by a subcontractor as by the principal is assignable, and while the usual test of assignability is whether the contract would survive to the personal representative of the assignor, these rules are subject to exceptions, one of which is that contracts embodying liabilities or duties which in express terms or by fair intendment from the nature of the liabilities themselves import reliance on the character, skill, business standing, particular experience or capacity of tlie parties, cannot be assigned by one-without tbe consent of tbe other.</p> <p>i©E£>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 28-31.]</p> <p>2: Assignments <@=19' — Assignability of Contract — Necessity of Consent.</p> <p>Under tbe prevailing practice, plans and specifications for tbe construction of a battleship are developed only as tbe work progresses, and contracts for construction, and subcontracts for parts or appliances, are-based upon specifications for tbe last ship of the same type. These-plans are subject to alteration arbitrarily at tbe will of tbe government, and an extra allowance is customarily made for alterations extending, to something new not appearing on tbe type plan, but not for alterations-which are merely a development of something in tbe type plan. Held that, in view of this practice and tbe consequent elasticity as to tbe character of tbe work and tbe amount of compensation, a subcontract for switchboards and electrical appliances involved tbe personal equation, and could not be assigned by tbe subcontractor without tbe consent of tbe general contractors.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 28-31.]</p> <p>«gs^For other cases see same .topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes.</p>

<p>In Error to the District Court of the United States for the Eastern District of Missouri;- David P. Dyer, Judge.</p> <p>Action by Albert E. C. Runge against the May Department Stores Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the District Court of the United States for the Northern District of Iowa; Henry T. Reed, Judge.</p> <p>Suit by the Iowa Railway & Light Company against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant, and plaintiif appeals.</p>

<p>In Error to the District Court of the United States for the District of Kansas; John C. Pollock, Judge.</p> <p>Action by the Traders’ National Bank of Kansas City, Mo., against James M. Vandeventer and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Error to the District Court of the United States for the Eastern District’of Oklahoma; Ralph E. Campbell, Judge.</p> <p>John Foley was convicted of offenses, and he brings 'error.</p>

<p>Patents <s=>325 — Suit fob Infbingement — Costs on Dismissal.</p> <p>It was within the discretion of the court to tax the costs of an infringement suit to defendant on its dismissal by complainant, where dismissal resulted from a change of defendant’s structure, which brought it within another patent of complainant and enabled him to recover for the infringement in a suit thereon.</p> <p>[Ed. Note. — Dor other cases, see Patents, Cent. Dig. §§ 607-612.]</p> <p><@=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Patents <@=»323 — Suit for Infringement — Opening Decree for New Evidence. ' „ ,</p> <p>A decree finding validity and infringement of a patent will not be re,opened on application made after considerable delay to permit the introduction of evidence which must have been known to the applicant prior to its entry, unless the evidence is of such persuasive character as to make it probable that it might change the result in the trial or appellate court.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 596-599.] .</p> <p><g=r>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Shipping <@=>84(3) — Liability op Vessel — Injuries to Stevedore — Negligence.</p> <p>A vessel, whose owner furnished planking for the hatch cover, which by the exercise of diligence or carefulness he might hare known was insufficient in length, or had become worn at the edges, so that it did not fit snugly, was liable in an action in rem for injuries to a stevedore, caused by the plank giving way under him, since, though the owner was not the stevedore’s employer, he was obliged to exercise ordinary care to provide reasonably safe equipment for the use of those hired to load or unload the vessel.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 350.]</p> <p>2. Shipping <@=>86(21 — Diability op Vessel — Evidence—Negligence—Defective Plank.</p> <p>On a libel to recover damages for personal injuries to a stevedore, evidence held sufficient to show that the owner of the vessel was negligent in failing to discover that the plank furnished to cover the hatchway was insufficient for the purpose.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 356, 357.]</p> <p>3. Evidence <@=>75, 77(5) — Presumptions—Failure to Produce Evidence.</p> <p>Where the claimant of a vessel failed to produce in court the plank which was alleged to have caused the injury, or to call as a witness tne ship’s carpenter, who examined the plank the day after the accident, and gives no explanation for the failure to produce such evidence, there is a presumption that the evidence would be unfavorable to the claimant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 95, 97.]</p> <p>4. Shipping <@=>84(5) — Liability op Vessel — Injuries to Stevedore! — Assumption op Risk — Contributory Negligence.</p> <p>An employé of a stevedore is not required to ihspeet the planks furnished by the vessel to determine their fitness for use on the hatchways, hut assumes only such dangers as are usual in his work, including those of which he had knowledge, or might have become aware by the exercise of reasonable care.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 342.]</p> <p>5. Damages <@=>132(6) — Personal Injuries — Broken Leg.</p> <p>Where a stevedore, 30 years.old and capable of earning $25 a week, had his left femur broken, which caused considerable pain, and required hospital treatment for 80 days, and had prevented his working since, and had been left with the leg three-quarters of an inch shorter than the other, so that he would always limp, he will be awarded $5,250.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 377.]</p> <p><®=s>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by Joseph Roman, as administrator of Matthew Lozowski, deceased, against the Lehigh Valley Coal Company. On motion of plaintiff and Victa Lozowski to amend the pleadings and title, by substituting the said Victa Lozowski, on behalf of herself and her infant children, as plaintiff.</p>

At Law. Action by John Sawickas against the Singer Manufacturing Company. On plea to the jurisdiction of the court. Judgment for plaintiff, with leave to defendant to reinstate its answer on the merits.

<p>In Bankruptcy. In the matter of the bankruptcy of Jacob Friedman. On petition for .assignment of a bond and mortgage.</p>

<p>At haw. Action by Plettenberg, Holthaus & Co. against I. J. Kalmon & Co. and others. On plea by defendants.</p>

<p>Bankruptcy <8=»228 — Review op Orders op Referee — Necessity op Petition.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 39 (5), 30 Stat. 555 (Comp. St. 1916, § 9623), requiring referees to make up records embodying the evidence when requested, together with their findings, and transmit them to the judge, and General Order in Bankruptcy No. 27 (89 Bed. xi, 32 C. C. A. xxvii), providing that, when any person desires a review of an order of the referee, he shall file with the referee his petition therefor, and the referee shall forthwith certify the question presented, the summary of the evidence, and his finding and order, when no petition is filed for review, and the referee therefore makes no certificate of the evidence, etc. there can be no review.</p> <p>[Ed. Note. — Bor other cases, see Bankruptcy, Cent. Dig. g 387.]</p> <p>ig^oFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Dibel in personam by the West Kentucky Coal Company and others against T. J. Henslee. From a decree for libelants, the libelee appeals.

<p>In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge.</p> <p>Action by the United States against the Denver & Rio Grande Railroad Company. Judgment for plaintiff for an insufficient amount, and each party brings error.</p>

Petition to Revise Order of the District Court of the United States for the Southern District of Ohio; Howard C. Hollister, Judge. In the matter of Michael Jacobs and another, bankrupts. On petition by the bankrupts to revise an order revoking a discharge.

<p>1. Criminal Daw <§=>622(1) — Trial—Separate Trials of Codefendants.</p> <p>Whether certain defendants should be tried separately from a eode-fendant as requested by them was a matter of discretion with the trial judge.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1380, 1382, 1383, 1388.]</p> <p>2. Criminal Daw <§=>1159(2) — Appeal—Review—Questions of Fact.</p> <p>The jury’s findings of fact are binding upon the Circuit Court of Appeals when there is any evidence to support them.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 3075.]</p> <p>3. Conspiracy <§=>48 — Criminal Prosecutions — Instructions.</p> <p>On a trial for conspiracy to abstract the funds of a national bank, instructions that defendants could not be found guilty if they believed that money or funds received by them from B., a clerk in the bank, was his property, and that they could not be convicted if they did not know it was the property of the bank, were properly refused, as they were guilty if they conspired to get the moneys of the bank and committed an act in furtherance of such conspiracy, though they believed the moneys received were B.’s.</p> <p>©==>For other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 108-111.]</p> <p>4. Criminal Law <@=>776(5) — Instructions—Reasonable Doubt — Character . Evidence.</p> <p>Instructions that evidence of good character might, when a reasonable doubt would not otherwise exist, create a reasonable doubt if the evidence was nearly evenly 'balanced, that substantial evidence of good character, making it improbable that defendant would commit the offense, might, when added to that already adduced by defendant, or in connection with the weakness of that produced by the government, create a reasonable doubt, but that when evidence was clear, backed up by documents and excluded every hypothesis except that of guilt, the jury could not avoid responsibility upon the ground that defendant might not be guilty, were erroneous, as they told the jury that evidence of good character would only create a reasonable doubt if the evidence without it was evenly balanced.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1841.]</p> <p>5. Criminal Law <@=>1038(1), 1056(1) — Appeal—Reservation op Grounds of Review — Objections and Exceptions.</p> <p>Under rule 11 for the Second circuit, providing that errors not assigned according thereto will be disregarded, but that the court at its option may notice a plain error not assigned, the claim that the court’s charge was so one-sided as to amount to a summing up on behalf of the government may be considered, though no objection or exception thereto was taken.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2646, 2668, 2670.]</p> <p>6. Criminal Law <@=>762(2) — Instructions—Arsuhentative Instructions.</p> <p>While in the federal courts the judge may express his own opinion on the facts, provided he instructs the jury that they are the sole judges, he has no right to persuade the jury as to the facts, or argue the case for either side.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1758.]</p> <p>Hough, Circuit Judge, dissenting in part.</p> <p>4§E5>For other eases see same topic & K33Y-NUMBER in all Key-Numbered Digests & Indexes</p>

Meek, Judge. Action by the Colorado Title & Trust Company against J. G. Childers, Jr., and others. Judgment for the defendant named, and plaintiff brings error. This is a suit at law instituted at the Ft. Worth branch of the United States District Court for the Northern District of Texas. The suit was filed October 16, 1915, by the Colorado Title & Trust Company, as plaintiff, for convenience called “Colorado Bank.” J. G. Childers, Jr., the Ft.

Foster, Judge. In the matter of John D. Collins, bankrupt. From a decree (235 Fed. 937) disallowing the claim of Mrs. Isabel Danziger Miller and others, opposed by the C. C. Hartwell Company, Limited, and others, claimants appeal.

H. Sawtelle, judge. Suit by Hugh Mackay against the Norma Mining Company. irorn a decree in favor of plaintiff, defendant appeals. The appellee brought suit to foreclose two mortgages on the property of the appellant, a corporation of the state of Arizona. The first mortgage was executed on August 2, 1943, and was given to secure a promissory note of the appellant for $16,000.

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>Habeas corpus by William H. Uinningen, on the petition of T. W. Bell, against Thomas W. Morgan. Judgment dismissing the petition, and the petitioner appeals.</p>

<p>In Error to the District Court of the United States for the First Division of the Northern District of California.</p> <p>Rollie A. York and another were convicted of an offense, and they bring error.</p>

<p>1. Specific Performance <§=395 — Contracts for Sale of Band — Doubtful Title.</p> <p>P.’s father conveyed land to him for life or for years subject to- forfeiture on certain conditions, 1he land to vest in his issue, if any, at the time of his death, and, if he should be without issue at the termination ot the estate, to vest in the grantor’s four children, subject to be divested by the birth of children to F. after forfeiture- and before his death. F., while unmarried and without issue, forfeited the land, and the grantor’s four other children convoyed to him. The state Supreme Court held, in a suit involving part of Hie land, that the grantor’s four children took only a determinable fee. F. sold another part of the land to defendant, contracting to furnish a good merchantable title, and sued defendant for specific performance. Held, that as the court could not adjudicate the rights of any children of F. who might he bom subsequently, his title was too precarious and doubtful to fulfill his covenant, and a decree, compelling the purchaser to take and pay for such title, would have been oppressive and unconscionable, and was properly refused, without construing the deed.</p> <p>other eases see same topic & KEV-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 257-277.]</p> <p>2. Specific Performance <@=>8 — Discretion of Court.</p> <p>Specific performance of a contract is not a matter of right, but rests in the sound judicial discretion of the court, informed and directed by the established principles, rules, and practice of equity jurisprudence.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 17, 18.]</p> <p>•3. Equity <@=>54 — Principles—Force.</p> <p>The principles, rules and practice of equity jurisprudence are advisory rather than mandatory, and their application in each particular case is intrusted to the conscience of the chancellor.</p> <p>©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>Action by the Dormer Bros. Company against Shoninger Bros. J udgment for plaintiff; and defendants bring error.</p> <p>On writ of error to review a judgment entered in the United States District Court for the Southern District of New York. As the trial proceeded a stipulation was entered into between the parties waiving the right of trial by jury and agreeing to submit the issues for decision to Hon. William I. Grubb, the presiding judge. He found that the plaintiff, Dormer Bros. Company, was entitled to recover the full amount demanded and judgment was thereafter entered against the defendant Shoninger Bros, for $12,841.75. The defendant’s counterclaims were disallowed.</p>

<p>In Error to the District Court of the United States for the Eastern Division of District of Idaho; Frank S. Dietrich, judge.</p> <p>William Pappas was convicted of an offense, and brings error.</p>

<p>Master and Servant ®=»13 — Statutory Regulation — Hours of Sf.evtoe.</p> <p>A low hundred feet from a depot a railroad company maintained an interlocking lower, necessary lo the proper operation of its road and not erected to evade the statute. Its agent and operator worked at the depot from 7 a. m. to 7 p. m., at which time another operator removed the' train register and order hook to the tower, where all orders and messages pertaining to train movements were received and sent until 7 a. m. Held, that the depot and tower were not separate offices, but a continuously operated office, within Hours of Service Act March 4, J907, c. 2939, 34 Stat. 1415 (Comp. St. 1916, §§ 8677-8680), and the statute was violated by keeping such operatois on duty longer than is permitted thereby at continuously opeiated offices.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 14 J</p> <p><§s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Insurance <3=»177 — Construction of Policy — Duration of Insurance.</p> <p>Under a term policy of life insurance dated August 17, 1910, and issued on an application made August 8, and providing that, in consideration of the payment of the premium on August 8 in each year, the applicant was thereby insured for live years ending on August 8, 1915, there was no liability for a death occurring August 12, 19-15, as the duration of the policy was fixed in clear and unambiguous language, and should be construed according to the sense and meaning of the terms used.</p> <p>[Ed. Note. — -For other cases, see Insurance, Cent. Dig. §§ 372-378.]</p> <p><©s»For other oases see same topic & KEY-NUMBElt in all Key-Numbered Digests & Indexes</p>

<p>Appeal and Error <3^>1195(3) — Preliminary Injunction — Pinal Hearing.</p> <p>In a suit tor unfair competí lion, the Circuit Court of Appeals held the plaintiff entitled to a temporary injunction; the testimony on final hearing' was largely the same, the differences not weakening- plaintiff’s ease! or strengthening defendant’s. Held, on a review of all the evidence, that a permanent injunction was properly granted, though the decision on the former appeal was not strictly or theoretically an adjudication of the questions of fact involved on final hearing.</p> <p>• fKd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 466.'>-4665.]</p> <p><£^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Error to the District Court of the United States for the Eastern District of Louisiana; Rufus E. Roster, Judge.</p> <p>Action by the Penn Bridge Company against the City of New Orleans and another. Judgment for plaintiff, and defendants bring error.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. In the matter of Henry Rivas, bankrupt. On petition by the bankrupt to revise an order affirming an order of the referee requiring the delivery of property to Fred B. Noble, trustee.

<p>1. Patents <S==>73 — Anticipation—Prior Patent.</p> <p>A patent is not admissible in evidence as an anticipation of another patent, which, although later in date of issue, covers an invention shown to have been made before the issue of the earlier patent and upon an application filed several months prior thereto.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 64.]</p> <p>2. Patents <®=^56 — Anticipation.</p> <p>Finger holes in mortise locks for sliding doors held so remote in purpose and function as not to anticipate a patent for shipping cases for bottled goods having protected han.d-holes for lifting the cases.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 89.]</p> <p>3. Patents <3=^56 — Anticipation--Device in Remote Art.</p> <p>A mechanical device or combination, which was not designed by its maker, or actually used, or apparently adapted to perform the function of a patented device or combination, but which was discovered in a remote art, where it was conceived and used under radically different clrcumstances to perform another function, neither anticipates nor limits the scope of tlie patent.</p> <p>©=»For other cases see same topic & KEY-NUMBER in al] Key-Numbered Digests & Indexes</p> <p>[ltd. Note. — For other cases, see Patents, Cent. Dig. § 89.]</p> <p>4. Patents <3=>328 — Validity and Infringement — Shipping Case.</p> <p>The Kerkow patent, No. 970,237, for a shipping case for bottled goods, was not anticipated, but discloses patentable novelty and invention; also held infringed.</p> <p>5. Patents <£=>235 — Infringement—Change of Form.</p> <p>More changes in the form of a device, or of some of the mechanical elements of a combination, where the principle or mode of operation is adopted or used, will not avoid infringement, unless the form of the machine, or of the element or elements changed, is the distinguishing characteristic of the invention.</p> <p>[Fd. Note. — For other eases, see Patents, Cent. Dig. § 000.]</p> <p>(S^For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>At Law. Action by the Vitagraph Company of America against Henry Lord. On demurrer by defendant, and motion for judgment by plaintiff.</p>

<p>. Petition by Penar o Rallos for leave to file a .petition for naturalization.</p>

At Law. Action by Eleanor Lauria, as administratrix of Anthony Lauria, deceased, against E. I. Du Pont De Nemours & Co., Inc. On motion to dismiss the complaint. This is a motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is brought by the plaintiff, as administratrix, for the death of her husband, caused, as alleged, by negligence on the part of the defendant.

<p>At I,aw. Action by Clara M. Martin, administratrix of Joseph J. Frye, deceased, against the New York, New Haven & Hartford Railroad Company and another. On motion to remand to the state court.</p> <p>Ordered as stated in the opinion.</p>

In Admiralty. Suit by Actieselskabet Kaupanger against Marden, Orth & Hastings Company for charter, hire, and cross-libel for loss of cargo space. Interlocutory decree, with reference. Dibel -for hire of the steamship Kaupanger on a time charter party. The charterers counterclaim for loss' of a part of the ship’s holds, and also seek to defend against the hire and the owner’s damages after withdrawal.

In Admiralty. Suit by Francisco Antonio Rosales and others against the steamship Elswick Tower. Francisco Antonio Rosales, a Brazilian, Manuel Fonsoca and Emanuel Nichola, of the Cape Verde Islands, and Axel Magnusson, of Sweden, firemen stokers on the British steamship Elswick Tower, brought their libel in rem for an alleged nonpayment of wages. It is alleged that they entered the service of the ship in that capacity, and entered into a contract with Henry Byers, master.

In the Matter of the Ohio Copper Mining Company, bankrupt. On motion for an order restraining certain parties from taking proceedings in other courts.

Receivership suit by Henry W. Chapman against Mills & Gibb. On petition of Merchants’ National Bank of Providence, R. I. The facts are set forth in a stipulation between the receivers and the bank, and it is also stipulated that the order of this court, determining the questions presented by the stipulation, shall have the same force and effect as if the same were a judgment or decree of a court of competent jurisdiction rendered in a plenary suit or action brought by the…

<p>1. Master and Servant <§=351 — Workmen’s Compensation Act — Election op Remedy.</p> <p>Where, without any agreement or determination by any state tribunal, an injured seaman was paid and accepted the proper amount under the California Workmen’s Compensation Act (St. 1913, p. 279, as amended by St. 1915, p. 1079) for the few weeks for which he was able to produce a physician’s disability certificate, but was paid nothing for the temporary partial disability following the period for which he was paid, though his inability to perform work to which he was accustomed endured much longer, there was no such election to take compensation under the statute as precluded the recovery of damages in admiralty.</p> <p>2. Master and Servant <§=385(1) — Personal Injuries — Evidence.</p> <p>In a suit in admiralty by an injured seaman, who had received the amount of compensation prescribed by the California Workmen’s Compensation Act for a few weeks, evidence held to show that his inability to perform the work to which he was accustomed endured much longer.</p> <p>3. Master and Servant <§=3S2 — Workmen’s Compensation Act — Release— Seaman.</p> <p>An injured seaman, receiving compensation prescribed by the California Workmen’s Compensation Act for a few weeks without agreement or determination, was not precluded from suing in admiralty by a provision in a receipt signed by him that ho thereby released the steamer and Its owners from all further liability, where he supposed he was only signing a receipt for the money then received, had no intention of releasing the ship or its owners, and immediately insisted on something more being done .about his injuries, especially as releases by seamen are never conclusive, except when made knowingly and intentionally and with a full understanding of the situation.</p> <p>4. Master and Servant <3=361 — Workmen’s Compensation Act — Effect on Other Remedies.</p> <p>The California Workmen’s Compensation Act cannot and does not . deprive an injured seaman of Ms right of action in the admiralty court for daiiisiges for injuries caused by the negligence of the shipowner in providing defective appliances.</p> <p>5. Master and Servant ¡3=851 — Workmen’s Compensation Act — Election of Remedy.</p> <p>In view of the provision of the California, Workmen’s Compensation Act that compensation pursuant thereto shall he the exclusive remedy agaiiist the employer for injury, if an Injured seaman subjects himself to the state tribunals, and claims and receives the amount awarded under the act, or if by agreement fairly entered into the amount to be paid under the act is fixed, and he accepts it with full knowledge of the extent of his injuries, he cannot later maintain an action in admiralty for the same injuries.</p> <p><§s^Ifor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Application by Peter Christian Jonasson for naturalization.</p>

<p>Courts <©=>289 — Jurisdiction of Federal Courts — Oases Arising under Federal Laws.</p> <p>An action for freight charges on an interstate shipment is an action arising under the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379), within Judicial Code (Act March 3, 1911, c. 231) § 24, subd. 8, 36 Stat. 1092 (Comp. St. 1916, § 991, subd. 8), giving the District Court original jurisdiction of suits and proceedings arising under any law regulating commerce, as every such action is based upon the act itself, plus the rulings of the Interstate Commerce Commission in fixing rates.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 830.]</p> <p>For other cases see same v>pic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

At Daw. Action by Wells Fargo & Co. against Frank Cuneo. On demurrer by plaintiff to the first affirmative defense and to the counterclaim, and on motion by defendant to dismiss for want of jurisdiction.

<p>Maritime Liens <§=321 — Repairs—Authority op Persons Ordering Repairs.</p> <p>Under Act Juno 23, 1910, c. 373, § 3, 36 Stat. 605 (Cbmp. St. 1916, § 7785), providing, relative to liens for repairs, supplies, etc., that nothing therein shall confer a lien when the furnisher know, or by reasonable dili • gence could have ascertained, that under a charter party, the party ordering the repairs or supplies was without authority to bind the vessel, a party furnishing repairs on a charterer’s order was not entitled to a lien, where it knew of the charter, and by reasonable diligence could have learned of a provision under which the charterer had no authority to bind the vessel, though it acted in the good-faith belief that the vessel was liable.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Gent. Dig. § 26.]</p> <p><gz»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

In the matter of John J. Gannon, bankrupt. On petition to review an order of the referee to compel the surrender by the bankrupt of a life insurance policy, or in the alternative to pay the alleged cash surrender value to the trustee.

<p>In Admiralty. Libel by B. M. Strom against the bark Meteor.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the District of Idaho; Frank S. Dietrich, Judge.</p> <p>Suit in equity by Frank R. McCormick, receiver of the First National Bank of Salmon, against Harry G. King, Norman I. Andrews, George Buck, Guy E. Bowerman, Fred G. Haveman, John Lottridge, and E. S. Edwards. From the decree, complainant appeals.</p>

Clayton, Judge. Mandamus by William H. Jackson, relator, against H. A. A. Smith, Auditor of the Panama Canal. Writ granted, and defendant brings error. The petition for tho writ of mandamus in this case was filed in the District Court of the Canal Zone, Balboa. Division, on April 3, 1916, by William, II. Jackson, relator, against H. A. A. Smith, auditor of the Panama Canal, respondent.

<p>1. Post Office <@=>35 — Fraudulent Use of Mails — Schemes to Defraud.</p> <p>Where defendants were charged with using the mails in furtherance of a scheme to defraud depositors and creditors of a bank by false representations as to its financial condition, the bank’s actual solvency, in the sense of having assets of value in excess of its liabilities and the ultimate collectibility of loans to the bank, was not conclusive against an intent to defraud, as creditors were defrauded, within the meaning of the i/aw, if induced to part with their money by materially false representations o£ the bank’s financial condition and its ability to pay its indebtedness as it matured in regular course, and thereby subjected to substantial risk of failure to recover their money in full.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55.]</p> <p><5r=^For other cases see same topic & KEY-NUMBER in all Key-Numfcered Digests & Indexes</p> <p>2. Post Office <@=35 — Fraudulent Use of Mails — Schemes to Defrahd.</p> <p>Under Penal Code (Act' March 4,1909, c. 321) § 215, 35 Stat. 1130 (Oomp. St. 1916, § 10385), prohibiting' the use of the mails in furtherance of schemes to defraud, the schemes condemned are not confined to devices by which it is intended that the customer shall receive nothing for his money, hut includes schemes to defraud by means of false pretenses, though used in the prosecution of an established business, legitimate if honestly conducted.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55.]</p> <p>3. Post Office <@=49 — Fraudulent Use of Mails — Evidence.</p> <p>On a trial for using the mails in furtherance of a scheme to defraud depositors and creditors of a bank by means of false reports concerning its financial condition, evidence as to tfie financial condition of the bank and the falsity of such reports helé sufficient to support a conviction of such of tfie defendants as knew of the bank’s condition and were connected with such reports.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 81 — 86.]</p> <p>4. Post Office <@=50 — Fraudulent Use of Mails — Questions for Jury.</p> <p>On such trial, evidence helé to make a question for the jury as to the guilt of a director and cashier, who was the bank’s active manager, continuously in the bank, and passing on everything in a banking way, and who personally signed and swore to each of the reports, mailed them to the comptroller, and was not claimed to be unfamiliar with their contents.</p> <p>[Ed. Note. — For other cases, see Post Office, Cént. Dig. §§ 87-89.]</p> <p>5. Post Office <@=49 — Fraudulent Use of Mails — Questions for Jury.</p> <p>On such trial, evidence helé insufficient to make a question for the jury as to tfie guilt of a former director in tfie bank, who claimed not to ' have been a director during any part of the period covered by the alleged fraudulent scheme, though he was indebted to the bank, had overdrafts with it, and adjusted them, once only temporarily, a.t the time the reports were to be made.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86.]</p> <p>6. Post Office <@=50 — Fraudulent Use of Mails — Questions for Jury.</p> <p>On such trial, evidence helé insufficient to make a question for the jury as to the guilt .of the teller in the bank, who was neither a director nor stockholder, and had nothing to do with its financial management, and never owed the bank anything, though on 6ne occasion, at the time a report was to be made, an item was reduced by crediting it to him, instead of to the proper' account.</p> <p>[Ed'. Note. — For other cases, see Post Office, Cent. Dig. §§ 87-89.]</p> <p>7. Criminal Law <@=723(1) — Trial—Improper Argument of Counsel.</p> <p>On a trial for using the mails in furtherance of a scheme to defraud depositors and creditors in a hank by false reports of its financial condition, counsel for the government in his argument said that men connected with bank cases lived in honorable circles, had large acquaintances, and that, by reason of the confidence people fiad in them, their power for good or evil was increased, that in connection with the savings bank, people with their little savings would walk up with their tin buckets and lay their earnings on the counter, that entries would be made in a book, and that after another day, week, or month they would carry in more earnings, and further remarked, in connection with an objection by defendant’s counsel, that such counsel seemed to he out of sympatny with the tin bucket, understood by defendants’ counsel as meaning that they were out of sympathy with labor. Helé, that while the argument and retort, standing alone, might not require reversal, they were sufficiently near the border line to warrant consideration in connection with another alleged error complained of.</p> <p><@=>For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676.]</p> <p>8. Criminal Law <@=>1171(1) — Appeal—Harmless Error — Argument.</p> <p>Though the court did not rule upon an objection to argument, or hold the language improper, reversible error was not committed, unless the matter objected to was plainly unwarranted, and so improper a.s to be clearly injurious to- accused.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127.]</p> <p>9. Post Office <@=>49 — Fraudulent Use of Mails — Evidence.</p> <p>On a trial for using the mails in furtherance of a scheme to defraud the depositors and creditors of the C. Bank by false reports of its financial condition, it was shown that, when reports were to he made, the amount of loans and discounts would be reduced and the amount due from other banks increased, by rediscounting notes with a correspondent bank, which notes would he restored to loans and discounts the next day. Defendants offered to show by S., the cashier and active manager of the C. Bank, that the president of the correspondent hank told him not to refuse to buy paper or make loans because his bank was a small bank, as the correspondent bank, whenever occasion arose, would take over any paper which the C. Bank did not want for a time, or permanently, that he relied on his correspondent taking over loans and discounts at statement times, and took them back to get for the G. Bank the earnings on the increased loans. Meld, that this evidence should have been admitted as having a tendency to repel to some extent the inference of fraudulent intent, as it tended to show that a larger amount of loans was taken than otherwise would have been, in reliance on the fact that the correspondent bank would take such excessive loans, not only over statement day, but for such length of time as the C. Bank might desire.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84-86.]</p> <p>10. Criminal Law <@=>419, 420(11) — Evidence—Hearsay.</p> <p>Proof of the actual conversation with the president of the correspondent bank, so far as it bore directly upon the claimed arrangement, was not hearsay, but was the best evidence of such arrangement.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983.]</p> <p>11. Criminal Law <@=>675 — Reception of Evidence — Fraudulent Use of Mails.</p> <p>The testimony of S. that the president of the correspondent hank said they “would help us in case my loans became too heavy.” and agreed to rediscount paper for him if it became necessary, was a mere conclusion of the witness, and its admission did not justify exclusion of the actual conversation.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 850, 1607.]</p> <p>12. Post Office <@=>49 — Fraudulent Use of Mails — Evidence.</p> <p>S. could properly testify directly to the absence of fraudulent intent and motives on his part.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent Dig. §§ 84-86.]</p> <p>13. Criminal Law <@=>1170(1) — Harmless Error- — Parties Prejudiced.</p> <p>The exclusion of evidence of such conversation was prejudicial, not only to S., but to his codefendants, as, in view of his relations to the hank and to the arrangement in question, they could not have participated in a fraud of which he was not guilty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145, 3149-3152.]</p> <p>dS^For otter cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>14. Post Office <§=>49 — Fraudulent Use of Mails — Evidence.</p> <p>On a trial for using tlie mails in furtherance of a scheme to defraud depositors and creditors of the bank by false reports, evidence of the actual value of the bank’s assets at the time of its failure and during the period covered by the alleged fraudulent scheme is admissible.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 84r-86.]</p> <p>15. Post Office <§=>35 — Fraudulent Use of Mails — Knowledge.</p> <p>The president of a bank, charged with being_ a party to a scheme to defraud its depositors and creditors, in connection with which the mails were used, was not, by virtue merely of his office, charged with knowledge of the contents of the bank’s books; nor was he charged with knowledge of the contents of a report, merely because it was sworn to before him as notary public.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55.]</p> <p>16. Post Office <§=>50 — Fraudulent Use of Mails — Instructions.</p> <p>On a trial for fraudulent use of the mails in connection with reports as to a bank’s financial condition, the jury should have been instructed as to the meaning of insolvency, as involved in the closing of the bank’s doors under the state law, and that the mere fact of such closing and a receivership did not necessarily mean that its liabilities exceeded its assets, having in mind, however, that this latter kind of insolvency was not necessary to the alleged fraudulent scheme.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 87-89.]</p> <p>17. Criminal Daw <§=>1172(8) — Harmless Error — Instructions.</p> <p>An instruction that, if defendants were guilty under the first count, they should be found guilty under all counts, was harmless, if inaccurate, where the sentence given was imposable under any one of the counts.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 3161.]</p> <p>other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Criminal Law <§=>753(2) — Directing Verdict — Evidence to Support One Count.</p> <p>Where there is evidence to support any one count, and the sentence imposed is not moro than the law permits to be imposed under one count, the refusal to direct a verdict is not error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1727, 1729.}</p> <p>2. Post Office @=50— Fraudulent Use of Mails — Questions for Jury.</p> <p>In a prosecution for using the mails in furtherance of a scheme to defraud, by selling stock in and getting deposits for a bank by false representations about its capital and assets, where it appeared that one of the defendants furnished a mercantile agency with a statement which was vitally untrue, but he claimed that he merely gave out what he had been told by others connected with the bank and believed it to be true, the issue of his good faith or fraudulent intent was for the jury.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 87=89.]</p> <p>3. Post Office <§=35 — Fraudulent Use of Mails — Intent.</p> <p>In such prosecution, where the proof showed a number of transactions, which might be interpreted either as careless, improvident, or reckless banking, or as steps in a scheme to misappropriate the assets of the bank, and defraud it or its creditors, the actual intent and the actual belief of defendants as to each transaction was the criterion on which their guilt depended.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 55.]</p> <p>4. Criminal Law <§=839 — Instructions—Erroneous Requests.</p> <p>In such prosecution, defendants were entitled to instructions that their guilt must be judged by their actual intent to defraud, rather than by their carelessness or recklessness in banking, or violation of banking laws, though the instructions requested by them went too far, so that their refusal was technically justified.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017.J</p> <p>5. Criminal Law @=829(3) — Instructions Covered by Those Given.</p> <p>Requested instructions that defendants’ guilt was to be judged by their actual intent to defraud, rather than by their carelessness or recklessness in banking, or violation of banking laws, were not sufficiently covered by the general charge, in which the jury were told to find defendants not guilty if the acts and statements of the officers, directors, or owners o£ the bank were consistent with the conclusion that it was defendants intention to organize and operate the bank in good faith and for an honest purpose, especially where the court, in ruling on evidence, ruled that defendants’ belief was not important, unless it was well founded, and that their carelessness might make them guilty.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011.]</p> <p>6. Criminal Law @=1173(2) — Appeal—Harmlf.ss Error — Instructions.</p> <p>The failure to charge that defendants’ guilt must be judged by their actual intent to defraud, rather than by carelessness or recklessness in banking, or violátion of banking laws, was not prejudicial as to a defendant shown without dispute to have written letters soliciting stock purchases or deposits, and containing false statements as to the capital stock paid in, and shown to have mailed a semiannual statement, requi red by law, which was false in almost every particular, where no plausible justification of such statements was attempted.</p> <p><£=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3165.]</p> <p>7. Criminal Law <@=1173(2) — Appeal—Harmless Error — Instructions.</p> <p>The failure to so charge was prejudicial as to a defendant against .whom no false statement was shown, except one furnished a mercantile agency, as to which his claim of good faith was a question of fact.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3165.]</p> <p>8. Criminal Law <@=1169(7) — Post Office <@=49 — Fraudulent Use of Mails —Evidence.</p> <p>On a trial for using the mails in furtherance of a scheme to defraud in connection with sales of bank stock, and the obtaining of deposits and credit for such bank, evidence of an embezzlement by one of the parties to such alleged scheme, while connected with a different bank, against whom the case had been discontinued, was irrelevant and prejudicial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3142; Post Office, Cent. Dig. §§ 84-86.]</p> <p>9. Criminal Law <@=424(1) — Evidence—Declarations of Conspirator.</p> <p>The statement by a party to an alleged scheme to defraud, in furtherance of which the mails were claimed to have been used, after such scheme was at an end, was erroneous as against other parties to such scheme, even if the rule of evidence in conspiracy cases was to be applied.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002, 1006, 1008,1010.]</p> <p>10. Criminal Law <@=434 — Evidence—Documentary Evidence.</p> <p>The contents of the books of an incorporated bank were not admissible in a criminal prosecution against the president, without a showing of his personal responsibility for the bookkeeping.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1023.]</p> <p>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Charles S. McKelvey and another were convicted of conspiracy, and they bring error. Indictment under Act March 4, 1909, c. 321, § 37, charging plaintiffs in error with a conspiracy to commit acts made an offense by section 215 of the same act; the offense being a conspiracy to cheat, wrong, and defraud certain persons named in the indictment, and to use the United States mail in furtherance thereof.

Action by Robert H. Madden against the Delaware, Lackawanna & Western Railroad Company. .Judgment for plaintiff (234 Eed. 731), and defendant brings error. On writ of error to review a judgment entered upon the verdict of a jury in favor of plaintiff in the sum of $15,064. The action was tried at Utica in the Northern district of New York in February, 1916, before Judge George W. Ray. A motion to set aside the verdict was denied.

<p>Appeal from the District Court of the United States for the Southern District of Texas; Waller T. Bums, Judge.</p> <p>Suit by the Joseph Schlitz Brewing Company against the Houston Ice & Brewing Company and others. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Error to the District Court of the United States for the Northern District of Ohio; John H. Clarke, Judge.</p> <p>Action for penalties by the United States against the Pennsylvania Company. Judgment (237 Fed. 471) for the United States, and defendant brings error.</p>

<p>1. Seamen ©=>11 — Injury or Illness While in Service — Right to Maintenance and Cure.</p> <p>A seaman comes within the rale that he is entitled, within certain limitations, to maintenance and cure at the expense of the vessel or owner, if he “falls sick or is wounded in the servlets of the ship,” if such misfortune happens to him! while attached to the ship as a part of her crew; and it is not necessary that the wound or illness should be directly caused by some proven act of labor, but it is sufficient that he was, when incapacitated, subject to the call of duty as a seaman and earning wages as such.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 39-44, 187.]</p> <p>2. Seamen <5te>2 — Who are Seamen — Injury or Illness in Service.</p> <p>An engineer, even on a harbor tugboat, is a seaman, within the rule which entitles him to maintenance and cure when he is injured or becomes ill in the service of the vessel.</p> <p>[Ed. Note. — For other coses, see Seamen, Cent. Dig. §§ 1-3.]</p> <p>3. Seamen <@=t>11 — Injury in Service — Inability of Vessel for Maintenance and Cure.</p> <p>The liability of a ship for the expense of caring for a seaman who is ill or injured may extend for a reasonable time beyond his term of service, when necessary to effect a cure.</p> <p>[Ed. Nolo. — For other cases, see Seamen, Cent. Dig. §§ 39-41, 187.]</p> <p>4. Seamen <s=»ll — Injury in Service — Liability of Vessel for Maintenance and Cure.</p> <p>Tlie limits of the liability of a ship for the care and cure of an injured or sick seaman, both as. to kind of treatment and time of continuance, must always depend upon the facts of each particular case.</p> <p>[Ed. Note. — For other cases, eco Seamen, Cent. Dig. §§ 39-44, 187.]</p> <p>5. Seamen C^>11 — Illness Contracted in Service — Liability fob Maintenance and Cuke.</p> <p>Libelant, while serving as engineer on a New York harbor tug, engaged chiefly in towing scows to the dumping grounds, became ill and went to his home in New Jersey, where it was found that he had pneumonia, and he was unable to work for 11 months thereafter, being a part of the time in a private room in a hospital, where he had a surgical operation. Shortly after ho left the tug, his wages were sent him. There was a marine hospital, to which he could have been sent; but apparently neither he nor Ms employers considered or thought of it. Held, that, the tug was liable for libelant’s care in the way of maintenance and ordinary medical treatment for a reasonable time, for as long as he would probably have remained in the marine hospital, had he been sent there, but that such liability did not include the cost of a private room in the hospital, nor the surgeon’s charge of $350.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 38-44, 187.]</p> <p>oilier eases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States for the District of Rhode Island; Arthur L. Brown, Judge.</p> <p>Suit in admiralty by Jacob Kazarian against the barge I. I'. Chapman, Thomas J. Scully, claimant. Decree for libelant, and claimant appeals.</p>

<p>1. Criminal Law 032(1) — Appeal—Reservation of Grounds of Review - — Objections to Information.</p> <p>Unless an information is void, an objection that it was not made on the oath of the prosecuting officer, but solely upon oath of witnesses by affidavit, some of which were taken before notaries public, cannot he raised for the first time on appeal, unless a refusal to consider it would shock the judicial conscience.</p> <p>[lid. Note. — For oilier cases, see Criminal Law, Cent. Dig. §§ 2627, 2653.!</p> <p>2. Indictment and Information <s=^>196(4) — Objections—Waiver by Answer.</p> <p>The objection that an information was not made on the oath of the prosecuting officer, but on the oaths of witnesses by affidavit, some of which were taken before notaries public, was purely technical, and was waived by pleading to the information without raising the objection.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 632.]</p> <p>8. Druggists @=>12— Shipment of Misbranded Drugs — Information.</p> <p>An information charging an interstate shipment of drugs misbranded, in that the package and an accompanying circular contained false and fraudulent statements, alleged that the shipment was made by S., the defendant, trading as S.’s Medical Institute, that the name of the article given on the label was S.’s Nerve Compound, and that the representations were false and fraudulent, in that they were applied to such article knowingly and in reckless and wanton disregard of their truth and falsity. Held, that the information sufficiently showed that it was defendant's knowledge and defendant’s wanton and reckless disregard of the truth that was intended to bo charged, especially in view of Rev. St. § 1025 (Comp. St. 191.6, § 1691), providing that an indictment shall not be affected by any defect or imperfection in matter of form not prejudicing defendant.</p> <p>[Sd. Note. — For other cases, see Druggists, Cent. Dig. § 11.]</p> <p>4. Indictment and Information <S==>71— Sufficiency of Accusation.</p> <p>The rule applicable to an information is no less liberal than that prescribed for indictments by Rev. St. § 1025, and its averments of facts constituting the offense need be only so certain and specific as fairly to inform defendant of the crime intended to he alleged, and to make' the judgment a complete defense to a second prosecution for the same offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ Ml, 174, 193, 19-1.]</p> <p>5. Druggists 2— Shipment of Misbranded Drugs — Information.</p> <p>An information for shipping drugs misbranded, in that the label of the package containing the drug and an accompanying circular contained false and fraudulent statements regarding their curative effect, alleged that the shipment consisted of certain packages, that the packages contained the circular or pamphlet described, and that one of the alleged misrepresentations appeared on the label, and the other was included in such circular'. Held, that it sufficiently alleged that the misrepresentations charged were intended to accompany the bottles containing the drugs into the hands of the consumers.</p> <p>C=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 11.]</p> <p>6. Druggists <@=»12 — Shipment of Misbranded Drugs — Evidence.</p> <p>In such prosecution, evidence as to the falsity of the representations and defendant’s knowledge thereof held to justify the denial of a directed verdict.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 11.]</p> <p>7. Druggists <®=>12 — Shipment of Misbranded Drugs — "Remedy.”</p> <p>The term “remedy,” used in connection with drugs claimed to have been misbranded by reason of false statements concerning their curative effects, implied a curative tendency, though not guaranteeing a cure.</p> <p>[Ed. Note. — For other cases, see Druggists, Cent. Dig. § 11.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Remedy.]</p> <p>(g^For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p>

Safer, Judge. Action by the Camden Iron Works Company against the City of Cincinnati. Judgment for plaintiff for an insufficient amount, and it brings error. On motion 4o dismiss proceedings in error.

C. Van Fleet, Judge. Action by J. W. Chapman and another, copartners as Chapman & Thompson, against the Java Pacific Fine and others. Judgment for defendants, and plaintiffs bring error. The plaintiffs in error were the plaintiffs in the court below. The parties herein will be designated plaintiffs and defendants. The action was brought to recover damages for breach of a. shipping contract.

Suit in admiralty for collision by Henry Crew and others, owners of the steam tug William F. Reed, against the steam tug Leonard J. Busby; the Wright & Cobb Lighterage & Transportation Company, claimant. Decree for libelant, and claimant .appeals.

<p>1. Husband and Wife <@=>267(8) — Community Property — Conveyance—Innocent Purchasers.</p> <p>Though land conveyed to a married man in 1838 was deemed to be community property under the laws of Texas, and though the children of the wife inherited her interest, where the apparent legal title to all the land was in the husband, an innocent purchaser for value from the husband would be protected against the claims of the wife’s heirs.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 890, 934.]</p> <p>2. Husband and Wife <@=>267(8) — Community Property — Conveyance—Innocent Purchasers.</p> <p>A mere quitclaim or transfer of a chance of title will not protect a purchaser of community land from the husband, under the rules for the protection of innocent purchasers.</p> <p>■ [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 934.]</p> <p>3. Vendor and Purchaser <@=>224 — Bona Fide Purchaser — Nature of Instrument.</p> <p>A deed conveying all of the grantor’s title, interest, and estate in a tract of land known as the headright of L., namely, the lower or southern half of such league of land, and the northeastern quarter thereof, containing 3,321 acres, to have and to hold “the said 3,321 acres,” and containing a general warranty binding the grantors to defend the'land, was not a, mere quitclaim, notwithstanding the use of the words “title” and “interest,” and the grantee was entitled to the protection accorded innocent purchasers.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473.]</p> <p>^3»Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Appeal from the District Court of the United States,for the Southern District of New York.</p> <p>Suit in admiralty by the National Steam Navigation Company, Eirriited, of Greece, against the International Paper Company. Decree for libelant, and respondent appeals.</p>

<p>Appeal from the District Court of the United States for the East■ern District of Pennsylvania; Oliver B. Dickinson, Judge.</p> <p>Suit in admiralty by Jacob Nellemenn and Michael Jorgensen against the steamship London; Christian Larsen, master. Decree for respondent, and libelants appeal.</p>

Morton, Judge. In the matter of William B. Frost, bankrupt. Maxham E. Nash, trustee, and others, appeal from an order allowing the claim of John W. Brittan, executor.’

<p>1. Patents <S==>327 — Suits for Infringement — Effect of Prior Decisions. .</p> <p>The decision of a Circuit Court of Appeals sustaining the validity of a patent under the ordinary rule will be followed in other circuits where substantially the same state of facts is presented, but where there is new evidence it will be considered, and the court will exercise its independent judgment.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 620-625.]</p> <p>2. Patents <§=»328 — Invention—Concrete Arch.</p> <p>The Thacher patent, No. 617,615, for a reinforced concrete arch, is void for lack of patentable invention, in view of the prior art.</p> <p><©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>1. Courts <§=>508(1), 526 — Injunction-—Subjects of Eeuei — Prosecution oe Pendí no Suits.</p> <p>It is tlie general rule that one will not he restrained, by injunction from proceeding with a pending suit in equity in the courts of another jurisdiction, either state or federal, unless it clearly appears that complete relief cannot be obtained in such pending suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1418, 1449.]</p> <p>2. Courts <§=526 — Subjects op Remep — Prosecution op Pendino Suits.</p> <p>The owner of a patent recovered a decree against the manufacturer of infringing machines, with an accounting for profits. Pending the case it also commenced a suit against a jobber, to which the manufacturer had supplied infringing machines, which resulted in a decree, with a reference for an accounting. Held, that there was no ground upon which a court of another jurisdiction could properly enjoin such accounting' at suit of the manufacturer; the matter being one to be dealt with by the court in which the infringement suit was pending.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1449.]</p> <p><§=For other cases see samo topic & KEY-NUMBER In all Key-Numbered Digests & Indexes</p>

<p>In Bankruptcy. In the Matter of the Gibney Tire & Rubber Company, alleged bankrupt. On motion to vacate adjudication.</p>

At Law. Action by Katherine Kever, widow of George Kever, deceased, against the Philadelphia & Reading Coal & Iron Company. On motion by defendant for leave to reinstate its answer. Motion granted.

<p>1. Constitutional Daw ©=93(1) — Waters and Water Courses ©=128— Natural Water Courses — Statutory Regulation of Use.</p> <p>The Nevada Water Law of March 22, 1913 (St. 1913, c. 140), as amended in 1915 (St. 1915, c. 253), in providing that existing water rights acquired before its passage shall be ascertained and determined first by tbe state engineer and afterward by the district court as therein prescribed, is not unconstitutional, as depriving the holders of vested rights; but such provision is a proper and necessary one, to enable the state to ascertain and delimit new lights to be acquired under the act, and is within the legislative power.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 372-379.]</p> <p>2. Waters and Water Courses ©=128 — Use of Water from Streams— State Regulation.</p> <p>The appropriation for use of water from a stream, although the rights acquired thereby are recognized by both federal and state governments, is subject to regulation and control by the state, which in the exercise of its police power may provide efficient regulations covering the distribution and use of such water.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig § 143.]</p> <p>©sFor other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes</p> <p>3. Courts @=>366(1) — Federal Courts — Following State Decisions.</p> <p>IC the question of the validity of a state statute involves merely its conformity to the state Constitution, the decisions of the highest court of the state are final and conclusive, and a federal court, is reluctant to declare a state statute invalid on that ground before the question has been considered and determined by the state tribunal.</p> <p>LEd. Note — For other cases, see Courts, Cent. Dig. §§ 956, 957, 967.]</p> <p>4. Constitutional Law @=>42 — Determination oe Validity oe Statutes — • Right to Question Constitutionality.</p> <p>The court will hear only those objecting to the constitutionality of a statute who are affected by its alleged unconstitutionality in the particulars complained of.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40.]</p> <p>5. Constitutional Thaw @=>80(1) — Statute Regulating Use oe Water — • Constitutionality.</p> <p>The Nevada Water Law of March, 22, 1913, as amended by St. Nev. 1915. c. 253, confers upon the state engineer supervisory power over the distribution and use of water from the streams of the state. As incidental to the exercise of such power it authorizes him, on notice to all parties in interest and after making surveys-and maps of a stream and on a hearing, to ascertain and determine the rights of users of water from1 the stream. He is then required to file his order of determination, with the original evidence and transcript, with the district court, to apply to the court to have the matter set down for hearing and serve notice on ail parties in interest. Pending the hearing, distribution of water is to he made in accordance with his order, unless a stay bond is filed and approved by the court. The order, claims of claimants, and exceptions to the order constitute the pleadings on which the .case is to proceed as nearly as may he in accordance with the rules governing civil actions, and iipon the evidence taken before the engineer and such further evidence as may be offered the court is to render a final decree determining the rights of users of water from the stream), from which decree an appeal m'ay be taken to the Supreme Court, field, that such provisions for hearing and determination by the state engineer are not in violation of article 3, § 1, of the state Constitution, as conferring judicial power on an administrative officer, since his determination has none of the finality of a judgment, but is merely a preliminary step in the proceeding which culminates in a final decree of the district court.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent Dig. §§ 340, 143, 147.]</p> <p>6. Constitutional Law @=>318 — Due Process oe Law — Proceedings under Nevada Water Law.</p> <p>The provisions of said act for notice and hearing, with the right to file exceptions to the determination of tile engineer, even by those who fail or refuse to appear or submit evidence, are sufficient to constitute due process of law, and the act is otherwise constitutional.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 949.]</p> <p><£=^For other cases see same topic & KEY-NUMBER. in all Key-Numbered Digests & Indexes</p>

<p>1. Electricity <§=>9(3) — Rights in Streets — Municipal Regulation.</p> <p>Conceding tbat a public necessity could exist justifying a city in requiring tbe removal and relocation of an electric lighting company’s poles and instrumentalities in order tbat it might install a municipal lighting system, no such necessity exists, where there are several companies engaged in furnishing electricity in “the city and to its inhabitants, as it will be assumed tbat tbe city can compel such companies to furnish sufficient light for its inhabitants at a fair and reasonable remuneration.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 4.]</p> <p><g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-</p> <p>2. Evidence @=22(1) — Judicial Notice.</p> <p>The court will take judicial notice that there are several companies engaged in generating and furnishing electrical energy in the city of Los Angeles and to its inhabitants.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. § 26.]</p> <p>8. Municipal Corporations @=589 — Policio Power — Nature.</p> <p>Whatever a city does under the guise of the police power, it does m its governmental capacity; the police power being the power to govern.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1308, 1319.]</p> <p>4. Electricity @=1% — Furnishing by City — -Governmental or Corporate Capacity.</p> <p>Whatever a city does in engaging in the furnishing and delivering- of electrical energy to itself and its inhabitants is done in its proprietary or quasi private capacity.</p> <p>5. Electricity @=9(3) — Bigots in Streets — Municipal Regulation.</p> <p>Where an electric lighting company under a franchise is maintaining its poles and instrumentalities in the streets of a city, the city cannot exercise its governmental power to compel the removal and relocation of such poles and instrumentalities in order that it may, in its proprietary or quasi private capacity, install a municipal lighting system, since, when acting within the domain of its proprietary capacity, it may not draw power to itself through an assumption of public and governmental functions.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 4.]</p> <p>6. Electricity @=9(3) — -Rights in Streets — Municipal Regulation.</p> <p>While an electric lighting company, maintaining its poles and instrumentalities in the streets of a city under-a franchise, acquires no right under such franchise to maintain them at any particular place on the public streets, it acquires a right of priority, preventing the city from compelling the removal or relocation of such instrumentalities in order that a competitor of later origin may take their place.</p> <p>[Ed. Note. — For other cases, see Electricity, Cent. Dig. § 4.]</p> <p>7. Constitutional Law @=134 — Eminent Domain @=2(1) — Taking Property without Compensation — Impairment op Contracts.</p> <p>For a city to require an electric lighting company occupying the streets with its poles and instrumentalities to relocate them at its own expense, in order that the city may install a municipal lighting system, constitutes an appropriation of the company’s property without 'compensation and an impairment of the contractual right accorded to it by its acquisition and acceptance of a franchise to perform the public service in which it is engaged.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 344; Eminent Domain, Cent. Dig. §§ 3-8.J</p> <p>@=For other cases seo same topic & K12Y-NUMBBK in all Key-Numbered Digests & Indexes</p>

In Bankruptcy. In the matter of the bankruptcy of the Colwell Lead Company. On petition of the American Enameling Company to set off as against interest due on a mortgage a judgment rendered against the bankrupt.

Rib el of forfeiture by the United States against One Blue Taffeta Evening Coat, etc.; Charlotte A. Warren, Evelyn Byrd Burden, and Gwendolyn Dows, claimants. On exceptions to libel. This cause comes up on exceptions to a libel of forfeiture against certain wearing apparel brought by the claimant, Charlotte A. Warren, from France to this country on the 10th day of November, 1915, on the steamship Espagne.

Suit by William B. Edwards against Patrick H. Bodkin. On motion to dismiss the complaint. By amended bill of complaint in equity plaintiff: alleges, among other things, that on July 17, 1902, the Secretary of the Interior, under the “second form” of withdrawal under the “Reclamation Act” of June 17, 1902, withdrew a certain quarter section lying along the Colorado river in California. On the 1st of December following plaintiff made a homestead entry of said land.

<p>In the Matter of W. S. Kuhn & Co., bankrupts. On review of an order of the referee.</p>

In Equity. Suit by Louis Karasik and others, as trustees of the Eranklin Brewing Company, bankrupt, against the People’s Trust Company, individually and as trustee under a certain alleged mortgage. On objection to the jurisdiction.

<p>In Admiralty. Suit by the lighter Peslk against the Armstrong & Patta Company and others.</p>

<p>1. Criminal Law @=878(3) — -Several Counts — Acquittal—Using Mails to Defraud.</p> <p>Where an indictment for using the mails in furtherance of a scheme to defraud contained a number of counts, each charging the mailing of a letter, but on different dates, an acquittal on some of the counts does not negative the charge of having on a prior date devised the scheme to defraud, since the acquittal may have been on tbe sole ground that the proof failed to show the mailing of the letters by defendant.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2100.]</p> <p>2. Criminal Law @=>395 — ¡-Evidence—Documents Illegally Obtained.</p> <p>That papers which are pertinent to the issue may have been illegally taken from the possession of the party against whom they are offered is no valid objection to their admissibility.</p> <p>[Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. § 877.]</p> <p>3. Post Office <§=50 — Prosecution for Using Mails to Defraud.</p> <p>An instruction, given on the trial of an indictment for using the mails to defraud, that, if the fraudulent intent was in the mind of the defendant before the mailing of any one of the letters mentioned in the indictment, such fraudulent intent was sufficiently established, hold not erroneous.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. §§ 87-89.]</p> <p><§^?For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

Suit in admiralty for collision by John E. Hurley against the steam tug William A. Jamison, William A. Jamison and others, claimants, and the steam tug Francis J. Reichert, the Reichert Towing Túne, Incorporated, claimant. Decree against the Reichert alone, and the other parties appeal.

Appeals from the District Court of the United States for the Eastern District of New York. Cross-suits in admiralty for collision between the New York Central & Hudson River Railroad Company, as owner of the ferryboat Rochester, and the Delaware, Eackawanna & Western Railroad Company, as owner of the steam tug Washington. Decree against the Rochester, and its claimant appeals.

<p>Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; John F. Sater, Judge.</p> <p>Suit in equity by Edward W. Blum against the Bumiller-RemelinCompany. Decree for defendant, and complainant appeals.</p>

In Equity. Suit by Samuel M. Kintner and Halsey M. Barrett, receivers of the National Electric Signaling Company, against the Atlantic Communication Company, August Merchens, P. C. Schnitzer, and K. C. Frank. On final hearing.

In Equity. Bill by the Pressed Steel Car Company against the Union Pacific Railroad Company for discovery in aid of an action at law. On motion to strike out answer. Motion to strike out the answer of the defendant to the plaintiff’s bill of discovery. The bill alleged that the plaintiff had commenced an action at law in this court, which was still pending and at issue, and annexed a copy of the complaint.

<p>Seamen <®=»29(1) — Liability eor Injuries — Fellow Servants — “Seaman ■ Having Command.”</p> <p>Where the work of lashing a deck load of lumber was directed by the boatswain and he adjusted a hook, put a ring in place, and inserted a nail to hold it in place instead of a split pin, customarily used, he was a “seaman having command” within Act March 4, 1915, c. 153, 38 Stat. 1164, providing that seamen having command shall not be held to be fellow servants with those' under th§ir authority, and the vessel was liable for injury to one of the seamen engaged in the work, caused by the nail slipping out and releasing the ring, especially where no pins were provided and it was necessary to use nails.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188, 191.</p> <p>, For other definitions, see Words and Phrases, First and Second Series, Seaman.]</p> <p><gss>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>In Admiralty. Suits by Jacob A. Kirsch, by P. Pastene & Co., Incorporated, and by Nathan Kronman against the steamship San Guglielmo.</p>

In Bankruptcy. In the matter of Archibald A. Gracey, .bankrupt. On petition by one Flack and another for review of an order of the referee.

<p>Aliens <s=»6i — 'Naturaltzation-—Alien Enembís — Application Prior to Declaration op War.</p> <p>A subject, of the Imperial German Government, wbo has resided in the United States the required, length of time, and who filed his petition for naturalization before the declaration of war with the German government, is not debarred from admission to citizenship since such declaration by Rev. St. § 2171 (Comp. St. 1916, § 4362), which provides that no alien citizen ox- subject of any country with which the United States is at war “at the time of his application shall be then admitted to become a citizen of the United States.”</p> <p>LEd. Note. — For other cases, see Aliens, Cent. Dig. §§ 119-122.]</p> <p><£»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

<p>Pleading <3==>3(!9(2) — Election Between Causes of Action.</p> <p>In an action for breach of a contract, where only a single breach is alleged, though as matter of evidence the breach may be shown to consist in a refusal to pay the amount earned by plaintiffs upon performance, or in defendant’s interference or default preventing performance, plaintiff's will be required to elect between two separate statements of a cause of action, or, at their option, to amend their petition, since, while separate causes of action may be set up in the same petition, and alternative causes of action, upon which only a single recovery can be had, may be set up, this ruLe does not apply where there is only one cause of action.</p> <p>[Ed. Note. — Dor other cases, see Pleading, Gent. Dig. § 1199.]</p> <p><§=For other oases see same tonic & KEY-NUMBER in all Key-Numbered Digests & Indexes</p>

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

<p>In Error to the District Court of the United States for the Eastern District of. Louisiana; Rufus E. Foster, Judge. Action by the Cen-</p> <p>tral National Bank of Battle Creek, Mich., against the Interstate Trust & Banking Company. Judgment for defendant, and plaintiff brings error.</p>

<p>In Error to the District Court of the United States for the Northern District of Mississippi; Henry C. Niles, Judge.</p>

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

<p>In Error to the District Court of the United States for the Eastern Division of the Southern District of Mississippi; Henry C. Niles, Judge.</p>

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

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

Appeals from the District Court of the United States for the Southern District of New York. The following is the opinion of Veedor, District Judge, in the lower court; “Exceptions in admiralty open the entire record. Among the defenses excepted to is the assertion that the outbreak of war between Groat Britain and Germany renders further performance of these contracts illegal during the continuance of hostilities, in view of which this court should not exercise jurisdiction.

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

<p>In Error to the District Court of the United States for the District of New Hampshire; Edgar Aldrich, Judge. Action by Thomas Stewaxt against the Boston & Maine Railroad. Judgment for plaintiff (229 Fed. 862), and defendant brings error.</p>